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Sardar Harbans Singh Vs. Shabbir Ahmad and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtAllahabad High Court
Decided On
Judge
Reported in1(1984)ACC155
AppellantSardar Harbans Singh
RespondentShabbir Ahmad and ors.
Excerpt:
- - in view of the discrepancy and in the absence of any reliable evidence regarding age, the tribunal has rightly fixed the age of the claimant on the basis of the age given in ex. we are thus satisfied that the claimant was 32 years old at the time of the accident......hence this appeal.9. as far as the accident is concerned, the version of p.w. 1 shabbir ahmad claimant finds complete corroboration from the statements of jalaluddin and anwar hussain who were present at the time of the accident. the evidence shows that the claimant was going on a cycle on the kachchi patri of the road and truck no. u.t.d. 6072 driven by opposite party no. 2 kishan lal came at a very fast speed from behind and dashed against the claimant. the front wheel of the truck crushed the right leg of the complainant. ex. 6 is the medical examination report of the claimant made on the same day at 1 p.m. ex. 3 is the report lodged by the claimant's brother tauquid ahmad soon after the accident. the tribunal has considered the evidence on the record and has believed the.....
Judgment:

O.P. Saxena, J.

1. This is an appeal under Section 110-D of the Motor Vehicles Act against the award dated 29th July, 1980 made by the Motor Accidents Claims Tribunal, Aligarh (III Additional District Judge) awarding a compensation of Rs. 1,39,800/- out of which a sum of Rs. 50,000/-was payable by opposite party No. 3 and the remaining amount was payable by opposite parties Nos. 1 and 2.

2. The facts giving rise to this appeal are that on 20.1.76 at 12.30 P.M. in front of the U.P. Government Roadways, Workshop, Aligarh on the Aligarh-Delhi Road, the claimant met with an accident. He was going on his cycle on the kachchi patri of the road. Truck No. U.T.D. 6072 belonging to opposite party No. 1 and driven by opposite party no. 2 came from behind and dashed against him. The front wheel of the truck crushed his right leg. Shabbir Ahmad received severe injuries. Opposite party No. 3 is the insurer of the truck.

3. On 20.1.76 at 1 P.M., Dr. S.K. Saxena, Medical Officer, Civil Hospital, Aligarh examined the injuries of Shabbir Ahmad and prepared injury report Ex. 6.

4. On 20.1.76 5 P.M. Tauquid Ahmad, the elder brother of the claimant lodged report Ex. 3 regarding the accident.

5. On 25.3.77 the claimant filed a petition for compensation. He gave an application for condonation of delay. The application was allowed on 14.11.79. A sum of Rs. 2 lacs was claimed as compensation. It was alleged that the truck came from behind at a very fast speed and the driver gave no horn.

6. The petition was contested by opposite party Nos. 1 and 3. It was denied that the accident took place due to the rash and negligent driving of the truck. The amount of compensation claimed was assailed as highly excessive.

7. Opposite party No. 2 Kishan Lal, the driver of the truck did not contest the petition and the same proceeded exparte against him.

8. The Tribunal considered the evidence on the record and believed the applicant's version that the accident took place due to the rash and negligent driving of the truck by opposite party No. 2. On the question of quantum of damages, the Tribunal assessed the compensation payable at Rs. 1,39,800/-. Hence this appeal.

9. As far as the accident is concerned, the version of P.W. 1 Shabbir Ahmad claimant finds complete corroboration from the statements of Jalaluddin and Anwar Hussain who were present at the time of the accident. The evidence shows that the claimant was going on a cycle on the kachchi patri of the road and truck No. U.T.D. 6072 driven by opposite party No. 2 Kishan Lal came at a very fast speed from behind and dashed against the claimant. The front wheel of the truck crushed the right leg of the complainant. Ex. 6 is the medical examination report of the claimant made on the same day at 1 P.M. Ex. 3 is the report lodged by the claimant's brother Tauquid Ahmad soon after the accident. The Tribunal has considered the evidence on the record and has believed the claimant's version. The circumstances of the case fully justify this finding and we affirm the same.

10. As far the compensation is concerned, Sri Murlidhar, learned Counsel for the appellant, submitted that the compensation awarded is exorbitant. Sri G.N. Verma, learned Counsel for the claimant respondent submitted that the compensation awarded is just and proper and interest should also have been awarded.

11. In the claim petition filed on 24.3.77 the age of the claimant was given as 26 years. In his statement recorded on 14.7.1980 P.W. 1 Shabbir Ahmad gave his age as 27 years. In view of the discrepancy and in the absence of any reliable evidence regarding age, the Tribunal has rightly fixed the age of the claimant on the basis of the age given in Ex. 6, the medical examination report prepared on examining him on 20.1.76 at 1 P.M. We are thus satisfied that the claimant was 32 years old at the time of the accident.

