Mohan Lal and Another vs Kumari Babbi

P.D. Sharma, J.—This judgment will dispose of two cross-appeals Nos. 78 and 140 of 1962 against the order of the Motor Accidents Claims Tribunal, Punjab dated the 30th of March, 1962, by which he awarded Rs. 14,000/- along with costs to Kumari Babbi as compensation under the Motor Vehicles Act, 1939 (hereinafter referred to as the Act), against Mohan Lal and the Premier Insurance Co. Ltd., owner and insurer of Vehicle No. DLE-5125 respectively. Kumuri Babbi in her appeal No. 140 of 1962 has prayed that the amount of compensation allowed to her should be enhanced while the Appellants in the other appeal have prayed for dismissal of her claim application in toto. The facts giving rise to these briefly stated run as follows. Kamari Babbi is daughter of Abnash Chander A.W. 5. She was born on 28th June, 1955, at New Delhi and at the age of one year and two months she suffered from an attack of infantile hemiplegia as a result of which her right side was paralyzed. After continuous treatment she partly recovered and was able to walk with her right leg although her right arm made no appreciable progress. Her power of speech also was affected to a considerable strength but she could utter a few words and make herself understand. Abnash Chander A.W. 5 was posted as Superintendent of Police, Rohtak, in the month of May, 1959, and his daughter Kumari Babbi used to live with him. On 17th May, 1959, at about 7-15 A.M. she started from her house for the park and when she had crossed a major part of the intervening road, she was knocked down by truck No. DLE-5125 which was loaded with sugar bags and was coming at a high speed from Delhi side. Sukhbir Singh was driving the truck at the time. Chander Prakash A.W. 1, Matwal Chand A.W. 2, Inder Lal A.W. 3 and Tarlok Singh who was examined on commission saw the accident. The truck stopped at a distance of about 100 feet from the place where the girl lay injured. Chander Prakash A.W. 1 and others brought the girl in the truck to the Civil Hospital, Rohtak. The first of them rang up the police station. Jagdish Rai, A.S.I. A.W. 4 reached the Hospital and recorded the statement of Chander Prakash, A.W. 1/1. He arrested the driver and took the truck into possession. Abnash Chander A.W. 5 also on receipt of the information rushed to the Hospital.

Dr. P.R. Sondhi Civil Surgeon and Dr. H.S. Bahl, both examined Kumari Babbi on 17th May, 1959. The Civil Surgeon noticed complete avulsion of skin of her left leg from above the knee to the ankle. Some muscles of the legs were also crushed. He also examined the injured on 5th August, 1951, the date on which his statement was taken by the Tribunal and observed as under:

She has a thin wasted left leg showing marks of periodic skin grafting. Movement of her knee is limited in the last 10 degree of extension. Her ankle is fixed in plaster flexion. There is hardly any movement at the ankle. She was also got dropping of the toes and pes-cavis deformity of left foot. She is unable to put her heel on the floor or to take weight on the leg adequately. The disability of the left leg is permanent and the limping will continue for the rest of her life.

There is paralysis of the right arm and the right arm is weak. There is also slight weakness of the right leg. These weaknesses have nothing to do with the accident and are due to congenital hemiplegia. Her intellectual development is retarded from birth."

The patient remained in the Civil Hospital, Rohtak, from 17th May, 1959 to 6th July, 1959. Thereafter she was taken to the Safdarjang Hospital, New Delhi, for special treatment. She remained as an indoor patient in the family ward at V.J. Hospital Amritsar, from 30th October, 1959, where she was treated by Dr. Santokh Singh Anand and Dr. Karan Singh Grewal. She was discharged from this Hospital on 23rd January, 1961.

