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Brij Lal Vs. Mangal Chand Maheshwari and ors. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtPunjab and Haryana High Court
Decided On
Judge
Reported inI(1986)ACC114
AppellantBrij Lal
RespondentMangal Chand Maheshwari and ors.
Cases ReferredCourt. In Mohinder Singh and Anr. v. Gurdial Singh and Anr.
Excerpt:
.....singh respondent no. the photographs (exhibits p1 to p4) which were taken by vijay kumar photographer (pw 5) immediately after the accident clearly indicate that the motorcycle was being driven by the claimant on his proper side of the road whereas the jeep had come on the wrong side to hit against the motorcycle......of rs. 1,00,000/- he filed the claim petition against seven respondents. the owner of the jeep brij lal was impleaded as respondent no. 7. the jeep is registered in the names of iqbal singh respondent no. 5 and joginder singh respondent no. 6. this jeep had been hired from brij lal respondent by the primary land development bank, sirsa, respondent no, 3. it is alleged that at the time of accident dalip singh respondent no. 1, land valuation officer of the said bank, hoshiar singh respondent no. 2. cashier of the bank, and prem singh respondent no 4 employed as driver by the bank were travelling in the jeep.3. when the claim petition was filed initially it was not mentioned therein as to who was driving the jeep. an amended claim petition was later on filed in which all the.....
Judgment:

Pritpal Singh, J.

1. The Motor Accident Claims Tribunal, Sirsa, vide an order dated 21st of December, 1981, awarded a compensation of Rs. 50,000/- with interest at the rate of 6 per annum in favour of the claimant Mangal Chand Maheshwari against Brij Lal, respondent No. 7. Two appeals have been filed against this award, one by Mangal Chand Maheshwari (F.A.O. No. 53 of 1982) for enhancement of compensation and the other by Brijlal (F.A.O. No. 44 of 1982) for absolving him from the payment of compensation. Both the appeals having arisen from the same award of the Tribunal are being disposed of together.

2. The case of the claimant Mangal Chand Maheshwari is that on 19th of November, 1977, he was returning to his house driving his motorcycle. When he reached at the crossing near his residence a jeep bearing registration No. RSL 6508, rashly and negligently driven, dashed against his motorcycle causing serious injuries to him. The lower part of his right leg was crushed under the wheel of the jeep due to which the leg was fractured. He was removed to the clinic of Dr. B.D. Goyal (PW2) where he was provided with first aid and then he was taken to the Medical College Hospital, Rohtak, For the injuries suffered by him Mangal Chand Maheshwari claimed compensation of Rs. 1,00,000/- He filed the claim petition against seven respondents. The owner of the jeep Brij Lal was impleaded as respondent No. 7. The jeep is registered in the names of Iqbal Singh Respondent No. 5 and Joginder Singh respondent No. 6. This jeep had been hired from Brij Lal respondent by the Primary Land Development Bank, Sirsa, respondent No, 3. It is alleged that at the time of accident Dalip Singh respondent No. 1, Land Valuation Officer of the said Bank, Hoshiar Singh respondent No. 2. Cashier of the Bank, and Prem Singh respondent No 4 employed as driver by the Bank were travelling in the jeep.

3. When the claim petition was filed initially it was not mentioned therein as to who was driving the jeep. An amended claim petition was later on filed in which all the employees of the Bank, namely, Dalip Singh, Hoshiar Singh and Prem Singh were mentioned to be the drivers. The Tribunal sought clarification as to who was actually driving the jeep. In the better particulars filed by the claimant on 3rd of March, 1981, explained that Dalip Singh respondent No. 1 was driver the jeep.

4. Dalip Singh respondent in his written statement pleaded that he and Prem Singh respondent No. 4. were in the jeep on behalf of the bank. The presence of Hoshiar Singh respondent No. 2 was denied. It was alleged that Brij Lal respondent No. 7 owner of the jeep was performing the duties of the driver. On the point of accident it was stated that the claimant was driving the motorcycle rashly in a state of intoxication and having lost control of the motorcycle had dashed it against the jeep.

5. The Bank repondent No. 3. took up the position that it had only hired the jeep from Brij Lal and, therefore it had no liability to pay any compensation on account of the accident.

6. Brij Lal respondent No. 7 pleaded that after the jeep had been hired from him by the Bank he did not retain control over the vehicle nor he was driving the same at the time of the accident. He, therefore, denied his vicarious liability as owner of the jeep.

