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Gurdial Singh Through Ajmer Kaur as Next Friend Vs. Sawinder Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectInsurance;Motor Vehicles
CourtPunjab and Haryana High Court
Decided On
Judge
Reported inI(1986)ACC187
AppellantGurdial Singh Through Ajmer Kaur as Next Friend
RespondentSawinder Singh and anr.
Excerpt:
.....action of state government or its authorities by contending that his bid has been turned down for arbitrary, illegal or perverse reasons however in such matters, heavy onus would like on petitioner bidder to establish his allegations as state action shall always be presumed to be in accordance with law - from that statement, copy of which is exhibit r1, the tribunal conclude that he could well make an application on 11th august, 1983 the tribunal and there was no ground to sue through the next friend. assuming that he was in somewhat better condition on 11th august, 1983 still in view of division bench judgment of this court in new india assurance co. at best, the tribunal should have given opportunity to the claimant to proceed with the claim petition in his own right instead of..........under section 110-a of the motor vehicles act, for grant of compensation before the motor accident claims tribunal. the petition was presented on his behalf by his wife ajmer kaur as next friend on the plea that be had become insane due to the brain/head injury. the description of medical treatment and the places at which he remained admitted with details of expenses were given.2. the petition was contested by the state of punjab on which the following issues were framed :1. whether the accident in question in which the claimant was injured was caused by negligence of respondent no. 1 in driving his bus no pba 4326 on kurali-monnda road on 13-4-1982 at 7.30 p.m. as alleged in claim petition ?2. whether the claimant is entitled to compensation? if so, to what amount?3. whether there is.....
Judgment:

G.C. Mital, J.

1. On 13th April, 1982 at about 7 pm. near Milk Bar Morinda, Gurdial Singh was run over by Bus No. PBA 4326 belonging to Punjab Roadways, Amritsar Depot. His left clavicle and temporal bones were fractured besides sustaining other minor injuries. He is alleged to have accompanied Gurmit Singh on his cycle, and a little while ago he had got down from the cycle to urinate and when he was coming back after urinating, met with accident. Gurmit Singh was eye witness of the occurrence. On 11th August, 1983 a petition was filed under Section 110-A of the Motor Vehicles Act, for grant of compensation before the Motor Accident Claims Tribunal. The petition was presented on his behalf by his wife Ajmer Kaur as next friend on the plea that be had become insane due to the brain/head injury. The description of medical treatment and the places at which he remained admitted with details of expenses were given.

2. The petition was contested by the State of Punjab on which the following issues were framed :

1. Whether the accident in question in which the claimant was injured was caused by negligence of respondent No. 1 in driving his Bus No PBA 4326 on Kurali-Monnda road on 13-4-1982 at 7.30 p.m. as alleged in claim petition ?

2. Whether the claimant is entitled to compensation? If so, to what amount?

3. Whether there is sufficient cause in condoning the delay in filing the claim petition ?

4. Whether the claimant is incapable of protecting his interest and his wife is competent to file the petition as a next friend?

3. The parties led evidence on all the issues. However, at the time of final bearing, the Tribunal treated issues Nos. 3 and 4 as preliminary and recorded findings on these issues alone. It was found by order dated 31st March, 1984 that the claim petition was filed beyond limitation and sufficient cause for condonation had not been shown and that the claimant was not incapable of protecting his interest, and, therefore, his wife was hot competent to file a petition on his behalf as next friend. Consequently, the claim petition was dismissed without deciding issues Nos. 1 and 2. This is appeal by the claimant.

4. After hearing the learned Counsel for the parties and on perusal of the record I am of the view that the decision of the Court below on issues Nos. 3 and 4 deserves to be reversed. From the medical evidence, which has remained up-rebutted, it is proved that the injured sustained head injury and his temporal bones were fractured. Soon after the accident he was removed to local Hospital and then under their advice he was shifted to Post Graduate Institute, Chandigarh (hereinafter called 'the PGL'). At PGI he remained as an indoor patient upto 23rd April, 1982 and on that very day he was removed to Civil Hospital, Ropar, where he remained as an indoor patient till 2nd June, 1982. Dr. Rajinder Saxena of PGI is PW4 and Dr. Krishan Walia of Civil Hospital, Ropar, is PW3. From their statements, the grievous nature of injuries and the permanent damage to the brain is writ large. According to Dr. Krishan Walia when the injured was discharged on 2nd June, 1982 he was not able to understand anything and was also not responding to any verbal command. His opinion was that it was difficult to say as to how long he would take to recover from that stage if at all he recovers. After so much of evidence was led and the statement of the wife recorded was that he was still of unsound mind and did not know what was good and bad, it was the duty of the State to lead evidence in rebuttal to show that he was in fit state of mind.

