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Judgment
Rajiv Shakdher, J.—This is an appeal u/s 173 of the Motor Vehicles Act, 1988 (in short the Act) against the judgment of the Motor Accident Claim Tribunal (in short the tribunal) dated 22.3.1999.
In the appeal several grounds have been raised impugning the judgment of the tribunal. After labouring for a while and looking at the state of evidence produced before the tribunal, Mr.Mehdiratta, Advocate for the appellant, has fairly conceded that he is confining his case for enhancement of compensation on the ground of loss on account of pain and agony and interest. Mr.Mehdiratta claims interest @ 12% p.a from the date of filing of the petition.
The Tribunal on the other hand under the head, compensation on account of pain and agony, has granted a sum of Rs. 1,500/- and insofar as the interest is concerned, has awarded simple interest @ 6% p.a from the date of filing of the petition.
The brief facts relevant for the purposes of disposal of the appeal are as follows:
The appellant at the relevant time was a Constable in Delhi Police he met with an accident on 01.11.1983 with crane bearing no. USF-7387 (in short the offending vehicle), which was, driven by respondent no.1 and whose owner was respondent no.2. The accident took place at the crossing of General Store, Punjabi Bagh, New Delhi .
By virtue of the accident, the appellant sustained injuries to his left thigh. The injury was diagnosed as ''fracture shaft femur''. Resultantly, the appellant was in hospital for the following periods:
1 01.11.1983 to 08.11.1983; 2 30.01.1984 to 20.02.1984; 3 27.03.1984 to 28.03.1984; 4 26.04.1984 to 27.04.1984; 5 14.05.1984 to 06.06.1984; & 6 06.12.1984 to 08.12.1984.
The injury was such that it necessitated appellant being on leave for nearly nine months w.e.f 1.11.1983 to 2.7.1984.
The appellant being aggrieved filed a claim before the tribunal on 25.4.1984.
Respondents no.1 and 2 entered appearance and filed their written statement. Respondent no.3 even though served did not enter appearance and hence was proceeded ex-parte on 31.5.1985.
On 5.12.1985, the tribunal framed the following issues:
Whether the petitioner sustained injuries as alleged in the petition due to rash and negligent driving of vehicle no. USF-7387 on the part of R1?
To what amount of compensation is the petitioner entitled to and from whom ?
Relief.
The matter came up for appellant''s evidence for the first time on 11.2.86. The appellant''s evidence was finally concluded on 13.10.95. There is some discussion in Paragraph 17 of the tribunal''s judgment on this aspect of the matter, which I shall deal with later. The tribunal rendered a judgment on 22.3.1999. Aggrieved by the judgment of the tribunal an appeal u/s 173 of the Act has been preferred to this Court. The appeal was moved before this Court on 5.7.1999.
In the context of the above circumstances, let me first set out the finding of the tribunal on the two issues struck in the matter.
The tribunal''s finding with respect to the first issue are set out in Paragraph 9 of its order. Suffice it to say that tribunal concluded that the stand of Respondents No. 1 and 2 taken in the written statement that the offending vehicle was driven by another gentleman being the Appellant''s namesake, was found to be false. The tribunal accepted the version of the Appellant that the vehicle was driven by Respondent No. 1. In coming to this conclusion it relied upon the testimony of the Appellant and an independent eye witness, one, Mr. Hawa Singh (PW5). Furthermore, given the fact that Respondents No. 1 and 2 had not placed any evidence before the tribunal, the tribunal had no hesitation whatsoever in coming to the conclusion that the Appellant sustained injury on account of rash and negligent driving of the offending vehicle by respondent no.1. The relevant portion of the tribunal reads as follows:
...11- Respondent Nos 1 & 2, as already stated, had filed a WS wherein they had denied that the offending crane was being driven by R1 at the time of the accident. They had rather claimed that it was being driven by one Om Parkash at the said time. Having taken such a plea, neither R1 nor R2 have entered the witness box to prove the aforesaid assertion. They have also not produced any other witness from the public who might have seen this accident to prove that this accident was not caused by any rash and negligent driving of the offending crane by R1. The petitioner on his part has entered the witness box and has asserted that the offending crane was being driven by R1 at the time of the accident. He has further asserted that R1 was driving the offending crane at a very high speed and in a rash and negligent manner. He has claimed that due to the speed of the crane it had done over the payment suddenly and had overturned. The testimony of Om Parkash has not been challenged in cross examination. It was not suggested to him that R1 was not driving the offending crane at the time of the accident or that he was not driving in a rash and negligent manner. It was also not suggested that the tie-rod of the crane had broken down suddenly which had led to this accident. This was a specific stand taken by the respondents in their written statement. I am, Therefore, of the considered opinion that the stand taken by the respondents in their WS was false and concocted. The testimony of Om Parkash has been corroborated by Hawa Singh (PW5). Hawa Singh was not inimical towards R1 and had no particular animus to depose in favor of the petitioner His testimony does not suffer from any infirmity whatsoever. The statement of the petitioner coupled with the statement of Hawa Singh proves that this accident was caused because of rash and negligent driving of the offending crane by R1. It also proves that the petitioner had received injuries as a result of an accident caused by R1. Issue No. 1 is, Therefore, decided in favor of petitioner
