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Dr. S.L. Rawal Vs. J.N. Madan and anr. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1(1983)ACC222
AppellantDr. S.L. Rawal
RespondentJ.N. Madan and anr.
Excerpt:
- - 5 complained of pain chest on the right side with clinical sign of fractured rib......till 5-6-1972 and on his admission the major injuries were described as follows:1. compound fracture right femur.2. posterior dislocation of the left hip.3. fracture of the left wrist.during his stay in the hospital, under anaethesia, dislocation of the left hip was reduced and subsequently fracture of the left wrist was also reduced and plaster was applied. thereafter, he was operated upon for the fracture of the right thigh under general anaethesia. a plate was put on the fractured fragments and screwed tightly by means of stainless screws during his stay in the hospital, he was completely bed-ridden and was still not cured by the time of his discharge. at the time of discharge, he could not walk and was advised rest besides having the services of an attendant again in october,.....
Judgment:

Gokal Chand Mital, J.

1. On 24-3-1972 an accident took place on Madhya Marg at the Junction where there is an entry to Sector 16 from Madhya Marg, at about 1.30 P.M. between an Ambassador Car No. PNU-8093 driven by J.N. Madan, who was owner of the car, which was insured with the Oriental Fire and General Insurance Company Ltd., and Dr. S.L. Rawal, who was coming on a bicycle from Sector 16 on his way to Sector 9 and had entered on the Madhya Marg. As a result of the accident Dr. S.L. Rawal received the following injuries:

1. Swelling right thigh with fracture of underlying bone. X-ray dated 25-3-1972 confirmed fracture of femur--lower 1/3rd.

2. Swelling with abrasion of left wrist. X-ray showed fracture of left radius.

3. Abrasion 3' X 2' on left knee.

4. Abrasion 4' X 1' on left leg.

5 Complained of pain chest on the right side with clinical sign of fractured rib. X-ray confirmed fracture of 9th rib right side.

6. Abrasion 2' X 2' on the right shoulder.

7. Two abrasions 1' X 1' each on forehead.

8. Difficulty in movement of left leg, X-ray pelvis confirmed dislocation of left hip joint.

Dr SL Rawal remained as indoor patient in the General Hospital from 24-3-1972 till 5-6-1972 and on his admission the major injuries were described as follows:

1. Compound fracture right femur.

2. Posterior dislocation of the left hip.

3. Fracture of the left wrist.

During his stay in the hospital, under anaethesia, dislocation of the left hip was reduced and subsequently fracture of the left wrist was also reduced and plaster was applied. Thereafter, he was operated upon for the fracture of the right thigh under general anaethesia. A plate was put on the fractured fragments and screwed tightly by means of stainless screws During his stay in the hospital, he was completely bed-ridden and was still not cured by the time of his discharge. At the time of discharge, he could not walk and was advised rest besides having the services of an attendant Again in October, 1972, he got himself examined from Dr. N.D. Aggarwal Head of the Orthopaedics Department, Medical College, Patiala, where he was admitted as an indoor patient and remained there for four days. During that period he was operated upon for bone grafting. He could not bear weight on the right lower limb because of non-union. That limb was plastered for three months. As a result of all the injuries, in spite of operations, there was a shortening of right lower limb by three inches due to the fracture of right thigh-bone. There was stiffness of the right knee on account of which he had only 15 degrees of movement There was stiffness of right hip joint. Without the aid of crutches and caliper, he could not walk even in August, 1976, when he was examined by Dr. V.P. Bansal, Head of the Orthopaedics Department P.G.I., Chandigarh. He filed claim petition before the Motor Accident Claims Tribunal and asked for the total compensation of Rs. 50,000/- under different heads. The petition was contested by the respondents on which following issues were framed:

1. Whether the accident took place due to the rash and negligent driving of respondent No. 1 ?

2. Whether the claimant is entitled to any compensation, if so, to what extent and from whom ?

3. Relief.

2. After evidence was led,. the Motor Accident Claims Tribunal by award dated 7-4-1977 came to the conclusion under issue No. 1 that it was the claimant due to whose negligence the accident took place as a result of which the claim petition was dismissed. On issue No. 2 a finding was recorded that in case the car driver was negligent, the claimant would have been entitled to Rs. 16,500/- as compensation, the details of which were also set out in para 8 of the award. This is claimant's appeal in this Court.