5. The Tribunal relied on statement of the injured dated 11th August, 1983 made before the Magistrate where criminal case against the driver for rash and negligent driving was going on. From that statement, copy of which is Exhibit R1, the Tribunal conclude that he could well make an application on 11th August, 1983 the Tribunal and there was no ground to sue through the next friend. I have gone through the statement Exhibit R1. Even from that it is clear that he did not understand what was right or wrong and gave replies merely by actions. It was not clear from those actions whether he really understood the questions or not. Assuming that he was in somewhat better condition on 11th August, 1983 still in view of Division Bench judgment of this Court in New India Assurance Co. Ltd. New Delhi and another v. Punjab Roadways Ambala City and Ors. 1964 PLR 156 claim petition on his behalf could be filed by his wife who was looking after him. On such technical objection claim petition cannot be dismissed. At best, the Tribunal should have given opportunity to the claimant to proceed with the claim petition in his own right instead of through his next friend. Accordingly I upset the decision of the Court below on issue No. 4 and hold that the claim petition was properly filed.

6. Adverting to issue No. 3, once it is held as above that he was not in senses till the filing of the claim petition, there would be no bar of limitation against him and the claim petition filed on 11th August, 1983 could not dismissed as time barred. Against an insane person the limitation does not run. Limitation for such a person would be three years of his regaining from insanity.

7. Assuming that on 11th August, 1983 he had regained a little but sense as found by the Tribunal on the basis of statement Exhibit R1, the limitation of three years would start from 11th August, 1983, and since petition was filed on 11th August, 1983, it cannot be termed as time barred. Even on the basis of serious head injuries suffered by the claimant, due to which he was almost crippled mentally, the matter had to be liberally construed while considering sufficient cause for condoning the delay as ruled in New India Assurance Company's case (supra), While doing so I hold that it was a fit case for condonation of delay and accordingly I condone the delay.

8. Adverting to issue No. 1, I am of the view that the negligence of the bus driver is proved from the statement of Gurmit Singh PW2, who is an eye witness of the occurrence. He has clearly blamed the driver of the bus who was coming at a high speed without blowing him and struck the injured, as a result of which he fell down and became senseless. The bus is alleged to have stopped at some distance and the bus driver is alleged to have carried the passenger to the Morinda Dispensary. In cross-examination even remotely he was not asked that he was no-where on the scene. Accordingly, it is clear that even by that even by the State it was accepted that he was accompanying the injured and had seen the accident. I hold that it was the driver of the bus who was negligent, and, therefore, the State of Punjab is liable to compensate the injured.

9. Now coming to issue No. 2, I am of the view that for pain and suffering, for loss of earning and for providing Malntenance to his wife and children, Rs. 25,000/- in lump sum can adequately be awarded. The wife has appeared as next friend of the injured and has stated that he has four Killas of land and was having other land on lease. No documentary evidence has been produced to support the ownership of 4 Killas of land or to prove that he had been in possession of land on lease. All the same he has been proved to be a farmer. Even as a farm labourer he would have been earning sufficiently so as to provide meals to his wife and children.

10. The learned Counsel was not able to mention different heads nor was able to bring to my notice evidence led in the case under each head to give a definite finding. Under the circumstances, rule of thumb has been applied and Rs. 25,000/- is awarded on all possible counts under which he may be entitled to compensation.

11. For the reasons recorded above this appeal is allowed, the order of the Tribunal is hereby set aside and the claimant is awarded Rs. 25,000/-as compensation. On the amount of Rs. 25,000/- he would be entitled to 12 per cent interest with effect from the date of filing of claim application till realization thereof. He would also be entitled to costs throughout. Counsel's fee being Rs. 200/- in this Court.


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