Gujarat High Court
New India Assurance Co. Ltd. vs Ashokbhai Ranchhodbhai Patel And Ors. on 9 August, 1990
Equivalent citations: 1992ACJ1102, (1992)1GLR482
JUDGMENT R.A. Mehta, J.
1. This group of appeals and cross-objections arise out of the motor accident involving two trucks which collided at crossroads. The accident occurred on 8.2.1983 at about 8.00 a.m. One truck bearing registration No. GTF 2329 (hereinafter referred to as the 'GTF truck') was going from Nadiad towards Petiad side, i.e., from north to south and another truck CPM 7727 (hereinafter referred to as 'CPM truck') was going from Sojitra to Anand side, i.e., from west to east. The accident took place at Bandhani Chokdi. As a result of this accident, 17 persons lost their lives and 20 persons were injured and, therefore, there are 37 claim cases and there is one claim case for damages with respect to CPM truck against the driver, owner and insurer of GTF truck. In all, there are 38 claim petitions. Out of 37 dead and injured persons, 35 persons were travelling in the GTF truck and two persons were on the road. One of them died and one received injuries. GTF truck was insured by New India Assurance Co. Ltd. and CPM truck was insured by National Insurance Co. Ltd. The Tribunal held that both the drivers were equally negligent and their negligence was apportioned 50 per cent each. New India Assurance Co. Ltd. has filed 30 appeals out of which seven have been dismissed on the ground of smallness of the claim. The National Insurance Co. Ltd. has filed 31 appeals and ten of them have been dismissed on the ground of smallness of claim. In the appeals filed by New India Assurance Co. Ltd., claimants have filed cross-objections for enhancement of compensation.
2. In the set of appeals filed by the insurance companies, the main question is regarding nrgligence. The claimants have also taken the same stand on the question of negligence as that of insurance companies. It is the contention that the other truck was solely negligent.
3. Mr. Ajay H. Mehta,, learned counsel for New India Assurance Co. Ltd. and Mr. J.M. Patel for the respondents (claimants), have submitted that the Tribunal has erred in holding that the driver of the GTF truck was also negligent. In their submission, the driver of the CPM truck was solely negligent. They have submitted that from the panchnama, Exh. 33 and photographs of the trucks taken after the accident at Exhs. 152, 155, 156, 161 and 162, it is clearly shown that the driver of CPM truck alone is negligent and this contention is also said to be fortified and supported by the oral evidence of the claimants and witnesses. They are at Exhs. 30, 62, 63, 83, 117 and 143.
4. On the other hand, Mr. B.R. Shah, learned counsel appearing for the insurer of CPM truck, has submitted that having regard to the facts and circumstances, the sole negligence is that of the driver of GTF truck.
5. The claimants have submitted that both the truck drivers were driving their vehicles negligently and, therefore, both the trucks have collided in the middle of the crossing. Written statement at Exh. 16 filed by the owner of GTF truck contends that the driver of CPM truck was driving the said truck negligently and at the intersection of the crossing, driving the truck on the wrong side, CPM truck collided with the GTF truck. New India Assurance Co. Ltd. has filed a separate written statement at Exh. 18 and it is submitted that the driver of GTF truck was not negligent and it is the driver of CPM truck who was negligent.
6. United India Insurance Co. Ltd. has filed its written statement dated 19.2.1983 at Exh. 165. In para 11 of its written statement, it has denied any negligence on the part of CPM truck and it is contended that when the said truck No. CPM 7727 crossed nearly 2/3rd near the Bandhani Chokdi, the driver of GTF truck suddenly came from left side at a very high speed and rashly and negligently and contrary to the driving regulations entered the said 'chauraha' and dashed with CPM truck. There was no fault or negligence on the part of driver of CPM truck and the said accident took place only due to gross negligence and carelessness of the driver of GTF truck.
6-A. Thus, the rival versions are diametrically opposed to each other. The version of CPM truck owner and insurer is that the CPM truck had crossed nearly 2/3rd of the Bandhani Chokdi and GTF truck suddenly came from the left side and dashed with CPM truck whereas the contention of GTF truck owner and insurer is that CPM truck had dashed against GTF truck. In view of the facts and circumstances of these two rival contentions, the physical facts and circumstances will have to be ascertained from the panchnama and the evidence of witnesses.
6-B. The panchnama, Exh. 53, shows the position of two trucks after the accident. At the crossroad on the north side, there is a bus stand and on the southern side at about 67 feet from the bus stand, there is a guard-stone and 10 1/2 feet away from the guard-stone, there is a babul tree. On the west of this guard-stone, rear part of CPM truck is lying on its left side and right side is skyward. Its front portion is broken. 45'-4" south to this truck, there is a 'Chokdi' and a guard-stone and beyond that, there is a field of Gokalbhai Hirabhai. GTF truck is 44'-8" away from CPM truck on the southern side and GTF truck is turned turtle and all its wheels are facing sky. About 28 feet beyond this truck is a pit in which acid containers and dead bodies are lying. CPM truck was proceeding from Tarapur to Anand, and its wheel marks due to application of brakes by the driver are seen for 34 feet. They are in a curve. The front portion of GTF truck is at a distance of 35'-1" from the guard-stone on the road towards Petlad. The engine, body and cabin portion of the CPM truck has been reduced to scrap. Its buffer is smashed and roof of the cabin is thrown away. 17 boxes are lying outside. The iron sheets of the body of the truck and machine parts are also lying outside. The left front wheel of GTF truck got separated and was lying 18 feet away. The truck is overturned and the goods are lying scattered. The glass pieces of the front glass are also lying. Acid containers, soda bags and containers of chemicals are also lying. Acid is spread on the roadside and at that place, there are blood marks in an area of about 1 1/2 feet diameter. The household goods and beddings of the labourers are also found scattered.
7. From the aforesaid panchnama, the following facts emerge:
(i) Nothing is found in the intersection which is of 60 feet x 60 feet.
