Virinder Kumar Pandit vs Govind Rice Factory and Another

A.L. Bahri, J.—Virinder Kumar Pandit, a Lecturer of D. A. V. College, Chandigarh, suffered injuries while involved in an accident caused by Harbhajan Singh respondent, who was driving car No. PAP 911. On, the claim petiton of the appellant Virinder Kumar Pandit, the Motor Accident Claims Tribunal awarded a sum of Rs. 1,04,000/- with 12 per cent interest from date of filing of the claim petition till realisation The appellant claims enhancement of compensation in this appeal whereas in the cross objections filed by owner of the car, finding of the Tribunal regarding negligence of the driver of the car is disputed as well as quantum of compensation fixed by the Tribunal.

The accident took place on June 5, 1986 at about 10 A. M. at the round about which is in front of petrol pump in Sector 15. Virinder Kumar Pandit appellant was going from the side of Sector 11 and he was to go towards Sector 15 after crossing the double road in between. He was on a cycle. After crossing the first road, he reached the round about which was in between the two roads. He stopped at the round about. Car No. PAP 911 driven by Harbhajan Singh respondent came at a very rash and negligent speed from the side of Sector 16. The driver of the car lost control with the result the car hit left leg of the claimaint. With this accident, the claimant suffered injuries on his leg which was fractured. Alter hitting, Harbhajan Singh respondent speeded his car and tried to run away. In the meantime, Flying Squad of the Police reached there. They chased Car No. PAP 911 and caught held of its driver, Harbhajan Singh The police removed the claimant to the P. G. I. in the same car and got him admitted. The claimant claimed Rs. 5,00,0(0/- as compensation along with interest at the rate of 18 per cent per annum According to him, the accident took place entirely on account of excessive speed and careless and negligent driving of the car. The nature of the injuries suffered was also mentioned in the claim petition. The owner and driver of the car contested the claim denying the allegations of the claimant regarding the manner of the accident. According to them, the accident took place suddenly and the claimant had come on the road all of a sudden without observing the traffic rules. They further pleaded that the accident occurred on account of a third person who came on the road running and in order to avoid him, the car hit the claimant. It was denied that the driver of the car tried to escape from the spot. The car was insured with National Insurance Company, who was also impleaded as a respondent. They pleaded that the accident took place entirely due to the negligence of the claimant himself. Unmindful of the traffic rules, the claimant came on the road from the side and the accident occurred. It was further pleaded that the driver of the vehicle was neither acting in the course of employment nor he was possessed of a valid driving licence. The claimant refuted the allegations of the respondents in the replication while reiterating his stand as given in the petition. The following issues were framed :--

"Whether Virinder Kumar claimant sustained injuries on account of rash and negligent driving of car No. PAP-911 by respondent No. 1 ? OPP.

To what amount of compensation the claimant is entitled to recover ? If so, from whom ? OPP.

Relief.

After considering the evidence produced in the case, issue No. 1 was decided in favour of the claimant holding that he suffered injuries on account of rash and negligent driving of car aforesaid which was driven by Harbhajan Singh driver. Under issue No. 2, as already stated above, the Tribunal allowed a sum of Rs. 1,04,000/- as compensation

Since cross-objections have been filed challenging the finding of the Tribunal on issue No. 1, the same is decided first of all. At the outset, it may be stated that on behalf of the respondents, no evidence on this issue was produced. Even driver of the car Harbhajan Singh did not enter the witness-box to assert the counter plea taken in the written statement. Thus, on this issue only, the evidence produced by the claimant needs to be considered.