In determining the second issue the tribunal took into account the testimony of the Appellant (PW6); Head Constable Sudesh Kumar (PW2) and Exhibits PW6/1 to PW6/3 being the discharge slips issued by Dr. Ram Manohar Lohia hospital. Reference is also made by the tribunal to examination-in-chief of Dr. D.Mittal. Point to be noted is that Dr. D.Mittal''s cross-examination was deferred which, ultimately never took place. Based on this evidence, the tribunal concluded in Paragraph 12 of its judgment as follows:
The petitioner has not produced any cogent evidence to show that any expenses were incurred by him on his treatment. A few bills were placed on record which were not proved by any evidence whatsoever. It has been admitted by the petitioner that his treatment had been conducted at Dr. RML Hospital which was free of charges. He had also taken treatment from CGHS Dispensary where also he had not to pay any amount. The petitioner had, on the other hand, asserted that he had spent a sum of Rs. 50,000/- on his treatment / purchase of medicine / conveyance & special diet. Considering the fact that the petitioner had not proved any bills that he had actually spent a considerable amount on his treatment, and also considering the fact that his treatment was conducted in Govt. Hospitals where it was free of cost, I am of the considered opinion that the expenses incurred by the petitioner on his treatment in 1983 was not more than Rs. 2500/- in all. I, Therefore, grant a sum of Rs. 2500/- to the petitioner on account of expenses of treatment. I also grant a sum of Rs. 2500/- to the petitioner on account of special diet that he might have taken due to the injuries received in this accident. I also grant a sum of Rs. 1,000/- to the petitioner on account of charges of conveyance. The petitioner had suffered pain and agony due to the injuries received in this accident for which I grant a sum of Rs. 1,500/- to him.
PW2 HC Sudesh Kr. Had alleged in his testimony that the petitioner had remained on leave from 1.11.83 to 2.7.84 i.e. for a period of about 9 months. The petitioner in his statement had alleged that at the time of the accident, he was drawing a salary of Rs. 775/- p.m. Accordingly, I grant a sum of Rs. 7,000/- to the petitioner on account of loss of income.
The petitioner had claimed that he had suffered a permanent disability due to the injuries received in this accident. He had also claimed that his promotion had been withheld due to this injury. There is, however, nothing on record to show that the petitioner had received a permanent disability due to the injuries received in this accident. No certificate of permanent disability has been granted to the petitioner There is no evidence on record that the petitioner''s. promotion had been held up due to this injury. I, Therefore, decline the prayer for compensation on account of permanent disability. Thus in all, I grant the following sums to the petitioner under the different heads:
1) Expenses on account of Rs.2,500/- treatment / purchase of Medicines
2) Expenses on account of Rs.2,500/- Special Diet
3) Expenses on account of Rs.1,000/- conveyance
4) Expenses on account of Rs.1,500/- pain & agony
5) Expenses on account of Rs.7,000/-
loss of income....
TOTAL Rs.14,500/-
(Rupees Fourteen Thousand Five Hundred Only)
On the aspect of interest the tribunal in Paragraph 17 of the judgment has come to the conclusion that upon perusal of the order sheets, it transpires that the evidence by the Appellant was completed only on 13.7.1995 and, hence, most of the delay in disposal of the petition occurred due to the fault of the Appellant. Appellant''s Submission
Mr.Mehdiratta learned Counsel for the Appellant began by assailing the entire judgment but having realized that the evidence led on most counts was weak confined his submissions to, as stated above, in respect of compensation for pain and agony and grant of interest. On the first aspect Mr.Mehdiratta submitted; the fact that the injury suffered by the Appellant was grievous is evident from the contents of examination-in-chief of PW1 Dr. D.Mittal. In this context he also relied upon a certificate of Dr. Ram Manohar Lohia Hospital dated 14.8.1985 and the discharge slips of the said hospital being Ex.PW6/1 to PW6/3 Mr.Mehdiratta concluded that the appellant (i.e PW6) had been admitted to the hospital six times and remained on leave for a period of 13 months, a testimony which remains unchallenged. Given this state of affairs Mr.Mehdiratta submitted that the Appellant should have been awarded a much higher compensation towards pain and agony.
