Smt. Shanti Devi vs Sh. Balbir Singh and Others

K. Kannan, J.—Both the appeals are related to the same accident. FAO No. 2409 of 1994 is for death of a male aged 19 years, who was a pillion rider in a motor cycle and FAO No. 2410 of 1994 is a claim for injuries suffered in the accident, who was yet another pillion rider. The motor cycle was being driven by one Birkha Ram from Barana and, according to the claimants, the vehicle had come on the main road from the side road when the insured truck coming from Pipli and going towards Karnal dashed against the motor cycle from the rear side and caused accident. That resulted in fatal injury to one and grievous injuries to another.

The Tribunal held that it was only motor-cyclist who was responsible for the accident but since the rider of the motor cycle had not been impleaded as party, the Tribunal dismissed the petition.

I have seen the rough sketch that shows the location of the person who stood as eye witness, which is the corner of the road at the point from where the road Barana joins the main G.T. road. The point of impact of the motor cycle where the scooter stood stationed was relatively on the right side for a vehicle coming from Pipli and the body of the person who had fallen was noted at point ''C'', which was at a middle or left of the middle of the road. While the contention of the claimants were that the driver of the truck alone was responsible, the driver examined himself and gave his own version that the rider of the motor cycle dashed against the truck without waiting for the truck to go along with the main road. He failed to exercise caution as a person who was coming from the side road into the main road. The Tribunal accepted this version of the driver of the truck and dismissed the petition.

It must be noticed that the claim emanates not from the tort-feasor himself, if the motor cycle was to be taken as tort-feasor. As far as the claimants were concerned, it was a case of composite negligence where there was a collision of a motor cycle with the truck. The point of impact and the position where the motor cycle and the dead body were located on the road at the time when the sketch was drawn would make it appears that the rider of the motor cycle was actually coming on to the main road from the side road. The negligence of the driver of the motor cycle was evident but I cannot wash off any responsibility for the driver of the truck as well. Any person driving on the main road, as he approaches any inter-section or T-section, should exercise appropriate care and slow down to ensure that another person coming from the side road has already entered the main road and to draw appropriate caution in his driving so that he caused no collision. A greater circumspection on the part of the driver of the truck would have definitely prevented the accident. I shall be reluctant to draw an inference of the proportion of liability between the motor cyclist and the driver of the truck, not because the evidence is inadequate but because it is legally in exigent to make a finding of guilt of one person without the person being a party to the proceedings. The claimants were entitled to do what they did, of suing any of the tort-feasors consistent with their pleading that it was driver of the truck who was responsible. If the driver of the truck had a case that the motor cyclist himself was at fault, he should have taken steps to ensure that the owner and the driver of the motor cycle had also been made a party. This point is invariably missed at the time of the trial of the motor accident cases. It is assumed by party that as usual in a normal civil suit, the plaintiff would stand or fall by his own pleadings. Such rigid structuring of pleadings shall not be made in motor accident cases. The Tribunal itself has a duty to ensure that all the parties who could be made liable are brought or impleaded and adjudication is made in the presence of all of them. If the Tribunal found that the driver of the motor cycle was not made a party, it committed a mistake in not making a suo-motu impleadments, instead finding an excuse to dismiss the petition itself. It must be remembered that a motor accident is not an adversarial litigation where right of one party is pitched against another. The court will apply its own discretion to see that a case is not dismissed for any technical reason. What I say of the court shall better describe the contentions of the insurer and the owner/driver of the truck as well. They should have seen that it was impossible to write off a case of total lack of negligence for the driver. If there was some modicum of negligence on his part, he should have known that the liability could be legally fastened wholly on him, if only the other tort-feasor was not a party. The insurer in this case rested comfortably on its plea that the driver of the motor cycle should be made as party. It failed to note that apportionment of the liability shall be possible to the benefit of the insurer only, if the driver of the motor cycle was made a party and to that extent the duty was on the truck owner and the insurer and not on the claimants who had a right of enforcement against any of them.

I find, therefore, the dismissal of the petition to be erroneous and the court should have noticed that the driver of the truck was also responsible and to that extent casting entire liability even in the absence of the driver of the motor cycle was perfectly legal and tenable. I will set aside the finding of the Tribunal regarding exoneration of the insurance company and proceed to determine the compensation as under:-

In FAO No. 2409 of 1994 it is contended that the deceased was 19 years, a labourer earning about Rs. 1200/-. The accident took place on 14.6.1992. I will take the income with all prospects in increase at Rs. 1800/- and take a contribution to the mother and apply a multiplier of 18 to take the loss of dependence at Rs. 1,94,200/- I will further add Rs. 50,000/- for loss of love and affection and add another Rs. 6,000/- towards funeral expenses and loss to estate. There shall be award of Rs. 2.5 lakhs with interest @ 7.5% from the date of the petition till the date of payment. The amount determined already under no fault liability shall be deducted and the balance with interest enforceable against the insurer.

In FAO No. 2410 of 1994 the claimants were alleged to have received four injuries including fracture of left arm and clavicle bone. There was no documentary evidence to establish such injuries. The MLR merely showed four lacerated injuries. In the absence of any specific evidence regarding the nature of the injuries, I take compensation payable for pain and suffering shall be Rs. 5,000/- for four injuries and there shall also be interest @ 7.5% from the date of the petition till the date of payment.

The insurance company is at liberty to file its own suit for contribution taking the liability now assessed as starting point of limitation. If such a suit were to be filed, the finding regarding apportionment of liability shall be considered in such a way that such a finding does not completely vacate the finding that there was some portion of negligence on the driver of the truck.

The appeal is allowed with the above observations in favour of the insurance company.