(ii) GTF truck which was proceeding from north to south is found on its correct side. (Its left side).
(iii) CPM truck which was proceeding from west to east is found on its wrong side. Both these trucks are found outside south-east corner of the intersection.
(iv) The front side of CPM truck is completely destroyed. The front side of GTF truck is intact.
(v) CPM truck has left brake marks of 34 feet and even after the accident, it has proceeded further and is found on the wrong side of the road and is lying on the wrong side of the road.
The above facts are also seen from the photographs at Exhs. 154, 155, 156 (GTF truck) and 165, 166 (CPM truck). The photographs of CPM truck clearly show that its front side is completely smashed. Even the glasses of the headlight are broken. Roof of the cabin and the glass panels are broken and glass pieces are lying there. The damage to the GTF truck is on the rear part of the body of the truck.
8. Mr. Shah, learned counsel appearing for the owner and insurer of CPM truck, submitted that the CPM truck driver had taken care to apply brakes and brake marks would be seen from the panchnama. As against that, GTF truck had not taken care to apply brakes and it had suddenly entered the intersection from the left side in breach of rules 6 and 7 of the Schedule and the driver of GTF truck was totally negligent of the fact that CPM truck was coming from its right side and had a right of way and that the said truck was containing dangerous substance like acid and was loaded with about 35 passengers. It is also submitted that GTF truck was found turned turtle and that it was facing the direction from which it had come, indicating that GTF truck was moving recklessly and in excessive speed.
9. On the other hand, the claimants as well as GTF truck driver, owner and insurer have contended that the negligence was solely of the CPM truck which was moving in great speed and even on noticing that the GTF truck had already entered the intersection, CPM truck driver was not in a position to stop his vehicle and had rammed into GTF truck which had almost reached the end of the intersection and the impact was so great that the GTF truck was thrown off beyond road and had turned turtle and CPM truck, in spite of this collision with a heavy truck, could not stop at the place of impact in the intersection, but it went much beyond due to great momentum, and was found on the wrong side of the road.
The impact had taken place near the southeast corner of the intersection. From the fact that no truck or no goods or even no glass pieces were found in the intersection shows that the entire accident was in the exte me comer of the intersection and GTF truck was thrown off beyond the intersection and beyond the road into a pit facing the direction from which it had come. Since GTF truck had already entered the intersection and having crossed more than half of the intersection, it was beyond the correct side of CPM truck and no accident would have occurred but for the fact that CPM truck was being driven obviously at a great speed, and in the middle of the road or on wrong side. It is, therefore, submitted that Rule 7 has not come into operation in the present case because this CPM truck was away when GTF truck had already entered the intersection and under Rule 6, CPM truck ought to have taken care to look for the vehicles coming at the intersection. In the light of above physical facts and circumstances, and rival submissions, the oral evidence may be examined.
10. The oral evidence consists of deposition of claimants which are at Exhs. 30, 62, 63 and 83. Exh. 117 is a driver who was in CPM truck (there is some dispute whether he was driving CPM truck or whether one Jagdishsinh was the driver of the said truck). Exh. 143 is the driver of GTF truck.
11. Pangalabhai (Exh. 30) has stated that when his truck (GTF) had reached near Bandhani Chokdi, another truck had come from Sojitra side and dashed against his truck. In the cross-examination, he has stated that the dash on his truck was in the rear part and at that time, his truck (GTF) had already entered Petlad Road. In para 5 of his deposition, he has stated that he did not know how the accident had occurred. Because of this one sentence, his evidence has been discarded by the Tribunal on the aspect of negligence. It is to be noted that he is an illiterate labourer and he will not be in a position to give exact details as to how the accident had occurred and who was negligent for causing such an accident and, therefore, he may say that he did not know as to exactly how the accident had occurred. Nonetheless, the fact as to broadly how the accident had occurred could not have been discarded. He had stated that CPM truck had dashed with GTF truck. He had also stated that the impact was on the rear part of GTF truck and at that time, the front of the truck was on Petlad Road. These facts are also corroborated to a great extent from the panchnama and physical facts. Therefore, even though he had not been in a position to say as to how exactly the accident had occurred, the facts as to the place of impact and the place where both the trucks collided cannot be disputed and his evidence to that extent has to be accepted.
12. Sandhuben (Exh. 62) has stated that the driver Kalubhai of GTF truck was driving the truck slowly and the accident had occurred near Bandhani Chokdi. CPM truck had come from Sojitra side and dashed against the rear part of GTF truck and GTF truck had gone further and fallen in a pit. CPM truck which was coming from Sojitra side was in a great speed and had dashed against GTF truck where the intersection was about to be covered. In the cross-examination, she has stated that she had seen the truck coming from Sojitra side from a distance of about 200 feet and she had no idea as to how far the GTF truck was at that time. She had seen CPM truck at a distance of about 200 feet. She has further stated that as soon as their truck had reached near Bandhani Chokdi, the accident had occurred. She has also stated that GTF truck had almost crossed the intersection and its rear portion was in the intersection and its front portion was outside the intersection and at that time, the accident had occurred.
13. Jogadia (Exh. 63) has also stated that his truck GTF was moving at a slow speed and when it had come near Bandhani Chokdi, CPM truck had come in a great speed from Sojitra side and dashed against the rear portion of GTF truck and GTF truck had turned turtle. In the cross-examination, he has stated that he had seen CPM truck from a distance of about 200 feet and at that time, GTF truck was at a distance of about 175 feet from the intersection. He has denied the suggestion that GTF truck had dashed against CPM truck. He has stated that the CPM truck had dashed against rear of GTF truck with great force and at that time, the GTF truck had crossed the intersection and the rear portion of the truck was inside the intersection and front portion was towards Petlad and at that time, the accident occurred. These three witnesses were the labourers.
