Citation Codes

Equivalent Citations

citation codes

Case Number

F.A.O No. 174 of 1967

Judges

Avadh Behari Rohatgi, J.

Acts

rule 7 of the 10th schedule of the Motor Vehicles Act.

See more information ...

Smart Summary

Judgment Summary — A.B. Rohatgi, J.

Factual and Procedural Background

This opinion arises from two appeals against an order of the Motor Accident Claims Tribunal dated May 3, 1967. The respondent (claimant) Ram Parkash Kapahi, a civilian staff officer at Army Headquarters, New Delhi, aged 47 and earning Rs. 1,165 per month, was riding a scooter on May 25, 1965 with his wife as pillion passenger. A car (registration DLF 8737) owned by Atlantic (East) Limited and driven by Dharambir Singh, insured with Norwich Union Fire Insurance Society Limited, collided with the scooter at a crossing at about 6 p.m. Kapahi sustained multiple injuries to his left leg, left ankle and left elbow, including a fractured left leg, leading to prolonged plaster for eleven months, use of crutches thereafter, and permanent disability including shortening of the leg and a limp.

The Tribunal had awarded Kapahi Rs. 5,000 for general damages and Rs. 7,419 for loss of leave salary (total Rs. 12,419). Two appeals followed to this Court: (1) by the car owner and insurer (F.A.O. 174 of 1967) contesting that the Tribunal wrongly fastened liability on them, and (2) by Kapahi by way of cross-appeal contending the damages were too low. This single judgment addresses both appeals.

Legal Issues Presented

Who was negligent in the collision — the driver of the car or the scooter rider?
Whether the motor driver breached his duty at an intersection under rule 7 of the 10th Schedule of the Motor Vehicles Act (i.e., whether the motor driver failed to give way to traffic on his right) and whether that breach caused the accident.
Whether the defence that the scooter rider's leg was entangled in the car's number plate (thus attributing blame to the scooter rider) is valid and admissible, having not been pleaded earlier.
Whether the Tribunal's award of general damages (Rs. 5,000) and leave salary (Rs. 7,419) was excessive, inadequate, or constituted impermissible double recovery.

Arguments of the Parties

Appellants (Car owner and Insurance Company)

Contended that the Tribunal wrongly fastened liability on the car owner and insurer; contended that the scooter rider was at fault.
Advanced a specific defence that the scooter rider's left leg became entangled in the car's number plate, and the injuries were caused by the scooter rider falling with his leg caught (i.e., contributory or sole negligence of the scooter rider).
Challenged the award of Rs. 7,419 for leave salary on the ground that the Army authorities had paid Kapahi full salary during the period of his illness, so that the Tribunal's award constituted double payment.

Respondent (Ram Parkash Kapahi)

Maintained that the car driver was negligent and struck the scooter on its left side; relied on medical evidence and physical damage to the scooter (bent left mudguard) to support this.
Contended that he suffered serious, lifelong injuries (fractured left leg, shortened leg, limping) entitling him to substantial compensation and that the Tribunal's assessment was proper; in cross-appeal sought higher damages and relied on analogous authorities involving leg injuries.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Swaraj Motor Pvt. Limited v. T.R. Raman Pillai, 1968 A.C.J. 127	Analogy for awards in cases involving serious leg injuries and substantial general damages (trial court awarded Rs. 25,000 for injuries including apprehension of shortening of life).	The court considered the case but distinguished it on the facts: injuries in Swaraj Motor were far more serious (including apprehension of shortening of life), so that its higher award did not justify increasing Kapahi's award to the level urged by his counsel.
Madhya Pradesh State Road Transport Corporation, Bhopal v. Sudharkar, 1967 A.C.J. 90	Analogy for awards in serious leg injury cases; trial court had awarded Rs. 30,000, reduced by High Court to Rs. 20,000.	The court noted the facts of that case (serious disability, need for attendant) and held that on the facts before it Kapahi's injuries and circumstances did not warrant increasing the award to the amounts awarded or sustained in that precedent.

Court's Reasoning and Analysis

The court followed a fact-driven analysis grounded in statutory duty, medical evidence, physical damage to the scooter, the parties' pleadings, and procedural propriety of defences not pleaded.