P. W. 10 is Virinder Kumar claimant himself who supported his version regarding the manner of the accident as given in the petition. According to him, he was coming from Sector 11 side and was going to the petrol pump of Sector 15 on his cycle. He crossed the road and reached near the island when he noticed the fast approaching car coming from the side of Sector 16. He stropped his cycle near tae island, while he was sitting on the saddle with his left food on the road. The tyre of the cycle (front) was just ahead of the island circle. The front bumper of the car struck his left leg and the cycle. He was thrown about 8/ 0 yards ahead. The car then went off towards P. G. I. and he lost consciousness, During cross examination, suggestion was put to him that no accident had taken place with the car Another suggestion, which was denied, was that the accident did not take place due to negligence of the car driver. No counter-version, as was taken in the written-statement regarding the manner of the accident, was put to this witness. Two more witnesses were produced by the claimants on this issue namely P W 6 Raksha Kapoor and P. W 9 Dr. J. K. Sharma. Both of them have deposed corroborating the statement of the claimant. They further stated that after hitting the claimant, the car went towards congress Bhawan side The Flying Squad, which was near petrol pump of Sector 15 chased the car on a motor cycle and brought it back and in the said car, the injured was removed to the P. G. I. During cross examination, P. W-6 Raksha Kapoor stated that the claimant was standing towards the side of Sector 11 with his face towards Sector 15 at the time when she first saw him standing on the road near the small chowk. The front right side of the car struck against the claimant She went to the house of the claimant to inform his wife who left for the P G I and she remained with the children P. W 9 Dr. J K Sharma was coming from the University side and had not reached the petrol pump. He had yet to take the turn towards the petrol pump from the aforesaid island when the accident took place He was 10 yards away from the island when the accident took place. The claimant was standing on the second round about when the occurrence took place. The cyclist was a little ahead of the claimant while the latter was standing on the round about. The front right portion of the car struck the leg of the claimant. It is on the evidence aforesaid that it has been argued on behalf of the respondents that it was the claimant who had violated the traffic rules that he had gone beyond the round about and hence it should be presumed that he was negligent and the accident took place on that account. In support of this contention, reliance has been placed on the decision of Punjab High Court in New India Assurance Co. Ltd., New Delhi, and Anr. v. Punjab Roadways, Ambala City, and Ors. (1964) 66 P.L.R. 156, while making reference to Schedule X, rules 6 and 7 of the Motor Vehicles Act and applying the same to the facts of the said case where a bus was proceeding on the G. T road and another bus entered the road inter-section when collusion between the two buses took place held that the bus entering the inter-section did not slow down or stopped before entering or blew the horn and thus ignored the statutory provisions of rules 6 and 7 of Schedule X of the Act which showed prima facie poof of negligent driving. The other case relied upon is of this High Court in Veena Kumari Kohli v. Punjab Roadways and Ors. (1967) 69 P.L.R. 664. That was also a case of vehicle entering intersection without observing rule 7 aforesaid and was held partly responsible for causing the accident The case of Madras High Court in K. Gopalakrishana v. Sankara Narayanan and Ors. 1969 A.C.J. 34 is also pressed into service, which was also a case of accident recurring at the inter-section. Both the drivers were held responsible. Rules 6 and 7 of Schedule-X of the Act were considered. The question of non-observance of the rules given in Schedule-X attached to the Act is to be considered in the facts in circumstances of each case. Merely because one of the vehicles came from the side road to enter the main road per se would not show that its driver was negligent. The position in the present case is entirely different Virinder Kumar, the appellant, who was riding on a cycle, had stopped at the island built in between the two roads which itself shows that he was allowing the traffic coming on the road to pass. In such circumstances, it cannot be held that Virinder Kumar had entered the road in order to cross it that he was responsible for causing the accident. The statement of Virinder Kumar, which is supported by two other witnesses who had seen the accident, establishes the fact that he had stopped his cycle at the island by putting one foot on the road and that it was the car which was at a high speed and hit Virinder Kumar''s leg. The speed of the car was such that Virinder Kumar was thrown at a distance. As already observed above, no evidence was produced by the respondents to support their version that another passer-by had suddenly come on the road that driver of the car in order to save him hit Virinder Kumar. The Tribunal was thus perfectly right in holding that the accident took place due to entire negligent driving of the car by Harbhajan Singh respondent and the finding is affirmed.