7. The Tribunal on appreciation of evidence held that Brij Lal respondent No, 7 was owner and driver of the jeep at the time of accident and that the accident had taken place due to bis rash and negligent driving. In pursuance of this finding Brij Lal respondent was alone held liable to pay compensation to the claimant. The Tribunal allowed claimant, Rs. 10,000/- towards pain and agony suffered by the claimant, Rs. 20,000/- towards loss of future earnings, Rs. 10,000/- on account of psychological trauma suffered by, the claimant and Rs. 10,000/- on account of expenses incurred by the claimant for medical treatment. The total amount of compensation was computed as Rs. 50,000/- which was granted to the claimant which was granted to the claimant with interest at the rate of 6 percent per annum only against Brij Lal respondent No. 7.

8. The finding of the Tribunal that the accident had taken place due to the rash and negligent driving of the jeep driver has not been seriously challenged before me. There is sufficient evidence on the record to support this finding. The claimant appeared as P.W. 10 and he deposed that the driver of the Jeep had lost control over the vehicle which suddenly swerved towards the wrong side of the road and dashed against his motorcycle. This testimony was not challenged in his cross-examination. The photographs (Exhibits P1 to P4) which were taken by Vijay Kumar Photographer (PW 5) immediately after the accident clearly indicate that the motorcycle was being driven by the claimant on his proper side of the road whereas the jeep had come on the wrong side to hit against the motorcycle. Thus, I find no infirmity in this finding and affirm the same.

9. The next point for consideration is as to who was driving the jeep at the time of the accident. The Tribunal has held that Brij Lal respondent No. 7 was the vehicle's driver at the relevant time. On scrutiny of the evidence 1 am unable to uphold this finding Soon after the accident the claimant had lodged the First Information Report with the police (Exhibit PA) in which the identity of the driver was not mentioned. During investigation of the case the police found that Prem Singh respondent No. 4 was driver of the jeep. The case was, therefore, registered against Prem Singh. At no stage the claimant has alleged that the jeep was being driven by Brij Lal. It is the respondent-Bank and its employees who had named Brij Lal as driver of the jeep. This allegation is supported in the witness-box by Dalip Singh respondent (PW 3) and Sadhu Ram (PW 4) No reliance can be placed on these witneses for the simple reason that when the case was registered by the police against Prem Singh respondent who is admittedly an employee of the Bank, it was never brought to the notice of the Investigating officer by Dalip Singh respondent to that Brij Lal respondent and not Prem Singh was driving the jeep when the respondent No. 1, who is a senior officer of Bank, was present in the jeep when the accident took place and he fully knew the identity of the real driver. It has not been explained as to why he did not clorify when the case was registered against Prem Singh respondent. So far as the testimony of Sadhu Ram (R.W. 4) is concerned, he admitted that he did not participate in the police investigation. He is a chance witness and his statement is valueless.

10. Reliance has been placed by the respondent Bank on vouchers R-5 and R-6. These vouchers were prepared on 9th of January, 1978, and 27th January, 1978, respectively payment of hire charges to Brij Lal respondent. In these vouchers Brij Lal was also mentioned as driver of the jeep. In my view, however, no evidentiary value can be attached to these vouchers because they were prepared after the accident. No voucher pertaining to the period prior to the accident has been produced by the Bank in which Brij Lal respondent may have been described as driver of the jeep. In these circumstances, I find no material on the record from which it can be reasonably held that Brij Lal respondent was driving the jeep at the time of the accident.