14. Ashok Kumar (Exh, 83) was standing on Petlad Road on the left side, i.e., outside south-east corner of the intersection. He has stated that both the trucks were moving at a great speed and the accident had occurred in the middle of the intersection and from the GTF truck, acid containers were thrown off and acid had fallen on the roadside. Upendrabhai was his companion who died in the accident. In the cross-examination, he has stated that when he saw the GTF truck for the first time, it was at about 15 feet away from the intersection and it was coming with a great speed, but he could not say how much speed it was in kilometres. He was standing at about three to four feet away from the road. He was standing 30 feet away from the intersection on Petlad Road and he could not say as to how far from him the accident had occurred. In further cross-examination, he was asked a question and suggested that he had not seen the collision of two trucks and the learned trial Judge has made a note that the witness did not reply to this question even though it was repeated several times and, therefore, his evidence about having seen the accident is not relied. He has also stated that the intersection is 60 feet x 60 feet and there is no island in that 60 feet. In view of his reluctance in replying to the question and suggestion that he had not seen the accident, the Tribunal has rightly not relied on his version as to how the accident had occurred, but the fact that the intersection is 60 feet x 60 feet without any island and that he was standing at a distance of 30 feet from the intersection cannot be disputed or disregarded. The fact that he was standing at a distance of about 30 feet from Petlad Road indicates that the accident had occurred somewhere on his side of intersection, i.e., south-east corner of the intersection.
15. Exh. 117 is the evidence of Shriram, opponent No. 1 and he was joined as a driver of CPM truck and a written statement was filed by the owner of CPM truck stating that Shriram was not driving the vehicle, but another driver Jagjitsinh was driving the vehicle. Therefore, his name is deleted as an opponent and Jagjitsinh was joined as opponent No. 1. As Jagjitsinh could not be served, his name is also deleted. Shriram has admitted that police has filed criminal case against him in respect of this accident. According to this witness, he was not driving the vehicle, but it was Jagjitsinh who was driving the vehicle. For the purpose of the present proceeding, it is not necessary to decide whether Shriram was driving or Jagjitsinh was driving the vehicle. The question is whether the driver of CPM truck was negligent. Therefore, without deciding as to who was the driver of CPM truck, we will examine the evidence of Shriram who was admittedly in CPM truck.
15-A. He has stated that when CPM truck was in the middle of the intersection, GTF truck coming from Nadiad was at a distance of about 50 feet to 60 feet and when the accident took place, his truck had reached the end of the intersection towards Anand side and the front portion of the GTF truck coming from Nadiad side had dashed with the front portion of CPM truck. According to him, right front portion of the GTF truck had dashed against the left front portion of CPM truck and as a result of the impact, CPM truck was facing towards Petlad. In the cross-examination, he has stated that GTF truck coming from .Nadiad side was about 50 feet to 60 feet away when his truck (CPM) had crossed the middle of the intersection and had gone towards Anand. Then he stated that it had not gone further, but stopped at the intersection. Again he stated that the accident had occurred when his truck had gone 20 feet to 22 feet from the middle of the intersection towards Anand when the accident occurred. He also stated that the driver of his truck had applied brakes and after applying brakes, the truck had stopped moving within half a foot. He denied that after applying brakes, his truck had gone 34 feet ahead. The evidence of this witness is contrary to the established and undisputed physical facts. His say that the right front portion of the GTF truck had dashed against his truck is falsified by the fact that there is no damage to the right front of GTF truck. His say that the GTF truck had dashed with the left side of CPM truck is also falsified by the fact that it is not the left side of CPM truck which is damaged, but it is the front side of CPM truck which is damaged. About the place of actual impact in the intersection, he has given inconsistent versions. At one place, he states that at that time CPM truck had already crossed the intersection and gone towards Anand, while at another place he has stated that his truck had entered the intersection when the accident occurred. The utter falsity of his version is also seen from the story that his truck had stopped within half a foot after applying the brakes and he had denied that CPM truck had proceeded 34 feet ahead after applying the brakes. The panchnama has clearly noted these brake marks. Therefore, this witness is an absolute and total liar and his evidence cannot be believed at all. He is the only witness examined by the owner and insurer of CPM truck. His evidence is thoroughly unbelievable. His evidence shows that Jagjitsinh was also in the truck. Jagjitsinh is not examined by the owner and insurer of CPM truck. It is true that he could not be served through the court when he was joined as an opponent. There is no evidence to show that Jagjitsinh could not be examined due to the fact that either he had left the service or was absconding. In any case, Shriram also stated that cleaner Mulchand was also in the truck. He has also not been examined by the owner of the truck. The only witness examined by the owner and insurer of the CPM truck is Shriram who is totally unbelievable and unreliable. Therefore, the only evidence that remains is the evidence led by the claimants, panchnama and the photographs.
16. From the above evidence, it is clear that:
(i) the accident had occurred near the south-east corner of the intersection.
(ii) the south-east corner shows that it would be correct side of GTF truck which was proceeding towards south and it would be the wrong side of CPM truck which was proceeding to the east. Therefore, the point of impact shows that CPM truck was on the wrong side.
(iii) the brake marks of 34 feet show that CPM truck driver is in know of the fact that GTF truck is in the intersection. Before applying the brakes, there is some thinking time and thinking distance.
In Bingham's Motor Claims Cases, there is a Table showing thinking distance, braking distance and overall stopping distance which reads as follows:
Speed Thinking Braking Overall
m.p.h. distance distance stopping
distance
(ft.) (ft.) (ft.)
