Prem Chand Jain. vs Dev Karan and Others

S.S. Sodhi, J.—On April 6, 1970, at about 9 p.m., there was an accident between the car DLV 9603 and the truck HRM 5134 coming from the opposite directions. This happened on the Grand Trunk Road near the petrol pump at Gharaunda. The car driver was killed while its three other occupants, including the claimant Prem Chandra Jain, sustained injuries.

The truck driver was held to be at fault and the Tribunal awarded a sum of Rs. 19,758.05 as compensation to the claimant for the injuries suffered by him.

The finding of negligence recorded against the truck driver warrants no interference in appeal.

According to the claimant, the car proceeding towards Delhi was being driven on the correct side of the road when the truck coming from the opposite direction at a very fast speed, suddenly swerved to its right and struck against the car.

The version put forth by the truck driver in his written statement, on the other hand was that there was a truck parked on the roadside. He was trying to go past this truck when he saw the lights of a car coming from the front. He immediately applied brakes and stopped his truck. The car then came and hit into the truck and caused this accident. It was also said that the truck had been loaded with two hundred bags of cement and with this heavy load it was not possible to drive it at a fast speed.

Turning to the evidence led on the issue of negligence, it was the testimony of PW 9 Bharat Bhusan, the son of the claimant Prem Chandra Jain, who was also one of occupants of the car involved in the accident who too had received injuries in this accident, that the truck had been coming from the opposite direction at a fast speed and in a zigzag manner. He deposed that the truck had come on to the wrong side of the road and hit into the car. It was further his testimony that seeing the truck, the car driver parked the car on the left side of the road and the car was standing there when the truck came and hit into it. This version is corroborated by the first information report recorded soon after the occurrence on the statement of this witness. To a similar effect was the statement of the claimant Prem Chandra Jain, who was examined on commission.

Next to note is the testimony of PW 3 Ram Rakha, S.H.O., Police Station, Gharaunda, who deposed that he was standing outside the police station on the Grand Trunk Road when he heard shrieks from the side of the petrol pump and he then reached where this accident had occurred. In other words, he reached there immediately after the occurrence. He stated that the car was at that time standing on the left side of the road and the truck had come on to the wrong side, half on the kutcha and half on the pucca portion of the road on its right hand side.

The other important testimony in this case is that of PW 7 Sadhu Ram, the motor mechanic, who examined the two vehicles involved in the accident. He found that the hydraulic brakes of the truck were weak and the mechanical brake did not work at all. In the steering wheel there was a play of 10 inches. The electric horn of the truck was not working, nor its indicators.

The case of the Respondents, on the other hand, was founded upon the testimony of the truck driver RW 2 Dev Karan supported by RW 1 Ram Sarup and RW 3 Rajwant Singh. RW 1 Ram Sarup deposed that he was the driver of the truck following the truck of Dev Karan at the time of the accident whereas RW 3 Rajwant Singh had stated that he was returning from his fields when he witnessed this accident. Dev Karan repeated his story in the written statement that the car had struck against his parked truck and that the accident had occurred when he was trying to overtake the truck parked on the roadside. RW 1 Ram Sarup gave a somewhat different version by deposing that in order to avert the accident, Dev Karan had taken his truck towards the extreme right. RW 3 Rajwant Singh, on the other hand, stated that the accident occurred when the truck was overtaking the parked truck.

Photographs of the scene of occurrence, which are on record, show the position of the vehicles as existing soon after the accident. It will be seen that the car is shown standing in its correct side of the road whereas the truck can be seen parked on the kutcha portion on its right-hand side. A similar situation is depicted in the site-plan prepared by the Investigating Officer PW 7 Ram Rakha. There is no satisfactory explanation forthcoming from the truck driver or his witnesses to account for this being the position on the ground. Indeed, even according to truck driver''s own showing, if the accident had occurred when he was trying to overtake another truck, there is no suggestion that the car was not being driven on its correct side of the road or that it had come on to the wrong side of the road and then caused the accident. It is a well-established rule of caution that before proceeding to overtake a vehicle particularly where it entails going to the other half of the road, this should be attempted only when the road ahead is clear and no danger or inconvenience is likely to be caused to other traffic on the road. This is indeed also in consonance with the requirement of Regulation 4 of the Tenth Schedule of the Motor Vehicles Act. This rule of caution was obviously observed by the truck driver only in its breach. If the truck driver had cared to see whether the road ahead was clear before proceeding to overtake the parked truck, this accident would undoubtedly not have occurred. Another significant aspect of the case is the defective state of the brakes and the steering of the truck. There can be no escape from the conclusion that the truck was not in a road-worthy condition, certainly not fit for carrying the heavy load that it had at that time.

The circumstances and the evidence being as discussed above, the Tribunal rightly arrived at the only conclusion possible, namely, that the accident had been caused entirely due to rash and negligent driving of the truck driver.

Next to consider is the matter relating to the amount payable to the claimant as compensation. Besides seeking general damages for pain and suffering and the disabilities resulting from injuries sustained, the claimant also sought compensation under a variety of heads, which cannot stand scrutiny and were, therefore, rightly not pressed by his counsel.

In order to assess the compensation payable to the claimant, it would be pertinent to advert to the nature and extent of the injuries suffered by him in this accident. In this behalf, there is testimony of CCW 2 Dr. R.P. Chakrabarti, Orthopaedic Specialist, who after examining the claimant and seeing the X-rays, deposed that Prem Chandra Jain had sustained

(1) gross fracture of right acctabulum with lot of displacement;

(2) fracture of four ribs on the right side.

He further deposed that the hip joint had been grossly affected and had undergone degeneration, so much so that status quo ante could never be achieved and for all practical purposes his hip joint was now defunct. As regards his disabilities, Dr. Chakrabarti stated that the claimant suffered pain on movement and even more so on weight bearing. The limitation of his movements was such that he would never again be able to walk normally or drive a car. There was also a shortening of his leg by 1� inches with the result that he would always require aid for walking�whether crutches or an attendant.

The evidence on record further shows that Prem Chandra Jain was hospitalised for over a month and he spent several months in bed and indeed his condition is such that he is almost bed-ridden.

As regards the medical treatment, the actual expenses incurred by the claimant stand proved to the extent of Rs. 9,750.05, but this is not all as the doctors examined in this case were unanimous in their opinion that the claimant would require further treatment too.

Considered in their totality, the circumstances of the claimant are such that it would indeed be reasonable and just towards the claimant to award Rs. 20,000/-for costs of medicines and expenses incurred by him for his treatment or likely to be incurred by him in future. In the matter of general damages, keeping in view the pain and suffering undergone by the claimant and the disabilities that he is now left with on account of them, he certainly deserves a larger amount as compensation than that awarded by the Claims Tribunal. Compensation under these heads is consequently hereby enhanced to Rs. 30,000/-.

Compensation payable to the claimant is accordingly enhanced to Rs. 50,000/-, which he shall be entitled to along with interest at the rate of 12 per cent per annum from the date of the application to the date of the payment of the amount awarded. All the Respondents shall be jointly and severally liable for the amount awarded.

This appeal is hereby accepted with costs and cross-objections dismissed. Counsel''s fee Rs. 300/-.