11. According to the claimant the driver of the jeep at the relevant time was Dalip Singh respondent. This too cannot be accepted. In the First Information Report dated 22nd November, 1977 (Exhibit PE) lodged by the complainant, Dalip Singh was not named as the driver. The claimant's son filed a criminal complaint (Exhibit PE dated 18th of May, 1978, regarding the accident In this complaint both Dalip Singh and Hoshiar Singh respondents were named as drivers. The claimant himself filed a similar criminal complaint (Exhibit R-1) dated 17th March, 1978, and in this complaint too Dalip Singh and Hoshiar Singh were described as the drivers. It is obvious from these documents that the claimant was never certain regarding the identity of the driver, otherwise in the First Information Report (Exhibit PE) he would surely have named him. The naming of Dalip Singh and Hoshiar Singh respondents in the subsequent criminal complaints is evidently and afterthought. Even otherwise it is an absurd allegation that the jeep was being driven by two persons. The oral evidence produced by the two persons. The oral evidence produced by the claimant in this context is equally untrustworthy. Chander Parkash (PW 8) stated that Dalip Singh respondent was driving the jeep when the accident took place. His cross-examination revealed that he was not an eyewitness of the accident. He admitted that he was sitting in the house of one Mr. K.L. Narula when be heard some noise and when he came out he saw that the accident had already taken place. Hence the testimony of this witness is of no consequence. Lalit Mohan (PW 9) is the son of the claimant. His deposition that Dalip Singh was driving the jeep cannot be relied upon because, as mentioned earlier, in the criminal complaint filed by him regarding the accident (Exhibit PE) he had alleged that both Dalip Singh and Hoshiar Singh were driving the jeep. The claimant Mangal Chand himself appeared as P.W. 10 in support of the averment that Dalip Singh was on the wheel of the jeep at the time of the accident. This statement is unbelievable because had he identified the driver at the time of accident he would have mentioned his name in the First Information Report which was lodged soon after the accident. Thus, there is no acceptable evidence to prove that Dalip Singh respondent was driving the jeep at the relevant time. In this case, therefore the identity of the driver of the jeep cannot be positively ascertained from the evidence produced by the parties.

12. It is, however, of little importance that we are unable to identify the driver of the jeep so far as the entitlement of the claimant of compensation is concerned. Manifestly, the compensation will have to be paid by the person of or entity who was in control of the jeep at the relevant time. It is contended on behalf of the respondent-Bank that Braij Lal respondent was owner of the jeep and, therefore, the Tribunal has rightly held that he is liable to pay compensation to the claimant. I find myself unable to uphold his contention. No doubt Brij Lal respondent was admittedly the owner of the jeep, but it has been amply proved that he had given the jeep to the Bank of hire and the vehicle was in full control of the Bank when the accident took place. Shri Paras Ram, Manager of the Bank appeared as R.W. 2. His categoric statement is that the Bank had taken on hire the jeep from Brij Lal at the rate of Rs. 45/- per day that the jeep was in custody and control of the Bank. He deposed that all the jeeps which were taken by the Bank on hire used to be kept in the custody and control of the Bank till such time the same were not required. He conceded that the jeep in question remained with the Bank for 2 1/2 months. The learned Counsel for the Bank submitted that even if the jeep was under control of the Bank still the owner of the jeep was vicariously liable to pay compensation arising out of the accident. The contention has no merit. Once the owner of the vehicle surrenders control of the same to another person it is the latter who becomes liable for the payment of compensation vis-a-vis the accident which is caused by the rash and negligent driving of his driver. In this context an earlier judgment of this Court in Municipal Committee, Sonepat and Ors. v. Khushi Ram and Ors. 1983 PLR 313 may be noticed. In that case a vehicle owned by the Haryana State was in possession and under the control of the Municipal Committee, Sonepat. The driver who was in employment of the Municipal Committee caused the accident and a point arose whether the Haryana Government was owner or whether the Municipal Committee, Sonepat, which was in possession and control of the vehicle was vicariously liable to pay the compensation. In no uncertain terms it was held in this judgment that it was the Municipal Committee and not the State of Haryana which was liable to pay the compensation. It was observed that since the Haryana State had no control over the driver and he was not in its employment, and on the other hand the driver was acting in the course of the employment of the Municipal Committee at the time of the accident, the vicarious liability would be that of the Municipal Committee. The High Court of Madhya Pradesh took the same view in State of Madhya Pradesh v. Premabai and Ors. 1979 A.C.J. 508. In that case, a vehicle belonging to UNICEF was in the possession and control of the State Government when the accident took place. It was held that it was the State Government which was vicariously liable for the negligence of the driver and not the UNICEF to which the vehicle belonged. I am in complete agreement with the view taken in these two judgments and, in my opinion, in the present case it is the respondent-Bank which is liable to pay compensation to the claimant and not Brij Lal respondent.

