Hargo Rubber Industries (P) Ltd. vs Mukesh Sharma and Others

Usha Mehra, J.—M/s. Hargo Rubber Industries (P) Ltd. by this appeal u/s 110D of the Motor Vehicles Act (hereinafter called ''the Act'') has assailed the award dated 31st August, 1981 passed by Shri H.P. Bagchi, Judge, Motor Accident Claims Tribunal, Delhi (hereinafter called ''the Tribunal''). The award has been challenged inter alias on the ground that the observation of the Tribunal, regarding the jeep being roadworthy and Mohan Bahadur, the driver drove the same with the consent or permission of the appellant are contrary to the evidence placed on record. Further that Mohan Bahadur was not in the employment of the appellant. He had in fact stolen the jeep from the Chaupal, hence the appellant could not have been held vicariously liable. The Tribunal erroneously awarded the compensation for permanent disability as well as for future loss whereas both the terms are synonymous to each other and two separate amounts against each head could not have been awarded for the same disability. Even otherwise without voucher and proof, special damages could not have been awarded.

In order to appreciate the challenge to the award, the brief facts of the case are that Shri Mukesh Sharma, (respondent No. 1 herein) came from Nehru Park side of the Barafkhana, Sabzi Mandi and was standing on the left side of the traffic point. He was asking the route from a traffic constable, while Mukesh Sharma was talking to the traffic constable, the traffic on both the sides on G.T. Road was open, a jeep bearing No. DED 743 driven by Mohan Bahadur (respondent No. 2 herein) at a fast speed and in a negligent manner came from Rani Jhansi Marg, Bara Hindu Rao Hospital side. Though the traffic on that side was stopped by the traffic constable, the jeep without caring for the signal came at a fast speed and hit the right leg of Mukesh with its front portion and thereafter struck with the traffic point. The right leg of Mukesh was sandwiched between the jeep and the traffic point and was badly crushed particularly the portion from the knee downwards and profuse bleeding started. Mukesh was immediately removed to Bara Hindu Rao Hospital. He remained admitted in emergency ward up to 24th September, 1978 and thereafter was removed to Tirath Ram Hospital where he remained as indoor patient till 4th October, 1978. He was thereafter removed to Diwan Chand Awal Nursing Home where he remained till 27th October, 1978. He was 20 years old at the time of accident. He was a student of chartered accountant and was working as an apprentice with M/s. Kohli & Co., Chartered Accountants, New Delhi. He was being paid stipend at the rate of Rs. 60/- per month plus free conveyance and other facilities. The doctor who attended upon him, opined that due to this accident there was permanent disability in his right leg. Due to this accident Mukesh could not attend the Chartered Accountant Institute nor could complete his studies. He thus could not pass the examination. Mohan Bahadur, respondent No. 2 herein was driver of the offending jeep. He was driving the said vehicle during the course of his employment with the appellant i.e. M/s. Hargo Rubber Industries Pvt. Ltd. Therefore Mohan Bahadur as well as the present appellant were held liable to pay the compensation.

The present appellant who was respondent No. 2 before the Tribunal had taken the defense before the Tribunal that Mohan Bahadur was not its employee nor engaged to drive the offending jeep. He had committed a theft of the jeep for which verbal report was lodged with the police. After recording the evidence, the Tribunal came to the conclusion that Mohan Bahadur was driving the jeep in question with the consent or permission of the owner of the jeet i.e. M/s. Hargo Rubber Industries (P) Ltd.

