Smt. Dalip Kaur v. M/S. Vanguard Insurance Co. Ltd. And Others

Rajinder Sachar, J.:— This is an appeal under section 110-D of the Motor Vehicles Act (hereinafter referred as the Act) against the judgment of the Motor Accidents Claims Tribunal dismissing the application of the appellant filed under section 110-A of the Motor Vehicles Act. It is alleged that on 18th October, 1964 at about 2.00 p.m appellant was going on a scooter driven by her husbaud and were proceeding from their residence to Karol Bagh via Ganga Ram Marg. It is also alleged that a truck driven by respondent no. 3 Sansar Chand was being driven rashly and it suddenly took a turn and hit the scooter in the middle of the right side on the left side of the road, and as a result of this accident the appellant was injured and removed to the Military hospital where she remained as an indoor patient from 18th to 28th of October, 1964. She suffered infirmity and disability on account of these injuries as a result of the said accident. Respondent No. 1 is the Insurance Company; and respondent no. 2 is the owner of the truck. Respondent No. 4 is the Municipal Corporation of Delhi.

2. The application was contested by the respondents. The Municipal Corporation respondent no. 4, pleaded that the truck in question was engaged by Harmohan Singh & Co. who had been given the contract for removal of the refuse in Karol Bagh Zone and that the Municipal Corporation of Delhi had nothing to do with the truck. Respondent 2 and 3 admitted that they were the owner and driver of he truck.

3. Their case, however, was that no accident occurred with the truck and that the injuries received by the appellant were on account of rash and negligent driving by her husband and that the truck did not even touch the scooter. Respondent No. 1 admitted that the truck was insured with it. From the pleadings of the parties, the following issues were framed:

1. Whether the petitioner received injuries due to the accident with vehicle No. DLG 1416 as alleged?

2. Whether the accident was due to rash and negligent driving on the part of Shri Sansar Chand respondent No. 37

3. To what amount if any is the petitioner entitled?

4. Whether the driver had any valid driving licence at the time of the accident, if not, its effect?

5. Whether the driver was not driving the vehicle during the course of his employment under respondent No. 2?

6. Whether Municipal Corporation is liable to pay any damages as alleged in para no. 22 of the written statement?

7. Relief.

4. Under Issue No. 4 the trial court has held that Sansar Chand driver had a valid driving licence. Issue No. 5 was found against Insurance Co. and it was held that the driver was driving the vehicle during the course of his employment under respondent no. 2. The appellant did not press issue no. 6 and it was held that the Municipal Corporation is not liable for the injuries. Under issues 1 and 2 it was held that no impact of the truck with the scooter took place and version given by the appellants' witness is not believable. He consequently held that respondents Nos. 1 to 3 could not, therefore, be held liable as no negligence was proved. Under issue No. 3 the Tribunal found the following injuries

1. Small lacerated cut over left eye brow.

2. Small multiple abrasions on right knee, right leg and left leg.

3. Fracture clavicle (left)

4. Mild cerabral concussion.

5. It accepted the evidence of the doctor and held that the appellant had suffered permanent disability and could not move her left arm to its force. He, therefore found that she would be entitled to the compensation of Rs. 3000/- on account of general damages. The Tribunal also allowed an expense of Rs. 450/- which was incurred by the appellant for having kept a maid servant during that time for a period of six months. Another Rs. 200/- was granted by the Tribunal on account of medicines spent by the appellant after her discharge from the hospital. Another sum of Rs. 250/- was allowed by the Tribunal on account of conveyance for going to Pataudi and for going to the hospital for treatment. He thus found that the appellant was entitled to Rs. 3900/- But in view of his finding on issues 1 and 2 that the accident was not caused by the impact of the truck, he dismissed the application. Aggrieved against that the appellant has come up in appeal to this court.