3. After hearing the learned Counsel for the parties at length and on perusal of the record, I am of the confirmed opinion that it was the driver of the car who was negligent and not the claimant. Due to slight error of judgment on the part of the car driver, the accident took place. The case of the claimant was that he had crossed whole of the Madhya Marg and had gone over towards the left side of the road, i.e., his correct side, for further going towards Sector 9. At the time of accident, he was very close to the signboard indicating the turning on the Madhya Marg towards Sector 16, and at that point of time the car struck his cycle. This was so stated in the evidence of the claimant as P.W. 7, and finds sufficient corroboration from the photographs Exhibits A. 2 and A. 3 on the record. From the statement of the driver of the car as R. W. 1 it is clear that there was some error of judgment on his part due to which the accident, took place which is clear from the following statement:

I was going on the Madhya Marg from the side of Sector 9 towards Sector 15. I was passing in front of the Red Cross Building. I was going at a speed of 25 kmph and was on my left side. A head of me a bus was going. I was following that bus. There is a road which comes from the side of the General Hospital to the Madhya Marg. When the bus passed the crossing of that road on the Madhya Marg a cyclist came from the side of Sector 16. I applied brakes to my car. J tried to take my car further by turning it towards the left so as to avoid an impact with the cyclist and then the cyclist hit my car on my right side near the head light. The cyclist fell on the road in front of my car and I stopped the car. If the car had been going at a slightly higher speed, the cyclist would have been crushed.

Since the cyclist was hit by the front right side of the car at a time when the car was being driven at a slow speed it is clear that the driver took a chance that the cyclist would go towards the left side (i.e., right side of the driver of the car) and, therefore, he did not slow down further by applying brakes so as to permit him a clear passage and due to some error of judgment, the accident took place. It is not at all even the case of the driver of the car that he had the precedents to go on the main road and the cyclist, who came from aside lane, should not have entered the main road. Therefore, on these facts I disagree with the Motor Accident Claims Tribunal that it was the cyclist who was at fault and after setting a side that finding, record a finding that it was the driver of the car due to whose error of judgment the accident took place. Accordingly, issue No. 1 is decided in favour of the claimant and against the driver of the car and the insurance company.

4. This brings me to the consideration of issue No. 2 about the award of compensation. In the opening part of the judgment, the mention of the fractures, the serious nature of injuries and the time which the claimant had to spend in the hospital besides the fact that till 1976, i.e., for about more than four years after the accident, he was still limping and had to use crutches, shows that at the old age the claimant suffered serious injuries and also underwent pain and suffering for a long time which he will continue to suffer till his death. As already noticed, the accident took place on 24-3-1972 when the claimant was about 72 years old. Unfortunately, for him, he has survived till today to suffer for a period of almost 11 years and 8 months after the accident because it has been described by the doctors that there is permanent disability to the extent of 20% besides the shortening of leg by three inches, stiffness of the knee due to which the leg does not bend much. The Tribunal allowed Rs. 4,860/- as loss of income; Rs. 2,765/- towards medical expenses: Rs. 3,666/- towards special diet and for having an attendant and Rs. 5,000/-for pain and suffering. After hearing the learned Counsel for the parties I do not find any sufficient reason to disagree with the assessment on account of first three counts. As regards pain and suffering, from the date of accident till recovery, which was partial and for the rest of the life (i.e. for about 12 years from the date of accident till now) Rs. 5,000/- awarded by the Tribunal is much too low. I am of the considered view that it will be reasonable to award at least Rs. 10,000/- on this count and I order accordingly. To round up, I award Rs. 21,500/- to the claimant on all the aforesaid four counts.

5. For the reasons recorded above, this appeal is allowed and the claimant is awarded compensation of Rs. 21,500/- with costs. Besides the above, the claimant will be entitled to 12% interest on the awarded amount from the date of filing of the claim petition till realisation thereof. Since the car was insured, the amount would be payable by the insurance company, M/s. Oriental Fire and General Insurance Company Ltd.


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