60 60 180 240
50 50 125 175
40 40 80 120
30 30 45 75
20 20 20 40
Another table showing distance covered in one second at various speeds is also given in the same book which reads as follows:
Miles per hour Feet per second
10 14.66
15 22.00
20 29.33
25 36.66
30 44.00
35 51.33
40 58.66
45 66.00
50 73.33
60 88.00
CPM truck has brake marks of 34 feet and thereafter notwithstanding its dashing and ramming into a heavy vehicle, i.e., GTF truck and throwing it off the road, has remained in great momentum and has gone further about 15 to 20 feet at least. If it had not dashed against GTF truck and if it had to stop by the brakes that were applied, it is most likely that the braking distance would have been at least 80 feet. In that case, the thinking distance would be 40 feet and the speed indicated in the Table would be 40 miles per hour, i.e., 65 km. per hour. The vehicle moving at the speed of 40 miles per hour would be moving at about 58.66 feet per second as per the above Table. It, thus, appears that CPM truck was moving at the speed of about 60 to 65 km. per hour while approaching the intersection and it had seen the GTF truck and felt the need to apply brakes and the fact that even after applying the brakes, he could not stop the vehicle, shows its great speed while approaching intersection. He had seen the GTF truck and hence the need of applying brakes was at least from a distance of about 80 to 100 feet from the intersection. Thus, there cannot be any doubt that the GTF truck had entered the intersection when CPM truck was at a distance from the intersection and GTF truck driver, even if he had seen the CPM truck, could not have felt any need of applying brakes and there is nothing to show that GTF truck applied brakes. GTF truck having entered the intersection when CPM truck was away was not in breach of Rule 6 or 7. The point of impact on GTF truck is also from the right side of GTF truck and that too from the rear showing that it is the CPM truck which has rammed into GTF truck.
17. The position of the trucks after the impact also shows that the point of impact is when the GTF truck was on the correct side and the CPM truck was on the wrong side. Thus, CPM truck is shown to be utterly negligent and reckless in not slowing down the vehicle and not stopping it and in going to the wrong side and ramming into GTF truck.
18. The defence taken up in the written statement on the question of negligence that GTF truck had come from wrong side and dashed with CPM truck is totally negatived and destroyed by the evidence. Therefore, we have no hesitation in coming to the conclusion that it is the CPM truck driver who was solely negligent for the accident and there was no negligence on the part of GTF truck driver.
19. The trial court has come to the conclusion that both the drivers were equally negligent and it is the alternative submission. In support of this submission, reliance has been placed on Rule 6 and 7, Schedule X of the Motor Vehicles Act and they read as follows:
Rule 6: The driver of a motor vehicle shall slow down when approaching a road intersection, a road junction or a road corner, and shall not enter any such intersection or junction until he has become aware that he may do so without endangering the safety of persons thereon.
Rule 7: The driver of a motor vehicle shall, on entering a road intersection, if the road entered is a main road designated as such, give way to the vehicles proceeding along that road, and in any other case give way to all traffic approaching the intersection on his right hand.
Emphasis added It may be noted that neither of the roads was designated as a main road and, therefore, both the roads were of equal status and both the drivers were having duty to slow down the truck while approaching intersection and not to enter such intersection until he has become aware that he may do so without endangering safety of the persons thereon. Rule 7 also provides that the driver of a motor vehicle shall, on entering a road (Sic. intersection), give way to all traffic approaching the intersection on his right hand. CPM truck was approaching the intersection from right hand side of GTF truck. In this respect, it is submitted that the driver of GTF truck ought to have slowed down while approaching the intersection and should not have entered the intersection till the intersection is cleared and there was no danger to the safety of persons thereon. It is further submitted mat the GTF truck driver should have given way to CPM truck which was approaching the intersection from right hand side. The Tribunal came to the conclusion as follows:
From the given circumstances of the case, it appears that both the drivers of the vehicles simultaneously brought their vehicles on the intersection of the roads. Both of them must have seen the other vehicle approaching the intersection and therefore it was their duty not to take their vehicles on the intersection. Both of them have committed this breach of statutory rule. Now admittedly, opponent No. 4 was driving the vehicle bearing No. GTF 2329 from north to south and the opponent No. 1 was driving the vehicle No. CPM 7727 from west to east. Therefore, vehicle No. CPM 7727 was coming from the right hand side of truck No. GTF 2329. It was, therefore, the bounden duty of opponent No. 4 to give way to truck No. CPM 7727 which was approaching the intersection of four roads. I may state here that both the roads which were meeting on the intersection of the roads were the main roads. Opponent No. 4 has committed a breach of Rule 7 and, therefore, he is definitely guilty of negligence. But from this opponent No. 1, the driver of truck No. CPM 7727, could not be exonerated. Admittedly, as stated above, he was driving vehicle in excessive speed. Though he has applied his brakes, he was not able to stop his vehicle after 34 feet. He also must have seen the vehicle coming from Nadiad side and he ought not to have entered his vehicle on the intersection of the roads.
xxx xxx xxx It is also difficult to say as to at what point or place of intersection the collision took place. It is equally difficult to say as to with which part of both the vehicles the collision took place. Under all these circumstances, both the drivers are equally held guilty of negligence.
