Om Parkash Sekhri vs Pritam Singh and Others

S.S. Sodhi, J.—On February 26, 1972 truck No. PNP 2763, loaded with iron pipes, was travelling from Patiala to Gurdaspur. When it reached near village Jiwan Wal a tyre thereof burst, as a result of which it swerved and hit into another truck, coming from the opposite direction. Om Parkash Sekhri, who was travelling in this truck, at that time, sustained injuries in this accident. It is in respect of these injuries that he sought compensation. This claim was however, negatived by the Tribunal, holding that the accident had not been caused by any negligence on the part of the truck driver. It is this finding which has now been assailed in appeal.

It is the common case of the parties that the accident took place due to the tyre burst of the truck and it was on account thereof that it had hit into a truck coming from the opposite direction.

The case of the claimant was that the tyres of the truck were old and worn out and it was on this account that the tyre had bursr and further that the truck had been travelling at a fast speed when the tyre burst. The main contesting Respondent here are Sadhu Ram and Dalip Singh Respondents 5 and 6 who according to the evidence on record were the owners of the truck when the accident took place. Neither of these Respondents however filed any return in this case.

The truck PNP 2763 had admittedly not been insured by either Sadhu Ram or Dalip Singh Respondents nor had the policy of insurance in respect thereof been transferred to their names by Pritam Singh, the previous owner thereof. There is thus no insurance company to be rendered liable here. Any liability that may be fastened could only be upon either the driver or the owner of the truck for payment of compensation in this case.

It may be mentioned that Pritam Singh the registered owner of the truck PNP 2763 who was the previous owner thereof, as also the insurance company with which he had insured this truck had also been impleaded as Respondents 1 and 4 both these Respondents denied liability for this accident on the plea that before this accident the truck already stood transferred to Sadhu Ram and Dalip Singh. A plea was also raised by them that there was no negligence on the part of the truck driver in this accident.

It will thus be seen that denial of negligence in this case was pleaded by Respondents, who were not liable for the accident, while those who were answerable for the claim made preferred to file no return.

Turning to the evidence led in this case, the witnesses examined by the claimants, namely AW 1 Amar Nath, AW 2 Hukam Chand, AW 6 Piara Lal as also the claimant O.P. Sekhri himself as PW 7 were consistent in their testimony that the tyres of the truck were worn out and it was on that account that the tyre had burst. Indeed it was stated that the claimant had noticed the condition of the tyres before loading the truck at Batala and pointed it out to the truck driver who had replied that new tyres were lying at Gurdaspur and he would change them there. All these witnesses also testified to the fast speed at which the truck was being driven at the time of the accident.

Kundan Singh, the driver of the truck, when he appeared in the witness box denied that the tyres of the truck were worn out. His statement was that they were in a proper condition. He also denied that he had been driving the truck at a fast speed or in middle of the road. To a similar effect was the testimony of the conductor RW 3 Sardul Singh.

A reading of the evidence led by the claimant would denote not only the consistency thereof, but also that despite the cross-examination that they were all subjected to, counsel for the Respondents could point to no contradiction or discrepancy to create any doubt therein. It is also significant to note that there was a heavy load which the truck was carrying at the time of the accident. As regards the tyre burst it would be relevant to advert here to the judgment of this Court in Mela Ram v. Mohan Singh 1978 A.C.J. 381 (P. and H.). This was a case of an accident due to a tyre burst. It was held that the doctrine of res ipsa loquitur applied in such a case and the burden consequently shifted to the Respondents to disprove negligence on their part. The truck driver was held liable in the absence of evidence that the tyre which had burst was in good condition and that it had been examined periodically.

Reference may here also be made to Barkway v. South Wales Transport Co. (1950) 1 All. E.R. 382 which was followed in Mela Ram''s case 1978 A.C.J. 381 (P. and H.). This is a case of an accident caused on account of the bursting of a tyre of an omnibus. It was held that the doctrine of res ipsa loquitur was attracted thereby. This doctrine, it was said, "was no more than a rule of evidence affecting onus of proof of which the essence was that an event which, in the ordinary course of things was more likely than not to have been caused by negligence, was by itself evidence of negligence."

Turning to the present case, it will be seen that there is no evidence on record with regard to the mileage done by the tyre which burst, nor has any one come forth to say when the tyre was purchased or that it was periodically examined with a view to know its condition. There is indeed no evidence, how it burst at all, the truck driver RW 1 Kundan Singh stated that the tyre was in good condition. In these circumstances, there is no escape from the conclusion that the blame for the accident in the present case must be attributed to the negligence of the driver of the truck.

Faced with this situation, Mr. M.L. Sarin counsel for the Respondents Sadhu Ram and Dalip Singh, the owners of the truck, sought to press in aid the doctrine of volenti non fit injuria on the plea that the claimant Om Parkash Sekhri, knowing of the worn out condition of the tyres had voluntarily assumed the risk that lay in travelling in the truck and consequently, it was not open to him now to turn round and seek compensation for the injuries suffered by him in this accident. He relied for this contention, upon the judgment of this Court in State of Punjab v. V.K. Kalia 1968 A.C.J. 401 (P. and H.). The claimant here was the Superintendent of Police, Gurdaspur. He claimed compensation for the injuries suffered by him when the Government jeep in which he was travelling on a rainy day, while on out duty met with an accident on account of the worn out condition of its tyres. This claim was negatived on the ground that the claimant himself was negligent in not placing an indent for replacement of tyres in time and in taking out the jeep in on unroad-worthy condition and that too on a rainy day. It was said that to use a vehicle in this condition was obviously dangerous and it had neither been proved or alleged that the claimant had been pre-emptorily required by Government to use the jeep in that condition. This authority bears no resemblance to the facts here and is thus not a precedent of any avail to the Respondents. It is also pertinent to note that the doctrine of volenti non fit injuria did not find mention in this authority and was therefore, not considered.

