Swaran Kaur vs New Pyar Bus Private Ltd. and Another

J.V. Gupta, J.—This judgment will also dispose of F.A.O. Nos. 441 and 403 of 1983 as all these three appeals arise out of the one judgment of the Motor Accidents Claims Tribunal dated 13th of April, 1983.

Three claim petitions were filed arising out of a common accident which took place on 1st of September, 1981, at 7 p.m. whereby the tractor of Gian Singh claimant which was standing on the left side of the kacha portion of the road near the tube-well of Dalip Singh, was struck by bus No. PUB 3692 driven by Sital Singh coming from the side of Sangrur and the tractor was damaged and the damage was to the tune of Rs. 17,560/ -. It was alleged that Kulwant Singh suffered multiple injuries and remained under treatment from the date of accident to 23.10.1981 and again from 27.1.1982 to 20.2.1982. He claimed damages to the tune of Rs. 91,500/ -. Another injured person Swaran Kaur alleged that she too received injuries and remained in the hospital for one day. She claimed damages to the tune of Rs. 4,200/ -. The third claim petition was filed by Gian Singh claiming himself the owner of the tractor which was damaged to the tune of Rs. 17,560/ -. All the three claim petitions were filed on 6th of March, 1982. In the claim applications it was stated that the same are within time. However, in the written statement it was pleaded that the claim applications were barred by time. In the replication filed on behalf of the claimants it was again reiterated that the applications were within time. However, necessary issues were framed including the issue of limitation. The learned Tribunal found that the accident had taken place on 1st September, 1981. The limitation for moving the application for compensation is six months under Sub-section 3 of Section 110-A of the Motor Vehicles Act. The applications having been moved on March 6, 1982 being beyond six months has to be held to be barred by time. However, findings on the other issues were also given by the learned Tribunal. According to that, the claim of Kulwant Singh injured was determined to the extent of Rs. 10,000/ - whereas that of Swaran Kaur claimant was determined at Rs. 500/ - as compensation. The claim of Gian Singh for the damages caused to the tractor was disallowed on the ground that Gian Singh failed to prove himself to be the owner of the tractor. All the three said claimants have filed these three appeals.

The first question to be decided in these appeals is whether the claimants were entitled to the condonation of delay of six days in filing their claim applications. It could not be disputed that Sub-section (3) of Section 110-A of the Motor Vehicles Act provides that no application for such compensation shall be entertained unless it is made within six months of the occurrence of the accident but a proviso has been added thereto that the Claims Tribunal may entertain the application after the expiry of the said period of six months if it is satisfied that the applicant was prevented by sufficient cause from making the application in time. It is most unfortunate that no explanation was given by the counsel for the claimants conducting the case before the Tribunal though the delay was only of six days. An affidavit has been filed in this Court by the claimant Kulwant Singh dated 10th July, 1983 that he handed over the entire papers along with the necessary documents on 20th of February, 1982 to his counsel but he filed the same only on 6th of March, 1982. If this explanation would have been given before the Tribunal he would have condoned the delay on the facts and circumstances of the case. Apart from that from the power of attorney filed in the case of Swaran Kaur claimant it is evident that it was signed by her counsel on 2nd of March, 1982. Thus it was a fit case where the delay of six days should have been condoned even if no application for condoning the delay as such was filed by the claimants. It was held by this Court in Swaran Kaur v. State of Punjab 1971 ACJ 287 (P and H), that proviso to Section 110-A(3) of the Motor Vehicles Act, 1939 casts no obligation on the claimant to make an application in writing and that the making of such an application is not a condition precedent to the exercise of Tribunal''s discretion in favour of the claimant. The Tribunal could on its own accord, after being satisfied, condone the delay in filing a claim. In any case, as observed earlier since the counsel for the claimants before the Tribunal was negligent and did not take any step to explain the delay the Tribunal was unable to condone the same. However, in view of the affidavit filed in this Court the claimants are entitled to the condonation of six days'' delay in filing their claim petitions because they had handed over the same to their counsel within time. It was the negligence of the counsel in filing the same after a delay of six days which is most unfortunate. Thus on the facts and circumstances of the case, the delay in filing the claim petitions is hereby condoned.

