Satish Kumar vs Zile Singh and Another

G.C. Mittal, J.—On 24-9-1979 at about 8.30 P.M. there was a collusion between tractor trolly No. HRJ--5623 and Auto Rickshaw No. HYA 6875 coming from opposite directions, near Prem Nagar between Ambala City and Ambala Cantt. Satish Kumar aged 26 years, a passanger of the Auto-Rickshaw, received injuries. One of his leg was fractured. According to P.W. 5, he was admitted in P.G.I., Chandigarh thrice and was operated upon six times. Last time he was discharged on 20-8-1981 and the opinion of the Doctor was that he had lost 75 per cent of his earning capacity.

He filed a claim petition before the Motor Accident Claims Tribunal for the award of Rs. 40,000/-. The owner of the Tractor trolly denied the accident and pleaded that he was falsely implicated. The parties want on trial on the following issues:

(1) Whether the petitioner received injuries on account of the rash and negligent driving of the vehicle No. HRJ-5623 by respondent No. 1?

(2) To what amount of compensation, if any, the claimant is entitled?

(3) Relief.

By award dated 24-8-1981 the Tribunal came to the conclusion on issue No. 1 that the tractor trolley was not involved in the accident and under issue No 2 it found that the total compensation payable to the claimant would come to Rs. 75,000/- but as the claimant has laid claim only for Rs. 40,000/- that amount was justified in the circumstances of the case. However, in view of finding on issue No. 1, the claim petition was dismissed and this is claimant''s appeal.

After going through the evidence on the record and bearing the learned Counsel for the parties. I am of the view that the decision of the court below on issue No. 1 deserves to be reversed. On 25-9-1979, the F.I.R. No. 427 was recorded at 7.45 P.M. on the statement of Surinder Kumar eye-witness, driver of the Auto-Rickshaw, wherein the registration number of the tractor trolley was correctly recorded. Regarding the description of the driver of the tractor trolly, it was mentioned that he was a sardar gentleman. This person appeared as P.W. 6 and before the Tribunal identified the respondent present in court as the person who was driving the tractor trolly. It is true that the driver of the tractor trolly is not a sikh gentleman but be wears turban and that is why when the accident took place at night time the driver of the Auto-Rickshaw, while getting the F.I.R. recorded, said that the driver of the tractor trolly was a sardar. I do not think any capital could have been made from this small discrepancy which stands explained because of the fact that the driver of the tractor trolly wears turban.

The Tribunal was also moved by the fact that it was in evidence that the driver of the Auto Rickshaw had stated that Darshan Singh and a constable had followed that tractor trolly in the Auto Rickshaw of Bagga and on return Bagga and Darshan Singh gave the number of the tractor trolly. Since for the number of the tractor trolly P.W. 6 depended on the information furnished to him by Bagga and Darshan Singh, the Tribunal was of the opinion that Bagga and Darshan Singh should have been produced. On peculiar facts of this case, I am of the opinion that it was not absolutely necessary to produce Bagga or Darshan Singh to get the number of the tractor trolly involved in the accident verified. The accident took place between Ambala City and Ambala Cantt. Whereas according to the owner and driver of the tractor trolly, he belongs to Tehsil Narwana, District Jind and his stand in the written statement was that on the date of accident, he was nowhere near Ambala City or Ambala Cantt. If that was so, then he could have produced evidence that on the date of accident his tractor trolly was at such and such place in Tehsil Narwana but he has not done so. He has also not given any reason as to why he was being involved in the accident if he was nowhere near the scene of occurrence. For all these reasons, I place reliance on the statement of Sjrinder Kumar (P.W. 6) and hold that the tractor trolly owned and driven by Zele Singh respondent was involved in the accident due to which the claimant received severe injuries on his leg and he became 75 per cent incapacitated. The decision of the Tribunal on issue No. 1 therefore, stands reversed with the aforesaid findings.

Adverting to the quantum of compensation, the claimant himself sought an award of Rs. 40,000/-. During the trial and during the conclusion of the case before the Tribunal, amendment of the claim petition was not sought. The appellant came to this Court in 1982 and the appeal was dismissed as time barred against which the claimant went to the Supreme Court where the claimant''s appeal was allowed on 14 4-1986, the delay was condoned and the case was remanded for decision on merits. On 1-8-1986, this Court admitted the appeal. It is long thereafter that the application dated 27-5 1988 was filed for amendment of the claim petition to claim enhanced compensation of Rupees four lacs. The application was ordered to be heard along with the appeal.

On the peculiar facts of the case, I do not consider it just and pro per to allow the amendment of the claim petition after such an inordinate delay. Moreover, if the tractor trolly had been insured, lenient view might have been taken. But here the owner of the tractor trolly is not so rich. Even Rs. 40,000/- and interest thereon may be difficult for him to pay but since he is involved in the accident, he will have to pay at least this much. Accordingly I decline to grant the application for the amendment of the claim petition.

For the reasons recorded above, this appeal is allowed and an award for Rs. 40,000/- with 12 percent interest per annum thereon from the date of filing of the claim petition till payment, is passed. However, the parties are left to bear their own costs.