Ishwar Chand vs Harish Chander Dhir and Others

Vijender Singh Malik, J.—This is an appeal brought by the claimant for enhancement of compensation. By way of this appeal, he has challenged the finding of learned Motor Accidents Claims Tribunal, Karnal (for short ''the Tribunal'') that the appellant had also been negligent and it had been a case of contributory negligence with the negligence on the part of the appellant and respondent No. 2 Dharam Veer as 50:50. Ishwar Chand, the appellant filed a claim petition u/s 166 of the Motor Vehicles Act, 1988 seeking compensation in a sum of Rs. 5,00,000/- for the injuries he suffered in a road side accident. Learned Tribunal vide award dated 04.01.2010 assessed a sum of Rs. 78,395/- as compensation but allowed compensation to the claimant in a sum of Rs. 39,197/- being 1/2 of the aforesaid amount on account of the fact that he himself contributed his negligence to the cause of the accident in equal with respondent No. 2.

On 16.01.2005 he was going from Fatehabad to Jind via Agroha on his maruti car bearing registration No. HR-05D-5397, which Sunil Kumar was driving. The claimant was sitting on the front seat next to the driver. At about 3.30 PM when the car was near village Barseen, District Fatehabad, a canter bearing registration No. HR-13-3354 driven by respondent No. 1 came at a very high speed from the side of bypass and had hit the car. As a result of the accident, the claimant suffered injuries, which resulted into comminuted fracture of left elbow joint. He claimed himself to be aged 53 years at the time of the accident, was running a business in the name and style of M/s. Ishwar Chand Sulekh Chand, New Anaj Mandi, Taraori, District Karnal and earning Rs. 1,00,000/- per annum. He was taken to Civil Hospital, Fatehabad wherefrom he was taken to the hospital of Dr. Ashok Gupta, Karnal where he was operated upon and remained admitted there from 16.01.2005 to 22.01.2005. He also remained admitted at Ganga Ram Hospital, New Delhi for another operation and his treatment is still continuing. He claims to have spent more than Rs. 1,00,000/- in his treatment.

The case was contested by respondents No. 1 and 3. Respondent No. 2 was proceeded against ex-parte. It is claimed by respondent No. 1 that the accident is an outcome of rash and negligent driving of the car.

Learned Tribunal found a sum of Rs. 78,395/- to be just compensation for the claimant-appellant. It was held to be the liability of the respondents to be paid. However, they were held liable to pay compensation to the extent of 50%.

There is no dispute between the parties regarding the fact that it was a head-on collision in the middle of the road. The question is as to whether the appellant who was travelling in the car can be held negligent in this case.

Learned counsel for the appellant has submitted that the accident has not been an outcome of rashness or negligence in the driving of the car by the appellant. According to him, whatever negligence was there it was the negligence on the part of Sunil Kumar, the driver of the car of the appellant and Dharam Veer, respondent No. 2. According to him, it is not a case of contributory negligence but a case of composite negligence.

On the other hand, learned counsel for respondent No. 3 has argued that the appellant is owner of the car and even if Sunil Kumar, the driver was negligent in driving the car, he being owner of the same, is vicariously liable for the acts of Sunil Kumar.

Though the appellant is vicariously liable for the acts of Sunil Kumar, yet there is no claim petition brought against the appellant or his driver. It cannot be denied that the appellant is not personally involved in the driving of the vehicle and it being an accident caused by the rash and negligent driving by Sunil Kumar and Dharam Veer, it is a case of composite negligence for the appellant. He could bring claim petition against anyone of the two vehicles and as he has brought the claim against the canter, the claim petition is maintainable and the claimant-appellant is not liable to reduction of his claim by 50%.

While assessing compensation, learned Tribunal has found Rs. 64,395/- as the amount spent in the treatment of the claimant. This amount alongwith a sum of Rs. 8000/- towards special diet and transportation charges and a sum of Rs. 6000/- towards pain and suffering has been allowed.

Learned Tribunal has acted in a capricious manner by allowing the precise amount proved as expenses in the treatment and has not allowed any amount in the name of the expenses incurred without obtaining bills. In these circumstances, I take the amount spent by the claimant-appellant in his treatment at Rs. 70,000/-. I further take a sum of Rs. 10,000/- towards pain and suffering, Rs. 20,000/- for special diet and attendant and transportation charges. In these circumstances, the appellant is entitled to Rs. 1,00,000/- as compensation. In this view of the matter, the appeal succeeds and is allowed. The appellant is held entitled to compensation in a sum of Rs. 1,00,000/- for the injuries he suffered in the accident, which shall be payable by respondent No. 3 with interest @ 7.5% per annum as allowed by the Tribunal.