Tara Singh vs Mangal Singh and Others

M.R. Sharma, J.—On February 23, 1968, at about 12 noon one Mangal Singh was going from village Jhandiana Sharki on a bicycle on G.T. Road. He had to pass through the town of Moga. When he was near the Industrial Training Institute, truck No. PNF-8078 driven by Tara Singh came from the opposite side at a fast speed. It struck against the bicycle of Mangal Singh who was proceeding on the correct side of the road. Because of the accident, Mangal Singh fell down and sustained injuries. He was taken to Civil Hospital, Moga, where Dr. Manohar Singh A.W. 2 examined him and gave him treatment. Ultimately he had to be taken to Post Graduate Institute of Medical Education and Research at Chandigarh and admitted there for treatment of compound fracture of the lower end of right femur and compound fracture of right medical malleolus. He was discharged from the hospital as partially cured. He filed a claim petition u/s 110 of the Motor Vehicles Act praying therein that he should be awarded Rs. 60,000/- for injuries and loss of his earning capacity. In the claim petition the owner of the vehicle, Mr. Devinder Singh Brar, the insurance company, namely, Oriental Fire and General Insurance Company Branch Office, Moga, Jarnail Singh and Tara Singh were impleaded. It was claimed that the truck had been given by the owner to Jarnail Singh for repairs and Tara Singh, being his younger brother, was helping him in his workshop. This claim was resisted by the parties arrayed as Respondents in the claim petition and the learned Tribunal framed the following issues on the pleas raised by the parties:

Whether at the time of this accident Truck No. PNF-8078 was being driven--(a) by Tara Singh/(b) by Jarnail Singh?

Whether Mangal Singh sustained injuries due to negligent driving of the truck?

Whether the injuries were caused to

Mangal Singh by his own contributory negligence and what is its effect?

Whether there was suspension of the insurance policy at the time when this accident involving injuries to Mangal Singh occurred? If so, what is its effect?

In case issue No. 2 is proved in favour of the Petitioner, to what amount of compensation he is entitled and from whom?

Relief.

On issue No. I it was held that the truck was being driven by Tara Singh at the material time. Issue Nos. 2 and 3 were decided in favour of Mangal Singh. On issue No. 4 and 5 it was held that, since the truck was being driven at the material time by Tara Singh who was an unlicened driver, the insurance company was not liable. On similar grounds the owner of the truck, Mr. Devinder Singh Brar, was also held to be not liable. On the question of compensation, the learned Tribunal held that a sum of Rs. 6,000/- should satisfy the claim made by Mangal Singh. Tara Singh and Mangal Singh have both come up in appeal. Both the appeals will be disposed of by this order.

Regarding the appeal filed by Mangal Singh, a preliminary objection is raised that it is barred by time on the ground that proper court-fee was not paid within the period prescribed by law. This court-fee deficiency was, however, made good at a later stage and an application was also filed on behalf of Mangal Singh for condonation of delay in making good the court fee. In some what similar circumstance in Ramji Dass and Ors. v. Dhanti Ram and Ors. Civ. App. No. 611 of 1976; decided by Supreme Court on 6.5.77 the court ordered the acceptance of the deficit court-fee and the decision of the appeal on merits. I, therefore, overrule the objection that the appeal filed by Mangal Singh is beyond limitation. C.M. 8666 of 1971 is allowed and the delay if any is condoned.

As far as the liability of the insurance company is concerned, it has been frankly conceded by the learned Counsel for the parties that, if the vehicle was being driven by an unlicensed driver, the insurance company was not liable. Both the appeals are accordingly dismissed as against the Oriental Fire and General Insurance Company, Respondent No. 4 in this case. So far as Mr. Devinder Singh Brar, Respondent No. 3, is concerned, he cannot escape liability on this ground when he gave his truck for repairs to Jarnail Singh who was running a workshop with the assistance of of unlicensed workers. If any of such workers drove the truck, the truck would be deemed to have been driven in the course of employment. Reference in this connection may be made to Gopalakrishnan Embrandiri v. Krishnankutty and Ors. 1966 A.C.J. 262 I, therefore, hold that damages could be recovered from Mr. Devinder Singh Brar, Respondent No. 3 and that to that extent the judgment rendered by the learned Tribunal is set aside.

The fact that the accident took place on account of the negligence of Tara Singh, an unlicensed driver who was working in the workshop of Jarnail Singh Respondent No. 2 is not disputed before me nor is it argued that Mangal Singh claimant was him self negligent in any manner in the course of this accident. The only question which remains to be considered is the quantum of compensation to be awarded to him. It has been found by the learned Tribunal, that, because of the compound fractures suffered by him, his right leg has become short by three inches. The learned Tribunal, however, held that Mangal Singh was an agriculturist and that he could get help from his son who was living separately from him. He also held that he could work as an active agriculturist for a period of ten years and that a sum of Rs. 6,000/- would compensate him for his loss. I have not been able to follow the reasoning adopted by the learned Tribunal. If a person suffers loss of his earning capacity after being involved in an accident, he cannot be left to the mercy of his son or other relations and agriculturists are known to work actively even up to the age of 65 years. At the time of the accident, Mangal Singh was 50 years old. Because his right leg became short by three inches, he must have suffered a loss of earning capacity to the extent of fifty per cent. The accident took place in the year 1968 when average earning capacity of an agriculturist was about Rs. 200/- per month. In this manner, he is entitled to have Rs. 18,000/- as damages for loss of his earning capacity and the sum of Rs. 1,000/- awarded to him on account of agony and torture, as allowed by the learned Tribunal. I am not making any deduction on account of lumpsum payment because these deductions would be offset by the rising cost of living.

For the reasons mentioned above, the appeal of Mangal Singh claimant (F.A.O. No. 361 of 1971) is allowed and it is held that he would be entitled to recover a sum of Rs. 19,000/- from all the persons jointly a severally other than the insurance company arrayed as Respondents in the claim petition. Mangal Singh Appellant shall also be entitled to have interest at the rate of four per cent from the date of the award made by the learned Tribunal. The appeal of Tara Singh (F.A.O. No. 338 of 1971) consequently fails and is dismissed.