As regards the appeal filed on behalf of Swaran Kaur, i.e., F.A.O. No. 440 of 1983, no meaningful argument could be raised for enhancement of the compensation. She has been found to be entitled to Rs. 500/ - as compensation by the Tribunal. In view of that finding she will be entitled to the amount of Rs. 500/ - as compensation with interest at the rate of 12 per cent per annum from the date of her application till its realisation.

As regards the claim petition of Gian Singh in which he claimed compensation for the damage caused to his tractor the Tribunal found that the tractor did not belong to Gian Singh and, therefore, he was not entitled to any amount though the amount of damages he suffered was determined at Rs. 12,560/ -. Learned Counsel for the Appellants submitted that admittedly Gian Singh''s father was the owner of the tractor in whose name the registration was made. After his death in family partition the tractor fell to the share of Gian Singh and, therefore, he was entitled to the compensation. According to the learned Counsel Gian Singh being the son of the owner of the tractor was entitled to claim the compensation even if other brothers were-there. In support of this contention he referred to Pravinkumar Vallabhdas and Others Vs. Chhotalal Parmanandas and Co. and Others, , wherein it was held that one heir can maintain application on behalf of other heirs. It was also contended that Gian Singh was also entitled to a sum of Rs. 5,000/ - for the loss he suffered on account of the non-user of the tractor for the period it remained under repair. After hearing the learned Counsel for the parties, I find that Gian Singh being the son of the owner of the tractor was entitled to the amount of compensation as determined by the Tribunal. There is no cogent evidence that he suffered a loss of Rs. 5,000/ - for non-user of the tractor for the period it remained under repair. In these circumstances Gian Singh would be entitled to compensation of Rs. 12,560/ - as determined by the learned Tribunal. He will also be entitled to this amount with interest at the rate of 12 per cent per annum from the date of his application till the realisation of the amount.

In the claim petition filed on behalf of Kulwant Singh giving rise to F.A.O. No. 403 of 1983 the learned Counsel for the Appellants contended that there being a shortening of leg by 1.5" he was physically handicapped and his disability was 40 per cent and, therefore, he was entitled to enhanced amount of compensation as allowed by this Court in Brij Lal Vs. Mangal Chand Maheshwari and Others, . According to the learned Counsel in that case the right leg was shortened by 1" and the earning capacity was reduced by 30 per cent and the claimant was allowed a sum of Rs. 15,000/ - and Rs. 30,000/ - for loss of future earning in addition to the medical expenses, permanent disfigurement and loss of future enjoyment.

According to the finding of the Tribunal, in the certificate Exh. P-49 it has been given as under:

He is having sensory loss of foot with marked damage to soft tissue of the foot. He walks with the support of crutches. There is shortening of 1.5". There is malunited fracture of left femur. He is physically handicapped and his disability is 40 per cent.

The learned Tribunal also referred to the certificate Exh. P-l wherein it is given that injury No. 3 of the right thigh and injury No. 6 of the dorsum on the right joint were grievous. Kulwant Singh remained in the hospital for 53 days and suffered a couple of fractures. He spent a sum of Rs. 2,500/ - towards medicines. On this evidence the learned Tribunal found that had the issue of limitation been decided in his favour he would have awarded him a sum of Rs. 10,000/ - towards the compensation.

From the medical evidence on the record it could not be disputed that there is a shortening of 1.5" of the leg of Kulwant Singh and he is physically handicapped and his disability is 40 per cent. That being so he was entitled to the compensation on the following heads:

(i) for pain, shock and suffering due to the injuries.

(ii) for permanent disfigurement and loss of future enjoyment.

(iii) medical expenses.

(iv) for the loss of future earnings.

According to the evidence on the record he spent a sum of Rs. 2,500/ - for medical expenses. Admittedly, Kulwant Singh being an agriculturist was also entitled for the loss of future earnings and for permanent disfigurement and loss of future enjoyment. Thus keeping into consideration the facts and circumstances of the case the compensation of Rs. 10,000/ - as determined by the Tribunal is enhanced to Rs. 40,000/ -. He will be entitled to this amount with interest at the rate of 12 per cent per annum from the date of application till realisation.

As a result of the above discussion, all the three appeals succeed and are allowed with costs as indicated above.