In order to prove that the jeep was not roadworthy and that it was not being driven by any authorised person, my attention was drawn to the evidence of Shri Harjit Singh, R.2. W.1. He is the Managing Director of the appellant. He admitted that the jeep in question was purchased by the company on 31st July, 1978 vide Ex. R.1. He however stated that Rattan Singh Mistry was repairing the jeep on 22nd September, 1978. When he was repairing the jeep he left for lunch at about 2.00 p.m. and came back at 3.00 p.m. and found the jeep missing. He reported the matter to Mr. Harjit Singh about the jeep being stolen. At the parking lot they were informed by a driver that some unknown man had driven away the jeep. He along with the said Mistry went in search of the jeep. They found that the jeep had met with an accident. The jeep was taken on superdari from the police. He, however, admitted that no F.I.R. was lodged about the missing of the jeep nor any report in writing was given by the Mistry about the missing of the jeep. According to him he only made a verbal complaint to the Investigation Officer about the theft of the jeep. No written report was lodged immediately with the police about the missing of the jeep. He admitted that Rattan Singh Mistry had his own workshop at Alipur, whereas there was no workshop outside the factory. Rattan Singh Mistry was called at the factory only when there were minor type of repairs. He also admitted that there was no major defect in the jeep. According to him only the brakes were out of order which required adjustment. He had no proof with him to establish that the jeep was not road worthy, rather this defense is belied from his own statement when he admitted that for minor repair Mistry was called in the factory. This admission clearly establish that jeep was roadworthy. His statement that jeep was taken away by an unauthorised person does not appeal to reason. According to his version as well as of Rattan Singh, the jeep was still under repair and he left it while repairing when he went for lunch. If that be so, then no one could have driven the jeep because it was under repair. It is not his case nor of Rattan Singh, that keys were left inside the jeep which enabled an unauthorised person to drive away the jeep without any hindrance. It is the case of R.2. W.1 that he met a driver outside the factory at the Chaupal who told him that jeep was driven away by an unauthorised person. No Explanation was given how that driver knew that the person who drove away the jeep was unauthorised. Rather it proves that the said driver who met R.2. W.1 knew that the person who was taking away the jeep had the authority to drive it, the alleged driver has also not been produced in the witness box. The jeep was not out of order nor unfit. The Tribunal''s observation in this regard are supported by the evidence which has come on record. The defense set up by the appellant even otherwise does not cut ice. As a prudent man when he came to know that his vehicle had been stolen, the first thing he should have done was to lodge police report. But he did nothing of this sort. In this case not only no report of missing of the jeep was lodged but even after having come to know that the jeep had met with an accident, no F.I.R. of theft against the driver was lodged. Mr. Harjit Singh in order to support his version produced Rattan Singh Mistry as R.2. W. 2. He appears to be an interested witness. He has been given a lot of repair work by the petitioner company for which he had been paid substantially. A Mistry having been given work by a factory is bound to give favorable statement. Hence in the absence of any proof that he repaired or was repairing the jeep in question on 22.9.1979 no reliance can be placed on his testimony. He admitted that nothing was paid to him for the repair of the jeep in question. He also did not lodge any written report either to the owner of the jeep regarding its being missing nor lodged police report about its theft. Since R.2. W.2. Rattan Singh was not an employee of the company and the jeep according to their version was stolen while he was repairing, the responsibility squarely lay on him to have lodged the report with the police. But he did not do any such thing nor the company took any action against him for not keeping the safety of the jeep. Hence the Tribunal rightly came to the conclusion that the story set up by the appellant (respondent No. 2 before the tribunal) was not truthful version of the facts. Rattan Singh stated that the key of the jeep was with him and the jeep was locked. He after locking the jeep handed over the key to the owner and when he returned the jeep was not there. This part of the version of Rattan Singh Mistry clearly proves that between 2-3 p.m. the custody of the jeep was with the present appellant, owner of the jeep. Because according to Rattan Singh he handed over the keys to the owner, so the Tribunal was justified in concluding that the jeep must have been taken by Mohan Bahadur with the consent or permission of the owner of the vehicle. This conclusion finds support from the version given by Rattan Singh regarding handing over of the keys to the owner of the jeep. This shows keys were handed over at 2 p.m. and accident took place at 3.15 p.m. From this it is apparent that jeep was driven by the driver with the consent or knowledge of the owner and that is the reason the owner of the jeep did not lodge missing report nor theft report, rather went to the spot after coming to know of the accident. The story of the driver informing them that the jeep was being taken to Azadpur side appears to be an afterthought story to fill up the lacuna. Had there been any such driver, he would have been produced in evidence. Therefore, the Tribunal rightly came to the conclusion that respondent No. 2 (the present appellant) are vicariously liable being the owner of the jeep and they had failed to prove that the jeep was stolen when it met with an accident. The Tribunal''s observation that even though from the record produced by the appellant it could not be proved that Mohan Bahadur was in its employment but from the surrounding circumstances it was fully established that the driver drove the jeep with the consent or knowledge of the owner of the jeep. Moreover the driver was the man of the owner. This fact find support from the service of summons. The summons issued by the Court was personally served on 25th January, 1979 on M. Bahadur at the address of the owner of the jeep i.e. present appellant. The present appellant was also served on the same date as per the report of the process server. If M. Bahadur had not been in the employment of the present appellant how could he receive the summons at the appellant''s address. The process server''s report had not been challenged, and Therefore, the tribunal rightly observed that the report of the process server regarding service of summons on the driver at the address of the owner cannot be disbelieved. The Tribunal rightly came to the conclusion that the relationship of employer and employee could not be the sole criteria to determine the liability of the owner of the vehicle.

