Rajasthan High Court - Jaipur
Radhey Shyam And Ors. vs Keshav Prakash Jain And Ors. on 8 August, 1986
Equivalent citations: I(1987)ACC92
JUDGMENT
G.M. Lodha, Acting C.J.
1. All these five appeals have been jointly heard at the joint request of the learned Counsel for the parties and are jointly disposed of.
2. The case relates to an accident where Khajumal, a Tourist Guide himself, became victim of death on account of accident between a Matador and a luxury bus. The Tourist Guide Khajumal died in this accident at an age of 30 years. Some of the tourists, who are appellants, namely, Naina Ben, Shobha Ben, Ishwar Bhai Patel and Ami Ben got injuries as they were travelling in the Matador along with Keanu Mal Tourist Guide.
3. The Tribunal has come to the conclusion and rightly so, that the accident happened on account of rash and nagligent driving by the driver of luxury bus, which collided with this matador.
4. The Tribunal has awarded the following compensation:
(1) Khaju Mai's legal representatives Rs. 75,840/- (2) Smt. Naina Ben Rs. 10,200/- (3) Smt. Shobha Ben Rs. 8,300/- (4) Ishwar Bhai Patel Rs. 9,500/-
5. All the claimants have Bled appeals and so also the owner of the luxury bus. Whereas the owner of the Luxury Bus could have afforded the luxury of filing the appeal and the Insurance Company wisely restrained itself in not filing appeal, as the Insurance claim cases related to the social and welfare branch of law where technical procedures have got no place and substantial justice based on humantarian considerations have got the upper hand.
6. Now coming to the merits of the cases, Mr. Mathur, counsel for the bus owner submitted that doctors have not been examined and there is no medical evidence to prove the injuries or death. According to him, whether Khajumal died or not is a matter, which should have been proved by medical evidence and so also the injuries received by the injured.
7. In my considered opinion there is no rule of thumb that unless the doctor is examined to prove that a person is dead, that person is treated as a person alive. Similarly there is no such principle of law that injuries to persons can only be proved by medical evidence and that too by examining the doctor.
8. It is true that the medical evidence has got its own value and normally it is better if a doctor is examined in order to make the injuries' assessment precise and exact. However, in the absence of a doctor the claim for compensation cannot be thrown out.
9. The present one is a case where Khajumal's death is not denied, nor it is challenged that he is alive, or never died. Similarly no evidence has been recorded by the other side that Khajumal is alive or that Ami Ben, Naina Ben, Shobha Ben and Ishwar Bhai Patel did not receive any injuries.
10. Contrary to it, there is oral evidence supported by the documentary evidence of the, Medical Department to show that Khaju Mai died and these four Naina Ben, Shobha Ben, Ishwar Bhai Patel and Ami Ben received injuries. There is further documentary evidence, though proved by the appellants, injured persons, who are not doctors but who are themselves injured that whereas Naina Ben had fractures on both her legs, Shobha Ben had fracture of one leg and Ishwar Bhai Patel had fracture of one leg. Ami Ben, a minor girl received injuries on head and was admitted to hospital.
11. In such circumstances, after having thoughtful consideration to the rival contentions of the learned Counsel for the parties and on a perusal of the relevant record, I am of the opinion that the finding of the Tribunal so far as facts about the accident having taken place due to rashness and negligence of the driver of the luxury bus, which collided with tourist matador and further the injuries received by the above injured persons, are well proved by evidence and the Tribunal's finding cannot be assailed on any permissible legal ground. I have got, therefore, no hesitation in confirming the judgment of the Tribunal so far as this aspect of the case is concerned.
12. Mr. Mathur submitted that the non-production of the medical evidence should not be lightly brushed aside as it is the duty of the claimant's to prove postmortem reports and other medical reports.
13. I have already observed that this cannot be a rule of thumb and in accident cases where the unfortunate victims of accident are handicapped and come for compensation, technical rules of evidence should not be applied and substantial justice must be done.
14. In view of this, I am inclined to accept the oral evidence and would not insist on the production of medical evidence in the form of the doctor, who examined the injuries or conducted the post-mortem.
15. I may now take up the appeals of the claimants. In the case of Khajumal, who died, it is proved that he was 30 years of age only and applying the principle of expectancy of life of 65 years, the Tribunal should have counted and determined the multiple in each case. Obviously none of the claimants, who are dependents of the deceased are more than 30 years and, therefore, I would determine the multiple in each case by addition of five years more, as the Tribunal has treated the expectancy of life of 60 years only. The total compensation would be thus Rs. 75,840/- + Rs. 18,000/- Rs. 93,840/-.
16. Now so far as the injured are concerned, Ishwar Bhai's right was fractured and the compensation of Rs. 9,500/- granted in case of such disability deserves to be increased to Rs. 15,000/-. Similarly Shobha Ben received a fracture and the compensation should be Rs. 15,000/-. Naina Ben received two fractures and the compensation should be Rs. 25,000/-. It may be mentioned that in Mohan Lal v. Balwant Kaur (1985) I ACC 322, I have laid down the principle of calculation of compensation in such cases of accidents where fractures are caused. In the ease of Ami Ben, minor, who received injuries on her head and compensation has been refused only on the ground that she has not been examined, who is seven years' of age, the Tribunal should have awarded compensation. Naina Ben has deposed that Ami Ben, her daughter received injuries in this accident and was admitted to hospital. A compensation of Rs. 3,000/- is allowed for the injuries of Ami Ben.
17. The result of the above discussion is that whereas all the appeals of the claimants are accepted, the appeal of the bus owner Radhey Shyam is dismissed. The compensation now allowed would be as under in each case and would be distributed according to the proportion already fixed by the Tribunal:
(1)Khajumal's legal representatives Rs. 93,840/- (2)Ishwar Bhai Patel Rs. 15,000/- (3)Shobha Ben Rs. 15,000/- (4)Naina Ben Rs. 25,000/- (5)Ami Ben Rs. 3,000/-
18. It is further made clear that in the case of injured, Ishwar Bhai Patel, Naina Ben, Shobha Ben and Ami Ben the National Insurance Company would pay this amount. In the case of the death of Khajumal the liability of Insurance Company would extend only upto Rs. 50,000/-. The compensation amount would carry interest at the rate of 12% from the date of application till the date of realisation. The appellants-claimants would get their costs from the National Insurance Company. The appeal of Radhey Shyam is dismissed and there would be no order as to costs in his appeal.