As regards interest, it is submitted by Mr.Mehdiratta that the delay has not been on the Appellant''s account; as a matter of fact, the cross-examination of PW6 was commenced on 5.1.1993 and deferred from time to time. The cross-examination of PW6 finally concluded on 13.7.1995. It is further submitted by him that the tribunal took four years thereafter to render the judgment in the matter.
Having considered the case, I am of the view that as far as Issue No. 1 is concerned, the tribunal after duly appreciating the evidence, in particular, the evidence of Shri Hawa Singh (PW5), an eye witness passer-by correctly came to the conclusion that the accident took place on account of rash and negligent driving of the offending crane by respondent no.1. The stand taken by respondents no.1 and 2 in their written statement denying the fact that the offending vehicle was driven by respondent no.1 and that it was driven by one Mr.Om Prakash, the appellant namesake, was disbelieved. The tribunal took note of the fact that respondents no.1 and 2 had not led any evidence to prove the assertion made in the written statement. It was further noted in the impugned judgment that no attempt was made by respondents no.1 and 2 to produce any other witness to prove that the accident was not caused on account of rash and negligent driving of respondent no.1. In this regard the findings of the tribunal in Paragraph 11 being apposite have already been noted above.
As regards Issue No. 2 on issue of compensation, the tribunal noted in Paragraph 12 in great detail that the appellant has not been able to prove the expenses he claims to have incurred on his treatment.
The tribunal notes that the petitioner being a Government employee his treatment was carried out free in Dr.Ram Manohar Lohia Hospital and also; the fact that CGHS facilities were available to him which were availed by the Appellant. The tribunal has also noted the fact that Dr. D Mittal PW1 was examined but his cross-examination could not be conducted. In his examination- in-chief Dr. D Mittal has stated as under:
P.W.1 Shri Dr. D. Mittal, Ram Manohar Lohia Hospital, on S.A.:
Shri Om Parkash was examined by me on 1.11.1983. On the basis of the X Ray the nature of injury was grievous (fracture shaft femur, left side). He was discharged from the Hospital on 07.11.1983. Patient was treated on conservative line. With this record, I cannot say about the permanent disability.
The tribunal has found that the appellant has been able to prove by virtue of discharge certificate being Ex.PW6/1 to Ex.PW6/3 that he was admitted to the Hospital on six occasions. The tribunal while granting the claim under the head loss of income has accepted the fact that the Appellant was on leave from his office for a period of nine months. In regard to this part (i.e with respect to leave) the testimony PW2 Head Constable Sudesh Kumar has found favor with the tribunal.
Thus the tribunal keeping in mind the evidence placed on record, came to the conclusion that the appellant was unable to prove that he had spent a sum of Rs. 50,000/- on his treatment, purchase of medicines, conveyance and special diet.
Keeping in mind the aforesaid state of evidence, tribunal could be awarded only a sum of Rs. 14,500/- under the following heads:
1) Expenses on account of treatment/ Rs.2,500/- purchase of Medicines 2) Expenses on account of Special Diet Rs.2,500/- 3) Expenses on account of conveyance Rs.1,000/- 4) Expenses on account of pain Rs.1,500/- & agony 5) Expenses on account of loss Rs.7,000/- of income. TOTAL Rs.14,500/-
In view of the stand taken by Mr. Mehdiratta that his case is confined to the extent of seeking enhanced compensation only under the head of pain and agony and in respect of interest from the awarded rate of 6%p.a to 12 %p.a. I shall deal with only these two aspects. Though I must add that even otherwise I am satisfied that except for these two heads the judgment of the tribunal deserves to be sustained. The first aspect which comes to fore is the state of evidence in the present case. The testimony of Dr. D Mittal who deposed with respect to injury could not be tested by way of cross- examination, hence, it is perhaps difficult to arrive at a conclusion as to the exact gravity of the injury. However, what is not disputed in the present case and which has emerged in the evidence is that the accident resulted in the appellant being incapacitated over fairly a long period of time, nearly nine months and that in connection with his treatment he required admission for varying periods on six occasions. Given this state of evidence, which stands proved, I am inclined to enhance the compensation on account of pain and agony from Rs. 1,500/- as awarded by the tribunal to Rs. 10,000/-.
