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Johari Lal Vs. P.C.H. Reddy and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. Appeal No. 74 of 1970
Judge
Reported inAIR1975Raj232; 1975()WLN172
ActsMotor Vehicles Act, 1939 - Sections 83, 110B and 110CC
AppellantJohari Lal
RespondentP.C.H. Reddy and anr.
Advocates: Bhanwarlal Panwar, Adv.
DispositionAppeal allowed
Cases Referred and Kailashwati v. Haryana State
Excerpt:
.....allowed a person to sit on left side--held, driver is per se negligent.;the negligence of the truck driver is writ large, as he permitted a person to sit on his left side which must have obstructed his left vision and he could not exactly locate the position of the ricksha at the junction of the two roads. the violation of the mandatory provision of the statute contained in section 83 of the motor vehicles act, per se, establishes the negligence of the truck driver.;(b) motor vehicles act, 1939 - section 10c--accident--partial disability--determination of quantum of damages--depreciation in value of rupee to be taken into consideration.;since then the value of our rupee has considerably gone down and, therefore, i shall have to take into consideration this factor while assessing the..........no. b. c. 22229 coming fast from paota side on the mandore road. looking to the speed of the truck joharilal thought it proper to stop his vehicle on the nagauri road near shri khet singh's house and let the truck pass. it is alleged that the speed of the truck was quite high and. therefore, according to joharilal, the driver of the truck p. c. h. reddy could not control it because of his driving it rashly and negligently and the truck dashed against the rickshaw when it was in a standing still position with a result that the rickshaw was overturned end the petitioner joharilal was thrown out. he sustained as many as six injuries including the fracture of his patella bone. joharilal was immediately removed to the mahatma gandhi hospital, jodhpur, in a jeep of the border security.....
Judgment:

V.P. Tyagi, J.

1. This appeal is directed against the judgment of the Motor Accidents Claims Tribunal, Jodhpur, dated January 28, 1970, whereby the claim of the appellant Johrilal under Section 110-A of the Motor Vehicles Act, 1939, for a sum of Rs. 15,000/-. was dismissed by the said Tribunal.

2. Facts giving rise to this litigation, in a nut-shell, are as follows:

Johrilal, appellant, was an employee of Hindustan Aeronautics. On November 2, 1967, he borrowed a scooter rickshaw from Radha Vallabh (P. W. 1) with a view to pay visits to his friends on the occasion of 'Deepawali'. Joharilal himself was driving that scooter rickshaw and he went from Nagauri gate towards the main road which connects Paota to Mandore. When Johrilal reached the junction of Nagauri gate road and the Mandore road he saw an army truck bearing No. B. C. 22229 coming fast from Paota side on the Mandore road. Looking to the speed of the truck Joharilal thought it proper to stop his vehicle on the Nagauri road near Shri Khet Singh's house and let the truck pass. It is alleged that the speed of the truck was quite high and. therefore, according to Joharilal, the driver of the truck P. C. H. Reddy could not control it because of his driving it rashly and negligently and the truck dashed against the rickshaw when it was in a standing still position with a result that the rickshaw was overturned end the petitioner Joharilal was thrown Out. He sustained as many as six injuries including the fracture of his patella bone. Joharilal was immediately removed to the Mahatma Gandhi Hospital, Jodhpur, in a Jeep of the Border Security Force, where he remained under treatment for two months. Joharilal claimed before the Motor Accidents Claims Tribunal, Jodhpur (herein-after referred to as 'the Tribunal') spe-cial damages under various heads to the tune of Rs. 4,000/- and general damages on account of mental agony, shock, loss of blood, physical sufferings, to the extent of Rs 11,000/-. Thus, a claim petition was filed before the Tribunal, but the Tribunal, after recording the evidence ofboth the parties, came to the conclusion that the petitioner could not prove the rash and negligent driving of Mr. P. C. H. Reddy the driver of the truck and, therefore, the petitioner was not found entitled to receive any compensation from the Umion of India as well as from Mr. Reddy.

3. Having felt aggrieved by this decision of the Tribunal, Joharilal has come in appeal to this Court. Neither of the two respondents, viz., Mr. Reddy and Union of India, even after the notice was served on each of them, cared to appear before this Court. The arguments of learned counsel for the appellant Joharilal were heard on 16 and 18-4-1975.

4. The point to be determined is whether the findings of the tribunal regarding the question of rash and negligent driving of the truck by respondent No. 1, has been correctly decided by the Tribunal. In this connection learned counsel for the appellant has referred to the statements Of Joharilal (P. W. 2) and P. C. H. Reddy (D. W. 1). He has also drawn my attention to the site plan (Ex. A/1) produced by P. C. H. Reddy before the Tribunal.