From the evidence placed on record, particularly Ex. P.W. 5/2 i.e. mechanical inspection report, I am in agreement with the finding of the Tribunal that jeep was road worthy when it met with the accident. This fact finds support from the testimony of Harjit Singh and Rattan Singh R.2.W.1 and R.2.W.2 respectively, Counsel for the appellant contended that in the claim petition, the claimant/respondent No. 1 had given the name of the driver as Mohan Bahadur, whereas police had challenged the driver of the jeep, a Man Bahadur. To my mind, nothing turns on this because even if the name of the driver of the jeep had not been given still the petition was maintainable. It could not have been dismissed on this ground. It is not necessary under the law to mention the name of the driver in the claim petition, and Therefore, if wrong name of the driver had been mentioned that would not disentitle the claimants the relief sought i.e. the compensation, if otherwise, due. If that be the case, giving wrong name for the driver is irrelevant. Moreover if Man Bahadur was not the employee of the appellant it could have summoned the said Man Bahadur, accused u/s 279/338, I.P.C. as witness to prove that he was not the employee of the appellant or that he stole the jeep in question. The I.O. ASI Pearey Lal appearing as P.W. 4 proved that a case u/s 279/338, I.P.C. was registered against the driver of the jeep, Man Bahadur. He nowhere mentioned that any report or F.I.R. regarding theft of the jeep was lodged against Man Bahadur by the present appellant nor any suggestion was given to him that such a report verbally was lodged regarding the missing of the vehicle. Therefore the story set up by the appellant is not trustworthy nor any credence can be attached to the same. Had the appellant really lodged the report about the jeep being stolen, a case against Man Bahadur would have also been registered for theft. But neither the report was lodged nor any case has been registered against Man Bahadur regarding theft of the vehicle Therefore the whole story set up by the appellant falls to the ground.

The contention of the counsel for the appellant that independent eye-witness constable Dhanbir Singh has not been produced, to my mind, has no merit. It is not the case of the appellant that there was no negligence on the part of the driver of the vehicle for which purpose the evidence of constable Dhanbir Singh was to be adduced. Man Bahadur, Driver has also not been produced in the witness box, to prove that there was no negligence on his part, hence adverse inference has to be drawn. Moreover, Mukesh the injured was conscious at the time he met with the accident. His testimony that the jeep was being driven in a rash and negligent manner at a fast speed has remained unrebutted and uncontroverter on record. It is not always that the injured is an interested witness. If his testimony is truthful, then weightage can be attached to the same. The Tribunal rightly relied on the testimony of Mukesh in coming to the conclusion that the injuries sustained by him were on account of the jeep being driven at a fast speed in a rash and negligent manner by the drive of the vehicle. The challenge of the appellant on the quantum of compensation is also without force.

For the reasons stated above, there is no merit in the appeal. The same is accordingly dismissed.