In so far as the aspect of interest is concerned, I intend to agree with the counsel for the Appellant that on a balance, the intervening delay between the institution of the case and its disposal by the tribunal cannot be put on the door step of the Appellant given the fact that the respondents took nearly 2 1/2 years to complete the cross examination of the appellant i.e. PW6. Furthermore, opportunities were given to the respondents to summon their witnesses for leading evidence on 22.08.1995 and thereafter on 13.10.1995. Finally the evidence was closed on 13.10.1995, since witnesses were not produced by the respondents no. 1 & 2. Thereafter the matter was fixed for hearing on 5.12.1995 when the Advocate for the Insurance Company was not available. The matter was thereafter adjourned on 06.2.1996 and 12.03.1996 because of the fact that the Presiding Officer was on leave. On 11.04.1996 matter was adjourned on account of lawyers'' strike and also since the Presiding Officer was not available. The record shows that on 10.07.1996, the Presiding Officer was once again not available. The matter was adjourned to 14.3.1997.
Mr.Mehdiratta submits that the order sheet of the said date i.e 14.3.1997 seems to suggest that the Appellant had produced a photocopy of the death certificate showing that the appellant Shri Om Prakash had passed away. This, Mr. Mehdiratta, submits that this happened on account of incorrect recording of the proceedings. The application to bring legal representatives on record pertained to another matter in which the name of the appellant was also Om Prakash. This he says stood clarified upon clarified in the proceedings held on 28.05.1997.
A perusal of order sheet dated 28.5.1997 shows that Mr.Mehdiratta is correct. The order sheet dated 28.5.1997 records that the photocopy of the death certificate shown on 14.03.1997 pertained to another case and hence, the order dated 14.03.1997 was reviewed and set aside.
The order sheet also shows that on 16.07.1997 that a notice was issued to Respondent no. 1 as he was not present. Consequently, the matter was adjourned to 10.10.1998. On 10.10.1998 the Presiding Officer was again on leave. The matter was adjourned to 14.01.1998 on which date again the Court notice was once again issued to respondent no. 1. Record shows that none was present even on behalf of respondent no. 2. Thereafter the matter came up on 14.05.1998. The matter was adjourned once again to 04.09.1998 as the lawyers were on strike. The matter came up on 04.09.1998 when it was adjourned to 8.10.1998. On 08.10.1998, after hearing submissions the matter was finally reserved for orders and posted for 30.11.1998. Thereafter the matter stood adjourned on several dates till 22.03.1999 when; a judgment in the case was pronounced.
In view of the above, I am of the opinion, as stated above, that the observation of the tribunal that the appellant was responsible for the delay in the conduct of the case is not quite correct and hence does not have find favor with me.
The counsel for the appellant has relied upon two judgments to demonstrate that between 1995 and 1998 the trend was; that courts in the country were awarding interest at the rates of 12% and 15% P.A. For this purpose, Mr. Mehdiratta has relied upon the judgment of Hon''ble Madhya Pradesh High Court entitled United India Insurance Co. Ltd. Vs. Tribhuwan Nath Garg and Others, wherein interest at the rate of 12 % p.a. has been awarded and the judgment of this Court entitled Devender Singh v. Sunil Jain reported in 1996 ACJ 823 wherein interest @ 15% has been awarded.
Keeping in mind the totality of facts, I am of the view that interest at the rate of 12 % would serve the cause of justice. Liability to pay
On the aspect of payment the tribunal has recorded in Paragraph 18 of the judgment as follows:
R3 M/s. New India Assurance Co. had failed to file a WS in the present case. The petitioners has placed a certificate of insurance in respect of the offending vehicle which shows that this vehicle was insured in the name of R2 for the period 29.1.83 to 28.1.84. It is, Therefore, clear that the offending vehicle was actually insured with R3 at the time of the accident. R3 is, Therefore, liable to make payment of compensation to the petitioner.
For the reasons, stated above, I see no reason to take a view different from the tribunal in directing Respondent No. 3 to make the payment.
In view of above, the appeal is partially allowed. The appellant would be entitled to an additional sum of Rs. 8,500/- towards pain and agony over and above Rs. 1,500/- which he has already received. The appellant shall also be entitled to simple interest @ 12 % p.a on the enhanced amount i.e Rs. 23,000/- (Rs. 14,500/- as awarded by the tribunal plus Rs. 8,500/- awarded by this Court) from the date of filing of the petition till realisation of the amount. The abovesaid amount, due to the appellant shall be paid by the respondent no. 3, after making adjustments on account of moneys inclusive of interest already received by the Appellant.
There shall be no order as to cost.