5. It was deposed by Joharilal that the truck, which collided against his vehicle, had its steering-wheel on the left side and Mr. Reddy, when he was driving that truck, had allowed one Suresh Chandra to sit on the left side of the driver. According to Johari Lal the speed of the truck was about 40 to 45 km. per hour. It was admitted by learned Counsel for the appellant that the main road connecting Paota to Mandore on which the truck was coming from Paota side, is quite wide and, therefore, when a vehicle is driven on that road at the speed of 40 to 45 km. per hour, it cannot be said that it was driven by the driver rashly as the speed cannot be said to be very high. The question pf rash driving, therefore, did not arise in this case.

6. The only other question that remains to be decided is whether Mr. Reddy was negligent in the discharge of his duty as a driver, and it was on account of his negligence that the unfortunate accident took place. The negligence pointed out by learned counsel for the appellant Is that Mr, Reddy allowed one other person to sit on his left side when he was driving the vehicle having its steering wheel on the left and, therefore, the scooter rickshaw standing on the left side of the main road at the junction of Nagauri gate road and the main road, could not be seen by the driver and dashed against it- This fact is admitted by D. W. 1 Mr. P. C. H. Reddy that' one Suresh Chandra was sitting on his left side.

7. Section 83 of the Motor Vehicles Act lays down that

'no person driving a motor vehicle shall allow any person to stand or sit or anything to be placed in such a manner or position as to hamper the driver in his control of the vehicle,'

This mandate of the statute, as contained in Section 83, makes it abundantly clear that the permission given to Suresh Chandra to sit on the left side of the driver was per se illegal and it was responsible to hamper the driver's vision on the left side. It was on account of this factor that the driver of the truck could not see the scooter rickshaw standing on the left of the main road at the iunction where the two roads meet. It is apparent from the site plan Ex. A/1 filed by the defendant driver himself, th#t the- rickshaw after the accident was found lying overturned on the Nagauri gate road, which establishes that the collision of the truck with the rickshaw must have taken place when the rickshaw was actually on the Nagauri gate road. The plea of the respondent Reddy that Joharilal was himself driving his rickshaw rashly and negligently and while he was trying to come on the main road, the rickshaw dashed against the truck cannot, in the light thrown by the site plan Ex. A/1. be believed. The condition of the rickshaw after the accident shows that its right mudguard was smashed which establishes that the rickshaw must have been hit by the truck on its right side. If the rickshaw had collided against the truck, as is pleaded by Reddy, then the front of the rickshaw must have been damaged and not the right mudguard of the rickshaw. The injuries sustained by Joharilal also go to indicate that the truck must have dashed against the rickshaw as the impact of the collision was borne by the right leg of the victim causing the fracture of his right patella bone. The other minor injuries seem to have been sustained by Joharilal on account of the fact that he was thrown out of the rickshaw and he fell on his left side. I find that the learned Judge, while considering the question of negligence of the truck driver entered into the realms of conjecture regarding the precaution that should have been taken by the rickshaw driver and the argument advanced by him was that when the petitioner had seen the truck from 40 to 50 yards, it was his duty to have dead stopped and should not have ventured to come to the main road before the truck passed away. This is factually wrong that the collision took place when Joharilal was trying to come over the main road. The site plan Ex. A/1 clearly shows that the collision actually took place when the rickshaw was on Nagauri gate road which undoubtedly supports the version of the appellant that he thought it safe to remain on the by lane, rather than to come on the main road when hesaw the truck coining towards him on the main road. This precaution taken by Jo-harilal, strengthens the case of the petitioner that it was on account of the negligent driving of the truck by Reddy that this mishap took place. In my opinion the negligence of the truck driver is writ large, as he permitted a person to sit on his left side which must have obstructed his left vision and he could not exactly locate the position of the rickshaw at the junction of the two roads. The violation of the mandatory provision of the statute contained in Section 83 of the Motor Vehicles Act, per se, establishes the negligence of the truck driver. In this view of the matter I cannot agree with the finding of the trial court that the petitioner-claimant failed to prove the negligence on the part of the driver of the truck.

