Punjab-Haryana High Court
Suraj Bhan vs Satpal Singh And Ors. on 16 May, 1996
Equivalent citations: (1997)117PLR78
JUDGMENT S.S. Sudhalkar, J.
1. Feeling aggrieved by the award dated 27.1.1994 passed by the Motor Accident Claims Tribunal, Yamunanagar at Jagadhari, whereby the Tribunal had partly accepted the claim of the appellant and awarded compensation of Rs. 20,000/- only the appellant has filed this appeal and has prayed for acceptance of the claim petition in its entirety.
2. The facts which are relevant for the purpose of this appeal are that while he was going on his scooter from Jagadhari to Kala Amb, the appellant was struck from behind by Truck No. DRT-85-D 616102 near Sadhaura Canal. As a result of the impact, the appellant and his companion Raj Kumar fell down and received injuries.
3. The claim petition filed by the appellant for award of compensation was resisted by the respondents on the ground that the scooter driver was rash and negligent and that was the cause of accident. After considering the rival pleadings, the Tribunal held the appellant guilty of contributory negligence to the extent of 50% by observing that the scooterist should not have attempted to overtake the truck while it was taking turn towards right side. The Tribunal also appears to have been greatly influenced by the fact that the appellant was not having a valid driving licence.
4. After hearing the learned counsel for the parties and perusing the record of the case, we are of the opinion that the finding of the Tribunal regarding contributory negligence of the appellant is unsustainable and the same is liable to be set aside. We are also of the opinion that the Tribunal has seriously erred in determining the amount of compensation payable to the appellant. When the truck was taking right turn, it was plainly the duty of the truck driver to see that the road was clear and no vehicle was coming from behind. The mere giving of signal by the truck driver for the purpose of taking turn cannot be treated as sufficient to absolve him of the responsibility to take care to see that no one else was driving on that side. In the present case, no evidence was produced by the driver of the truck to prove that he had given sufficient warning to the vehicles coming from behind by giving the signal sufficiently for a long time and then took the turn towards the right. Thus, the Tribunal was in error in holding that the appellant was guilty of contributory negligence. Likewise, the factum of the appellant not possessing valid driving licence was wholly irrelevant for the purpose of determination of liability of the truck driver. The validity of the driving licence of the injured can have no relevance on this issue. The person driving a vehicle without a valid driving licence may be guilty of violating the provisions of the Motor Vehicle Act and the rules frames thereunder, and in a given case, the Insurance Company may set up a defence of invalidity of the driving licence but the driver of the offending vehicle cannot claim immunity from his liability by pleading that the driver of the vehicle which was struck by the truck was not having a valid driving licence. In short, the absence of a valid driving licence with the driver of the vehicle which is struck by an offending vehicle which is driven in a rash and negligent manner, cannot be a ground for absolving the owner and the driver of the offending vehicle of their liability to pay the compensation. We, therefore, hold that the Tribunal has seriously erred in recording a finding that the appellant was guilty of contributory negligence to the extent of 50%.
5. The approach adopted by the Tribunal in awarding compensation of Rs. 20,000/- only is also plainly erroneous because the Tribunal has not given the break up of the various heads under which it awarded the compensation. Rather it has assigned no reasons for awarding a paltry sum of Rs. 20,000/- to the appellant. In our view, the Tribunal should have considered the evidence produced by the parties for awarding the compensation under the following heads:
1. Pain, shock and suffering;
2. Actual expenses incurred;
3. Loss of income;
4. Loss of future income
5. Loss of income of the persons attending the injured, if any;
6. Attendants' charges;
7. Any other loss caused as a direct result of the accident.
The Tribunal should also have considered the prospects of rise in income and the effect of fall in the price of money. For the purpose of consideration of the multiplier, the age of the injured should also have been considered. By having ignored all these important factors, the Tribunal, has committed a serious error.
