R.S. Pathak, C.J.
1. The Pepsu Road Transport Corporation appeals against an award of the Claims Tribunal, Simla under Section 110-B of the Motor Vehicles Act, 1939.
2. On July 15, 1965 the responpondent Puran Chand Gupta was travelling in bus No. PNU 5962 owned by the Punjab Roadways from Solan to Kalka. When the bus reached near Nagli, about 3 miles from Solan towards Kalka, a bus No. PNT 5836 owned by the appellant Corporation came from the opposite direction and collided with the Punjab Roadways bus. As a result of the collision Puran Chand sustained head injuries. The driver of the Corporation bus was prosecuted for rash and negligent driving but was ultimately acquitted.
3. On October 21, 1965 Puran Chand filed an application against the Roadways and the Corporation claiming compensation in the sum of Rs. 15,000/-. The claim was contested by the Roadways and the Corporation. The Roadways pleaded that the accident took place due to the negligence of the driver of the Corporation bus. The Corporation pleaded that it was a simple accident and there was no negligence on the part of its driver.
4. The Claims Tribunal held that the petition filed by Puran Chand was barred by time but there was sufficient cause for condoning the delay, that the accident had resulted from the rash and negligent driving of the driver of the Corporation bus and awarded a sum of Rs. 3,147/-, to Puran Chand as damages.
5. In this appeal, learned counsel for the appellant contends that the petition was admittedly barred by time and the Claims Tribunal erred in holding that there was sufficient cause for condoning the delay. The accident took place on July 15, 1965. Puran Chand was in hospital for treatment of the various injuries and was discharged from there on August 4, 1965. The application was drawn up by him and posted on October 20, 1965 which was received by the Claims Tribunal the next day. The period of limitation expired on September 13, 1965. Two days later he rejoined duty. The submission is that if he was fit enough to enter upon his duties again he should be considered to have been fit enough for making the application, and while the period upto September 15, 1965 may be considered as a period during which he was prevented from preferring an application that cannot be said in the case or the period following. It seems to me that the question whether a person was prevented by sufficient cause from preferring an application under Section 110-A must be considered in the light of both his physical and mental capacity at the time. The material on the record shows that Puran Chand was suffering not merely from physical injuries of head and shoulder but also from a serious mentally disturbed state which persisted for a considerable time. There is the testimony of Puran Chand himself and of the doctor attending on him. It is pointed out on behalf of the appellant that if Puran Chand could teach his classes he could have sent the application to the Claims Tribunal. It must not be forgotten that when he took his classes Puran Chand was doing only that which was normal and routine work. The filing of the application by himself called for an application of his mind to a matter with which he was not conversant. There is no dispute that he did not benefit from the assistance of any lawyer in the matter. The Claims Tribunal was satisfied that the condition in which Puran Chand found himself could be properly construed as a sufficient cause preventing him from filing the application in time and posting it only on October 20, 1965. In this connection see Pijush Kanti Ghosh v. Maya Rani Chatter-jee, 1971 ACJ 267 = (AIR 1971 Cal 229); Captain Komal Charan v. State of U. P., 1971 ACJ 320 = (AIR 1971 All 503) and State of Uttar Pradesh v. Dayali, 1971 ACJ 425 = (AIR 1972 Madh Pra 66). It is settled law that the appellate Court should interfere with the finding of the trial Court only if discretion has been perversely exercised. Having regard to the material on the record, I am unable to hold that the finding of the Claims Tribunal that there was sufficient cause preventing Puran Chand from preferring the application earlier than October 20, 1965 is perverse and calls for interference. Accordingly, the first contention on behalf of the appellant is rejected.
6. The next contention is that there is no averment in the application of negligence on the part of the driver of the appellant. In my opinion, the absence of a specific pleading in the application filed by Puran Chand should not deter the Court from considering that question. In the first place, that is the central point to be decided in all claims made under Section 110-A of the Act. Nobody could have any doubt that that was the issue to be tried. In the second place, the Claims Tribunal framed a specific issue on the point and the parties led evidence of negligence. It cannot be said that any of the parties were taken by surprise. Moreover, the reply filed by the Punjab Roadways specifically alleged that the driver of the Corporation was guilty of negligence. The question was there for all to see, and this is not like a case where a point was decided which had never been pleaded by any party and could not have been anticipated at all by the parties. It has been laid down in several cases that the absence of a specific plea of negligence should not preclude the Court from deciding the issue if the parties have led evidence on the point. See Manjula Devi v. Manjusri Raha, 1968 ACJ 1 (Madh Pra), Vidya Wati v. Himachal Govt. Transport, 1970 ACJ 424 (Delhi); Hindustan Aeronautics v. P. Venu, 1972 ACJ 266 = (AIR 1972 Mys 255) and Nacharamma v. The Motor Accidents Claims Tribunal, 1972 ACJ 360 = (AIR 1973 Mys 10). The case Narottam Dass v. General Manager, Orissa Road Transport Co. Ltd., 1969 ACJ 327 (Orissa), is, in the circumstances, clearly distinguishable. It may also be pointed out that although Furan Chand could have applied for amendment of his application before the Claims Tribunal it was strictly not necessary that be should do so wben regard is had to all the circumstances of the case and the nature of the evidence adduced.
7. The third contention is that the driver of the appellant was not negligent. I have carefully perused the oral testimony on the record and it seems to me that having regard to the position in which the motor vehicles stood in relation to each other the Corporation bus was found to have crossed the line of demarcation while the Roadways bus had been driven even on to the kutcha side of the road. Upon a comprehensive appraisal of the material on the record I entirely endorse the finding of the Claims Tribunal that negligence must be attributed to the driver of the Corporation bus.
8. The last contention is that the quantum of damages is excessive. In this regard learned counsel for the appellant has contended that the special damages at Rs. 5/- per day was not justified at all. The evidence discloses that Puran Chand was put on a special diet which cost him about Rs. 10/- per day for a long period. In assessing special damages at Rs. 5/- per day on this account for a period of six months the Claims Tribunal, in my opinion, did not act arbitrarily. I am satisfied that the damages in the sum of Rs. 3, 147/- awarded to Puran Chand cannot be described as excessive.
9. The appeal fails and is dismissed with costs.