ADARSH PAL SINGH Vs. DIDAR SINGH

JUDGEMENT

(1.) The present judgment will dispose of two Appeals FAO No 16.3 92 filed by the claimant tor enhancement against the award dated 28th January. 1982 passed by Shri P.R thakurjudge motor accident claims tribunal Delhi and FAO No 130 82 filed by New India Assurance Company Ltd. impugning the finding of the Tribunal that the Insurance Company will be liable for the entire amount of the Award. The appellant. Adarsh Pal Singh. was a pillion rider of two-wheeler scooter no. DHN3811 driven by one Satish Chander on 27th August. 1977 near the turning of Joshi Road and New Rohtak Road. The truck bearing registration no. MTT 3023 coming from Joshi Road side suddenly took a turn towards right side without giving any horn or indication and struck against the scooter and as a result of the said impact the scooterist and the appellant who was the pillion rider were thrown from the scooter while the scooter came under the truck. It got entangled with the truck which did not make it possible for the truck driver to run away with the truck. The said vehicle belonged to respondent no.2 and was being driven by respondent no.1. It was insured with M/s New India Assurance Co. Limited, New Delhi. The criminal case was registered at police station against the truck driver. The appellant was aged about 32 years at the time of accident and married with two children. He was doing business in partnership with his father and prior to the accident, he was looking after the business and was responsible for the working of the said partnership. The accident caused loss to the appellant because he could not attend to his business and greatly disturbed his marital life as well. The claim petition was filed under Section 110-A of the Motor Vehicles Act, 1939 for compensation of Rs. 2 lakhs. The respondents contested the petition. The written statements filed on their behalf were identical. It was alleged that the appellant had voluntarily suffered the injuries due to his own negligence and misconduct and due to rash and negligent driving of the driver, Satish Chander. The ownership of the vehicle, the name of the driver and the insurance company were admitted by the respondents. It was reiterated that the scooter was driven at a very fast speed without following the traffic rules and both the driver and the appellant were in a state of alcholic intoxication. It was further alleged that the scooter skidded as a result of negligent and rash driving and both the driver as well as the pillion rider were thrown off the scooter before it hit the truck ^ which had already come to halt and was stationary when the scooter collided with the same. The following issues were framed:- 1. Whether the accident was caused due to rash and negligent driving of truck No. MTT 3023 on the part of respondent no.1? 2. Whether the accident was caused due to negligence of petitioner himself? 3. To what amount of compensation, if any. is the petitioner entitled and if so from whom? 4. Relief. The Tribunal considered the evidence on record. The appellant in his statement deposed that he was sitting on the pillion seat of the scooter which was being driven by Satish Chander According to him. the scooter was at a slow speed and had taken a turn towards Joshi Road on the left side when the truck in question coming, from the opposite direction, came to the wrong side and hit against the scooter. He deposed that the truck was being driven at a fast speed and no horn or signal had been given by the driver. He further stated that he was thrown away as a result of the impact and became unconscious. He denied the suggestion that at the time of the accident he was intoxicated or that the scooter had skidded when the brakes were applied or that the scooter had hit against the stationary truck. To similar effect the statement of the scooter driver PW 3 Satish Chander was made. PW 5 Hans Raj, S.I was the Investigating Officer in the criminal case and he proved a copy of the site plan as Exhibit PW 5/1. The statement of respondent no.1 was recorded and he deposed that the scooter was coming at a high speed and on seeing the scooter he applied the brakes. The driver of the scooter got nervous and lost control of the scooter and as a result fell down and the scooter came under the truck which was stationary at that time. In his cross-examination, this witness admitted that he had made a confessional statement before the criminal court and copy of the said statement was proved as Exhibit RW 1/1. On the face of the admission of respondent driver that he voluntarily made the confessional statement in the criminal court, the negligence on the part of the truck driver was clearly established. Therefore, the said driver had also been convicted on his plea of guilty. The Tribunal accordingly held that there was no doubt that the accident in question had been caused due to rash and negligent driving on the part of respondent no.1 This issue does not require any modification on the basis of the evidence which has been recorded in the case.

(2.) The Tribunal next discussed the injuries suffered by the appellant and their nature and the period of hospitalisation and treatment. PW1 Dr.A.K. Singh who had also appeared as PW 7 treated the appellant in the Irwin Hospital where he was admitted on 27th August, 1977. According to him, the appellant had suffered severe crushed injury of the right elbow with badly comminuted fractures of the humeral condyle, fracture of the third, fourth and fifth ribs of the left side and fracture of the right tibia. He deposed that the injuries had resulted into fixed deformity of the right elbow which was handicapped, having no movement. The movement of the right elbow was completely restricted and nothing was feasible so far as its cure was concerned PW2Dr, Amit Banerjee from GB Pant Hospital deposed that the patient had been transferred to the department of Cardiothoracic Surgery in the hospitsal on 31 st August. 1977. He further deposed that the patinet had been admitted in the hospital on that date and discharged only on 19th September. 1977. PW 6 is appellant himself who stated that he remained admitted for 4 days in the Irwin .hospital for 19 days in GB Pant Hospital and in the Tirath Ram hospital for 3 days. According to him his right elbow had been crushed and consequently.'there was shortening of arm and was permanently disabled. He had been examined by a Board of Orthopaedic Surgeons under the orders of the Tribunal on 27th February. 1981 The certificate issued by the Board gave the opinion of the two experts that the appellant has a stiff right elbow following an injury to the elbow, there is a total loss of movement in the elbow which is fixed at about 150', that as a result of this deformity, the appellant has considerable loss of function in activities of daily living and the percentage of his disabilty is above 50%. Dr. A. K. Singh who appeared as PW 7 made similar statement. The appellant further stated that he remained bed ridden for 9 months. The various documents regarding purchase of medicines indicated that he continued to purchase the medicines till the beginning of the year 1978 The Tribunal proceeded to determine the amount of compensation in the light of the injuries received by the appellant including the amount payable as general damages The following conclusions as arrived at by the Tribunal may be reproduced as follows:-

(3.) On the basis ot the above facts the following award was made under the respective heads in favour of the appellant- <FRM>JUDGEMENT_420_AD(DEL)4_1995Html1.htm</FRM>