Punjab-Haryana High Court
Tara Chand And Arjan Singh vs Dr. Brij Mohan Gupta And Anr. on 23 November, 1979
JUDGMENT Ranjendra Nath Mittal, J.
1. This judgment will dispose of F.A.O. Nos. 248 and 260 of 1972 which arise out of the same judgment.
2. Briefly, the facts are that the claimant was a medical practitioner at Jagadhri. On April 10, 1969, he had gone to village Makaronpur to examine a patient. He returned from that village on his motor-cycle at about 8-45 a.m. The attendant of the patient, Nathu Ram, accompanied him to Jagadhri. He was sitting on the pillion seat of the motor-cycle. On the way, there was a tri-junction where three roads--one from Jagadhri, another from Jamna Nagar and the third from Chhachhrauli meet. The claimant was coming from Chhachhrauli side. A truck bearing No. HRA 966 was proceeding from Jamna Nagar to Chhachhrauli side. It belonged to Tara Chand and was being driven by Arjan Singh, driver. It is alleged by the claimant that it was being driven at a high speed. It is further stated that when the truck came at the road junction and took a turn to the right side, the driver saw the claimant coming on the road on motorcycle from Chhachhrauli side. It is then said that the driver after seeing him swerved the vehicle towards the left and saved the head on collision with the motor-cycle but while doing so the silencer and rear portion of the truck hit against the motor-cycle. Nathu Ram, who was sitting on the pillion seat, fell down on the ground on account of the impact. He later on died in the hospital. It is then averred that the hind right wheel of the truck passed over the motor-cycle and the right leg of the claimant on account of which his right thigh was crushed. Later, his leg was amputated in the hospital at Patiala. The claimant filed a claim for Rs. 75,000 before the Tribunal against the owner, the driver and the insurer of the truck.
3. The claim was defended by the respondents. Tara Chand and Arjan Singh, in their joint written statement, admitted the accident but denied that it had occurred on account of rash and negligent driving on the part of the driver. On the other hand, they pleaded that the claimant himself was driving the motor-cycle rashly and negligently on account of which the accident took place.
4. On the pleadings of the parties, the Tribunal framed the following issues :
" 1. Whether the accident occurred due to the negligence and rash driving by the driver of the vehicle ?
2. To what amount of compensation, if any, the petitioner is entitled to and from whom ?
3. Relief?"
5. It held that the accident took place due to the rash and negligent driving of the driver and that the claimant was entitled to an amount of Rs. 55,000 as damages. Consequently, it allowed the claim to that extent.
6. Two appeals have been filed against the award of the Tribunal--one by the New India Assurance Company, the insurer (FAO No. 260 of 1972), and the other by the owner and the driver (FAO No. 248 of 1972).
7. The first question that arises for determination is as to whether the accident took place on account of the rash and negligent driving of the driver of the truck or the claimant. The learned counsel for the appellants has vehemently argued that from the pleadings and evidence of the claimant it is clearly established that the accident took place on account of the fault of the claimant and, therefore, the appellants are not liable to pay any damages. In the alternative, he has urged that Brij Mohan Gupta, respondent, had at least contributed to the accident and, therefore, the appellants are liable for a part of the damages. He also argues that the accident also did not take place at the point suggested by the claimant.
