Punjab-Haryana High Court
New India Assurance Co. Ltd. vs Charan Kaur And Ors. on 20 November, 1985
Equivalent citations: AIR1986P&H366, AIR 1986 PUNJAB AND HARYANA 366, (1986) 2 TAC 172, (1986) 2 TAC 228, (1986) 1 ACC 327, (1986) ACJ 243
JUDGMENT
1. In an accident between a motor cycle and the truck PUN 1781 coming from the opposite direction, Ram Singh, who was driving the motor cycle, was killed while the pillion rider Gian Singh sustained serious injuries. This happened on June 20, 1977, at about 4 p.m. on the road between Chandigarh and S.A.S. Nagar.
2. It was the finding of the Tribunal that it was the truck driver who was wholly to blame for this accident. A sum of Rs. 1, 08,000/- was awarded as compensation to the widow and children of Ram Singh deceased while Rs. 36,000/- were awarded to Gian Singh for the injuries suffered by him in this accident.
3. In appeal here, the challenge in the first instance was to the order of the Tribunal of Mar. 20, 1980, whereby the evidence of the respondents was closed and thereafter the impugned award was announced. The contention of Mr. L. M. Suri, counsel for the appellant-Insurance Company, being that as counsel had abstained from appearing in Court on that date in pursuance of a call to this effect by the Bar Association, there was obviously sufficient cause for setting aside the ex parte proceedings taken on that date.
4. Applications for setting aside the ex parte award were filed before the Tribunal by the Insurance company as also the truck driver. These were dismissed by the Tribunal by its order of Aug. 28, 1980. No exception can indeed be taken to this order. A reference to the record would show that both the truck driver as also the Insurance Company had closed their evidence on Nov. 29, 1979. The case was then adjourned for the evidence of the truck owner and the Bank of India to Jan. 10, 1980. The Presiding Officer of the Tribunal was absent on that date and the case was accordingly adjourned to Jan. 14, 1980, on which date it was adjourned to Feb. 14, 1980, for the evidence of the truck owner. On that date again, no evidence was summoned by the Truck owner nor present and the case was then adjourned to Mar. 20, 1980, with the specific direction that it shall be the responsibility of truck owner and the Bank of India to produce their evidence on the adjourned date.
5. The position that now emerges is that both the parties, namely, the truck driver and the Insurance Company who had applied for the setting aside of the ex parte proceedings had already closed their evidence before the date when the order to this effect was passed. As regards the Bank of India, no relief was granted against it, and it cannot, therefore, be said to be aggrieved by this order in any manner. Similar is the position of the truck owner. Indeed, the counsel for the truck owner admitted that there was no further evidence to be led on his behalf. This being the situation, there is clearly no warrant for interfering with the order of the Tribunal of Mar. 20, 1980, that the respondents be proceeded against ex parte.
6. Coming now to the merits of the case, the finding on the issue of negligence warrants no interference in appeal. According to the claimants, the deceased was travelling on his correct side of the road when the truck coming from the opposite direction at a very fast speed suddenly went to its wrong side and hit into the motor cycle. The tuck driver, owner as also the Insurance Company, on the other hand, accused the deceased of having brought his motor-cycle on to the wrong side of the road and striking it against the truck.
7. The case of the claimants rests upon the testimony of the injured claimant P.W. 7 Gian Singh and P.W. 10 Harnek Singh, who lodged the first information report regarding this incident. It was the consistent testimony of both these witnesses that the motor cycle was on its correct side of the road when the truck came on its wrong side and hit into it. Counsel could point to no contradictions or discrepancies to create any doubt in their testimony. Important corroboration to this version is provided by the first information report Exhibit P.C., which was recorded on the statement of P.W. 10 Harnak Singh and that too within an hour of the occurrence. A similar version finds mention there. What is more, the photographs of the scene of occurrence taken soon thereafter fully bear out the correctness of the claimants' version. It may be pointed out here that the truck driver R.W. 1 Simmer Singh accepted that these photographs were correct. The photograph Exhibit P.B. clearly shows the motor-cycle lying on its extreme left. In the photograph Exhibit P.B/4 in fact the deceased and the motor cycle are shown to be party on the kutcha portion of the road. The distance at which the truck is shown from the motor cycle also bears eloquent testimony to the speed at which it must have been travelling at that time. This being the situation, it cannot be accepted, as stated by the truck driver R.W. 1 Simmer Singh, that the accident had taken place when the motor cycle came on to its wrong side of the road. If that had been so, the photographs would not have depicted the scene they show. The finding on the issue of negligence must accordingly be upheld and confirmed.
