Satyanarain vs Dharambir Alias Hari Singh and another

Pritpal Singh, J.—The appellant Satya Narain was taking part in a cycle-race on September 15, 1983 from Hissar to Hansi. A police jeep belonging to the Haryana State, respondent No. 2, and driven by Dharambir, respondent No. 1 came from the opposite side. An accident took place between the jeep and the appellant''s cycle in which the appellant sustained injuries. He filed an application u/s 110-A of the Motor Vehicles Act claiming compensation of Rs. 40.000/- from the respondents on account of the injuries suffered by him. The Motor Accident Claims Tribunal, Hissar, dismissing the application on the finding that actually the appellant was at fault and had dashed his cycle against the police jeep. Against this order of the Tribunal, dated October 30, 1981, the instant appeal has been filed by Satya Narain.

The appellant''s case in the claim application is that he was going on his left hand side of the road. The police jeep driven rashly and negligently struck against him causing him multiple injuries. Dharambir Driver in his written statement, denying the appellant''s allegation, pleaded that the appellant was driving his cycle at a high speed, lost control over it and struck it against the police jeep. The point for determination is as to which of the two versions is true.

Admittedly, the appellant was taking part in a cycle race. In support of his contention he produced two other participants in the race, namely, Raju (PW-4) and Rohtas (PW-5). Both of them stated that the appellant was not at fault and that actually the police jeep, which was being driven rashly and negligently, struck against the appellant''s cycle. The testimony of these witnesses must be taken with a pinch of salt. Raju (PW-4) is the brother of the appellant and Rohtas (PW-5) is a friend of Raju. The appellant and these two witnesses had together joined the race. In such circumstances the statements of these witnesses cannot be considered to be independent testimony. Since they were participating in a race, it can be safely assumed that the appellant must be driving the cycle at a fast speed and may not be in total control of the vehicle. However, the statement of the driver Dharambir (RW-1) indicates that he was also not totally blameless. He deposed that while coming on the jeep from the opposite side he saw 8 or 10 cyclists coming towards him side by side on the road. When he saw this, it was his duty to preferably stop the jeep on the left side of the road or at least slow it down considerably. However, he admitted that when the accident took place he was driving at a speed of 35 K.Ms per hour. He did not even state that he had taken the precaution of swerving the jeep towards the extreme left side of the road.

Reliance has been placed by the respondents on the statement of the appellant recorded by A.S I. Ganga Sahai (RW-2) (Exhibit R.C.). In this statement the appellant is said to have admitted that the accident was not due to any fault of the driver Dharambir respondent. It is slid that in view of this statement the appellant is not entitled to any compensation. I am unable to agree with this contention. A.ST. Ganga Sahai (RW-2) stated that he went to Civil Hospital, Hissar, where the appellant was admitted after the accident and he recorded his statement (Exhibit R.C.). When the statement was confronted to the appellant in cross-examination he denied having made it. He said that he did not make any statement before A.S.I. Ganga Sahai. In such circumstances it is difficult to hold that the statement (Exhibit R. C.) was in fact made by the appellant to A S I. Ganga Sahai (RW-2). The appellant had met with an accident with a police jeep It was, therefore, quite natural for the police officials to have tried to give shelter to the driver Dharambir. The preponderance of probability is that the statement (Exhibit RC) was prepared by A.S.I Ganga Sahai (RW-2) simply to help the jeep driver. It cannot be Jost sight of that this statement is said to have been recorded in the hospital If the appellant had genuinely made this statement to the said police officer, the latter sought to have got it attested from the doctor under whose treatment the appellant was at that time. There is no explanation as to why A.S.I. Ganga Sahai (RW-2) did not ensure the credibility of this statement by recording it in the presence of the doctor. In these circumstances the statement (Exhibit RC) cannot be safely relied upon.

In my opinion it is a case of contributory negligence and the Tribunal erroneously held that the accident had taken place entirely due to the fault of the appellant.

In such a situation the quantum of compensation to which the appellant is entitled has to be computed. Dr. S.K. Batta (PW 3) proved that the appellant had suffered multiple injuries including fracture of the shaft left lower humerus. In the opinion of Dr. N.S. Chadha (PW1) due to this fracture the appellant has suffered 10 per cent permanent disability. It is, therefore, clearly established that the appellant''s earning capacity has been reduced by 10 per cent. Although the appellant had stated that he had spent about Rs. 3000/- on his treatment, but this plea does not appear to be true because the doctors have clearly stated that due to the low income of the appellant he was given free treatment. The appellant has not adduced any independent evidence to prove any expenditure on his treatment.

The appellant has stated that his income was Rs. 300/- per month. However, in the Civil Hospital, Adampur, he had declared his income to be Rs. 110/- per month. This is so stated by Dr. S.K. Batta (PW 2). Banarsi (PW 6) is employer of the appellant and he tried to support the latter by stating that he had been paying Rs 300/- per month to him. He sells sweets on a rehri and he stated that he has also employed the appellant''s brother Raju (PW 4) at the rate of Rs. 150/- per month. There seems to be no reason as to why he would pay Rs. 300/- to the appellant when he was paying Rs. 150/- to the appellant''s brother. It appears that the appellant had given out his correct income in the Civil Hospital, Adampur, while filling up the requisite form. I would, therefore, hold that the appellant was earning Rs. 110/- per month.

As mentioned above, the appellant has suffered 10 per cent disability due to the accident. The loss of his earning can, therefore, be estimated at Rs. 11/- per month. He was about 18 years old at the time of accident, therefore, the loss of earning can be evaluated by applying the multiple of sixteen upon the yearly loss which comes to Rs. 2300/-. To this amount must be added Rs. 1500/-as compensation in lieu of pain and sufferings suffered by him. The total amount of compensation in this way can be evaluated at Rs. 3800/-. On account of the contributory negligence on the part of the appellant he is found to be entitled to compensation of Rs. 1900/- which can be rounded off to Rs. 2000/-.

In this view of the matter, this appeal is allowed with costs and the respondents are directed to pay Rs. 2000/- as compensation to the appellant allong with interest at the rate of 12 per cent per annum from the date of application till payment. Costs of the appeal are quantified at Rs. 300/-.