8. This brings me to the question of the damages to be awarded to the petitioner-claimant, who has demanded special and general damages under the following heads:--

(A) Special damages:1.Expenses incurred for medicinesRs.200.002.Loss on account of earningsRs.1,500.003.Loss on account ofexpenditure incurred for maintaining dependentsRs.400.004.Expenditure incurred for repair of scooterRs.500.005.Loss on account of depreciation of the scooter rickshawRs.1,000.006.Expenses incurred in connection with the filing of the petitionRs.400.00(B) General Damages:7.On account of mental asony, shock, loss of blood, physical sut-ferings caused to the petitionerRs.11,000.00TotalRs.15,000.00

Learned counsel has candidly conceded before me that the petitioner did not lead any evidence to prove the actual expenditure under items Nos. 1, 2, 3 and 6 under the head 'special damages'. In order to prove his claim under item No. 5 of this head, he has drawn my attention to the statement of Radha Vallabh (P. W. 1), whose son owns this unfortunate scooter rickshaw. The scooter rickshaw was lent to Joharilal by Radha Vallabh. He has come in the witness-box and has deposed that he had spent Rs. 525/-for the repairs of the scooter rickshaw. It is true that Radha Vallabh did not yet realise this amount from Joharilal, buthe says that he had demanded the payment of this amount from the petitioner and according to him this amount is still outstanding against Joharilal. There is no reason to disbelieve the testimony of Radha Vallabh on this point. The damage to the scooter rickshaw was quite obvious and, therefore, there is no reason to discard the testimony of Radha Vallabh on the point relating to the amount spent by him on the repairs of the rickshaw. In my opinion the petitioner was entitled to the special damage for Rs. 500/-, as claimed by him under this item. The claim of the petitioner for Rs. 500/- for the repairs of the scooter rickshaw under the head 'special damages', is, therefore, decreed.

9. Now I come to the question of 'general damages'. The Tribunal, while discussing this question has observed that general damages in the amount of Rs, 3,000/- could be awarded to Joharilal if he could establish that the accident has taken place on account of the rash and negligent driving of the truck driver. The learned judge, however did not give any reason for arriving at this figure of Rs. 3,000/-.

10. Lord Morris in H. West v. Shephard, (1963) 2 All ER 625, while discussing the question of awarding general damages in the matters of accident has made the following observations:--

'My Lords, the damages which are to be awarded for a tort are those which 'so far as money can compensate', will give the injured party reparation for the wrongful act and for all the natural and direct consequences of the wrongful act. The words 'so far as money can compensate' point to the impossibility of equating money with human suffering or personal deprivations. A money award can be calculated so as tp make good a financial loss. Money may be awarded so that something tangible may be procured to replace something else of like nature which has been destroyed or lost. But money cannot renew a physical frame that has been battered and shattered. AH that Judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common assent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable Injuries should be compensated by comparable awards.'

While dealing with a judgment in Singh v. Toong Fong Omnibus Co. Ltd., (1964) 3 All ER 925, the learned Judge made the following observations:--

'It is but to recognise that, since in a court of law compensation for physical injury can only be assessed and fixed inmonetary terms, the best that courts can do is to hope to achieve some measure of uniformity by paying heed to any current trend of considered opinion. As far as possible it is desirable that two litigants whose claims correspond should receive similar treatment just as it is desirable that they should both receive fair treatment. Those whom they sue are no less entitled.'

11. In Fletcher v. Autocar and Transporters Ltd., (1968) 1 All ER 726, Salmon, L. J., observed:--

'To my mind the damages awarded should be such that the ordinary sensible man would not instinctively regard them as either mean or extravagant, but would consider them to be sensible and fair in all the circumstances. With the fall in value of money, present day awards of damages for really serious injuries tend, in my opinion, to be too low. One has to regard as a whole the plaintiff's general physical and mental state resulting from the accident and give him fair compensation for that.'

12. Lord Denning in another case in Ward v. James, (1965) 1 All ER 563 enumerated certain factors which must be borne in mind by the Court while deciding such cases, and he said,--

'These recent cases show the desirability of three things: First assess ability. In cases of grave injury, where the body is wrecked or the brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Secondly, uniformity. There should be some measure of uniformity in awards so that similar decisions are given in similar cases; otherwise there will be great dissatisfaction in the community and much criticism of the administration of justice. Thirdly, predictability. Parties would be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to court, a thing very much to the public good.'

13. The Supreme Court in Gobald Motor Service Ltd. v. Veluswami, AIR 1962 SC 1, has also laid down similar proposition, though under different context, for the assessment of damages under the Motor Vehicles Act.

