NEW INDIA ASSURANCE COMPANY LIMITED Vs. MANOHAR KHUSHALANI

JUDGEMENT

(1.) This judgment will dispose of the present appeal and cross objections (C.M.No. 3538/1981) filed by the respondent-claimant.

(2.) . The respondent filed a petition under Section 110-A of the Motor Vehicles Act, 1939 on account of grievous injuries sustained by him in an accident that took place at the crossing of BahadurShah Zafar Marg on April 27,1973 at about 1.30 P.M. It was alleged in the petition that the accident was caused due to rash and negligent driving of vehicle No. DLP 4870 (Mini bus) on the part of respondent No.3 Mir Chand. The respondent-claimant was travelling on his motor cycle No. DHS 7250 from his office at R.K.Puram towards Delhi Railway Station. He sustained compound fracture of left femur and immediately after the accident was removed to Irwin Hospital where he remained under treatment of Dr. Kohli till April 28,1973 and then he was transferred on April 29,1973 to Safdarjung Hospital. The respondent since the time of accident has undergone six operations and his leg still has not been cured. He remained on leave from the office for 686 days, out of which 40 days were on half pay, 37 days on earned leave and 609 days were without pay. The respondent-claimant thereafter also took leave for operation and medical check up. It was averred in the claim petition that he was in the hospital since April 27, 1973. He was operated upon and a nail had been inserted in the cavity of bone which resulted in fever etc. The expenditure incurred at the time of filing the claim petition was Rs. one lakh, which was likely to increase further with passage of time. It was further alleged that the respondent was aged about 26 years and was working as Civil Engineer earning Rs. 600.00 per month and was due to get his promotion in the month of August, 1973 but missed the same due to the accident. He could not appear for Indian Engineering Service Examination conducted by Union Public Service Commission. He was unable to travel by bus and other cheap mode of transport as he could not drive himself and had to engage a full time driver. He claimed compensation of Rs. 4 lakhs from respondent no. 2 who was the employer of respondent no.3, as he was vicariously liable. The appellant was the insurer of the vehicle and liable to meet the claim of the respondent claimant .

(3.) Respondents 2 and 3 filed joint written statement and save denied all the allegations with regard to their liability. However, the date, time and place of accident were not denied but it was submitted that the accident did not occur due to rash and negligent driving-of respondent no.3. It was admitted that respondent no.2 was owner of the vehicle and-respondent no.3 was driving the same at the time of accident. The fact that the vehicle was insured with the appellant was also not- denied. The version of accident by respondents 2 and 3, which is reproduced by the learned judge, reads as follows: "Mini Bus No. DLP-4870 was going from Lajpat Nagar to Railway Station Delhi. After crossing Tilak Bridge, there is a crossing and due to red light Mini Bus stopped on the stop line. There were another row of vehicle on the left and right side when the respondent no.1 got green signal, Mini bus moved and the vehicle on the left of the mini bus also moved. The mini bus moved in a very slow speed and a DTC bus on the left overtook the mini bus but the petitioner on motor-cycle tried to overtake in between the DTC and the Mini Bus. Since the applicant was in hurry his motor-cycle became unbalanced and the handle of the motor cycle of the applicant dashed against the left side of the Mini bus and in this process the applicant's motor cycle fell down and his motor cycle fell over him resulting injuries to him."