Abnash Chand as father and guardian of Kumari Babbi filed the present claim application on 13th July, 1959, u/s 110-A of the Act for the recovery of Rs. 75,000/- as compensation arising out of the accident on the ground that Sukhbir Singh was driving the truck at the time of the accident at a very high speed and in a negligent manner and failed to blow the horn when he saw the minor girl crossing the road with the result that she was knocked down and suffered the injuries as indicated above. He impleaded Messrs. Upper India Goods Transport Co., Ltd., Bagh Diwar, Delhi, alleged owner of the truck as Respondent and undertook to supply the name of the Insurance Company and number of insurance policy at a later stage as he could not find them in spite of efforts. Subsequently the applicant applied on 7th August, 1959, for impleading Wasakha Singh Bajwa, Proprietor, New Bajwa Transport Co., Delhi-Shahdara and the Premier Insurance Co., Ltd., Madras as parties to the proceedings. The Tribunal granted the prayer. Amar Nath Sharma on behalf of the Upper India Goods Private Ltd., and Wasakha Singh on behalf of the New Bajwa Transport Co., Ltd., Shahdaia, appeared before the Tribunal on 28th August, 1959, but did not file any written statement. They failed to appear on any of the subsequent dates, so the proceedings were held ex parte against them. A.U. Menon, Branch Manager of the Premier Insurance Company on 1st April, 1960, informed the Tribunal that truck No. D.L.E. 5125 stood insured in the name of Mohan Lal son of Ladhu Ram, Mohalla Thapra, Jullurdur. It was in sequence to the information so imparted by him that the Tribunal made Mohan Lal as a party to the proceedings pending before him.

The Premier Insurance Co., Ltd. Madras, Respondent in their written statement pleaded that since they and Mohan Lal were not made parties to the claim application within the time prescribed by law, so it was barred by time against them and that neither Mohan Lal was owner of truck No. DLE-5125 on the date of the accident, i.e. 17th May, 1959, nor Sukhbir Singh was his employee. They further averred that Sukhbir Singh did not have any valid driving licence to drive the vehicle and so they were not liable, as the use of the vehicle was against the condition, and terms of the licence and the terms of the insurance policy. They went on to explain that Kumari Babbi was a child of tender age and had defective mental condition and development and the accident was solely due to her own rashly and negligently rushing towards the vehicle. Sukhbir Singh, driver, in order to save the child moved to the extreme right side of the road and that was all which he could have done to avert the accident. Mohan Lal, the other contesting Respondent also pleaded in similar terms.

The Tribunal framed the following issues:-

Whether Kumari Babbi applicant received injuries on 17.5.1959 on account of the negligent and rash driving of the truck by Sukhbir Singh driver ?

What is the quantum of compensation due, if any, and from whom ?

Whether Mohan Lal is the owner of truck No. DLE-5125 and Sukhbir Singh was in his service ; if not so its effect ?

Whether Kumari Babbi received injuries due to her own fault ?

What is the effect of impleading Mohan Lal as Respondent after the period prescribed under the Motor Vehicles Act, 1939.

6 Relief.

He decided issues 1 and 3 in favour of the claimant and issue No. 4 against the two Respondents. As regards issue No. 5 he observed that the application for compensation was not barred by time against the two contesting Respondents because their names were brought on the record as soon as the claimant learnt that they were the owner and the insurers respectively. While deciding issue No. 2 it was held that Kumari Babbi was entitled to Rs. 5,000/-as compensation for pain, agony and sufferings and was also entitled to the part salary of an Aya who would be required to attend on her for 30 years at the rate of Rs. 25/- per month, i.e. Rs. 9,000/-.