The further question for determination is regarding the quantum of compensation payable to Virinder Kumar on account of the injuries suffered in the said accident. The Tribunal has awarded compensation keeping in view the injuries suffered and under different heads as under : --

i) Expenditure of P. G. I. : Rs. 15,904.00 ii) Special diet : Rs. 5,000.00 iii) Loss on account of salary for 3 1/2 months Rs 500/-+Rs. 3755/- 3755 x3 1/2 = : Rs. 13,100 00 vi) For mental, physical pain and suffering, permanent Disability 20% : Rs. 30,000 00 v) Future Loss : Rs. 40,000 00 -------------------------- Total: Rs. 1,04,000 00 (rounded) --------------------------

In appeal additional affidavit of the appellant was filed in order to claim more compensation It is alleged that the appellant is yet to go in for second operation for which a sum of about Rs. 15 000/- would be required. Secondly, the appellant has purchased a second hand car for Rs. 60 000/-. The car is necessary as the appellant has to use it for going to the college. Thirdly, statement of the total salary and deductions claimed for the Income Tax purposes for the financial year 1986 87 has been produced indicating an item of Rs 5000/- for three months income towards tuition work. First of all I will deal with the points mentioned in the additional affidavit. As regards the first point P. W-5 Dr. O. N. Nagi who appeared in the Court did not state that second operation would be necessary. However no second operation has yet taken place, although sufficient time has elapsed after the accident. Thus, it is not considered desirable to allow this item.

The second item of claim is towards the expenses of purchasing a car. Under the head of future transport facilites it is not necessary that in all cases of injuries to the legs or expenses for the car should be allowed. It will all depend upon facts and circumstances of each case. Even if it is held that some expenses would be necessary for some time for the appellant to make on transport while going to the college where he is serving or elsewhere, a reasonable amount can be determined. No doubt, the doctor opined that the disability on account of the injuries to the leg was 20 per cent however, there was no specific evidence led that throught his life the appellant would be requiring a transport for daily use. Merely because the leg has been shortened by 1 1/2" would not be per se a ground to allow future transport in the shape of a car. A rough estimate on that account has to be applied in determining future transport expenses. Virinder Kumar is aged about 43 years and he is likely to be retired after about 15 years of service from the college Thus, taking Rs 200/- per mensem as transport charges and applying 15 as multiplier a sum of Rs. 30,000/-is allowed on account of future transport expenses.

With regard to tution fee oral evidence was produced by the claimants which was considered by the Tribunal and a sum of Rs. 500/-per month was considered as income from the tution work but it was allowed for 3 1/2 months for which period the claimant was unable to do other job on account of the injuries suffered. With the nature of the injuries found on the leg it cannot be said that the claimant would be incapacitated for taking tution work in future. No doubt, in the copy of statement of the Recount produced by the claimant a sum of Rg.5000/-was included towards income from tution work for 3 months. However, much importance cannot be attached to this entry which was for the assessment order for the year 1987-88 and financial year 1986-87. Had a copy of the previous year''s assessment order or statement of account been produced, the same would have been accepted. This statement of account which is now being produced as an additional evidence was prepared after the accident Therefore, much importance cannot be attached to it. The order of the Tribunal in this respect cannot be interfered with.

Since no amount on account of purchase of car is being allowed, salary of a driver at the rate of Rs. 750/- per month, as argued, cannot be allowed.

Learned counsel for the appellant has further argued that the entire account of expenditure made on the medicines and other expenses during this stay in the hospitial were maintained in the accountbook (a copy) which was produced in the court. The Tribunal was not right in ignoring this evidence and erred in allowing only a sum of Rs.l5,904/-There is force in this contention. Although it was not expected of the injured or his relatives to maintain any account of the expenditure made on the medicines etc, however, when in the present case such an account has been maintained and produced, the same could not be ignored merely on that account. It was open to the respondents to challenge the accuracy or authenticity of the account while cross-examining the witnesses. No material was brought in the evidence by the respondent to discard the accountbook maintained by the claimant. Thus, the amount spent by the claimant is taken as Rs 56,000/- and the award of the Tribunal would stand modified accordingly.

