Lt. A.L. Tandon and Another vs Golab Singh

R.N. Mittal, J.—This appeal has been filed against the award of Motor Accident Claims Tribunal, Punjab, dated November 20, 1967, by which amount of Rs. 6464.83 paisa has been awarded as compensation to the claimant under the Motor Vehicles Act, 1939 (hereinafter referred to as ''the Act'').

The facts of the case are that Gulab Singh, applicant, was coming from village Nandanpur, tehsil and district Jullundur, on a bicycle towards Jullundur on September 27, 1965. He took a, turn towards right near village Maqsudanpur after giving a signal to go to that village when 2nd Lieut. A.L. Tandon, who was also proceeding in the same direction on scooter No. DLN-4633, hit him. Mr. Tandon did not blow any horn to warn the applicant. The applicant on account of the accident was thrown on the metal led road and his right shoulder was dislocated and fractured. The scooter was insured with M/s Hindustan General Insurance Company, Jullundur. The applicant filed an application for compensation under the Act. Mr. Tandon and the Hindustan General Insurance Company contested, the application and denied the allegations of the applicant.- Inter-alia, it was pleaded that the application was barred by limitation, that there was do negligence on the part of Mr. Tandon and that the applicant was not entitled to any compensation. The Tribunal condoned the delay in filing the application and it was held that Mr. Tandon was negligent on account of which the accident took place and that the applicant was entitled to a compensation of Rs. 6464.83 paise. Consequently, it allowed the claim of the applicant to that extent. Mr. Tandon and the Insurance Company having felt aggrieved from the award of the Tribunal have come up in appeal to this Court.

The first contention of the learned Counsel for the Appellants is that the claim was barred by limitation and that the Tribunal has erred in condoning the delay. It is further urged by him that there are no sufficient reasons for condonation of delay. The learned Counsel for the Respondent has submitted that the finding of the Tribunal is correct and there are no sufficient reasons for interfering with it. It has been deposed by the claimant-Respondent that he was discharged from hospital on October 16, 1963, after necessary treatment. He was unable to move and was advised to remain in bed, on the night between November 8 and 9, 1965 he had an attack of renal colic. He remained under the treatment of Assistant Surgeon, Civil Hospital, till November 20, 1965. After that, he took four-five days to collect particulars of Mr. Tandon, the scooter and the Insurance Company. Then he filed the claim application His statement is supported by Dr. Shangara Singh A. W. 4 under whose treatment he remained till November 16, 1965, for renal colic pain. No evidence has been produced by the other party in rebuttal. The Tribunal has believed the statement of the Claimant-Respondent I have no reasons to differ from the conclusions arrived at by the Tribunal. I do not find sufficient reasons for holding that the delay has not been condoned properly by the Tribunal. In the circumstances, I reject the contention of the learned Counsel for the Appellants.

4.. The second contention of the learned Counsel for the Appellants is that there was no negligence on the part of Mr. Tandon and that the accident took place on account of the negligence of Respondent. He has referred to the statements of Sarmukh Singh A. W. 1, Bhagat Ram A. W. 2, Sadhu Singh A. W. 3 and Gulab Singh, Claimant, A. W. 5. He has tried to find discrepancies in their statements. It is in the statement of Gulab Singh A. W. 5 that the claimant-applicant gave a signal to turn to the village when he had crossed almost whole of the road and reached its extreme right. Mr. Tandon struck the claimant and he fell down. Mr. Tandon did not stop and rushed on but he was stopped by some persons at a distance of one furlong from the place of accident. He was carrying two children on the scooter. Mr. Tandon told them that if he had applied the brakes, his children would have fallen and received serious injuries. The said statement is supported by other witnesses. No evidence has been produced in rebuttal. Even Mr. Tandon has not been produced to contradict the statement of the applicant. In the circumstances, in my view, the finding of the Tribunal is correct and I affirm the same.

The last contention of the learned Counsel for the Appellants is that an amount of Rs. 2000/- has been granted to the Respondent for the reason that he remained on leave for a period of three months and could utilize the same for some gainful purpose. He further submits that the claimant-Respondent had been drawing his salary during that period. He, therefore, did not suffer any loss for his absence from duty. According to the learned Counsel, this amount should not have been granted by the Tribunal.

The learned Counsel for the Respondent submits that the amount was rightly granted to the Respondent as he would have utilized holidays for some other gainful purpose. In support of his contention, he relied on Alexander and Baldwin v. Rafuse (1858) 12 D.L.R.C (2nd) 616 wherein damages were given to the Plaintiffs for depletion of her accumulated sick leave.

After hearing the learned Counsel for the parties, I find great force in the contention of the learned Counsel for the Appellants. The accident took place on September 27,1965. The Respondent was discharged from the hospital on October 26, 1965. After that, according to his statement, he also suffer from renal colic pain and could not go to office for a period of another two months. It may be that he was advised complete rest after discharge from the hospital. He has, however, not specified as to in what manner he would have utilized the vacation for some gainful purpose. The learned Counsel for the Respondent has also not referred to the rules showing that he could claim the salary for the leave period in case he had not utilized the leave allowed according to rules. In Alexander and Baldwin''s case (supra), the rules provided that the Plaintiff could be entitled to gratuity of two months'' pay upon retirement provided she had at least that, much accumulation of sick leave. The rules which applied to the Plaintiff in that case were different. The ratio of that case, therefore, will not apply in the present case. In my view, the Tribunal has erred in granting Rs. 2,000/- on this count.

For the reasons recorded above, I partly accept this appeal and allow the claimant-Respondent an amount of Rs. 4464.83 paise as compensation instead of Rs. 6463.83 paise with no order as to costs.