Before proceeding further it deserves note that it was for the first time in appeal that such a plea based on volenti non fit injuria has been raised.

The doctrine of volenti non fit injuria though figuring in the text books on Torts for a considerable length of time has never been given the extended application as has sometime been sought by counsel. This phrase embodies the doctrine of voluntary assumption of risk, that is, assent or consent to the risk of harm. The risk here must be construed to be what any reasonable man would expect in the circumstances and no more. It is well settled that this doctrine is not to be construed to mean that a person always assents to a risk, merely because he knows of it. Illustrative of this is Dann v. Hamilton (1939) 1 K.B. 509. In this case the Plaintiff knowing that the driver of the motor car was under the influence of liquor and that consequently the chances of accident were thereby substantially increased, nevertheless being under no compulsion either of necessity or otherwise chose to travel by car. She was injured in an accident caused by the drunkenness of the driver in which the driver was killed. The defence of volenti non fit injuria was raised in the action for personal injuries brought by the Plaintiff against the personal representative of the deceased driver. It was held, "The Plaintiff, by embarking in the car, or re-entering it with knowledge that through drink the driver had materially reduced his capacity for driving safely, did not impliedly consent to or absolve the driver from liability for any subsequent negligence on his part whereby she might suffer harm."

The Respondents cannot in the circumstances of this case seek cover under the doctrine of volenti non fit injuria to avoid liability. Knowledge of the claimant O.P. Sekhri regarding the condition of the tyres of the truck cannot at any rate be construed as consent by him to the manner in which the truck was being driven by the driver thereof. The reference here being not only to the load that it was carrying, but also the speed at which it was going as deposed to by the claimant''s witnesses.

An attempt was next made to argue that for the claimant to have been travelling in the truck was unauthorised and for this reason, no claim for compensation for the injuries suffered by him in this accident could be sustained. Here again, it must be pointed out that no such plea was raised by the contesting Respondents. Indeed, as has been mentioned above, no return was filed by them. This thus again being a point taken up for the first time in appeal. In dealing with this matter, it would, however, be pertinent to note that it was the unrebutted testimony of the claimant that it was he who had engaged the truck through the truck union, for carrying the pipes to Gurdaspur and he was sitting, in the truck with a view to see to their safe delivery. The relevant rule which bars the carrying of passengers in vehicles reads as under:

4.60 (1) Save in the case of a vehicle which is being used for the carriage of troops or police or in the case of a stage carriage in which goods are being carried in addition to passengers no person shall be carried in a goods vehicle other than a bona fide employee of the owner of the hirer of the vehicle and except in accordance with this rule. The owner of a goods vehicle may also travel in it for a purpose connected with the bona fide business of the vehicle.

A plain reading of the rule would show that it is a question of fact to be determined in each case, whether the person travelling in the vehicle was authorised to do so. In other words, without a plea to this effect being raised and an opportunity being afforded to the parties to lead evidence in the matter, such a point cannot be allowed to be taken up for the first time in appeal. It is pertinent to note, however, that according to this rule an employee of the hirer of the vehicle would be an authorised passenger in the vehicle and this is what the claimant appears to be on a reference to the record here. This thus is no ground to deny the claimant his claim for compensation.

Finally, the question arises with regard to the amount payable to the claimant as compensation in this case. The injuries suffered by the claimant were deposed to by AW 4 Dr. J.K. Sharma. The injuries suffered being a fracture of the right forearm, near the wrist and abrasions on both the lower limbs. According to Dr. Sharma, the claimant had to undergo five operations on his right wrist and the functioning of the right hand has been diminished to the extent of 90 per cent. This was a permanent disability. The claimant deposed that he could not work with his right hand and after this accident, he could not get any employment. Earlier he had been employed with M/s. Punjab Pipe Factory at Batala, at a monthly salary of Rs. 1,000/-. He had worked with them for 2 or 3 months, but was no longer in their service. In cross-examination, he however, stated that this firm has since been dissolved.

There can be no manner of doubt that the claimant is indeed, entitled to compensation for the pain and suffering undergone by him on account of the injuries sustained in this accident and also the permanent disability that he has now been left with. As this disability has almost entirely impaired the functioning of his right hand, he cannot get employment. It is noteworthy in this regard that the claimant is a diploma holder in Mechanical Engineering.

There can be no hard and fast rule for determining compensation payable for injuries suffered in such a case. Each case has to be decided on its own facts and circumstances.

Taking an over all view of the nature and extent of the injuries, the pain and sufferings caused thereby and the permanent disability that the claimant now suffers from as also the consequent loss of prospects of gainful future employment according to his qualifications, it would be fair and just to award a sum of Rs. 40,000/- as compensation to the claimant. The claimant shall also be entitled to 12 per cent interest on the amount awarded from the date of the application to the date of the payment of the amount awarded. The liability for the amount awarded shall be jointly and severally of Respondents Sadhu Ram and Dalip Singh. This appeal is consequently accepted to this extent with costs. Counsel''s fee Rs. 300/-.