8. There is a controversy regarding the place of occurrence. In the claim petition, the claimant had stated that at the tri-junction, he gave an indication that he had to take a turn for Jagadhri. The driver of the truck was coming from the opposite side and did not give any indication as to which side he was to take a turn. He was coming at a high speed and the silencer of the truck struck against the motor-cycle of the claimant and the hind wheel of the truck passed over the motor-cycle. Three eye witnesses, besides the claimant and the driver of the truck, appeared in the witness box. Inder Sen, AW 3, stated that the driver of the truck on reaching the tri-junction saw the motor-cycle of the claimant coming from the opposite side and he immediately diverted the direction of his vehicle. He could save the front portion of his vehicle from striking against the motorcycle. The back portion, however, struck against the motor-cycle. The right back wheel of the truck passed over the motor-cycle, and the leg of the claimant. Om Parkash, AW 5, made a similar statement. He said that the truck came from Yamuna Nagar side and he negotiated a turn towards Chhachhrauli side. The motor-cycle of the claimant struck against the rear wheel of the truck. The claimant supported the said story. He said that the accident occurred at a place which was short by 10 or 15 yards from the road junction. A dispute has been raised by the learned counsel for the appellants on the basis of the statement of the claimant that the accident did not take place at the tri-junction but it took place on the road towards Chhachhrauli. In my view, no such inference can be drawn from the statement of the claimant. The length of the truck is about 8 yards. It is admitted that the accident took place after the truck had taken a turn towards Chhachhrauli and its hind portion struck against the motor-cycle. It is possible that the claimant could not give the exact distance in yards. In fact, in such circumstances, it is very difficult to give the exact location of the occurrence in yards and feet. In any case, the difference of the place of occurrence is so minor that it is futile to take it into consideration, especially in the circumstances that the aforesaid version is supported by Vidya Bhushan, RW 1. He deposed that the accident took place exactly at the place where the truck was taking a turn. Arjan Singh, driver, has also stated the same thing. After taking into consideration the evidence, I am of the view that the accident took place at the turning. The front portion of the truck was, however, beyond the turning towards Chhachhrauli.
9. The next controversy is as to whether the accident took place on account of the rash and negligent driving of the driver or of the claimant. Inder Sen, AW 3, deposed that he saw that a truck was being driven by the driver at a very high speed. When it reached the tri-junction, the driver of the vehicle did not blow any horn and took a turn. He further deposed that Dr. Brij Mohan was driving his motor-cycle at a normal speed. Similar statements were made by Om Parkash, AW 5, and the claimant. They further said that before entering the tri-junction, the claimant blew horn. It may, however, be mentioned that none of the aforesaid witnesses said that the claimant dropped his speed while reaching the trijunction. On the other hand, Vidya Bhushan, RW 1, said that before reaching the tri-junction, the driver of the truck changed gear and blew horn. Arjan Singh, driver, also made a statement to the same effect.
10. I have gone through the statements of the witnesses very carefully. I am, however, not inclined to accept the version of the claimant that he was cautious at the tri-junction. It appears that he approached the tri-junction at the same speed at which he was coming. It further appears that the story that he blew horn is also not believable. His witnesses cannot be believed in this regard. On the other hand, the story put forward by the driver and his witnesses that the driver dropped the speed at the tri-junction, changed the gear and then proceeded towards Chhachhrauli also cannot be relief upon. It is also incredible that the driver blew any horn at the tri-junction. It may be mentioned that the junction is not a tri-junction. There is an angle of more than 120 degrees between Yamuna Nagar Road and Chhachhrauli Roid and it is possible that the truck could have taken a turn on Chhachhrauli road without changing the gear. The fact that the aforesaid roads do not constitute a tri-junction, is clear from the report of the Magistrate, Ex. R 1, who inspected the spot in criminal challan wherein Arjan Singh, driver, was prosecuted under Sections 338/ 304, IPC for the rash and negligent driving. In the aforesaid situation, it is to be seen as to who was responsible for the accident.
11. Regulation 6 of Schedule 10 of the Act prescribes that the driver of a motor-vehicle shall slow down when approaching a road intersection, a road junction or a corner and shall not enter such an intersection or junction, until he has become aware that he may do so without endangering the safety of a person thereon. It is evident from the aforesaid regulation, that at a road junction it is the duty of drivers that they shall slow down the vehicles and enter the road junction if they are sure that they would not endanger the safety of any other person thereon. According to the said regulation, it was the duty of the claimant as well as the driver of the truck to slow down their vehicles and enter the tri-junction after looking out that no vehicle was coming from the other sides. It appears, neither of them took that precaution. Thus, both of them have contributed to the accident. A case came up before me earlier in Tourist Co-operative Transport Society Ltd. v. Dr. Om Prakash [1973] ACJ 361. In that case the accident took place at a road intersection between a bus and a motorcycle. It was held in that case that a duty was enjoined by Regulation 6 on the drivers of both the vehicles which were approaching the intersection to see that the safety of the person thereon was not endangered. It was further held that in case the claimant had been slightly cautious, he would have stopped his motor-cycle and allowed the bus to pass. Similarly, if the driver of the bus had been cautious he would have done so. In that situation, I came to the conclusion that both of them were equally liable. Similar observations were made by me in Smt. Raj Kumari v. State of Haryana [1974] PLR 33. In that case also, the accident took place at a road crossing. In the present case, though the accident did not take place at a road intersection, yet the above observations are equally applicable to it.
