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Judgment
Harbans Lal, J.—This judgment will dispose of F.A.O 208 of 1977, F.A.O. 209 of l977 C.R. 906(sic) of 1977, and F.A Order 177 of 1977, as the same arise out of the same judgment of the Motor Accident Claims Tribunal, Chandigarh, (hereinafter to be called the Tribunal) dated 9th March, 1977.
In an accident occurring on 7th November, 1971, Shri Behari Lal Chawla Appellant in F.A.O. 08 of 1977 and Shri Anand Sharma Appellant in F.A.O 209 of 1977, got a number of injuries on their persons. Both of them filed separate petition u/s 110-A of the Motor Vehicles Act (hereinafter to be called the Act) before the Tribunal which were consolidated and were disposed of by one award as referred to above Shri Behari Lal Chawla was awarded Rs. 4,000/-as compensation against the claim of Rs. 2,9000/- and Shri Anand Sharma was awarded Rs 1500/- where as he had claimed compensation of Rs. 14,000/-. Both the said injured have filed separate appeals as reffered to above for enhancement in the amount of compensation. Third Appeal, namely, F.A.O. 177 of 8977 and C.R. 906 of 1977 have been filed by the Insurance Company (hereinafter to be called the insurer) claiming absolute exemption from liability to pay the compensation.
The facts in brief are that on 7th November, 1971, at about 2:15 P.M. Shri Behari Lal Chawla was going on the road between Sectors 10 and 11 of Chandigarh near the Home Science College on his vespa sector DLY 8715(sic) from the side of Sector 11 towards Sector 6, he was driving the said vehicle. Shri Anand Sharma was sitting on the pillon seat of the same at the time of the accident. An Ambassador car DLY 9651 (hereinafter to be called the offending car came from direction of the P.G.I from the other side of the crossing. Admittedly the said car belonged to Ltd. Col. Gurbax Singh Respondent No. 1 (hereinafter to he called the owner of the car) Shri Inder Mohan Sood Respondent No. 2 was its driver at the time of the accident. According to the version of the injured as referred in their petitions, the car was being driven at a fast speed. The driver of the car while taking a turn at the crossing lost control of the wheel and consequently the car swerved to wrong side of the road and as a result struck against the scooter which was only at a short distance from the crossing Both the injured fell down on the road. After taking the car to the exterms left side of the road after the accident and parking even on the fact path, the driver and other occupants of the car made good their escape
It is not disputed that the said car was insured with Liberty Insurance Company Respondent No. 3 which was subsequently converted into New India Insurance Company Respondent No 4. (the insurer).
At the time of accident Shri Behari Lal injured was aged 25 years 9 months. His monthly salary including all allowances as Sectional Officer, P.W.D. (B&R), Union Territory, Chandigarh, was Rs. 450/- P.M. This companion Shri Anand Sharma injured was aged 25 years and 10 months and was at the time a student of B. Sc. final year.
Shri Piara Singh A.S.I, was posted on the date of the accident at Police Station (West)(sic), Chandigarh. At about 2:30 P.M. on receiving information about the said accident, he went to the rct(sic) at about 2:45 PM On the basis of a statement of Gurmril Singh P.W., who was present at the spot at that tide, a case was registered. Thereafter site plan was prepared Afterwards he went to the P.G.I to enquire about the two injured who had been to removed there He found both of them in an unconscious state. After investigation Shri Inder Mohan Sood Respondent No 2 was arrested on 11th November 1971, and his statement Exhibit A.2 was recorded later on he was prosecute in the, Criminal Court and acquitted at the end of the trial.
Seperate written statements were filed by the owner, driver and the insured of the offending car According to The reply of the owner the car was not being driven rashly or negligently at the time of the accident but the fact that Respondent No. 2 Inder Mohan Sood was drivint it, was not specifically denied. Respondent No. 2 categorically denied that he was driving the car. According to the reply of the insurer(sic). Inder Mohan Sood Respondent No 2 did not have a valid driving licence and as such no liability could be fastened on the insurer. In view of the pleadings of the parties, a number of issues were framed. After evidence had been adduced an both sides the Tribunal concluded that it was Respondent No. 2 Shri Inder Mohan Sood who was driving the offending car at the time of the accident, that the car was being driven negligently and rasbly and further that the injured Behari Lal Chawla who was one of the claimants and was driving the scooter at the relevant time, was also guilty of contributory negligence in the accident to the extent of 25 percent and whereas the driver of the car was held liable to pay compensation to the extent of 75 per cent Regarding the question if Respondent No. 2 had a valid driving licence at the time of the accident, notice was taken by the Tribunal in judgment of the fact that the insurer had filed a suit in the court of Senior Sub Judge Rupnagar, for declaration that the driving licence issued by the Licencing Authority, Rupnagar, in favour of Respondent No. 2 was void, ab initio and further that the same had been issued after the date purporting to be the date of issue in said licence. The Tribunal in view of the same held that the a and for compensation was being made on the assumption that the Respondent No. 2 was possessed of the valid driving licence at the time of the accident but this finding will be subject to the decision of the civil court in the said suit.