The learned Counsel for Mohan Lal and Messrs Upper India Goods Transport Co. Ltd., Appellants urged that the Tribunal failed to properly appreciate the evidence led by the parties. The evidence on the record may briefly be noticed here. Chander Parkash A.W. 1 on 17th May, 1959, at about 7.15 A.M. in the company of Matwal Chand A.W. 2 was returning from the park when he noticed a truck coming at a very high speed from Delhi side and a girl aged about 4 years crossing the road. The girl had come out from the official residence of the Superintendent of Police, Rohtak. The driver of the truck did not care to blow the horn. The girl was hit by the left front wheel of the truck and fell down on the roadside. The witness raised an alarm which brought Tarlok Singh, Bakhshi Inder Pal and Inder Lal, Ricksaw Driver on the scene. The driver stopped the truck at a distance of 100 feet from the scene of accident. The girl was taken in the truck to the Civil hospital where she was attended to by the Civil Surgeon and his assistant. According to the witness the Assistant Sub-Inspector also reached the Hospital and recorded his statement. Matwal Chand A.W. 2, Inder Lal A.W. 3 and Tarlok Singh who was examined on commission supported his statement in all material particulars. Jagdish Rai Assistant Sub-Inspector A.W. 4 testified to the fact that on receiving information on telephone he hurried to the Hospital where he reached at 8 A.M. and recorded the statement of Chander Parkash. He also prepared the injury statement of Kumari Babbi, arrested the driver and took the truck into possession. He prepared the site plan on the spot and noticed that the truck had stopped after covering about 90 feet, distance from the spot where the accident took place. Abnash Chander A.W. 5 is the father of the unfortunate girl who received the injuries. He has given in detail the various steps taken by him in connection with the medical treatment of his daughter which have already been noticed. He also stated that Kumari Babbi would need an attendant for the whole of her life and that the pay of the attendant would be about Rs. 100/- per mensem. He proved several certificates given by the doctors who treated Kumari Babbi at various times. The certificates are Exhibits A.W. 5/2, A.W. 5/3, A.W. 5/4 A.W. 5/5, A.W. 5/7, A.W. 5/8, and A.W. 5/9. Dr. P.R. Sondhi A.W. 6 examined Kumari Babbi on the day of the accident and also on the day he appeared in court. His observations have already been given in some detail.

In rebuttal Manmohan Singh R.W. 1 gave out that truck No. DLE-5125 was purchased from Messrs Anand Finance Private Ltd., New Delhi, by one Rattan Singh on hire-purchase system on 26th February, 1958, and that Messrs Inland Auto Finance, Asaf Ali Road, New Delhi, on 25th August, 1959 paid the entire due to the original vendors as a result of which the agreement of Rattan Singh with them ended. The witness went on to say that the truck was insured with Jupiter General Insurance Co., in the name of Rattan Singh from 11.3.1958 to 10.3.1959. He could not give the name of the insurers for the subsequent period and also the name of the person in whose name the truck stood registered in the month of May, 1959. He admitted that the purchaser of the truck could transfer the vehicle further to other persons. Om Prakash R.W. 2, Lower Division Clerk, Transport Department, Delhi, explained that vehicle No. DLE-5125 was registered on 15th March, 1959, in the name of Messrs Upper India Goods Transport Co., Delhi, under Hire-Purchase Agreement with Messrs Anand Finance Private Ltd. Delhi. He also gave the names of various authorities to which the road taxes had been paid by the owner of this vehicle. He further deposed that Registering Authority, Simla, intimated the Transport Department, Delhi, vide their letter No. 615-M/LA. dated 20th January, 1960, that ownership of the vehicle had been changed from Mohan Lal son of Chhaju Ram of Chopra Goods Transport, Jullundur, to Attar Singh with effect from 14th January, 1960. He could not say from the records as to who owned the truck on 17th May, 1959. In cross-examination he admitted that an attested affidavit of Mohan Lal dated 11th January, 1960, was received in his office from the Registering Authority, Simla. The affidavit is R.W. 2/1 which was sent to the Transport Department, Delhi, along with Hire Purchase Termination Form R.W. 2/2. Mohan Lal Respondent, as R.W. 3, denied his signature on the affidavit RW. 2/1 and the Form H.P. Ter. R.W. 2/2.A.U. Menon R.W, 4, Branch Manager of the Premier Insurance Co., New Delhi, produced insurance proposal form, marked R.W. 4/1, in respect of vehicle No. DLE-5125 which had been signed by Amar Nath Sharma for Mohan Lal. The witness admitted in his cross-examination that the truck was insured by his company in the name of Mohan Lal son of Chhaju Ram of Jullundur City for the period from 5.1.1959 to 4.1.1960 and that the original policy No. DR/25014 was sent to Mohan Lal at his Jullundur City address by post. According to him the Insurance Company was liable only to Mohan Lal insured. Bhagwan Dass R.W. 5 proved the power of attorney which he wrote on 10.11.1961, for one Balwant Singh for filing a revision petition in the High Court on behalf of Sukhbir Singh who had been convicted u/s 279/338, Indian Penal Code, by the learned Sessions Judge, Rohtak.