Statutory Duty at Intersection: The court invoked rule 7 of the 10th Schedule of the Motor Vehicles Act (quoted in the opinion) — which requires a motor driver entering an intersection to give way to traffic on his right or to traffic on a main designated road. It was common ground that the collision occurred at the centre of the crossing and that the scooter was approaching from the car driver's right; thus it was the car driver's duty to give way.
Primary Finding of Negligence: Both the Tribunal and this Court concluded that the motor driver (Dharambir Singh) did not observe the statutory duty and was negligent. This conclusion was supported by multiple strands of evidence rather than a single fact.
Medical Evidence and Impact Analysis: The court relied heavily on medical testimony. Two treating doctors (Dr. Leela Ramachandran and Dr. N.K. Masand) testified that the pattern and severity of injuries (fracture of the left leg, lacerated left ankle, abrasions consistent with blunt impact) indicated a significant forceful impact from the car against the scooter's left side. The injuries were inconsistent with the theory that they were caused simply by a fall while the scooter was stationary with a leg entangled in a number plate.
Physical and Investigative Evidence: Damage to the scooter (bent left mudguard) corroborated the medical evidence that the car struck the scooter on the left side. Police inspection found the car's footbrakes to be loose, a factor tending to show that the car driver may have been unable to stop in time, supporting negligence on the part of the car driver.
Procedural and Pleading Objections to the Entanglement Defence: The court placed weight on the fact that the entanglement defence (that the scooter rider's leg became entangled in the car's number plate) was not pleaded in the written statement and appeared to be an afterthought. The judge held that this was a substantial defence that ought to have been specially pleaded; its absence reduced its evidentiary weight. The court therefore declined to attach importance to this contention.
Assessment of Damages — General Damages: The Tribunal's award of Rs. 5,000 for general damages was examined against the severity and permanence of the injury. The court found this figure "modest" and reasonable in view of eleven months in plaster, ongoing use of crutches, permanent shortening and deformity of the leg, and continuing limp, as evidenced in court and by medical testimony.
Assessment of Damages — Loss of Leave Salary: The Tribunal awarded Rs. 7,419 for loss of leave salary covering May 25, 1965 to December 6, 1965. The insurance company's submission that this constituted double recovery (since Army authorities had paid full salary during this period) was rejected. The court reasoned that the award compensated Kapahi for the loss of his earned leave (a benefit he had worked for), which he could not enjoy due to injury; therefore he suffered a compensable loss despite receiving salary from the employer. The measure of damages was properly the salary for that period.
Comparison with Authorities: The court considered authorities cited by the claimant (Swaraj Motor and Madhya Pradesh RTC v. Sudharkar) but distinguished them on facts—both involved more serious disabilities and higher awards. On analogy, those cases did not compel an increase of the award in this case.
Conclusion on Relief: Balancing the evidence and authorities, the court found the Tribunal's aggregate award of Rs. 12,419 to be fair, not excessive or inadequate, and declined to interfere with it. Accordingly, the appeal (by owner and insurer) and the cross-appeal (by Kapahi for higher damages) were dismissed.

Holding and Implications

Holding: The Court dismissed both the appeal and the cross-appeal and upheld the Motor Accident Claims Tribunal's award of Rs. 12,419 in favour of Ram Parkash Kapahi. The parties were directed to bear their own costs.

Implications:

Direct effect: The Tribunal's award — Rs. 5,000 as general damages and Rs. 7,419 for loss of leave salary (total Rs. 12,419) — remains in force and payable as adjudged. The finding of negligence is that the motor driver failed to give way at the intersection in breach of rule 7 and caused the accident.
Pleadings and defences: The opinion underscores procedural law practice points — substantive defences, particularly those that form the core of a defendant's case (such as entanglement causing injury), ought to be pleaded in the written statement; raising such defences for the first time at trial reduces their weight.
No new legal precedent: The Court reached its conclusion on the specific facts and evidence before it and expressly distinguished existing authorities relied upon by the claimant; the judgment does not purport to establish a novel legal principle beyond applying existing rules (e.g., rule 7 of the 10th Schedule) and standard damages assessment principles.

Costs: each party to bear their own costs as ordered by the Court.

Show full summary ...

M/S. Atlantic (East) Ltd. And Another v. Ram Prakash And Another

A.B Rohatgi, J.:— These are two appeals against the order of the Motor Accident Claims Tribunal dated May 3, 1967.

2. These are the facts. One Ram Par-kash Kapahi was going on a scooter on May 25, 1965. His wife was a pillion passenger with him. He was then building his house. His wife was looking after the construction. He had gone to the site to take her in the evening. Kapahi at the relevant time was a civilian staff officer at the Army Headquarters, New Delhi. He was 47 years old then. He was drawing a pay of Rs. 1,165/- per month. He was going from south to north. He was living at Baird Road. In other words he was going from South Delhi to New Delhi proper.

3. A car (DLF 8737) was coming from west to east. It was going on the main road towards New Delhi South Extension part II. The car belonged to Atlantic (East) Limited. It was being driven by Dharambir Singh. It was insured with Norwich Union Fire Insurance Society Limited.