12. In view of the aforesaid reasons, I am of the opinion that Arjan Singh, the driver of the truck and the claimant, both, are equally liable for the accident and the appellants are liable to pay half of the damages.
13. The second question that arises for determination is as to whether the amount of compensation has been correctly worked out by the Tribunal. It has awarded an amount of Rs. 5,000 towards the medical expenses, Rs. 5,000 for loss of income, Rs. 10,000 for pain and suffering and Rg. 35,000 for disability. Thus, it has awarded in all Rs. 55,000. The learned counsel for the appellants have not challenged the items of Rs. 5,000 and Rs. 10,000 awarded on account of loss of income and pain and suffering. They have faintly urged that the amount of medical expenses and amount given for disability were on the higher side. I am not convinced with the argument of the learned counsel. The claimant deposed that he remained in the hospital at Patiala from the date of the accident till the beginning of July, 1969. Thereafter, he went to Simla on the advice of the doctor. He remained there from July 9, 1969, till September 10, 1969. There, he was under the treatment of Dr. Sood. He again went to Rajindra Hospital, Patiala, in October, 1969, and remained there for 20 days. He further stated that operations were performed on his leg many times. He underwent the last operation in October, 1969. Thereafter, he went to Poona three times for getting fitted an artificial limb. Hari Ballabh, AW 8, had accompanied him to Poona on all his visits. He supported the version of the claimant. The claimant gave the approximate expenses in the Rajindra Hospital at Patiala as Rs. 10,000, expenditure at Simla Rs. 2,000 and expenditure for artificial limb and visits to Poona Rs. 5,000. Dr. R.L. Mittal, Senior Lecturer, Rajindra Hospital in his statement, stated that the claimant remained in the hospital for about 3 months. He was discharged on July 3, 1969. He was again admitted on October 13, 1969, for about three weeks. He says that the claimant must have spent about Rs. 5,000 or Rs. 6,000 in the hospital there. It cannot be denied that a medical treatment is very expensive. The claimant had to stay in Rajindra Hospital, Patiala, for a long time. Thereafter, on medical advice he went to Simla. Thereafter, he went to Poona for getting fitted with an artificial limb. In my view, it cannot be said that Rs. 5,000 fixed by the Tribunal for medical treatment are on the higher side. On the other hand, these may be on the lower side.
14. Regarding the amount of compensation determined for disability of the claimant, it also cannot be said to be excessive. He was assessed to income-tax on an income of Rs. 8,000 in the profession in the year 1968-69. At the time of the accident he was 42 years of age. The learned Tribunal took the normal span of life as 70 years. It came to the conclusion that he shall suffer permanent disability for 27 years. Thus, it worked out the total income of the claimant for 27 years at Rs. 2,16,000. It held that he suffered disability of 20 per cent. Thus, it came to the conclusion that a total loss on this account would be Rs. 43,200. The Tribunal further reduced this amount to Rs. 35,000. This amount cannot be said to be excessive by any stretch of imagination. It is, on the other hand, less.
15. In view of the aforesaid discussion, I am of the opinion that the amount worked out by the Tribunal as compensation is correct.
16. It has, however, been held above that the claimant also contributed to the accident to the extent of one-half. Therefore, the claimant would be entitled to one-half of the compensation determined by the Tribunal, i.e., Rs. 27,500.
17. The third question that arises for determination is as to for how much amount the New India Assurance Company is liable. Mr. Suri has vehemently argued that according to the statutory provisions the liability of the assurance company could not exceed Rs. 20,000. Mr. R.K. Mittal, learned counsel for the claimant, has conceded that the liability of the assurance company could not be fixed at more than Rs. 20,000.
18. For the aforesaid reasons, I partially accept the appeals and hold that the claimant is entitled to a compensation of Rs. 27,500 for the payment of which the owner and the driver would be severally and jointly liable and the New India Assurance Company Ltd. would be liable to the extent of Rs. 20,000. In view of the partial success of the appeals, the parties are left to bear their own costs.