It is true that it may be difficult to find the negligence or contributory negligence of the drivers because such accidents occur within a fraction of a second. If one or other of the two trucks had come half a second earlier or late, the accident would not have occurred. Even a vehicle which is moving at a slow speed of 16 km. per hour (10 miles) moves 14.66 feet per second. Therefore, the difference of even half a second or even a smaller period would have made lot of difference and perhaps the accident would not have taken place. Thus, when the accident has taken place in such a short period like a fraction of a second, circumstances have to be examined to find out which driver and to what extent he was negligent. In considering this question, the point and place of impact or collision and the parts of the vehicles which are affected and the position of the vehicles after the accident are highly relevant and eloquent. The Tribunal has observed that it is difficult to say as to at what point of intersection the collision had taken place and which parts of the vehicles were affected. Having regard to the damage to both the vehicles, it is clear that the front portion of the CPM truck is smashed and the front portion of GTF truck is intact including glass panels. It is, thus, clear that the front portion of CPM truck has dashed against GTF truck and front portion of GTF truck has not dashed against CPM truck. The damage to the rear portion of GTF truck shows that the entire rear portion of GTF truck has been smashed by CPM truck. This is not at all difficult when we look at the photographs which are exhibited and which are not in dispute. These facts are also seen from the panch-nama which is also not in dispute. Therefore, these aspects have not been taken into consideration by the Tribunal and the Tribunal has merely on consideration of oral evidence stated that it is difficult to say which parts of the vehicles were affected. Similarly, as to the point or place of collision, it is seen that no glass pieces or other material including liquid or blood is found in the intersection indicating that the collision must have taken place near the end of the intersection and the vehicles must have gone out of intersection by the impact of the collision and the momentum. The position of two vehicles after the accident as seen from the panch-nama is that both the vehicles are found outside the south-east corner of intersection. Therefore, the point of impact and the place of collision will be the south-east corner of the intersection and that means that not only GTF truck was on its correct side, but had almost reached the end of intersection or had entered Petlad Road on the south-east corner. As against that, the position of CPM truck shows that it was on the wrong side of the road and had dashed and rammed into GTF truck on its rear side. After the impact, the momentum of the two trucks is also eloquent. GTF truck, which does not seem to have applied brakes, was thrown off and turned turtle and facing the direction from which it had come and one of the front wheels was found in the pit near Petlad Road on its correct side. It was given push by CPM truck from back side. Therefore, there was some added momentum to its speed. Even then it has not gone as far as the CPM truck has gone. CPM truck which has applied brakes as seen from the brake marks for 34 feet despite having rammed into rear part of GTF truck could not reduce its momentum though it met with obstruction with a heavy truck and went further for about 15 to 20 feet and fell on the wrong side. It is, thus, seen that CPM truck was proceeding in excessive speed which is also the finding of the Tribunal. That finding is also supported by the circumstances which we have narrated earlier.
20. In these circumstances, it cannot be said that there is any contributory negligence by the driver of GTF truck on the basis of Rule 7 of Schedule X quoted above. In this connection, reference has been made to the judgment of Punjab & Haryana High Court in the case of Mohinder Gupta v. Major Singh 1983 ACJ 760 (P&H). In that case, a scooterist had come from a side lane and had entered the main road when the three-wheeler scooter hit against the stepney of the two-wheeler scooter. The Tribunal held that the scooterist was responsible for the accident as he was coming from the side lane and three-wheeler was passing on the main road. The High Court reversed the finding of the Tribunal by holding that two-wheeler had already crossed the middle of the main road when the three-wheeler hit it. Discussing regulation 7 of Schedule X, Punjab & Haryana High Court held that while certain duties are cast which have to be observed according to the traffic regulations, they do not even remotely convey that it gives right to a person on a main road to run over everybody coming from the side lane. In the present case also, we have found that GTF truck had already entered the intersection when CPM truck was away from the intersection and, therefore, CPM truck had no right to run over GTF truck merely because CPM truck was coming from the right side of GTF truck.
21. In Lajwanti v. Keshav Prasad Soni 1984 ACJ 664 (MP), Madhya Pradesh High Court had also an occasion to deal with Rule 6 and 7 and in para 8, Madhya Pradesh High Court observed that regulation 7 does not give right to a person on the main road to run over everybody coming from the side lane. It would be hazardous to generalise in every case of collision in the intersection that there is negligence on the part of the truck which does not give way to the vehicle coming from the right side.
22. Mr. Shah has also contended that apart from driving negligence of GTF driver, there was utter negligence on the part of GTF driver in carrying dangerous substance like acid and 35 human beings together in the truck. Reference has been made to rules 118 and 267 of the Bombay Motor Vehicles Rules. Rule 118 provides that no person shall be carried in a goods vehicle and rule 267 provides that no dangerous substance shall be carried in any public service vehicle unless it is so packed that even in case of accident to vehicle, it is unlikely to cause damage or injury to the vehicle or to the persons carried therein. It is, therefore, submitted that a statutory duty has been cast not to carry passengers in goods vehicle and not to carry dangerous substance in any public service vehicle unless it is so packed that it does not cause damage or injury to any person even in case of accident and breach of this duty is itself negligence on the part of GTF driver. Therefore, it is contended that GTF driver is negligent in this respect and there is at least one death due to inhalation of acid fume as seen from the post-mortem report and two to three cases of personal injuries by acid burns and these injuries and this death would not have taken place but for the breach of statutory duty on the part of GTF driver and, therefore, there is contributory negligence on the part of GTF driver for causing death of one person and injuries to some other claimants. It is true that this can be said to be negligence, but this negligence has not in any manner contributed to the accident. The accident has taken place solely due to the negligence of CPM truck driver and there is no contributory negligence in this respect by the GTF driver. Once 100 per cent driving negligence is attributed to CPM truck which has caused the accident, the resultant damage, death or injury has to be attributed to the driving negligence of CPM track and it is not possible to hold that there was any contributory negligence which has resulted into death of one person and injuries to some other persons because of breach of duty by GTF driver. The breach of that duty has not in any way resulted into the accident which was purely due to driving negligence and this breach of duty cannot be said to be negligence or negligence that can be said to be contributory to the accident or death due to acid fume and injuries due to acid burns.