From the statements of the four eye-witnesses it is abundantly established that the accident took place in the manner suggested by Abnash Chander, guardian and father of Kumari Babbi claimant. Sukhbir Singh undoubtedly was driving the truck at the time of the accident. Kumari Babbi had crossed a good portion of the road on her way to the park when she was hit by the front wheel of the truck. It is common ground that Kumari Babbi on account of infantile paralysis could not have walked briskly while crossing the road. Sukhbir Singh who was driving the truck must have seen her walking on the road slowly from some distance but in spite of it he did not care to slow down and avoid knocking her down. This alone is sufficient to prove that he was rash and negligent in driving the truck which caused the accident. The learned Counsel for the owner and insurer-Appellants, however, contended that parents of Kumari Babbi or at least the Aya were negligent in performing their duties as they allowed the child to go on the road unattended and that being so the driver of the vehicle could not be blamed for the occurrence. What he wanted to convey was that the aged, infirm or a child could use the road but at his own risk and the drivers or owner of the vehicles were not obliged to take notice of his/her disability while driving on the road in order to avoid collision with him or her. I am not prepared i.e. endorse the proposition propounded by him. I feel that the driver or owner of the vehicle is required to take notice of the disability of persons using the road while driving the vehicle, so as to ensure their safety within reasonable limits. My view finds support from the case Boss v. Litton (1832) 5 C&P 409 where Denman C J. in summing up said that all persons, paralytic as well as others, had a right to walk in the road, and were entitled to the exercise of reasonable care on the part of persons driving carriages along it. The same rule was laid down in Daly v. Liverpool Corporation (1939) 2 All E.R. 142. Therefore the mere fact that parents of Kumari Babbi allowed her to go unattended on the road could not be interpreted to mean that she received injuries due to her own fault. The findings of the learned Tribunal on issues Nos. 1, and 4 where correct and are affirmed.

The next question to be determined is whether Mohan Lal owned vehicle No. DLE-5125 on 17th May, 1959. The Tribunal in answering this question in the affirmative relied on (a) the circumstance that the vehicle stood insured in Mohan Lal''s name with Messrs Premier Insurance Co. Ltd, as is evident from-the statement of A. U. Menon R.W. 4 and duplicate Insurance Policy R.W. 4/3 and (b) Mohan Lal''s affidavit dated 11th January, 1960, bearing his signatures R.W. 2/1 and Form H.P. Ter R.W. 2/2 sent by the Registering Authority, Simla, to the Transport Department, Delhi Administration, vide statement of Om Prakash R.W. 2. It is correct that Amar Nath Sharma signed the proposal form R.W. 4/1 on behalf of Mohan Lal for insuring the truck but this fact in the opinion of the Tribunal and rightly too, did not prove that Mohan Lal was not the insured because, as is clear from the statement of A.U. Menon R.W. 4, the original policy No. D.R. 25014 was sent to Mohan Lal by post at his proper address and the law presumes that it must have reached him. If he had not owned the motor truck he would have disowned his ownership of it and got the necessary corrections made in the Insurance Policy and the Registers of the Insurance Company. The fact that he remained silent for all the time and the Insurance Company accepted the proposal form signed by Amar Nath Sharma on his behalf showed that he was the owner of the truck and got it properly insured with the Premier Insurance Company. It cannot be denied that Mohan Lal while in the witness-box did not admit his signatures on the affidavit R.W. 2/1 and Form H.P. Ter R.W. 2/2 but the Tribunal disbelieved him for the reasons that these two documents were produced by Om Prakash R.W. 2 from proper custody and the first of them had been diawn up on a stamped paper purchased in the name of Mohan Lal. I have no reason to come to the contrary conclusion. In addition Abnash Chander produced a certificate dated 23rd December, 1961, granted by the Secretary, Regional Transport Authority, Jullundur, showing that vehicle DLE 5125 was running on route permit No. 585-C standing in the name of Mr. Mohan Lal Chopra son of Mr. Chajju Ram Chopra Mohalla Thapra, Jullundur City. Mohan Lal as well produced a certificate dated the 12th October. 1961, from the same authority to the effect that he had transferred route permit No. 585/C on 3rd June, 1955, in favour of Deoki Nandan son of Ditta Ram. The Tribunal observed that the certificate produced by Mohan Lal simply showed that the route permit was transferred by him in favour of Deoki Nandan on 3rd June, 1955, but did not give the name of the person in whose name this route permit stood from 17th December, 1958. onwards. The certificate produced by Abnash Chander, however, indicated that from 17th December, 1958, up to 28th October, 1960, vehicle No. DLE-5125 operated against this route permit. The Respondents-Appellants examined one Manmohan Singh R.W. 1 to show that truck No. DLE. 5125 had been purchased by one Rattan Singh from Anand Finance Private Ltd., on 26th February, 1958. The statement of this witness was not supported by any document and so the Tribunal discarded his testimony and for adequate reasons. The material on the -record was cogent enough to show that Mohan Lal, Respondent-Appellant owned truck No. DLE-5125 at the time of the accident and that it stood insured in his name with the Premier Insurance Co., New Delhi. The learned Counsel for the two Respondents-Appellants could not successfully attack the finding of the Tribunal on this point and indeed he was not able to point out anything to enable me to come to any other conclusion.