Learned counsel for the appellant has further argued that on account of shortening of the leg and 20% disability the Tribunal allowed only a sum of Rs. 30,000/- on account of pain and suffering which is on the lower side. The grant of compensation on this head has to be on rough estimate and no judicial decision can be followed as a precedent. It depends upon facts and circumstances of each case to determine the figure. A sum of Rs 0,000/- as awarded by the Tribunal cannot be considered exceptionally on the lower side. It is raised to Rs. 56,000/-. It may further be pointed out that the total amount on account of mental and physical pain and permanent disability clubbed together, would now be Rs. 76,000/-, which is quite reasonable, keeping in view the nature of the injuries and the disability PW 5 Dr. O. N. Negi deposed about the comminuted depressed fracture of the upper end of the (sic)libia of V. K. Pandit who was admitted in the P. G. I. on June 5. 1986 and discharged on 18-6-1986. After-wards he had examined the claimant and noticed that movement at the left knee joint was restricted in last 20 degrees and there was 1 1/2" quadericeps wasting on the left thigh. The disability of the leg was of permanent nature as to the loss of flection and inability to squat. The disability was to hamper in performing the duties of a Prosessor by V. K. Pandit as he had to stand and also sit because of which he was going to tire. He was also to feel difficulty in driving scooter, cycle and walking. It was during cross-examination that he stated that the patient had healed from point of view of bony injury but he was having some pain remnant. He was likely to improve in muscle power with physio-therapy but he will need help of a stick for normal stability. He remained mentaly alert throughout his stay in the P.G.I.

Learned counsel for the parties have relied upon certain decisions on the quantum of compensation to be fixed in injury cases. In Swatantra Kumar Lamba v. Sheila Didi, (1987-2)92 P.L.R. 1, D. V. Sehgal, J. in all allayed a compensation of Rs. 1,73,800/- to Sheila Ddii, an Advocate who had suffered injury on the left leg both the bones resulting in shortening of the leg by 2 cms. and permanent disability was 20%. She was aged about 30 years. She was awarded a sum of Rs. 5.600/- for medical expenses and transportation, Rs. 4800/- for special diet, Rs. 20,000/- for loss of income, Rs. 96,000/- for loss of earning capacity, Rs. 40,000/- for pain and suffering, Ks. 59,000/- for attendant and gracuitous services and Rs. 1,500/- for damage to scooter.

On the other hand learned counsel for the respondent referred to the decision of this Court in National Insurance Co. Ltd. and Anr. v. Sukhdev Kaur and Anr., 1990 A.C.J. 236, wherein this Court allowed a sum of Rs. 82,000/- to Sukhdev Kaur injured aged about 21 years whose leg had to be amputated. Out of that Rs. 8,000/- were allowed for medical treatment, Rs. 20,000/- for loss of limb, pain and suffering, Rs. 48,000/-for keeping a (sic)maid servant, Rs. 6000/- for future medical treatment and die.

As already stated above, no decision on the question of allowing compensation can be followed as a precedent. Compensation on account of injuries is to be determined keeping in the view the facts and circumstances of each case. In the present case, as discussed above, the claimant should get enhanced compensation as per details given above.

For the reasons recorded above, cross-objections are dismissed with no order as to costs. The appeal is allowed with proportionate costs. The award of the Tribunal is modified and the claimant is held entitled to in all a compensation of Ks. 1,80,100/-. He will also get interest on the amount so awarded at the rate of 12% per annum from the data of riling of the claim application till realisation. Counsel fee is fixed at Rs. 2,000/-.