6. Appellant appeared as P.W 7 and has deposed that when she with her husband was going on the Ganga Ram Marg a truck came from the opposite direction and suddenly took a turn towards right side without giving any horn or indication and struck against the scooter and because of the impact she fell down unconscious. She also stated that she suffered permanent disability and she could not use her left arm freely and she cannot raise her arm beyond the shoulder level and that she could not put on her clothes without the help of others and also could not take her arm towards her back. The husband appeared as P.W 6 and deposed that they were going on a scooter towards Karol Bagh from his residence with his wife on the pillion seat and took a turn on Shanker Road and entered Ganga Ram Marg and had hardly covered about 50/60 yards from the crossing when a truck came from opposite direction and suddenly took a turn to its right without giving any signal. As a result of the collision he and his wife were thrown away and both of them fell on the road. He received minor injuries though the wife became unconscious and was bleeding from near the left eye brow and from her leg. The truck owner was also present there and he got down and helped him in removing his wife to the Military hospital. Another witness Harbans Singh was stated to be present there. P.W 1 Harbans Singh who is compounder at the Kalawati Hospital, Rajinder Nagar deposed that he was standing on the Ganga Ram Road near a Petrol Pump and he saw a scooter coming from the opposite direction of the truck and when the truck reached near the crossing, it turned to the right without giving any signal and in that process the front right side of the truck struck against the rear of the scooter. P.W 4 an employee of C.P.W.D also supported this version that the truck took a turn towards its right side and struck against the rear portion of the scooter. In rebuttal the driver appeared as R.W 2. He admitted that he was going in a truck to Poorvi Marg for other duty and that the truck was on duty for collection of garbag of the Municipal Corporation and that when he reached near the Petrol Pump he saw Capt. Avtar Singh (the husband of the appellant) coming from the opposite side with fast speed. According to him the scooter struck against a stone on the road and the scooter driver could not control it and struck against the footpath and then fell down. No portion of the truck touched the scooter and he stopped truck of his own so that Capt. Avtar Singh may not note down his number. He has admitted that he was challaned this accident and was convicted by the magistrate and his appeal against his conviction failed. He has however admitted that he was going in the centre of the road. R.W 3 is the owner of the truck whose evidence is similar to that of the driver, namely that the scooter struck on the stone on the road and then with the Patri and then falling down and that no part of truck touched the scooter. He says that he asked the driver of the truck to stop at once so that Capt. Avtar Singh may not note down their number. R.W 1 is the Sanitary Inspector. According to him he was sitting in the truck with S. Baint Singh owner of the truck and saw the scooter going on a stone which was lying on the road and then the scooter became out of control and it climbed on its left side of Patri and that there was no impact by the truck with the scooter. He appeared also as a witness in the criminal court. He admits that there is a road joining this road and that road comes from the right side of the truck but says that the truck was going straight but stopped after seeing the scooter fall down. He did not lodge any report with the police, nor he was examined by the police, nor did he make any report to the Corporation about this accident. P.W 8 is the A.S.I Police Station Rajinder Nagar who produced the site-plan Ext. PW 8/2. He reached the spot on getting the information at about 3.30 p.m and prepared the site plan which is Ex. PW 8/2. PW 9 is the Inspector who inspected the scooter on 20th October, 1964. The only reason why the Tribunal did not accept the version of the appellant was because he took the view that the nature of the damage to the scooter shown in the report Ext. PW 9/1 does not indicate that there was no violent impact on the scooter by the truck because had that been so there would have been greater damage done to the scooter than was found. The Tribunal was of the view that the damage on the starter kick which was bent was not sufficient to support the version of the appellant that the truck hit on the right side of the scooter because had there been a violent impact then there could have been much more damage and as there was not even a dent on the mudguard on right side panel, it shows that no impact took place. The Tribunal assumed damage to starter kick may be due to the impact with hard surface when it fell on the road. The Tribunal noted that there was no explanation as to why the truck stopped, if it was not involved in the impact and it somehow assumed that there could be some explanation though none was suggested by the witnesses or even found by the Tribunal. He also noted that the truck was going in the centre of the road but thought, the truck must have swerved a bit towards its right because of the application of the brakes. The tribunal therefore assumed that the appellants husband got nervous when the truck swerved a bit towards its right side and then lost control and fell down. It seems to me that the Tribunal has completely ignored the positive evidence given by the appellant and her witnesses as to the manner in which the accident took place. A reference to Ext. PW 8/2 would show that the truck is just a few paces away from the right side of the road which means that it is almost ¾ paces away from the end from the left side of the road. The position of the truck is also in a position which shows it to be taking a turn to the right side of the road, Even the witnesses for the respondent have admitted that the scooter of the appellant's husband was going on its own side on the left side. The respondent has throughout maintained that the truck was not to take turn to the left