S.S. Sodhi, J.
1. The controversy in appeal here is with regard to the identity of the offending tractor and the driver thereof.
2. The claimants Daljit Singh and his wife Surjit Kaur were returning to Sangrur from village Longowal when a tractor without number plates and head lights coming from the opposite direction, hit into their motor cycle as a result of which they both sustained serious injuries. This happened at about 7 p.m. on November 9, 1978.
3. There is no dispute that the accident occurred on account of the rash and negligent driving of the tractor driver. The Tribunal, however, absolved Sadhu Singh respondent from liability holding that the claimants had failed to establish that it was he who caused the accident. It is this finding that is now challenged in appeal.
4. Sadhu Singh respondent, both in his return as also in his testimony in Court, denied that he was involved in any accident. The claimants, on the other hand, specifically named him as the person who was driving the offending tractor when the accident occurred. A reference to the evidence on record would show that the crucial testimony here is that of the claimant PW 16, Surjit Kaur. The evidence of the other two witnesses, namely, PW 8 Jit Singh and PW 17 Daljit Singh is clearly of no avail. PW 8 Jit Singh, who claimed to be an eye-witness, was not relied upon by the Tribunal and rightly too considering the discrepancies and contradictions in his evidence. Counsel for the claimants too very fairly sought no support from his testimony. PW 17 Daljit Singh claimant, on the other hand, made no mention of the name of the person driving the tractor when the accident occurred. Here he was indeed consistent with the first information report recorded on his statement, which contained no name or particulars of the tractor driver. It was PW 16 Surjit Kaur, who named Sadhu Singh respondent as the culprit here by deposing that he was the driver of the offending tractor. This testimony was sought to be questioned on the ground that the accident occurred when it was almost dark and that too caused by tractor without head lights and what is more Surjit Kaur as per her own showing had become 'almost unconscious' by the impact. Counsel for the respondent argued that it would not, therefore, be safe to accept that she could identify the tractor driver when he was not previously known to her.
5. There is no doubt on aura of plausibility in the points raised, but counsel for the respondent was unable to point to any reason or motive for Surjit Kaur to wrongly suspect of falsely name Sadhu Singh to be the offending driver. Further, there is also her testimony that after the accident it was Sadhu Singh and her husband who lifted and put her on the kutcha berm of the road. This must clearly have provided her the requisite opportunity to know the driver. It is also pertinent to note that as per her testimony, she gave the details of the tractor as also its driver in her statement to the police.
6. Next to note is the statement of the respondent RW 3 Sadhu Singh where he deposed that he had bought a new tractor about two months ago which would fit in the date of the accident here and that no member plate had been affixed on his tractor till November 16, 1978, that is a date after the accident. What is more, there is also his statement that it was on this tractor that he had learnt driving. Finally, there is the matter of the police taking possession of the tractor from his house and he being charged in the criminal court for this accident.
7. The balance of probabilities in the context of the evidence on record and the circumstances here clearly impel the finding that it was Sadhu Singh respondent who caused the accident by his rash and negligent driving of his tractor.
8. The matter next for consideration here is the quantum of compensation payable to the claimants. A reference to the evidence on record would show that in the first instance both Surjit Kaur and her husband Daljit Singh were taken to the Civil Hospital, Sangrur, where they were treated by PW 5 Dr. R.N. Singla. On November 11, 1978, on his advice they, were shifted to the Rajindra Hospital, Patiala, where they were treated by PW 6 Dr. Brij Bhushan Khanna. The left thigh of the claimant Surjit Kaur was amputated in this hospital on November 13, 1978. The doctor stated that this had to be done as a life saving measure as she had developed gas gangrine following compound fracture of the left patella and fracture of the lateral condyl of the femur.
9. As regards Daljit Singh, Dr. Khanna deposed that he had fracture of the left calvicle and he also had other wounds on the front of the left elbow. He had stitches there which were infected and they had thus to be removed and the wound dressed.
10. Next to note is the testimony of PW 1 Dr. N.5. Ghadha, Associate Professor of Orthopaedics at the Medical College, Rohtak, who deposed that on examination of Surjit Kaur on November 20, 1978, he found that there was a compound fracture of both the bones of the left fore-arm and part of the bone was exposed. There had been amputation of the left upper thigh and the chest revealed that there was a crepitation in the lungs. She was also suffering from diabetes and he had therefore, called upon Dr. K.C. Malhotra and PW 3 Dr. M.S. Parmar to see to her diabetes and chest condition. Dr. Chadha went on to state that in treating her left fore-arm, open reduction and nailing had to be performed, and it was eventually on April 1, 1979, that she was discharged from the hospital. It will thus be seen that the injuries suffered by the claimant Surjit Kaur were indeed of very grave and serious nature. She must have undergone a great deal of pain and suffering, besides the long period of hospitalization. There is no gain saying that loss of the leg carries with it severe handicaps both in day to day living and in the case of Surjit Kaur also in her work as a house-wife. There can be no manner of doubt that with her present disability, she would find her ability to do normal household work greatly impaired. Besides this, she would also have to incur expenses on transportation which she could otherwise have avoided either walking on cycling.