Mukesh has also filed cross objections listed as CM. 2894/82. He has assailed the order on the ground of inadequacy of compensation. The tribunal has awarded him Rs. 36,720/- on account of general and special damages. Dr. S.S. Sethi, appearing as P.W. 1 and Dr. V.K. Kharbanda appearing as P.W.2 besides the record of Hindu Rao Hospital produced through conversing record clerk, P.W. 3, proves that the injury sustained in the right leg of the claimant was of a permanent nature. The loss of ankle movement is 50%, loss of muscle mass is 25% and loss of the knee movement is 20%. Because of these injuries he is limping, unable to squat, permanent pain in all the joints. Because of this permanent disability there is stiffness in right ankle and knee joints, weakness of the muscles of right leg. These are the factors on the basis of which Dr. V.K. Kharbanda, P.W. 2 declared the injuries sustained by Mukesh Sharma as permanent disabilities. Dr. Kharbanda opined that Mukesh cannot drive motor cycle or a scooter. Similarly, Dr. S.S. Sethi, Plastic Surgeon, Holy Family Hospital and Dewan Chand Awal Nursing Home, who did skin grafting of the wound of the right leg of Mukesh Sharma, found that the injuries were of permanent disability of the right leg and there was a weakness in the right leg due to loss of muscles grafted skin and even after grafting it will not be normal. He has to have a permanent protection over it to prevent any further injury. Because of these permanent disabilities Mukesh will not be able to walk fast or run nor will be able to do any active service like in Army or police or any job which requires frequent movements and activities. Mukesh was a student of chartered accountant; he could not finish his training because of this accident. Due to permanent disability he left C. A. as he was not in a position to move around in buses, because of his right leg he could not drive a scooter or motor cycle nor could afford a three wheeler scooter or taxi. Since the injured Mukesh has proved his permanent disability due to this accident and financial losses, Therefore, the amount of compensation awarded by the Tribunal appears to be too inadequate comparing to the status which Mukesh would have enjoyed after completing the chartered accountancy. At the time of the accident in 1978, he was 20 years old. His Counsel stated at the bar that Mukesh is doing clerical job, whereas he would have been a chartered accountant. Therefore the awarding of the amount of Rs. 12,000/- as general damages and Rs. 6,000/- as special damages is too inadequate. The general damages awarded to the tune of Rs. 12,000/- are not based on any rationale. Looking to the permanent disability of his right leg and restriction of movement he should have been awarded damages to the tune of Rs. 1,00,000/-. He is still limping and is not in a position to have a free movement. His pain and sufferings are a continuous process. He is living with these pains and sufferings, which have become part of his life. He cannot enjoy a normal life and his marriage prospects have suffered a set back. Therefore the award of Rs. 6,000/- towards suffering and loss of amenities in life is also on the lower side.

Admittedly, Mukesh has suffered permanent disability in his right leg as proved by Dr. S.S. Sethi P.W. 1 and Dr. V.K. Kharbanda, P.W. 2. It is also a fact proved on record that because of this permanent disability and stiffness of the joints, the movements of Mukesh have been restricted. He cannot drive the motor cycle or the scooter nor can do the running about with his limping leg. Therefore, to my mind, the award of Rs. 12,000/- as general damages is without any rationale. Looking into the consideration that respondent Mukesh was 20 years old and was doing chartered accountancy and was getting Rs. 60/- p.m. as stipend plus conveyance and other facilities, but for the accident, he lost his career and bright future prospects have been crushed by the cruel hands of the driver who drove the jeep in a rash and negligent manner. Therefore awarding of Rs. 12,000/- as general damages on account of permanent disability, to my mind, is really on the lower side specially when the bright future of Mukesh has been knocked out due to the accident. Punjab and Haryana High Court in the case of Mangal Kishore Kaul Vs. Union of India (UOI) and Others, where permanent disability of 80% was there, awarded Rs. 2,10,000/- due to stiffening of leg, wastage of muscle and ankylosis of knee joint. Similarly, the Supreme Court in the case of Shivaji Dayanu Patil and another Vs. Smt. Vatschala Uttam More, awarded an amount of Rs. 78,000/- on account of permanent disability in the right foot and fracture of several bones in legs. Relying on these judgments I feel, the end of justice would be met if the award of compensation on account of stiffening, pain and limping of the right leg and joints i.e. general damages is enhanced to Rs. 80,000/-.

I Therefore modify the award of general damages to the tune of Rs. 80,000/-instead of Rs. 12,000/- awarded by the Tribunal. As regard the special damages on account of loss of amenities, suffering and pain and on account of loss suffered in status and others as awarded by the Tribunal I see no reason to interfere with the same. Thus for the reasons stated above I modify the award and hold that Mukesh would be entitled to general damages as Rs. 80,000/-. As regard the special damages and damages on account of medicines, hospital bills, doctors fees, special diet, conveyance, loss of pay or stipend, pain, suffering, loss of amenities of life and future prospects is concerned, the objector will get the same amount as awarded by the Tribunal. In view of my above discussion, Mukesh will be entitled to recover a sum of Rs. 1,04,780/- as compensation which the appellant and respondent No. 2 are liable to pay jointly and severally. On this amount Mukesh Sharma will also be entitled to simple interest @ 9% from the date of the application till realisation. However, the amount already received will be adjusted from the amount now awarded.

With the above observations the cross objection stands disposed. Trial Court file be sent back forthwith.