Narinder Kaur vs Jagan Nath and Others

M.M. Punchhi, J.—These are two appeals (FAO Nos. 7 and 8 of 1982) and the corresponding two Cross-objections (No. 1-CII and 3-CII of 1982) having arisen from the award dated December 4, 1981, of Shri R.K. Synghal, Motor Accident Claims Tribunal, Sangrur. The facts giving rise thereto are these.

Hans Raj deceased on the main seat and Ram Chand PW on the pillion seat were riding motor-cycle No. PNC-5383 on a road at about 6 P.M. on August 22, 1978. From the front side came truck No PJC-4922 driven by Mehar Singh respondent allegedly at a very fast speed, being driven in a rash and negligent manner. The truck struck against the motor-cycle head-on despite the motor-cyclist having gone to its extreme left hand side of the road. After sticking against the motor-cycle the truck struck against a shisham tree and then fell in a ditch. The motor cycle fell down as also its riders. Both the riders received serious injuries. Hans Raj died in the hospital on September 17, 1978, as a result of the injuries sustained by him due to the accident. Ram Chand, however, survived. The mother, widow and minor children of Hans Raj deceased filed one claim application and Ram Chand injured filed the other. In the first one, the claim laid was to the tune of Rs. 1,50,000/- and in the second one the claim laid was for only Rs. 25,000/-.

The claims were opposed by Mehar Singh driver, the Insurance Company and Narinder Kaur respondent, the registered owner of the truck. The defence of the Insurance Company was that the truck in question was not insured by it. The effort of Narinder Kaur owner was that she had sold the truck in question on August 18, 1978, i.e. four days prior to the accident to Pardaman Singh, respondent by means of an agreement to sell. This Pardaman Singh too was arrayed as a respondent. Thus, the liability, if any, had to be borne by Mehar Singh driver, Narinder Kaur owner and Pardaman Singh, alleged buyer of the offending truck.

The Motor Accident Claims Tribunal under the impugned award granted a sum of Rs. 28,200/- in all to the mother and minor children of Hans Raj deceased because his widow had died during the pendency of the proceedings and her estate had fallen to her minor children. Ram Chand injured was awarded a sum of Rs. 36,000/- for the body loss suffered despite the fact that the sum claimed by him was Rs. 25,000/-. The liability was put on Narinder Kaur owner for the learned Tribunal took the view that the alleged agreement to sell, Mark ''A'', had neither been properly proved nor had the property in the truck passed over to Pardaman Singh, though Pardaman Singh as RW-2 owned the responsibility of having owned the truck. Narinder Kaur, however, did not appear before the Tribunal to depose one way or the other and the case as set up by her was based just on her pleadings and the statement of RW-1 Joginder Singh, her son Aggrieved against the award, Narinder Kaur has filed FAO Nos. 7 and 8 of 1982 and dissatisfied with the award are the claimants who have filed Cross-objections Nos. 1-CIIand -CII of 1982. Additionally, finding lacuna in the claim Ram Chand has filed an application for amendment of the claim application being Civil Misc. No 3719-C-II of 1982, claiming Rs. 1,00,000/- as damages. Notice stands issued in that application and that needs to be disposed of simultaneously.

At one point of time I had heard arguments and reserved judgment. It appeared that there was no medical evidence to suggest that Ram Chand injured had suffered any permanent disability though he was present in Court with a thoroughly twisted leg, making it apparent to anyone confronting him that he had totally lost his leg. Confronted with this situation, Civil Misc. No. 797-CII of 1986 was filed by him with the prayer that he be examined by some medical experts to give opinion on the deformity and shortening of his leg and to the percentage of loss of the said limb and Ios3 of sight from his left eye, for that too had been injured in the accident. After hearing the learned Counsel, the prayer was allowed by me. The Medical Board of General Hospital, Sector 16, Chandigarh, who examined him under orders of this Court, sent their opinion Mark ''X'' to the following effect:

"In view of above findings, i. e. shortening of right lower limb by 6", with obvious waiting and Ankylosis of knee joint with limitation of movement of ankle and flesion deformity of toes due to malunited fracture shaft femer (right) and loss of vision in left eye due to optic atrophy with residual effects of head injury sustained by him, his disability is assessed to be hundred percent for the right lower limb and 30% (thirty percent) for the eye.

Sd/- Dr. T.S. Bajwa, SMO (Surgery) Sd/- Dr. J.L. Chaudhary, SMO (Eye)

Sd/- Dr. Ashok Gupta, Dt. 1st April, 1986. MO (Surgery).

The said report was brought on record as evidence of Ram Chand without any objection from the appellant''s counsel. Thus, now it has to be read in evidence. Learned Counsel for the appellant did not challenge the factum of the accident or the manner of driving of the driver. His main attack is on two grounds. Firstly, he says that the liability should be fastened on Pardaman Singh, the buyer of the truck, and secondly, he urges that the sum awarded needs to be reduced and not in any case enhanced despite the cross-objections.