13. The learned Counsel for the Bank contended that since the identity of the driver has not been established, therefore, the Bank could not be made liable to pay the compensation. This plea cannot be accepted. Dalip Singh respondent who appeared as R.W. 3 admitted that the jeep was proceeding on the Bank business when the accident took place. He said that he was occupying the jeep as a senior member of the Bank and they were going to make recoveries for the Bank. In such circumstances it can be presumed that who-soever was driving the jeep was doing so under the authority of the Bank. It was held by this Court. In Mohinder Singh and Anr. v. Gurdial Singh and Anr. 1978 A.C.J. 279 that in the normal circumstances when a person happens to be driving a vehicle it is to be presumed that he had the authority of the owner to driving and was driving in the course of the employment of the owner unless evidence is placed on the record to prove the contrary. In the present case this presumption has not been rebutted by the Bank. The contention that the jeep was being driven by the owner himself at the time of the accident has not been found believable. Hence, disagreeing with the Tribunal on the point of liability I hold that it is the respondent, the Primary Land Development Bank, Sirsa, which has to pay compensation to the claimant.

14. This brings me to the matter relating to the quantum of compensation. It is proved from the statement of Dr. N.S. Chandha (DW 4) that the claimant was admitted in the Medical College Hospital, Rohtak, twice. First time he was admitted on 20th of November, 1977, as a case of comminuated compound fracture of the lower third of the right tibia. A pin was passed through the calcancum and skin grafting was done. The fracture was plastered and the claimant was discharged from the hospital on 14th December, 1977. He was readmitted on 9th October, 1978, due to non-union of the leg bone. The bone was grafted and fibula was fixed with tibia with a screw. The claimant was finally discharged from the hospital on 26th October, 1978. The doctor stated that due to the injuries the right leg of the claimant was shortened by one inch. The right ankle is fixed at an angle of 10 degrees due to which no movement of the joint is possible. The doctor opined that the claimant has suffered a permanent disability of 30 per cent due to the effect of the injury. The doctor further declared that due to this permanent disability the earning capacity of the claimant has also been reduced by 30 per cent. The doctor informed that the claimant has now to use special shoes for the rest of his life and he was still under pain and suffering about two years after the accident.

15. In aforementioned circumstances the compensation has to be awarded to the claimant broadly under the following four heads:

(i) For pain and shock and suffering due to the injury;

(ii) for permanent disfigurement and loss of future enjoyment;

(iii) for medical expenditure; and (iv) for loss of future earnings.

16. The claimant has stated that he had spent approximately Rs. 90,000/- on his treatment. He has not given any details of the expenditure and in my opinion this sum is highly exaggerated. In the first instance when the claimant filed the petition, which was later on allowed to be amended, he had stated that he had spent about Rs. 10 000/- on his statement and he was expecting to spend another Rs. 5,000/- on the grafting. This amount of Rs. 15,000/- originally claimed by the claimant appears to me to be reasonable assessment of expenditure on his medical treatment. Dr. N.S. Chadha (PW 4) stated that the claimant had deposited Rs. 745/- when he was first discharged from the hospital and Rs. 619.75 when he was discharged for the second time. These were hospital charges which did not include the charges for X-Rays, Laboratory examinations, plaster material and medicines which were very costly. He said that for three weeks besides the highly expensive medicines the claimant took injections thrice daily and the cost of each injection was more than Rs. 30/- Thus, in my opinion, the claimant is entitled to get compensation of Rs. 15,000/- as expenditure on medicines.

17. The claimant stated that he was earning Rs. 1,7000/- per month from the cultivation of his agricultural land and the running of the brick-kiln. Despite 30 per cent disability suffered by him the income from the agricultural land and the brick-kiln would continue though at some what reduced rate. His own contribution out of the total earning of Rs. 1,700/- can be computed at Rs. 500/- per month. Due to 30 per cent disability his capacity of earning has, therefore been reduced by Rs. 150/- per month. The annual loss would come to Rs 1,800 and applying the multiple of sixteen his loss of future earnings would come to Rs. 20,000/-.

18. Taking into account the over all circumstances, I consider it reasonable to award the claimant compensation under various heads as follows:

(i) For pain and shock and suffering due to the injury Rs. 15,000-00(ii) For permanent disfigurement and loss of future enjoyment. Rs. 15,000-00(iii) For medical expenditure Rs. 15,000-00(iv) for loss of future earnings. Rs. 30,000-00-------------Total Rs. 75,000-00

19. In view of the above findings, both the appeals are allowed with costs, the award of the Tribunal is set aside and a compensation of Rs. 75,000/- with interest at the rate of 12 per cent per annum from the date of the application to the date of payment is awarded to the claimant Mangal Chand Maheswari against the Primary Land Development Bank, Sirsa-respondent No. 3.


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