8. As regards the quantum of compensation payable to the claimants, no exception can be taken to the amount awarded in respect of Ram Singh deceased. The evidence shows that he was only 27 years of age at the time of his death and he died leaving behind his young widow, tow sons and three daughters, who were all minors. Ram Singh was a milk seller and according to his widow P.W. 8 Charan Kaur, he had 10-12-buffaloes and used to provided them Rs. 1,000/- per month for the household expenses. The Tribunal keeping in view the circumstances of the deceased and the claimants in the context of the judgment of the Full Bench in Lachhman Singh v. Gurmit Kaur, (1979) 81 Pun LR 1: (AIR 1979 Punj & Har 50), assessed the dependency at Rs. 500/- per month with a multiplier of 18. The normal course, no doubt, in such cases is to take 16 as the multiplier, but the mere fact that 18 has been taken instead of 16, provides no occasion for any reduction in the compensation awarded, nor indeed does the evidence on record justify any enhancement of it either. The amount awarded must thus be maintained.
9. Turning to the claimant Gian Singh, it will be seen that his right leg had to be amputated from above the knee on account of this accident. He spent a long period in hospital and had to undergo as many as five operations between July 1977 and Feb. 1978 and during this entire period he remained admitted as an indoor patient at the Postgraduate Medical Institute, Chandigarh. P.W. 6 Dr. P. C. Chari, Assistant Professor of Plastic Surgery at the Postgraduate Medical Institute, Chandigarh, who had been treating him further deposed that even after his discharge from the hospital he had been seeing him as an out-patient.
10. There can be no manner of doubt that the claimant Gian Singh must indeed have undergone a great deal of pain and suffering both on account of the injuries suffered by him as also on account of the prolonged treatment in the hospital leading eventually to the amputation of his right leg. Considerable loss of enjoyment of amenities of life and inability to lead a normal life is now inherent in the present situation of the claimant and that too for the rest of his life. Gian Singh was by no means an old man being only 40 years of age at the time of this accident. Considered in its totality the condition and situation of the claimant, under all these heads an award of Rs. 50,000/- as compensation would indeed be amply justified.
11. During the prolonged period of treatment and convalescence which certainly extended for a year and half, if not more, it was a period of total loss of income as far as the claimant is concerned. The Tribunal rightly assessed this loss at Rs. 9,000/-. Besides this, his present physical condition would also lead to some loss of earnings by him in the years to come for which he must be compensated. Another head under which compensation deserves to be awarded is for the expenses of medical treatment and special diet. There can, of course, be no precise measure of the amount to be awarded under these heads, but taking an overall view of the matter, a sum of Rs. 31,000/-. (to make it a round figure) would clearly meet the ends of justice.
12. Here, Mr. L. M. Suri, counsel for the respondent-Insurance Company sought to contend that the liability of the Insurance Company must be held to be limited to Rs. 50,000/- in each case. He adverted in this behalf to the provisions of S. 95(2) of the Motor Vehicles Act, 1939 (hereinafter referred to as the Act). The argument being that as no plea had been put forth by the claimants that the liability of the Insurance Company exceeded this amount, it must be held to be limited to Rs. 50,000/- which was the sum mentioned in S. 95(2) of the Act. He cited in support Hamirpur Cooperative Transport Society Ltd. v. Kaushalya Devi, 1983 Acc CJ 70 (Him Pra), Des Raj v. Ram Narain, 1980 Acc CJ 202: (AIR 1979 All 328), Automobile Transport (Rajasthan) Private Ltd. v. Dewalal, 1977 Acc CJ 150: (AIR 1977 Raj 121) and Bai Dahiben v. Jesingbhai Bijalbhai, 1984 Acc CJ 150 (Guj). In all these authorities, there were observations to the effect that in the absence of a plea to the contrary, the liability of the Insurance Company would be limited to the amount mentioned in S. 95(2) of the Act.
13. Recently, this Court had occasion to consider the matter in F.A.O. 265 of 1982 Smt. Harjeet Kaur and others v. Balvinder Singh and others, decided on Sept. 6, 1985, where it was observed:--
"It has been taken to be well settled by out Court that S. 95(2) of the Act merely prescribes the minimum but not the maximum liability of the Insurance Company. In other words, the insurance cover cannot be less than the sum mentioned in S. 95(2) of the Act, but it does not preclude a higher risk being covered by the Insurance Company, and, therefore, in the absence of a specific plea by the Insurance Company that its liability is limited to any particular sum, (not being less than the minimum prescribed) and the policy of insurance being placed on record in support of such plea, the liability of the Insurance Company must be held to extend to the entire amount awarded. Reference here may be made to the judgment of the Division Bench in Ajit Singh v. Sham Lal, (1984) 86 Pun LR 314: (AIR 1984 Punj & Har 223), as also the two earlier judgments of this Court in FAO. No. 106 of 1976 (Dr. Karam Singh v. Dhian Singh), decided on Aug. 1, 1983 and FAO NO. 735 of 1979 (New India Assurance Company Ltd. v. Smt. Mohinder Kaur) decided on July 12, 1984. No policy of insurance having been placed on record in the present case, the liability of the Insurance Company must be held to extend to the entire amount awarded".