14. In the instant case it is deposed by Joharilal that he has suffered a permanent disability due to the fracture of his right patella bone, because he cannot now walk or run for a long distance and that he cannot carry heavy load. The Tribunal has not accepted this deposition of the petitioner-claimant, because the Doctor S. B. Mathur (P. W. 3), who hadattended him, has not corroborated. The fact that the Doctor was not put any question on this point, in my opinion, cannot be considered a proper ground for discarding the testimony of the petitioner-claimant, as he must have experienced this defect after he was released from the Hospital and thereafter Dr. Mathur may not have been consulted about it. It is not denied that Joharilal has been transferred from Jodhpur and that his employers have shifted him to discharge such duties where he may not be required to have a long walk or carry heavy load. The fracture of the right patella bone was detected by Mr. S. B. Mathur (P. W. 3). I do not find any reason to disbelieve the statement of Joharilal on this point. The court shall, therefore, have to see whether how much compensation should be determined keeping in view the principles laid down by the English Judges and the Supreme Court to really compen-sate Joharilal for the injuries sustained by him.

15. In Bishwa Nath Gupta v. Munna, AIR 1971 Madh Pra 238, the learned Judges have discussed some comparable cases in para. 12 of the judgment to determine the quantum of compensation to be paid to the victim. In Deepti Tiwari v. Banwarilal, AIR 1966 Madh Pra 239 a young girl of 15 years suffered a fracture of the spine. She was put under plaster for three months. After recovery her gait became normal and there was no disability in walking. The re was, however, a partial permanent disability as regards playing Badminton or strenuous games -and riding a bicycle. On these facts she was awarded a sum of Rs. 4,000/- as general damages In Vinod Kumar's case AIR 1970 Madh Pra 172 a student of 17 years of age was knocked down by a truck from behind. His left leg came under the wheel resulting in a compound fracture of the lower one-third Tibia and Fibula bones. The leg was kept in plaster for nearly three months. The fracture healed well and there was no mal-union. There was partial disability of the use of the left ankle joint. There was apparently no deformity and the disability lav only in playing heavy outdoor games or participating in heavy physical exercise. In that case a sum of Rs. 5,000/~ was awarded. In Antoo's case 1962 MPLJ 657 the victim's left foot was crushed which had to be amputated, but the learned Judges award-ded a petty sum of Rs. 2,500/- as non-pecuniary damages. The learned Judges, however, expressed their opinion that the damages were somewhat low as compared to the cases of Deepti Tiwari v. Banwarilal. AIR 1966 Madh Pra 239 and Vinod Kumar v. Ved Mitra, AIR 1970 Madh Pra 172.

16. No case of our court has been cited in this connection. I agree with the observations of the learned Judges that the damages in the case of Antoo v. Jagat Singh, 1962 MPLJ 657 were somewhat low. The circumstances 6f the present case are similar to the circumstances of the aforesaid two cases Deepti Tiwari v. Banwari Lal, AIR 1966 Madh Pra 239 and Vinod Kumar v. Ved Mitra, AIR 1970 Madh Pra 172, wherein the learned Judges have awarded Rs. 4,000/- and Rs. 5,000/-respectively, as damages. Since then the value of our rupee has considerably gone down and, therefore, I shall have to take into consideration this factor while assessing the quantum of damages. In my opinion the ends of justice shall be adequately met, if an award is given in favour of the victim fixing the non-pecuniary damages, as Rs. 6,000/-.

17. The appellant has also claimed interest on the amount of compensation which may be fixed by this Court. Section 110-CC of the Motor Vehicles Act makes a provision for the Court to allow such interest at the rate and from such date not earlier than the date of making the claim. In this connection reliance has been placed by learned counsel for the appellant on Nityanand Dutta V. Caledonian Insurance Co., 1968 Acc CJ 368 (Cal), The Oriental Fire and 'General Insurance Co. Ltd, v. Kamal Kamini Das, 1972 Acc CJ 92 = AIR 1973 Orissa 33); Harsh V. Rai v. Dr. K. V. Kama, 1973 Acc CJ 57 = (AIR 1973 Mys 162) and Kailashwati v. Haryana State, 1974 Acc CJ 514 = (AIR 1975 Him Pra 35). In these cases the courts have awarded interest on the amount of compensation allowed to the victims. In view of the provision of Section 110-CC of the Motor Vehicles Act, 1939, I allow interest on the compensation awarded at the rate of six per cent, per annum from the date of the filing of the claim upto the realisation thereof.

18. The appeal of Joharilal is, therefore, allowed. He is awarded Rupees 6,000/- as non-pecuniary damages and Rs. 500/- as special damages. I also allow interest on the compensation awarded at the rate of six per cent. per annum from the date of the filing of the claim upto the realisation thereof.

19. The appellant shall therefore get compensation, with interest and proportionate costs from respondents Nos. 1 and 2.


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