6. Before we part with this judgment, we consider it imperative to observe that the principles laid down by the Supreme Court with regard to the investment of the amount awarded by the Tribunal deserve to be followed rigorously. In Lilaben Udesing Gohel v. Oriental Insurance Company Ltd. and Ors., (1996-3)114 P.L.R. 328 (S.C.), the apex Court has reiterated the guidelines which it had earlier laid down regarding investment of the amount awarded by the Tribunal in contested matters as well as in the matters decided by compromise. In para 17 of this judgment, the Supreme Court has relied on the principles bid down by the Gujrat High Court in Muljibhai v. United India Insurance Co. Ltd., 1982(23) G.L.R. 756 and observed as under :
"Before we part, we must observe that even though the guidelines laid down in Muljibhai's case have been approved and applied by this Court in the aforementioned two cases, many Motor Accident Claims Tribunals and even some of the High Courts in other parts of the country do not follow. We are also told that in claims that are settled in or outside the Court or Tribunal, including Lok Adalats or Lok Nyayalayas, these guidelines are overlooked. We would like to make it absolutely clear that in all cases in which compensation is awarded for injury caused in a motor accident, whether by way of adjudication or agreement between the parties, the Court/Tribunal must apply these guidelines. We must add one further guideline to the effect that when the amount is invested in a fixed deposit, the bank should invariably be directed to affix a note on the Fixed Deposit Receipt that no loan or advance should be granted on the strength of the FDR without the express permission of the Court/Tribunal which ordered the deposit. This will eliminate the practice of taking loans which may be upto 80% of the amount invested and thereby defeating the very purpose of the order. We do hope that the Courts/Tribunals in the country will not succumb to the temptation of permitting huge withdrawals in the hope of disposing of the claim. We are sure that the Courts/Tribunals will realise their duty towards the victims of the accident so that a large part of the compensation amount is not lost to them. The very purpose of laying down guidelines was to ensure the safety of the amount so that the claimants do not become victims of unscruplous persons and unethical agreements or arrangements. We do hope our anxiety to protect the claimants from exploitation by such elements will be equally shared by the Courts/Tribunals."
The apex Court also quoted the following abstract of the judgment of the Gujrat High Courts-
"Having regard to the- fact that day out thousands of rupees are paid by way of compensation to various categories of claimants, we think that before we part, we may indicate a few broad guidelines which the claims Tribunals may follow while disposing of claim applications arising under the Motor Vehicles Act, 1939, to scotch complaints of misapplication of compensation money:
(i) The claims Tribunals should, in the case of minors, invariably order the amount of compensation awarded to the minor invested in long term fixed deposits at least till the date of the minor attaining majority. The expenses incurred by the guardian or next friend may, however, be allowed to be withdrawn;
(ii) In the case of illiterate claimants also the Claims Tribunal should follow the procedure set out in (1) above, but if lump sum payment is required for effecting purchases of any movable or immovable property, such as agricultural implements, rickshaw etc. to earn a living, the Tribunal may consider such a request after making sure that the amount is actually spent for the purpose and the demand is not a ruse to withdraw money.
(iii) In the case of semi-literate persons the Tribunal should ordinarily resort to the procedure set out at (i) above unless it is satisfied, for reasons to be stated in writing, that the whole or part of the amount is required for expanding an existing business or for purchasing some property as mentioned in (ii) above for earning his livelihood, in which case the Tribunal will ensure that the amount is invested for the purpose for which it is demanded and paid.
(iv) In the case of literate persons also the Tribunal may resort to the procedure indicated in (i) above, subject to the relaxation set out in (ii) and (iii) above, if having regard to the age, fiscal background and strata of society to which the claimant belongs and such other considerations, the Tribunal in the larger interest of the claimant and with a view to ensuring the safety of the compensation awarded to him thinks it necessary to do order;
(v) In the case of widows the Claims Tribunal should invariably follow the procedure set in (i) above.
(vi) In personal injury cases if further treatment is necessary the Claim Tribunal on being satisfied about the same, which shall be recorded in writing, permit withdrawal of such amount as is necessary for incurring the expenses for such treatment.
(vii) In all cases in which investment in long term fixed deposits is made it should be on condition that the Bank will not permit any loan or advance on the fixed deposit and interest on the amount invested is paid monthly directly to the claimant or his guardian, as the case may be;
(viii) In all cases, Tribunal should grant to the claimants liberty to apply for withdrawal in case of an emergency. To meet with such a contingency, if the amount awarded is substantial, the claims Tribunal may invest it in more than one fixed deposit so that if need be one such F.D.R. can be liquidated."
7. We may mention that the principles laid down by the Gujarat High Court were earlier approved in the case of Union Carbide Corporation v. Union of India, 1991(4) SCC 584. The same principles have been laid down in General Manager, Kerala State Road Transport Corporation v. Susamma Thomas and Ors., (1994-2)107 P.L.R. 1(S.C.).
8. It is regrettable that despite the clear guidelines laid down by the apex Court, the Motor Accident Claims Tribunal has not given due regard to the same and it has in a way failed to follow the directions given by the apex Court. If at all, the Tribunal feels in a given case, that the amount to be awarded by way of compensation shall not be invested, then it has to give cogent reasons for the same. We expect that at least now the Tribunals will strictly abide by the guidelines laid down by the apex Court.
9. Subject to the above observations, we allow the appeal and set aside the impugned award. The case is remanded back to the Motor Accident Claims Tribunal, Yamunanagar for fresh decision in the light of the observations made above. We make it clear that the parties shall be entitled to lead additional evidence on the issue of disability of the appellant.
10. A copy of this order be circulated among Motor Accident Claims Tribunals in the State of Punjab and Haryana and the Union Territory of Chandigarh so that the learned Presiding Officer may strictly follow the guidelines laid down by the apex Court.