It is common ground that Sukhbir Singh was driving the truck at the time of the accident. It is, therefore, to be presumed that he was driving it on Mohan Lal''s business and under his authority. In this connection reference may be made to the case Sitaram Motilal Kalal v. Santanu Prasad Jaishankar Bhatt and Ors. 1966 A.C.J. 89 where the Supreme Court laid down:

There is a presumption that a vehicle is driven on the master''s business and by his authorised agents or servants, but the presumption can be met.

In the present case none of the Respondents-Appellants made any effort to rebut the presumption that Sukhbir Singh was driving the vehicle on the owner''s business and under his authority. The Tribunal thus was right in deciding issue No. 3 in favour of the claimant.

The only point left for consideration is the quantum of compensation awarded to Kumari Babbi. The Tribunal took notice of the infirmity from which she was suffering at the time of the accident and found that even if the accident had not occurred, she would have required part time services of an Ayah. In his view, on account of the injuries suffered by Kumari Babbi as a result of the accident, she would require a whole-time Ayah to look after her. His observations indeed are apt and the learned Counsel for the Appellants was not able to find any fault with the same. The Tribunal further remarked that the pay of a whole time Ayah would come to Rs. 50/- per mensem. Abnash Chand father of Kumari Babbi in the witness-box did say that he would have to pay Rs. 100/-to the Ayah but the Tribunal did not accept his statement. The guess of the Tribunal about the emoluments of a whole time Ayah in the circumstances has thus to be accepted. Therefore the sum of Rs. 9000/- allowed by him as pay of the Ayah for 30 years is just adequate and can neither be enhanced nor decreased. In addition he has allowed Rs. 5,000/- as compensation for the injuries, pain and agony suffered by the child. His judgment cannot be assailed on any serious grounds and is thus affirmed. It is well-settled that it is the duty of the trial Court to determine the amount of damages and appellate Courts generally do not interfere with the amount so awarded unless in determining this amount, the trial Court had failed to notice any principle on which such amount was to be fixed.

The Tribunal cannot be said to have made any mistake in holding the claim application against Mohan Lal and the Premier Insurance Co., Ltd., in time because the names of both these Respondents were brought on record as soon as it was learnt that the vehicle was owned by the former and was insured with the latter. There was enough justification for him in holding that there was sufficient cause which prevented the claimant from impleading them as parties to the claim application earlier. In this connection reference may be made to the case Harbans Singh v. Atma Singh and Ors. 1966 A.C.J. 172 where the claimant''s wife was knocked down by a truck and killed. He filed an application for compensation u/s 110A of the Motor Vehicles Act. It was filed against the hirer of the truck on the mistaken belief that he was the owner. Later, when the mistake was discovered, the claimant moved an application to implead the owner. The Tribunal condoned the delay and allowed the application. Mehar Singh, J. (as he then was) held:

The Tribunal was justified in coming to the conclusion that there was sufficient cause which prevented the claimant from making an application against the actual owner and to that conclusion no exception can betaken, as it was a matter of discretion with the Tribunal and it had not been shown that the discretion had not been exercised by the Tribunal in a judicial manner.

For the above reasons, both the appeals fail and are dismissed but the parties are left to bear their own costs.