Regarding the amount of compensation to each of the two injured, the Tribunal awarded to Shri Behari Lal Chawla injured compensation as under:-
1.
Rs. 20,000/-
In lieu of the expenditure incurred by
him on account of his treatment and operations etc
2.
Rs. 10,000/-
On acccount of loss of salary.
3.
Rs. 10,000/-
On account of pain and suffering.
4.
Rs. 15,000/-
On account of loss of enjoyment of life In future.
5.
Rs. 5.000/-
On account of loss in future prospect of service
Total
Rs. 60,000
out of the same, a sum of Rs. 15,000/- was excluded due to the contributory negligence of the claimant. Thus Shri Behari Lal Chawla was awarded a net compensatioa of Rs. 45, 000/-
For the injuries suffered by Shri Anand Sharma. who was silting on the pillion seat of the scooter at the time of accident, the Tribunal taking into consideration the amount which may have been spent by him for his treatment which was not reimbursed, for his pain and suffering and the inconvenience in future which the injured was likely to suffer, a compensation of Rs. 2,000/ was awarded to him. In view of the finding that Shri Behari Lal Chawala, the principal injured, had also contributed to the accident by his negligence to the tune of 25 per cent, it was held that the Respondents will be liable to pay only Rs. 1500/- to Shri Anand Sharma and the remaining amount of Rs. 500/- was held to be payable by Shri Behari Lal Chawla.
As this award has not been challenged by the owner or the driver Respondents Nos. 1 and 2 respectively of the offending car, findings of the Tribunal that two claimants had suffered injuries as a result of the accident from the offending car which was being driven by Shri Inder Mohan sood Respondent No. 2, and that Respondent No. 2 was driving the said car rashly and negligently at the time of the occurrence stand unchallenged . The learned Counsel for the insurer has urged that the fialing(sic) of the Tribunal that Respondent No 2 had a valid driving licence at the time of the accident, cannot be sustained. In support of this contention he wanted me to scrutinize the evidence adduced in the claim petition. However, on behalf of the two Injured my attention has been drawn to the judgment of the learned Senior Sub Judge. Rupnagar, dated 7-1-1978, in the suit filed by the insurer for declaration. A certified copy of the same Exhibit RZ has also been placed on record by the learned Counsel. The learned Counsel for the insurer did not raise objection to the production of this additional evidence on the record However, his plea was that this judgment cannot operate as res judicata as the decision therein is not on merits This contention has no merit. A perusal of this judgment makes it evident that the suit was inter-parties and a declaration was sought by she insurer that the driving licence in the name of Shri Inder Mohan Sood Respondent No 2 was void and the date of issue had also been tampered with. In view of the pleadings of the parties, a number of issues had been framed The insurer as Plaintiff had been given a number of adjournments to produce evidence to prove issue, the burden of which was placed on him. As inspite of numerous adjournments no evidence was produced and there was no evidence to sustain the contentions of the Plaintiff insurer, that suit was dismissed with costs. Consequently, it cannot be held that the suit had been dismissed not on merits if the party concerned does not avail of the opportunity and fails to produce the requisite evidence the Court has no option but to decide the suit in the light of the evidence or lack of evidence on the record. The said judgment was a clear adjudication on merits between the parties. In view of the same, the learned Counsel for the insurer did not have much to say in support of his contention. In these circumstances the finding of the Tribunal that Respondent No. 2 driver of the offending car, had a valid driving licence is affirmed.
11 The finding of the Tribunal that the injured Shri Behari Lal Chawala, driver of the scooter, was also responsible for the accident on account of his contributory negligence to the extent of 25 per cent has been strenuously assailed by the learned Counsel for the claimants. On a perusal of the evidence, the learned Tribunal arrived at the following conclusion:-
Anyway, there is no such evidence that the scooter was on any portion of that half of the road upon which the car was to proceed and thus in the absence of the rashness of the driver of the car, the accident could not have happened The car was being driven rashly on the Madhya Marg and it was not sufficiently slowed down while taking the turn and thus came somewhere in the middle of the road so as to strike against the scooter. The car was driven so rashly that it could not be stopped anywhere on the road itself and then went over the footpath By taking all these circumstances into consideration, I hold that the car was being driven rashly and further that Behari Lal''s own negligence at the time of the impact of him scooter with the car contributed towards the outstanding of the injuries to himself and to Anand Sharma.