23. It is also contended that so far as CPM truck driver is concerned, whether he is Shriram or Jagjitsinh, neither of these is a party to the litigation and unless such driver is a party to the litigation, he cannot be held to be negligent. If he is held to be negligent, he has to be made a party and only if he is negligent, his owner might be vicariously liable and only in that case the insurer will be required to indemnify the owner. When the driver himself is not a party, he cannot be held negligent and he cannot be held liable. If the driver is not liable, the case against that set of defendants must fail. Let us examine this submission. It is to be noted that the negligence of the driver has to be established before the owner can be held vicariously liable for the negligence of the driver. However, it is not necessary that the driver should be held liable to pay the compensation for his negligence because the owner can be held liable vicariously for the negligence of the driver. The negligence of the driver and the liability of the driver for such negligence are different and separate things. The negligence of a driver can be established even when driver is not made a party. This question has been concluded by the Division Bench of this court in the case of L.I.C. of India v. Legal Representatives of deceased Naranbhai Munjabhai Vadhia 1973 ACJ 226 (Gujarat). Similar question had arisen at the appellate stage and the question was considered under Order 41, Rule 4 of Civil Procedure Code. In that case, one of the drivers was not found and, therefore, his name was deleted; one of the drivers died during the pendency of the appeal and his heirs were not brought on record. The appeal filed by the insurance company was found not only competent, but even the cross-objections filed by the claimants against the insurer without the drivers being parties were held to be competent and cross-objections for enhancement of the claim were allowed. Order 41, Rule 4 of Civil Procedure Code provides that where there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the appellate court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be. Therefore, the appeal filed by the insurance company alone without joining drivers as parties was held to be competent and as the appeal was competent, cross-objections were also held to be competent and the Division Bench held that the only effect of absence of drivers would be that so far as the quantum of liability of those drivers is concerned, it may not be increased and the extent of the liability of the insurance company has to be measured by the indemnity clause. Ultimately, the cross-objections were allowed and amounts of compensation awarded to the claimants from the owner and the insurer were enhanced. It was also held that the liability of the defendants was the liability of joint tort-feasors and all or any of them could have been sued even separately and each was severally answerable for the same. In view of this Division Bench judgment that the claim can be made and adjudicated against the owner and the insurer even in absence of the driver directly negatives the contention of Mr. Shah.
24. Mr. Shah also contended that the cross-objections by the claimants have been filed in the appeals filed by the other insurer, New India Assurance Co. Ltd., who is the insurer of GTF truck and no cross-objections have been filed in the appeals filed by National Insurance Co. Ltd., the insurer of CPM truck and, therefore, in absence of any cross-objections in the appeals filed by National Insurance Co. Ltd., National Insurance Co. Ltd. is not required to meet with any cross-objections of the claimants which are not filed in their appeals. The relevant provision of Civil Procedure Code is Order 41, rules 22 and 23. It provides that any respondent, though he may not have appealed from any part of the decree, may not only support the decree, but he may also take any cross-objections to the decree which he could have taken by way of appeal. Sub-rule (3) provides that all parties who may be affected by such objections have to be served with copy thereof. Thus, virtually, cross-objections are cross-appeals and will have the same effect as if they are independent appeals and whoever is liable on such appeal can be rendered liable whether such party is the appellant or respondent or corespondent. This is also fortified from Sub-rule (4) which provides that if the original appeal is withdrawn or dismissed for default, the cross-objections so filed may nevertheless be heard and determined after such notice to the other parties as the court thinks fit. Rule 33 provides for power of court of appeal to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties although such parties may not have filed any appeal or objections.
25. In Pannalal v. State of Bombay AIR 1963 SC 1516, the Supreme Court held that the wide wording of Order 41, Rule 33 of Civil Procedure Code was intended to entitle the appellate court to make whatever order it thinks fit not only as between the appellant and the respondent, but also as between a respondent and a respondent. It empowers the appellate court not only to give reliefs to the appellant, but also to give such other reliefs to the respondent as the case may require and the appellate court while allowing the appeal of one of the defendants by dismissing the plaintiff's suit against it, it can give a decree in favour of the plaintiff-respondent and against other co-respondents-defendants, who are parties to the appeal and this is made clear by an illustration to Rule 33.
26. In the case of Koksingh v. Deokabai AIR 1976 SC 634, the Supreme Court held that even in absence of any appeal or cross-appeal, the High Court is competent to pass a decree in favour of the respondent in exercise of power under Order 41, Rule 22 in the facts and circumstances of the case.
27. As far as the claimants are concerned, they claim compensation from all or any of the opponents and tortfeasors. The Tribunal has passed an award in their favour holding all the opponents liable jointly and severally. They have filed cross-objections for enhancement of their claims in appeals preferred by United India Insurance Co. Ltd. They are not required to file separate cross-objections in the appeals filed by the National Insurance Co. Ltd. If they succeed in establishing that they are entitled to enhanced claim, they are claiming that amount from the joint tortfeasors whose liability is joint and several. To counter their claim for compensation, it is open to either set of defendants to contend that the other set of defendants is liable for compensation and on the court reaching conclusion holding any of the set of defendants liable for compensation, it is competent for appellate court to pass appropriate orders in cross-objections holding any of the tortfeasors and their insurers liable and pass decree and award accordingly.
28. In view of the aforesaid discussion, we hold that CPM truck driver alone is negligent and GTF truck driver was not negligent and, therefore, the award passed against GTF truck driver, owner and insurer cannot be sustained.
29. We have also held that the cross-objections filed by the claimants in the appeals filed by the New India Assurance Co. Ltd. are maintainable and if any claim for any enhancement is established, additional award against the co-respondent can be passed. We will, therefore, now examine the cross-objections for the purpose of ascertaining the quantum of compensation.
30. The learned counsel for the claimants has submitted that:
(1) interest from the date of application till the date of deposit has been awarded at the rate of 6 per cent only and it should have been awarded at the rate of 12 per cent;
(2) in fatal cases, the income has been assessed at the rate of Rs. 300/- per month and it should have been assessed at the rate of Rs. 500/- per month;
(3) the multiplier which has been adopted in these cases is 15 and it should have been at least 20 or more;
(4) in fatal cases, the Claims Tribunal has awarded only Rs. 5,000/- under the head of loss of expectation of life and it should have been awarded at the rate of Rs. 10,000/-.
In five injury cases, from the facts of each case, enhancement is claimed.
31. In several cases, different High Courts including Gujarat High Court have been awarding interest at the rate of 12 per cent per annum. In the cases reported in A. Rajam v. M. Manikya Reddy 1989 ACJ 542 (AP), Oriental Insurance Co. Ltd. v. S.A. Gafer 1989 ACJ 938 (AP) and New India Assurance Co. Ltd. v. Charanjit Kaur 1989 ACJ 1133 (P&H), Andhra Pradesh and Punjab & Haryana High Courts enhanced the interest from 6 per cent to 12 per cent. The Division Bench of this court in First Appeal Nos. 176 to 180 of 1979 has, by its judgment dated 10.7.1990, awarded interest at the rate of 12 per cent from the date of application. The same rule has to be applied uniformly in all cases unless any special reason is indicated for not awarding this rate of interest. In the present case, we do not find any reason to make any departure and, therefore, the rate of interest has to be enhanced from 6 per cent to 12 per cent in all the cross-objections.
