Gokal Chand Mital, J.
1. This order will dispose of F.A.Os Nos. 283 and 284 of 1976 filed by the claimants and FAOs Nos. 249 and 250 of 1976, filed by the owner of the truck and the Insurance Company. Since all these arise out of injuries caused to the husband and wife in one and the same accident, they are being disposed of by this common judgment.
2. On the night of 3rd March, 1973 at about 9-15 PM, Capt. Dilip Keshav Rao Bhonsale, was going on his scooter on Madhya Marg, Chandigarh from Sector 17 to Chandi Mandir Cantonment. His wife was sitting on the pillion seat. When he was near timber market he saw the truck coming from the opposite direction but when he was near the place where there is a turning for timber market, that truck took a sudden turn towards the timber market and hit his scooter resulting into serious injuries to both of them. Accordingly, the husband and wife filed separate claim petitions. The husband claimed Rs. 1,31,800/-, the break-up of which is as follows:
1. Losssuffered on account of losing chances of promotion:
2. Losson account of pleasures of life:
3.Physical and mental pain and suffering:
4. Lossof one half of pay for two months:
6.Scooter repair charges:
3. The claims were contested by the owner of the truck as also by the Insurance Company. The plea of the driver and owner of the truck was that the truck had come from Industrial area, from a road which was perpendicular to the Madhya Marg and was slow After taking a turn on the Madhya Marg and was again slow as it had to take a turn on his right side in the timber market, and the driver of the truck came to know of the accident only when he heard the noise of impact on his back side and when he came down he saw that a scooter had hit the truck on the hind wheel and the claimants were found injured. According to him, it was the negligence of the driver of the scooter.
4. On the contest of the parties, the following issues were framed:
1. Whether the correct Insurance Company has not been impleaded as a party to this case. If so to what effect?
2. Whether the accident took place due to the rash and negligent driving of the respondent No. 2 ?
3. Whether the claimant is entitled to any compensation If so, to what extent and from whom ?
5. After evidence was led, the Motor Accident Claims Tribunal found that the driver of both the vehicles were equally negligent, for if one of them had taken care, the accident could be avoided. Otherwise for the injuries suffered by both the claimants, it was found that the captain had suffered loss of Rs. 55,000/- whereas his wife had suffered loss of Rs. 10,000/-. Since the claimant was held guilty of contributory negligence to the extent of 50%, half of the aforesaid amounts were awarded to them by way of compensation for the negligence of the driver of the truck. F.A.O.s 283/284 of 1976 have been filed by the claimants for the enhancement of the compensation whereas FAO Nos. 249 and 250 of 1976 have been filed by the owner of the truck and the Insurance Company.
6. After hearing the learned Counsel for the parties at length and on perusal of the record, I find that the accident was solely due to the negligence of the truck driver. The truck driver appeared as RW2 and stated that he was coming from Industrial area and was going to timber market. His truck was empty and when he was on the Madhya Marg, he took a turn towards timber market. According to him he was at slow speed because when he entered the Madhya Marg, he had to take the turn towards left side and had to slow down as again had to take a turn towards right to enter the timber market. He further stated that he did not see scooter on the road and after he had taken a turn towards timber market, he heard the noise of an impact towards the back side of his truck and stopped his truck and that when he came down he found that a scooter had hit the hind wheel of his truck and two persons were injured. He had further stated that he had blown horn and had given light. I have also read the statement of the driver of the scooter and on reading of the two statements coupled with the other evidence on the record, I find that the statement of the driver of the scooter deserves to be believed. It appears that since the truck was empty, the same was being driven by its driver with a high speed and if he was really slow when he took the turn towards left on Madhya Marg, he would have easily seen the scooter coming from the opposite direction and in any case, would have given signal before taking the turn towards right, which could be given only by giving the right side indicator. No evidence has been brought on the record by him that he had indicators on his truck or they were in working order. He seems to have driven the truck as easily as the turn drivers drive and specially when the truck is empty they drive it so negligently that they do not bother for any other person coming on the right.
7. I am not at one with the reasoning of the Tribunal that it was the scooter driver, who contributed to the accident. The reason for holding the scooter driver to be guilty of contributory negligence is that it hit the hind wheel of the truck. According to the further reasoning of the Tribunal, the truck had already taken a turn towards the timber market and if the scooter driver had applied breaks in time, the accident could have been avoided. If the truck was being driven at high speed, which appears to be so, it would take very short time for him to take turn towards his right and for a scooter, which is very close by to strike not the front wheel but the hind wheel. In fraction of a second, with high speed, instead of the scooter colliding with the front wheel it will collide with the hind wheel. The collision of the scooter with the hind wheel would not justify that the driver of the scooter was guilty of contributory negligence. As already noticed, the scooter was going on the main road and was to proceed further on the same road whereas the truck entered that road from the right side of the scooter and after moving towards scooter side on the road, it had to take a turn towards the left side of the scooter. From the statement of the driver of the truck it is clear that the scooter was so near the turning place into the timber market that there was a collision between the scooter and the truck. I believe the statement of the driver of the scooter when he stated that he was to go straightway on the road and the driver of the truck took a sudden turn towards his right, and he had no time to save the collision except by taking a turn towards right and by taking it towards right, instead of head on collision with the truck, the collision took place with the hind wheel of the truck.
8. For all the aforesaid reasons, I hold that the entire negligence was of the truck driver because he took a turn towards the timber market without caring for the scooter (as admitted by the truck driver that he did not notice the scooter), with the result that the scooter, which was close to the turning of the timber market, had no option but to try to save himself by taking turn towards his right side with the result that it struck the hind wheel instead of there being a head-on collision at right angles. Accordingly the finding to the contrary recorded by the Tribunal is set aside.