Regarding the first contention, the learned Counsel for the appellant has asserted that the Tribunal was wrong in rejecting the document. Mark ''A'', to be brought in evidence merely on the ground that it was a photostat copy of the original. He relied on a few precedents to suggest that photostat copies were as good copies as certified ones and the said document could not be rejected from evidence. In the same strain, he urges that the document clearly revealed that the property in truck had passed on to Pardaman Singh. And lastly in the same strain he urged that despite the attachment of the truck, the claimants have not so far been able to recover even a penny from the appellant and it would be wise for them to accept his suggestion to have declared Pardaman Singh the owner of the truck so that the same can be sold to provide some money for payment to the claimants. The respondents'' counsel opposed the prayer from all angles. Having heard them, T am of the view that it is academic to decide the question whether a photostat copy can be brought in evidence or not. In the instant case, document mark ''A'' for argument''s sake be read in evidence. Ai bare reading thereof reveals that it is an agreement to sell and not a sale by itself. It has also been pointed out by him that the original agreement too is on record though it has formally not been introduced in evidence. Keeping that apart, the agreement as such is no sale at all and Narinder Kaur continues to be the registered owner of the truck under the provisions of the Motor Vehicles Act. The admission of Pardaman Singh in that regard that he had become the owner of the truck by means of that document or the statement of Joginder Singh PW 1 stating that his mother Narinder Kaur had sold the truck to Pardaman Singh, is of no consequence for liability cannot be shifted in this manner. Thus, I am of the considered view that Narinder Kaur is the owner of the truck in question and she has to bear the burden of meeting the liability. Merely because part consideration was paid under the agreement of sale would not make Pardaman Singh the owner thereof. The document when read as a whole leaves no manner of doubt that it is a mere agreement to sell and not sale of the vehicle by itself. Whether a document is an agreement to sell or sale depends on the facts and circumstances of each case and a few judgments sought to be cited by the learned Counsel are of no assistance for there is no ratio in them and each one has been decided on the facts of its own.

The next question is about the extent of liability. So far as Ram Chand claimant is concerned, he has totally lost his leg and 30 per cent of his vision in the left eye. He was the servant working on the tea-stall of the deceased and was employed at Rs. 400/- per mensem. At the time of the accident, he was about 28 years of age. Though his loss can be categorised under various heads, that is to say, total loss of one limb and partial loss of another, loss of enjoyment of life, loss of prospects, pain and suffering etc. etc. but the cumulative damages awarded to him to the tune of Rs. 36,000/-do not seem to me to be excessive, warranting any interference. All that needs is foundational support for the amount claimed in the claim application was only Rs. 25,000/-. Having regard to the peculiar facts and circumstances of the case, I would allow Civil Misc. No. 3719-CII of 1982 for amendment and treat the claim application of Ram Chand to be setting up a claim of Rs. 1,00,000/-, out of which Rs. 36,000/- shall stand awarded to him. I find no substance in the Cross-Objections to award him any more than the said sum.

Now coming to the claim of the dependents of Hans Raj, they have been awarded Rs. 28,000/-. The Tribunal found that the deceased was earning Rs. 600/- per mensem and out of that he opined that half of it he was spending on his wife and children. He split the said sum of Rs. 300/- as the dependency of Rs. 50/- per mensem each for the two minor children and his mother and remaining Rs. 150/- as the dependency of his wife. Hans Raj was stated to be 26 years of age at the time of his death and was opined to have lived and earned for another 30 years. He thus, calculated the dependency of Virinder Kumar minor, aged then 6 years for 19 years till he attained the age of 25 years, and similarly of Bablesh Rani, minor daughter at the same rate uphill 20 years of age. The mother''s expectancy was put at 10 years. No sum was awarded to the widow of the deceased though it is true that during the pendency of the claim petition she had died but her estate in that event had to fall on her minor children. The Tribunal was obviously in error on three grounds. Firstly, the life expectancy was 70 years and Hans Raj could have lived upto that age and keep earning. Secondly, out of his earnings of Rs. 600/- he could not be spending more than Rs. 150/- per mensem on himself and the balance of Rs. 450/- must have gone to his family or estate. So keeping all imponderables aside, the dependents of Hans Raj were entitled to at least a sum of Rs. 5,000/- per year and the usual multiplier of 16, so as to grant them at least Rs. 80,000/- as compensation. Accordingly, I modify the award and grant the dependents of Hans Raj a sum of Rs, 80,000/- as damages. Out of that sum, a sum of Rs. 10,000/- is awarded to Smt. Shanti Devi, the mother of Hans Raj deceased, and the remaining Rs. 70,000/- to the remaining two dependents in their own right as also representing the estate of their deceased mother. Additionally, both the claimants shall get 12 per cent interest per annum on the sums awarded from the date of the application till realisation. Let the sums awarded be paid by Narinder Kaur, owner of the truck, and Mehar Singh, driver of the truck, individually as well as severally.

The appeals are accordingly dismissed and the Cross-Objections of the dependents of Hans Raj deceased are allowed, but without any order as to costs.