The conventional figure which has been adopted by the Tribunal in these cases is Rs. 5,000/-. In Rafia Sultan v. Oil & Natural Gas Commission 1986 ACJ 616 (Gujarat), which was a case of an accident of 1978, this High Court has awarded Rs. 10,000/- and, therefore, under this head, in the cross-objections regarding fatal cases, the amount is required to be enhanced from Rs. 5,000/- to Rs. 10,000/-.
32. The claim for enhancement with regard to the datum figure is that the datum figure should have been based on the basis of monthly income of the labourers at Rs. 500 per month. In para 101 of the judgment, the Tribunal has considered this aspect and the evidence regarding income and wages of the labourers. Some had deposed that the earning was Rs. 25/- per day whereas some others had deposed that wages were Rs. 12/- per day and there was no evidence that they used to get employment on all days. The Tribunal has also recorded that advocates for both the parties have conceded that the income should be assessed at Rs. 10/- per day, i.e., Rs. 300/- per month. In view of the evidence on record and in view of the concession, we do not think that the estimate of assessment of the Tribunal requires any modification. Therefore, this contention of the claimants for enhancement under this head must fail.
33. The multiplier of 15 has been adopted by the Tribunal and the claimants have submitted that it should have been more and judgments of some of the High Courts have been cited where higher multiplier has been adopted. However, there is no reason for adopting higher multiplier as was adopted in view of the facts and circumstances of the cases reported in Nepoleon Fernandes v. Union of India 1977 ACJ 20 (Bombay), by Bombay High Court, Mohinder Singh v. Gurdial Singh 1978 ACJ 279 (P&H), by Punjab & Haryana High Court and Badibai v. Onkar Lal 1978 ACJ 476 (MP), by Madhya Pradesh High Court.
34. In the case of Ahmedabad Municipal Transport Service v. Manekben 1982 ACJ (Supp) 561 (Gujarat), the Division Bench of this court had considered the question of multiplier in para 15, and following ratio of the judgment in the case of C.K. Subramania Iyer v. T. Kunhi Kutlan Nair 1970 ACJ 110 (SC), was followed:
It would appear from these illustrative cases that the trend has been to capitalise the loss of dependency benefit at 15 years' purchase on the outer side in the case of persons in thirties and forties when they were the bread-winners of the family. It is well settled that in making the awards in accident cases, the court is usually guided by awards made in previous cases. Therefore, these decisions must be held as providing the guideline for the determination of the correct multiplier in the case of a person who was at the fag-end of fifties.
Following the aforesaid ratio of the Supreme Court, the Division Bench held that in cases of victims of accident who were in thirties or forties, when their lives are cut short by unfortunate accident, multiplier of 12 to 15 with outer limit of 15 was found to be quite proper multiplier to be adopted in capitalising the dependency benefit so as to work out just compensation. Thus, 15 as multiplier is the outer limit as held by the Division Bench of this court. The Tribunal has adopted the same multiplier. We do not think that any case is made out for adopting any higher multiplier and, therefore, this contention fails.
35. Now, taking up individual injury cases, the claim for enhancement is made in cross-objections in four appeals, namely, First Appeal Nos. 1255 of 1985, 1257 of 1985, 1258 of 1985, 1260 of 1985. In cross-objections in First Appeal No. 1255 of 1985, additional claim is made on the ground of pain, shock and suffering. Paras 230 to 235 of the judgment of the Tribunal deal with this aspect. The Tribunal has awarded Rs. 15,000/- for non-pecuniary loss, i.e., for mental agony, pain, shock and suffering. The injured applicant Sandhuben had suffered three fractures, simple fracture of tibia fibula, fracture of pelvis and fracture of left clavicle. She was admitted as an indoor patient for three months. Fracture of the left leg was fixed by means of nail and she was bedridden for three months. She was operated on 6.4.1983, plating and bone-grafting was done for the fracture of tibia fibula. After the fracture was united, there was difficulty in walking long distance. There were pointing screws on the dorsum of leg. There was wasting of left quadriceps and calf. There was shortening of leg by one cm. Bone was taken from pelvis and there was permanent physical impairment assessed at 15 per cent. For the purpose of present cross-objections, we are concerned with the head of pain, shock and suffering only. There are in all three fractures, operations, bone-grafting and she was bedridden for three months.
36. In the case of Ahmedabad Municipal Corporation v. Niranjan Ambalal Patel 1981 ACJ 53 (Gujarat), towards damages for non-pecuniary loss, i.e., pain, shock and suffering in respect of fracture of right femur, a sum of Rs. 15,000/- was awarded. In that case, the estimate with regard to the permanent disability of a particular limb was within 5 to 10 per cent. The period of hospitalisation was 21 days. Having regard to the facts of the present case of multiple fractures and long hospitalisation and particularly operation and bone-grafting, an amount of Rs. 25,000 should have been awarded. As the Tribunal has awarded only Rs. 15,000/-, additional amount of Rs. 10,000/- is required to be awarded and to that extent, the cross-objections are required to be allowed and this amount of Rs. 10,000/- will carry interest at the rate of 12 per cent per annum from the date of application till realisation with proportionate costs on the said amount.