The Tribunal held the driver of the scooter Shri Behri Lal Chaw1a claimant also responsible partly for the accident by his contributory negligence on the ground that he had not taken his scooter to his extreme left so as to save himself on seeing the offending car coming with a rash speed This conclusion is not borne out from the evidence on the record Shri Piara Singh A.S.I P.W. 3, according to his deposition, had arrived at the scene of occurence almost immediately. At that time the eye-witness Gurmail Singh P.W. 5 was still at the spot. His statement was recorded by the A.S.I(sic) and as a consequence thereof first information report was registered According to his statement and the site plan prepared by him, the read at the place of accident was 40 feet away from the crossing of Sectors 10, 11, 15 and 16 The car was standing about 15 feet away from the place of accident. It was even on the footpath on the road side. He found the scooter lying about 374 feet from left side of the road The scooter had been damaged on its left side. He also noticed damage to the car a little on its right side and front. Its glass bad also been broken
According to the statement of the eye-witness Gurmal Singh A.W. 5 on which reliance has been placed by the Tribunal, the scooter at the time of the accident was going at the speed of 15(sic) or 20 Kilo Metres per hour and was on the correct side of the road The car came from front at a very fast speed and hit into the scooter after taking a turn and coming on the road It was further stated that the car on account of the fast speed had come to the right hand side of the road after turn and as a result struck against the scooters.
13 From a close perusal of these two statements no doubt is left that the driver of the scooter was going at a speed of only 15 to 20 kilo meters per hour which cannot be held to be a fast speed On the other hand, the car was being driven at a very fast speed As the scooter after the accident was found to be lying at a distance, of only 3 or 4 feet from its left side of the road and in view of the width of the road being 22 feet, the only conclusion possible is that the scooter at the time of the accident was to the left of the road and at a distance of about 8 or 9 feet away from the middle of the road. In this situation it is not possible to hold that Shri Behari Lal Chawla, claimant, who was driving the scooter, was in any way liable for the accident or having contributed to the accident in any manner an account of his negligence When the scooter was so much away from the middle of the road, it was none of his duty to be extra ordinary careful and to take his vehicle to the extreme end of the road on the left side only in anticipation or any lapse or rash driving of any vehicle coming from the front side The conclusion of the Tribunal holding Shri Behari Lal Chawla guilty of contributory negligence to the extent of 25 per cent is not supported by any evidence on the record. The learned Counsel for the owner Respondent has not been able to support the finding of the Tribunal in this regard. I, therefore, reverse this finding and hold that Respondent No 2 who was driving the offending car was solely responsible for the accident to the fullest extent As such the the owner of the car also has to be held vicariously liable to the full extent
The learned Counsel for the claimant-Appellant has urged that the compensation awarded is not commensurate with the injuries sustained by the two injured and the same may be enhanced considerably. As regards Shri Behari Lal Chawla injured, according to the evidence of Dr. V.P Bansal P.W. 10, he had suffered compound committed fracture of the left femur in its distal third and also compound comminuted fracture involving the both bones of the left leg. He was under treatment in the P.G.I, and also with Dr. N.D Aggarwal of the Government Hospital at Patiala for a number of months and had to undergo a number of operations. Inspite of the prolongned treatment, his left leg was not normal and had also been shortened and the knee joint was stiff. It was also opined and was also clear from the statement of the injured himself that be was not in a position to perform his duties normally with his leg due to this permanent disability. The learned Tribunal has awarded Rs. 10,000/- only on account of pain and suffering. Though the learned Counsel has claimed enhancement of compensation on other accounts also but in my considered opinion the ends of justice will be met if the compensation on account of pan and suffering is further enhanced to Rs l0,000/-. The result will be that Shri Behari Lal Chawla, claimant will be entitled to Rs. 70,000/-as total compensation
As regards Shri Anand Sharma, the other injured, according to the statement or Dr V.P Bansal P.W.1 he had sustained fracture of the frontal and temporal bone on the left side and communted(sic) fracture of the left ulna with dislocation of the head radius, as was disclosed as a result of x-ray examination, though the fracture was united on 7th March, 1972 even on 30th October, 1973, his elbow movements were found by the doctor to be from 20 degree to 110 degree. In the opinion of the doctor, restriction of the movement of the elbow and the wrist was permanent and disability was assessed at 8 pet cent. Even at the time of the statement of Shri Anand Sharma in the court on 29th January, 1976, he was in a position to rotate his left arm only up to the angle of about 50 degrees. He was found to be aged 25 years and 10 months at the time of accident Keeping into consideration all these facts, compensation to he tune of Rs. 2000/-awarded by the Tribunal cannot be held to be adequate. Enhancement of this amount to Rs. 5,000/- appears to be more in consonance with the ends of justice.
In view of the above discussion, F.A. O. No. 177 of l977 and Civil Revision No. 906 of 1977 by the Respondent insurer are dismissed and F.A .O Nos 208 and 309 of 1977 by Shri Behari Lal Chawla and/ Shri Anand Sharma claimants are allowed with costs As held above, Shri Behari Lal Chawla is awarded total compensation of Rs. 70,000(sic)/- and Shri Aanand Sharma claimant is awarded Rs. 5,000/-respectively Both the owner and the driver Respondents Nos. 1 and 2 of the offending car will be jointly and severally liable to pay this amount and the same will be recoverable from the insurer Respondent. It is further directed that excluding the amount of compensation which may have already been peid to these claimants, the latter will be entitled to recover interest on the remaining amount at 6 per cent per annum till the date of payment. Counsel''s fee is fixed at Re. 300(sic)/- in each of the two appeals.