11. There is also evidence on record regarding the medical expenses incurred by the claimants on their treatment. Taking an overall view of the circumstances of Surjit Kaur in the cootext of all that she had undergone and the disability she is now left with, it would be fair and just to hold her entitled to Rs. 1,00,000/- (Rupees one lac).
12. The injuries suffered by the other claimant Daljit Singh were not so serious as those suffered by his wife Surjit Kaur. He had multiple injuries on his person, which PW 15 Dr. A.A. Khanzada, who examined him at the Civil Hospital, Sangrur, on November 9, 1978, listed as under:
1. History of pain in the left claricular area crepitus feeling. No deformity was observed, but swelling was present. (Advised X-ray).
2. A lacerated wound 3 cm X 1 1/2 cm X muscle deep in anterior aspect of left arm, 2 1/2 cm above the elbow joint. Fresh bleeding present (kept under observation).
3. An abrasion 5 cm X 1 cm in posterior aspect of left fore-arm, 6 cm above the distal end (kept under observation). Fresh bleeding present.
4. An abrasion 5 cm X 1 1/2 cm anteriorly extending 1 cm below from elbow joint in left foreman. Fresh bleeding present.
5. An abrasion 1 cm X 1 cm posteriorly on left fore-arm, 2 cm below the elbow joint.
6. An abrasion 2 1/2 cm X 1 cm anteriorly on left leg, 12 cm below the knee joint. Fresh bleeding present.
7. An abrasion 4 cm X 1 cm anteriorly on right thigh, 6 cm above the knee joint. Fresh bleeding present.
8. An abrasion 1 1/2 cm X 1/2 cm anteriorly on right thigh 15 cm above the knee joint. Fresh bleeding.
9. History of pain opposite the 2nd, 3rd, 4th metacarpal and proximal phalangeal 2nd, 3rd and 4th finger on left hand. Advised X-ray.
The most serious injury, as mentioned earlier, being the fracture of the left clavicle.
13. Having regard to the nature and extent of the injuries suffered by Daljit Singh and the pain and suffering caused to him there by, as also the expenses that he must undoubtedly have incurred on his treatment, he must be held entitled to Rs. 20,000/- as compensation.
14. The claimant Surjit Kaur is accordingly hereby awarded a sum of Rs. 1,00,000/- and her husband Daljit Singh Rs. 20,000/- as compensation for the injuries suffered by them, which they shall be entitled to along with interest at the rate of 12 per cent per annum from the date of the application to the date of payment of the amount awarded. Sadhu Singh as also the respondent-Insurance Company shall be jointly and severally liable for the compensation awarded.
15. Mr. L.M. Suri, counsel for the respondent-Insurance Company sought to have the liability of the Insurance Company limited to Rs. 50,000/- in the case of the compensation payable to the claimant Surjit Kaur. The argument being that as no specific plea bad been raised by the claimants that the liability of the Insurance Company was more than the minimum prescribed under Section 95 of the Motor Vehicles Act, the liability of the Insurance Company must be held to be limited to that sum. He sought in this behalf to rely upon Desraj and Ors. v. Ram Narain and Ors. : AIR1979All328 , Sushila Devi and Ors. v. Ibrahim and Anr. 1974 ACJ 150 and M/S. Automobile Transport (Rajasthan) Private Ltd. and Anr. v. Dewalal and Ors. 1977 ACJ 150.
16. The view expressed in the authorities cited cannot be accepted in the face of the judgment of the Division Bench of this Court in Shri Ajit Singh v. Shyam Lal and Ors. 1984 PLR 314 where it was held that the provisions of Section 95 of the Motor Vehicles Act do not prohibit the covering of a greater risk by the insurer than the minimum prescribed therein and where the insurance company for whatever reasons fails to bring on record the policy of insurance it cannot be heard to say that it had agreed to indemnify the insured only to the extent indicated in the statutory provision. In view of this judgment, there is clearly no warrant for limiting the liability of the Insurance Company in the present case.
17. In the result, both the appeals are hereby accepted with costs, Counsel's fee Rs. 500/- (one set only).