37. In cross-objections in First Appeal No. 1257 of 1985, an amount of Rs. 28,000/- has been awarded for non-pecuniary loss, i.e., pain, shock and suffering. The main injury is loss of vision of the right eye and also first degree burns over right side chest and reliance has been placed in the case of Ahmedabad Municipal Corporation 1981 ACJ 53 (Gujarat), where some of the cases were for loss of vision. The Division Bench held that when a man loses an eye, in normal circumstances, once he accustoms himself to monovision, he does not suffer any great inconvenience, but one of the most important factors which must be taken into consideration is that if by chance he loses the remaining eye, the person would become stone-blind and loses much of the pleasures of life and was awarded a sum of Rs. 37,500/-. This judgment was considered by the Tribunal in para 251 of the judgment and considering that there was also some brain injury in the reported case where Rs. 37,500/- was the amount awarded, the Tribunal thought that the present claimant was entitled to something less and, therefore, the amount is reduced by Rs. 10,000/- and only Rs. 28,000 has been awarded.
38. The learned counsel for the National Insurance Company Ltd. submitted that the claimant was advised to go to S.S.G. Hospital at Baroda. However, he has refused to go to Baroda Hospital for treatment. However, the evidence of the claimant, Exh. 64, shows that after treatment at Petlad, he was admitted in Baroda Hospital and he had taken treatment for three days. Therefore, it is not that he has neglected to take treatment. This part of the evidence of the claimant is not challenged. The permanent disability is loss of vision in one eye and reduction of Rs. 10,000/- was not justified. In our opinion, the claimant should have been awarded Rs. 35,000/- and not Rs. 28,000/- only. Therefore, the claimant is entitled to an additional amount of compensation of Rs. 7,000/- from the date of application till realisation.
39. In cross-objections in First Appeal No. 1258 of 1985, the claimant is awarded Rs. 30,000/- as non-pecuniary loss. He had suffered bum injuries and he was treated as an indoor patient for two months and vision of right eye was totally lost. His skin of the right leg was peeled. There were first degree burns over face, back of neck, right scapular region, right arm and posterior part of right thigh and right gluteal region in addition to the corneal opacity of lower part with vision loss of about 80 to 85 per cent of right side. The serious burn injuries were almost all over the body. These burn injuries would have caused great physical and mental agony in addition to loss of vision of one eye. In the case of loss of vision of one eye, i.e., in the case of Ahmedabad Municipal Corporation 1981 ACJ 53 (Gujarat), the court has awarded Rs. 37,500/-. In the present case, there are extensive burns, and injuries all over the body, and hospitalisation for about two months. Therefore, the claimant should have been awarded a sum of Rs. 45,000/-under the head of pain, shock and suffering and non-pecuniary loss for the loss of vision of one eye and extensive burn injuries. The Tribunal has awarded Rs. 30,000/- under this head and, therefore, there will be an additional award of Rs. 15,000/- from the date of application till realisation with proportionate costs and interest.
40. In cross-objections in First Appeal No. 1260 of 1985, a girl of 12 years is awarded Rs. 30,000/-. The back portion of the minor girl was broken. The discussion in the trial court's judgment is in paras 272 to 289. In all, she has been awarded Rs. 70,975/-including Rs. 30,000/- for non-pecuniary loss. In cross-objections, the claim is pressed for additional compensation under this head of non-pecuniary loss. This girl was aged 12 years at the time of accident. She was admitted in the hospital and it was found that she had a compression fracture third lumbar vertebra with paresis, i.e., weakness of both the limbs. Operation was performed on 9.2.1983. She was given plaster spika from neck to knee and was in the hospital as an indoor patient for almost a year and had to take physiotherapy treatment for a long time thereafter. She had three operative scars; first scar was 8 inches in length, second was 12 inches and third scar was 6 inches in length. The medical evidence is that she has nearly 60 per cent disability. Squatting is not possible; flexion was restricted to 50 degrees. She had hypothesia, i.e., diminished sensation over lumbar 3, 4 and 5 dosmantom. The pain was severe because of compression fracture. Even when she was last examined, she was having pain. Her marriage chances were seriously affected. She cannot walk without support and she will not be able to do manual work. The Tribunal has observed that there is disfiguration of the body and she is virtually a cripple. It would not be possible for her to marry. Her parents are already dead and she is likely to live a lonely life and the learned Claims Tribunal awarded Rs. 30,000/- as non-pecuniary loss. It appears that this amount is very low having regard to the aforesaid aspects of long hospitalisation, long lasting pain, loss of marriage prospects and loss of happy life and being dependent. In our opinion, under this head, an amount of Rs. 45,000/- should have been awarded. Therefore, we direct that the amount of award be enhanced by Rs. 15,000 under the head of non-pecuniary loss.
41. In the result, having held that there was no negligence on the part of GTF driver and there was negligence only on the part of CPM truck driver, awards passed against the driver, owner and insurer of GTF truck are set aside and it is held that the owner and insurer of CPM truck are liable to satisfy the award as enhanced and modified by this judgment.
42. Thus, the appeals filed by New India Assurance Co. Ltd. are allowed. The appeals filed by National Insurance Co. Ltd. and the owner of CPM truck are dismissed. The cross-objections filed by the claimants are partly allowed by enhancing the rate of interest and enhancing the global amount in fatal cases and enhancing the amount in the specific cross-objection as discussed herein-above. The cross-objections filed by the owner of the CPM truck in First Appeal No. 1262 of 1985 are also dismissed. It may be mentioned that the owner of CPM truck has filed a declaration in this court that in the event of any amount being awarded from the other side, the amount paid to that owner by his insurance company will be reimbursed to the said insurer. However, that has become academic in view of our finding that sole negligence is of CPM truck driver.
In view of the fact that the two insurers are nationalised insurance companies, it is directed that the National Insurance Co. Ltd. shall pay directly to the New India Assurance Co. Ltd. the amount deposited by it in pursuance of the award of the Tribunal. Now that the award against the New India Assurance Co. Ltd. is reversed and the National Insurance Co. Ltd. is held liable and, therefore, the joint pursis shall be filed in the Tribunal to the aforesaid effect.
These cross-objections are allowed accordingly with proportionate costs and interest at 12 per cent per annum. As far as other parties are concerned, they will bear their own costs.