but was to proceed straight on. If that was so the position of the truck in PW 8/2, on the almost extreme side of right side of the road is not understandable and is inconsistent with the version given by the respondent. Further the version of respondent that the scooter while going on the road hit a stone on the road and the appellant's husband lost control of the scooter and fell down is an obvious after thought because the same was never put to any of the witnesses of the appellant. The maximum that was put was to P.W 6 the husband of the appellant, wherein it was suggested that he got nervous and kick struck against the pavement. But even to him no suggestion was made that his scooter hit a stone and it was because of this that it fell on the road. This completely belies the defence version now being put forward. Further version of the respondent that the scooter struck at the stone and fell down against the patri is also belied by the fact that the damage, to the scooter is on the right side and not on the left which it should have if the scooter had fallen on the pavement (Patri) as is suggested by the respondent's witnesses. I think too much has been sought to be made by the Tribunal because of the smallness of damage to the scooter. It is true that the appellant has stated that the truck hit rear of the scooter and P.W 1 even stated that the truck struck against the scooter. Mr. Kataria, the learned counsel for the respondent, from this sought to make an argument that if the truck had hit the back side of the scooter more damage should have been found than actually found on the scooter. I do not agree that the mere fact that a damage on scooter is somewhat less than might have been sufficient to ignore the independent and reliable evidence given by the appellant. Undoubtedly the scooter is damaged on the right side, the evidence of the witness is clear that the scooter was hit on the right by the truck. Considering that the truck was taking a turn and was in a slanting condition it is probable that the truck hit the scooter, it may because of its slant cause grazing damage and that is the reason why more serious damage was not caused. It is this aspect which the Tribunal completely ignored when considering the evidence. Another aspect that the Tribunal ignored was that the version of the respondents that they were proceeding straight on and were not to take a turn to the right is completely inconsistent with the position of the truck which was in slanting condition and on the right side of road. P.W 1 and P.W 4 are independent witnesses. They have no connection with the appellant and it is not understood why they would give statement falsely in support of the appellant's case. Not only that appellant's husband is an officer in the Army. If the version of the respondent was correct that the appellant had fallen because of having struck against the stone and that the respondents of their own got down and helped the appellant to take his wife to the hospital, it is hard to believe that the appellant will falsely try to involve the respondent in the accident. It is against human nature and unnatural that a Responsible person like the appellant will try to involve an innocent person of the respondent's rash and negligent act and was not the real cause for the accident. Of course the respondent driver, the owner and the Asstt. Sanitary Inspector have denied the appellants story but their version, apart from being interested is belied by the independent circumstance which support the case of the appellant. Here is a case where parties are not at issue about the place of the accident, or the fact of the truck and the scooter being in position as shown in the plan. Only question was whether the truck had hit the scooter and caused the accident. The circumstances mentioned above leave no manner of doubt that it was the case of rash and negligent act of respondent no. 3 in making a sudden turn to the right without warning that caused the accident. Mr. Sistani, the learned counsel for the appellant, also points out that the fact that the respondent no. 3 had been convicted by the magistrate and conviction upheld by the appellate court was prima facie evidence of negligence and referred me to Nettleship v. Weston . 1972 A.C.J 115. That may be so. But in the present case it is not necessary to rely on the conviction of respondent no. 3 to come to a finding of negligence of respondent no. 3, as independent of and apart from the evidence of conviction, the other evidence on record was the negligent and rash act of respondent no. 3 which is sufficient to come to a finding that it_caused the accident. I would in the result reverse the finding of Tribunal under issues 1 and 2 and hold that the appellant received injuries due to rash and negligent driving on the part of Sansar Chand, driver, respondent no. 3.

7. Mr. Sistani also sought to contend that the general damage of Rs. 3000/- awarded were inadequate. It was pointed out that the appellant had permanently been disabled from using her left arm and this made her dependent for help which meant a permanent expense of having a help all through life. Now the Tribunal has awarded her Rs. 3000/- on account of general damages. It is well settled that the amount of compensation awarded by the trial court should not be lightly interfered with unless the appellate court was of the view that the trial court had acted on wrong principle of law or that the amount awarded was so grossly inadequate that it must have been based on wholly erroneous principle applicable to damages. I am not persuaded that the exercise of discretion by the Tribunal in awarding an amount of Rs. 3000/- as general damages and Rs. 900/- otherwise was either arbitrary or fanciful. I would, therefore, affirm the finding with regard to the amount of damages.

8. The result is that I would set aside impugned order of the Tribunal and allow the application of the appellant under the Act and award her a compensation of Rs. 3000/- against respondent nos. 1 to 3. Appeal against respondents 1 to 3 will thus be allowed, but will be dismissed against respondent no. 4. The appellant will also have her costs throughout against respondents no. 1 to 3.