No plea was raised in the present case regarding any limitation in the liability of the Insurance Company. This being so, it must be held that the Insurance Company was liable for the entire amount awarded in both these cases.
14. Faced with the situation, counsel for the Insurance Company sought amendment of the written statement to raise the plea, not taken earlier, that its liability was limited to Rs. 50,00/-.
15. Counsel cited a number of authorities with regard to the scope and ambit of the power of the Court to allow amendment of pleadings under O. 6, R. 17 of the Civil P.C. Reliance was in the main, placed upon Hari Bacchan Singh v. Har Bhajan Singh AIR 1975 Punj and Har 205, where it was observed,"It is well settled law that however negligent of careless may have been the first omission and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated for by costs....." Reference was also made to Smt. Dulia Devi v. Smt. Ram Kaur, (1975) 77 Pun LR 739 and Puran Chand v. Harjinder Singh (1984) 86 Pun LR 294, where similar views were expressed.
16. The law is indeed well settled that the Court possesses a wide discretion in the matter of amendment of pleadings, but it is a discretion to be exercised judiciously so as to advance the cause of substantial justice and avoid injustice. The ultimate test, as held by the Supreme Court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, AIR 1957 SC 363 being, can the amendment be allowed without injustice to the other side?
17. As regards amendment of pleadings at the appellate stage, reference must be made to the judgment of J. V. Gupta J. in Ranjit Kaur v. Ajaib Singh, (1984) 86 Pun LR 608: (AIR 1984 Pun & Har 292), where it was observed that no one is entitled to seek amendment of pleadings as a matter of right, particularly in appeals. It is only where the Court finds that the proposed amendment is necessary for determination of the controversy between the parties that it may be allowed even at a late stage. The jurisdiction of the appellate Court in the matter is further limited as rights of parties come into being after the passing of the decree by the trial Court. A strong case has thus to be made out why the plea sought to be taken by the amendment could not be put forth earlier. In this situation, delay has also to be explained to the satisfaction of the Court.
18. There is no explanation for the delay in seeking amendment in the present case. The record of the case would show that the accident here took place in June 1977 and the claims for compensation were filed in Aug. 1977. The Insurance Company filed its written statement on Sept. 21, 1977, and issues were thereafter framed on Oct. 6, 1977, and then on Nov. 29, 1977, the Insurance Company placed on record the policy of insurance. The impugned award, a mentioned earlier, was made on Mar. 20, 1980. The present appeals were filed on Jan 5, 1981 and were admitted to hearing on Feb. 10, 1981. It was after the appeal had been listed for hearing and had actually come up for hearing on May 13, 1985, when they were adjourned as counsel for the Insurance Company had stated that he had not received notice of the Cross-Objections, that the applications for amendment of the written statements were filed. Unjustified delay is thus writ large.
19. The law relating to compensation to victims of motor accidents is but a species of welfare laws and has thus to be considered and construed from the standpoint of the claimants. There is a facility and certainly of recovery of compensation from the Insurance Company which is so vividly in contrast with the delays and obstacles that claimants often encounter from the other parties liable, for example, the driver and owner. It is thus a valuable right conferred upon the claimants to recover compensation from the Insurance Company, which it would clearly be unjust to deprive them by the amendment so belatedly sought. Further, it is quite possible that in the intervening period, the other parties liable may have disposed of their assets with a view to defeat the claimants from recovering the compensation awarded. In these circumstances, mere payment of costs cannot obviously provide them adquate recompense and it would thus work injustice to the claimants to permit such an amendment at this stage. As regards the Insurance Company, it has the provisions of S. 96 of the Motor Vehicles Act to fall back upon seek its remedy against the insured.
20. No occasion is thus provided for granting the Insurance Company permission to amend that written statement as prayed for.
21. The compensation awarded to the widow and children of Ram Singh deceased is accordingly hereby upheld and confirmed while that payable to the claimant Gian Singh is enhanced to Rs. 90,000/-. The claimants shall, in addition, be entitled to interest on the compensation awarded at the rate of 12 per cent per annum from the date of the application to the date of payment of the amount awarded.
22. In the result all the appeals are hereby dismissed while the cross-objection filed by the claimants are accepted to the extent indicated above. The claimants shall be entitled to their costs in these appeals. The cross-objections filed by the truck owner in F.A.O.S. 22 and 23 of 1981 are hereby dismissed. Counsel's fee Rs. 500/- (one set only).
23. Order accordingly.