4. The car and the scooter reached a crossing. It was about 6 p.m There was an accident. Kapahi sustained the following injuries:

1. Two abrasions right elbow 3 m.m in diameter and 2×3 mm.

2. Two abrasions left elbow 1×3 mm, and ½″ in diameter.

3. Two abrasions left leg in front 3 mm, in diameter.

4. Lacerated wound left ankle, inside 1 inch diameter.

5. Deformity and clinical evidence of fracture of the bones of left leg and swelling around left anke.

6. He was taken in this very car to the hospital. He remained in plaster for eleven months till March 1967 and thereafter he used crutches. His leg has been shortened. He cannot walk erect. He limps. He has suffered a permanent physical disability.

5. Kapahi made an application to the Motor Accident Claims Tribunal. He claimed Rs. 25,000/- on account of compensation. The Tribunal awarded him Rs. 5,000.on account of general damages and Rs. 7,419/- on account of loss of leave salary from May 25, 1965 to December 6, 1965. In all award of Rs. 12,419/- was made in his favour.

6. Now there are two appeals to this Court. One is by the owner of the car and the insurance compay. This is F.A.O 174 of 1967. They claim that the Tribunal has wrongly fastened the liability on them of the accident. The other appeal is by Kapahi. He cross appeals on the ground that the damages are too low. This order will govern them both.

7. The Tribunal found that Dharam Bir Singh driver of the car was negligent. The accident was caused by his negligent driving. The scooter driver was not at fault, the Tribunal said.

8. In the appeal of the insurance company the main question to be decided is: who was negligent? Was it the negligence of the scooter driver or was it the negligence of the motor driver? Now it is admitted by both the parties that the accident happened at the centre of the crossing. The scooter driver was coming from his right hand side. It was the duty of the motor driver to give way to him as provided by rule 7 of the 10th schedule of the Motor Vehicles Act. That rule says:

“The driver of the motor vehicle shall on entering a road intersection, if the road entered is a main road designated as such, give way to the vehicle proceeding along that road, and in any other case give way to all traffic approaching inter section on his right hand.”

The motor driver did not observe this rule. The Tribunal held that he was negligent.

9. That it was the motor driver who was negligent is clearly proved by the medical evidence. The injuries sustained by the scooter driver clearly show that Kapahi was seriously injured in his left leg His left ankle was wounded. His bones of the left leg were fractured. There two abrasions on the left leg, two abrasions on the left elbow and one abrasion on the left ankle. These injuries clearly indicate that the car struck the scooter driver on his left side and he fell down with a great impact.

10. Kapahi produced two doctors in evidence. They had treated him at the hospital. Both of them supported the theory that it was the car which struck against the scooter.

11. The case of the insurance company and the car owner is that the scooter driver's left leg was entangled in the number plate of the car and the injuries on the left leg were all due to the negligence of the scooter driver himself. This theory was discounted by both the doctors.

12. Dr. Leela Ramachandran (PW. 7) said in cross-examination:

“To produce fracture on the left side there must be sufficient force of impact. I would not say that these injuries on the left foot are possible if a person on a stationary scooter falls on his left side and the left foot is entangled with the number plate of car standing on the left side because I think the number plate is sharpeedged thing and the injuries (are) with a blunt object and secondly there must be some force of impact.”

13. The other doctor N.K Masand also supported Kapahi's case. He said this:

“It is very difficult to say if this injury could be caused by his falling from his scooter with his leg entangled in a number plate of the car in front. It is possible to get this injury in such circumstances if he falls with great force.”

14. The medical evidence is disinterested. It can safely be relied upon. What appears to have happened is this. The car struck the scooter and as a result of striking Kapahi got serious injuries on the left leg, left ankle and left elbow. His bones of the left leg were fractured. Two abrasions which were found on the right elbow were the result of his falling down as a result of the impact. This is the version of Kapahi and his wife. This version was accepted by the Tribunal. It appears to be more probable. I am not persuaded to hold that the accident did not happen in this way.

15. The case of the insurance company that the left leg of the scooter driver was entangled in the number plate can straightway be discarded on another ground. The defence of entanglement was never taken by them in the written statement. It was an after thought. The counsel says that the insurance company and the owner were not required to plead evidence in their written statement. I do not agree. This is not evidence.

16. This is the cause of accident. This is their substantial defence. It ought to have been specifically pleaded in the written statement. I, therefore, will not attach any importance to this plea.