9. Coming to the award of compensation, firstly the status and income of the claimants have to be seen. The driver of the scooter was a Captain in the Army, at the age of 28 years had his entire future for rising to the top most position. He was in the 112 Engineers Regiment and was drawing salary of Rs. 1225/- per month. His wife also belonged to a good family, and, therefore, the compensation has to be fixed after taking into consideration these factors.
10. In order to fix the compensation, the nature of injuries will have to be taken note of. The Captain received the following injuries, which have been proved from the medical evidence.
1. Upper limbs left fracture, both bones of forearm, upper end.
2. Fracture at the angle of mandible with maloc collusions of fragments.
3. Big haemotoma left paratoid region with large lacerated wound 3' x 3' involving left ear also.
4. C.S.F. and blood flowing from left ear.
5. Deeply comatose.
6. Ear lobule was badly torn.
7. The seventh nerve and internal maxilliary artery was found torn.
8. Portion of the parotid gland was damaged.
On the very night of the accident, the captain was removed to the Chandigarh Military Hospital and from Chandigarh Hospital, he was sent to Army Hospital, Delhi Cantt. on 13.3.1973, from where he was discharged in October, 1973, and was allowed to rejoin his unit in that month, and the entire medical file has been placed on record which shows that the captain was given the following:
A. You are placed in medical cat S. 3 (T 24) H 1 A3 (T24) P 3 (T24) El. Review at AHD.
B. To avoid alcohol.
C. To do active elbow and radioulanar movements.
D. To use ear plug as advised.
Not fit for duties in field or high altitude.
Not fit for duties at isolated posts or for independent command.
Fit for sedentary duties only.
11. The left arm was fractured at several places. The left ear was seriously injured and the left side of the skull was fractured and the captain had to remain in the Hospital for about 7 months. Once such serious injuries are suffered, in Army, it becomes very difficult for a promising officer to reach the top or even few steps below. He may only become Major and if he is lucky and shows remarkable work, he may become Lieutenant Colonel or Colonel. But it is difficult that with the injuries he suffered, he may be able to go any further. Taking all these factors into consideration. I consider that the claim of Rs. One Lac made by the Captain on account of loss of pay and pension etc., which may be caused to him by losing chances of promotion, cannot be said to be any way excessive. Similarly, the claim for Rs. 20,000/-for loss of pleasures of life cannot be said to be in any way excessive. Similarly, the claim of Rs. 5000/- for pain and suffering for the period of seven months, during hospitalisation, cannot be said to be excessive. It has been proved that in two months, the Captain had to take leave on half pay and suffered loss of Rs. 12,00/-. Hence this claim is also genuine. As regards medical expenses, the Captain's own case is that he was treated in Military Hospital. What was argued before me by the learned Counsel for the Captain was that for daily diet. Rs. 10/- are charged and deducted from the pay and, therefore, atleast that should be allowed. No evidence in this behalf has been brought on record. Hence this claim cannot be allowed. Rs. 600/- has been claimed for the repairs of the scooter, which is not excessive seeing the nature of the accident. Accordingly, this is also allowed. In the result, the Captain would be entitled to Rs. 1,26,800/.
12. Adverting to the claim of the wife of the Captain, I find that she has suffered the following injuries as proved by the medical evidence.
Fracture of right femour.' According to the medical evidence brought on record, she was kept under traction and plaster for a period of about four months. At the time of discharge, there was little shortening present in the right leg and she was still limping, which was stated to be permanent.
13. In July/August, 1973 she was admitted for serum hepatitis which was an after effect reaction of blood transfusion given to her during the time of operation of femur. The doctor who appeared as DW2 stated that the wife of the Captain was still attending the surgical outdoor even after her discharge from the hospital for follow up treatment and exercises. For the pain and suffering caused to her due to the fracture of the femur and during treatment of four months in the hospital, a claim of Rs. 5000/- cannot be said to be in any way excessive. As regards the claim of Rs. 5,000/- for medical treatment, it is not disputed that free treatment was given in the Military Hospital. It was again that the same arguments were repeated that for her diet Rs. 10/- per day was being deducted from the pay of the Captain. In this behalf no proof has been brought. Hence the claim of Rs. 5,000/- for medical treatment is hereby declined.
14. The major claim is for Rs. 50,000/- for permanent limp caused in the right leg and consequent loss of pleasures of life. For any lady the limp in leg leaves a permanent complex in her mind and she mentally suffers in all social functions and gatherings besides feeling physical disability in walking properly. The claimant is wife of Army Captain, belong to a good family. Since there is a permanent limp in her right leg, till she would live she would suffer loss of pleasures of life. At the time of accident, she was 25 years old. Grant of Rs. 50,000/- as damages for the aforesaid loss for the balance life cannot be said to be excessive. Accordingly, I am of the view that the wife of the Captain is entitled to Rs. 50,000/- as damages.
15. For the reasons recorded above, F.A.O.s. Nos. 283 and 284 of 1976 are hereby allowed and the Captain is allowed compensation amounting to Rs. 1,26,800/-, whereas his wife is allowed compensation in the sum of Rs. 55,000/-. On the awarded amount, the claimants would be entitled to interest at the rate of 12% per annum, from the date of filing of claim applications till payment thereof with costs throughout.
16. In view of the above, FAO Nos. 249 and 250 of 1976 are devoid of merit and are dismissed with no order as to costs.