12. In the petition the monthly income of the claimant was given as Rs. 600/- per month. The occupation was given as manufacture of dyes etc. In the column opposite party name and address of the employer, it was mentioned that the claimant had his business.

13. In his statement before the Tribunal, P.W. 1 Shabbir Ahmad stated that he used to work in the factory of Haji Manzoor Ahmad on a salary of Rs. 700/- per mensem.

14. There is obviously discrepancy in the two versions. According to the petition the claimant was not employed with any one and did his own business. According to his statement, he was getting a salary of Rs. 700/-per mensem. The claimant did not file any certificate of the employer. He did not examine the employer or any one looking after the business on his behalf. The Tribunal was thus quite justified in not accepting the version of the claimant that he was employed on a monthly salary of Rs. 700/- per mensem.

15. The statement of P. W. 1 Shabbir Ahmad, however, shows that at the time of the accident he used to do the work of manufacturing dyes. The claimants did not state as to what was his daily or monthly income from this business. The Tribunal was thus quite justified in fixing the income at Rs. 10/- per day or Rs. 300/- per mensem. Where the claimant does not lead positive evidence in support of his version set up in the petition, the Tribunal has no choice but to make a reasonable estimate of the income at the time of the accident. The accident took place in the year 1976 and in the absence of any evidence it cannot be said that the estimate made by the Tribunal was unreasonable. We agree with the Tribunal and hold that the income of the claimant was Rs. 300/- per mensem.

16. The evidence of P.W. 1 Shabbir Ahmad shows that as a result of the accident his right leg had to be amputated above the knee. He had to undergo three operations. The first operation was done in the Civil Hospital where he remained admitted between 20.1.76 and 23.3.76. He was twice operated at the Medical College. In the last operation he was admitted on 17.8.79 and was discharged on 31.7.79. He had to remain in the hospital for about 9 months. He had to undergo various treatments by way of message etc. He had to walk on crushes. He feels pain while sitting and cannot sit for an hour at a time. He cannot stand on the crushes for long.

17. The Tribunal awarded Rs. 3,000/- as medical expenses. The adequacy of this amount was not disputed by the learned Counsel.

18. The Tribunal awarded Rs. 1,36,800/- as pecuniary loss for a period of 38 years at the rate of Rs. 300/- per mensem. We accept the contention of Sri Murlidhar that the amount awarded is rather excessive. There is no evidence to show that longevity in the family of the claimant was 79 years. The view of this Court has been to fix the age of longevity at 65 years. The claimant did the business of manufacture of dyes. It is a skilled business and the efficiency declines with age. We are of the opinion that the age of use ful employment can be reasonably fixed at 60 years. The claimant should have been awarded compensation for 28 years and not 33 years for pecuniary loss. There is no evidence to show as to what was the extent of the claimant's disability. The claimant did not get himself medically examined by a doctor. There is thus no material evidence to show the extent of his disability. In the circumstances of the case we think it reasonable to assess his disability at 50%. Even though P.W. 1 Shabbir Ahmad denied that he still earns by working at home, we are not prepared to accept his denial. He can still earn Rs. 5/- or more per day by working at home. The pecuniary loss should have been at calculated at the rate of Rs. 150/- per mensem and not Rs. 300/- per mensem. Thus the compensation for pecuniary loss would come to Rs. 1800/- per annum and for a period of 28 years, it would come to Rs. 50,400/-.

19. Sri G.N. Verma rightly submitted that the Tribunal should have awarded general damages. He placed reliance on Halebury's Laws of England Volume 12, 1975 edition. In paragraph 1146 it has been observed that a person injured by another's wrong is entitled to general damages for non-pecuniary loss, such as his pain and suffering past and future and his loss of amenity and enjoyment of Life. In Clerk and Lindsell on Tort 1982 edition, it has been observed on 212 that general damages are payable for pain and suffering, loss of faculty and loss of amenities and loss of expectation of life. Various authorities were cited before us by the learned Counsel and in the circumstances of the case we are of the opinion that a sum of Rs. 20,000/-should have been awarded as general damages.

20. Thus the total amount of compensation payable to the claimant comes to Rs. 73,400/-.

21. Sri G.N. Verma, further rightly submitted that the Tribunal should have awarded interest under Section 110-CC of the Motor Vehicles Act at the rate of 6% per annum from the date of petition to the date of payment.

22. The appeal is partly allowed and the amount of compensation awarded by the Tribunal is reduced from Rs. 1,39,800/- to Rs. 73,400/- along with interest at the rate of 6% per annum from the date of petition to the date of payment. The Tribunal has already awarded costs to the claimant. The amount awarded shall be payable by opposite parties Nos. 1 to 3 and the liability of the opposite party No. 3 will be to the extent of Rs. 50,000/-. The costs of the appeal shall be easy.


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