17. The medical evidence clearly rules out the possibility of entanglement. The number plate of the car is a sharp edged thing. Doctors evidence shows that the injuries were caused by a blunt object and were the result of great force or impact. Left mudguard of the scooter was bent. Damage to the scooter also shows that the car struck against the left side of the scooter. If the car had not struck against the scooter ordinarily there was no reason for the scooter to fall on the right side with such a great impact as to cause serious injuries to the driver of the scooter in his left leg, elbow and ankle.

18. The accident happened on a wide road. It was 30′ wide. Kapahi says that the driver was driving the car at a breakneck speed. He could not apply the brakes in time so as to avoid the accident. The police examined the two vehicles involved in the accident after the report was lodged. They found that the foot breakes of the car were loose. This must have made it impossible for the car driver to stop the car in time. The result was an impact between the car and the scooter. I agree with the Tribunal that the car driver was negligent.

19. The second question is about damages. The Tribunal awarded Rs. 5,000/- on account of general damages and Rs. 7,419/- on account of salary.

20. I do not think the sum of Rs. 5,000/- on account of general damages is too high. It is a modest sum for the mental pain and suffering which Kapahi had to undergo. He remained in plaster from the to loin for 11 months. He had to use crutches. His leg has been shortened. He limps. When he came to give evidence before the Tribunal he was in walking callipers. He was present in court at the hearing before me. He showed me his shortened leg. It is a life long deformity. The doctors said so in their evidence.

21. Kapahi did not spend anything on medical treatment. It was all free for him. He was a member of the Central Government Health Contributory Scheme. Therefore, the Government paid for his treatment in the hospital and afterwards. This is not disputed by Kapahi. The Tribunal, therefore, has not awarded anything on account of medical treatment.

22. The counsel for the insurance company attacked the award of Rs. 7,419-. His argument was this. Kapahi during the period of his illness remained on leave from the Army Headquarters during period of May, 1965 to December, 1965. The Army authorities paid him full salary. Now the counsel says that the Tribunal has awarded him again his salary for these months. There is double payment. It is said that this is illegal. I cannot accept this submission. It is true that the Army Headquarters paid Kapahi his salary for these months but it cannot be said that he did not suffer any damages. When accident happened Kapahi had applied for leave. He had applied for four months leave for building his house. This was his earned leave. He had worked and toiled for it in the previous years. He had earned his leave. Leave had accumulated to his account. Instead of building his house and enjoying his holidays Kapahi had to remain in hospital. It was no enjoyment. For the loss of his earned leave Kapahi was entitied to compensation. The Tribunal I think was right in awarding damages, the measure being the salary from May, 1965 to December, 1965.

23. I look at the problem of damages broadly like this. Whether the award is under one head or the other Kapahi in all has got Rs. 12,419/- as damagas. This amount is not inordinately high. I cannot agree that it is open to criticism as being over generous. I think the Tribunal made a fair assessment of compensation. I do not consider that this was over generous nor do I think it was mean but about right in all the circumstances.

24. The counsel for Kapahi has referred me to Swaraj Motor Pvt. Limited v. T.R Raman Pillai . 1968 A.C.J 127. and Madhya Pradesh State Road Transport Corporation, Bhopal v. Sudharkar . 1967 A.C.J 90..

25. Both these cases relate to injuries to leg. On the analogy of these cases the counsel submits that in this case award should be increased atleast to Rs. 20,000/-. I do not agree.

26. In Swaraj Motor Pvt. Limited's case (Supra) the injuries to the claimant were far more serious. There was an apprehension of shortening of life. Rs. 25,000/- were awarded as general damages by the trial court. The award was upheld by the High Court.

27. In Madhya Pradesh State Road Transport Corporation, Bhopal case (supra) again the injuries to the leg were quite serious. The lady was disabled, for the rest of her life it was felt that she will require the attendance of a maid-servant. The trial Judge awarded Rs. 30,000/- as general damages but the High Court reduced it to Rs. 20,000/- Kapahi did not spend anything on medical treatment. Medical expenses are, therefore, not to be taken into account. In all the circumstances, I do not consider that this court ought to interfere with the award of the Tribunal. The Insurance company asks me to reduce the damages. I would certainly not do this. I would leave it at Rs. 12,419/-.

28. For these reasons I dismiss the appeal and the cross appeal. In the circumstances of the case I leave the parties to bear their own costs.

M/S. Atlantic (East) Ltd. And Another v. Ram Prakash And Another

Judgment Summary — A.B. Rohatgi, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants (Car owner and Insurance Company)

Respondent (Ram Parkash Kapahi)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

M/S. Atlantic (East) Ltd. And Another v. Ram Prakash And Another

Comments