RAMESH Vs. BANSI LAL AND ORS.

JUDGEMENT

(1.) Both the appeals are at the instance of the claimants seeking for enhancement of claim for compensation. The claimant in FAO No.664 of 2001 was a pillion rider in the scooter driven with three persons including the petitioner. It was said to have dashed against a jeep coming to the wrong side of the road. The accident took place on 31.12.1998. The FIR had not been immediately lodged and the claimants gave explanation that the respondents were trying to compromise the matter and hence, the complaint was immediately given. Against a claim made by the petitioner complaining that the accident was the result only out of negligence driving of the 1st respondent, the written statement was that the scooter hit against the stationary jeep and there was no negligence on the part of the driver. The Tribunal reasoned that the driver himself did not enter the witness box to support his own version and hence, the plea that the vehicle was stationary could not be true. On the aspect of negligence, the Tribunal reasoned that the road was broad enough and if the driver of the scooter had been careful, he could have surely avoided hitting the jeep. It further held that there were three persons travelling in the scooter and that itself could have contributed to the accident. While so holding, the Tribunal referred to the decisions of this Court in Smt. Ved Kumar and another Vs. Kishan Lal and others, 1999 121 PunLR 13 and two other decisions namely Oriental Fire and General Insurance Company Limited Vs. Sudha Devi and others, 1991 ACJ 4 and Santosh Kanwar and others Vs. Om Parkash and others, all of which held that if a scooter was being driven with more than its sanctioned capacity, an accident that results must be examined from the context of whether the overloading itself contributed to the accident. I will not go as far as to state that in every case where there were more than two persons on a scooter or two wheeler, the negligence must always be inferred. However, if the Tribunal had addressed the issue of whether there existed negligence it found that the road was broad and it also found that the accident could have been avoided but for the fact that the vehicle was overloaded, it relied on decisions of High Court to find a case of contributory negligence. It did not, however, apportion an equal liability and cast larger slice of blame on the driver of the jeep at 70% and cast 30% liability on the driver of the jeep. It was in evidence that Chetan Prakash himself was driving the scooter while he and others were pillion riders. It is usually only the driver who could contribute to accident but as a pillion rider also, there could be a contributory negligence if that had contributed to the imbalance or the poor driving of the scooterist. Whether pillion rider could be imputed with contributory negligence in such a situation will be examined from the fact whether it was the overloading which contributed to the accident. That was how the Tribunal has held and I will, therefore, not interfere with reference to the contributory negligence of the petitioner to the extent of 30% and the abatement of claim to that extent.

(2.) As regards the quantum in FAO No.664 of 2001, the claimant was said to be 24 years of age and he had been hospitalized for a month. He had four injuries that included fracture of his leg that required admission into hospital for reduction of the fracture. There was evidence through the doctor who stated that he remained admitted from 31.12.1998 to 25.01.1999 and again from 9.2.1999 to 16.2.1999. He gave evidence to the effect that he had charged Rs. 9050/- in the first period of operation and Rs. 4350/- at the second time of admission. The amounts charged were exclusive of the costs of medicines. The medicines bills produced on record totalled to Rs. 25,477/-. Dr. J.S. Bhatia, who had appeared as PW1 had given a certificate assessing the disability suffered by the petitioner to be 40%. While assessing the compensation, the Tribunal provided for Rs. 1,45,000/- under the following heads:-

(3.) I cannot find any scope of increase in any of the heads. The doctor himself had not stated that the disability could have resulted in any loss of earning capacity. The assessment to Rs. 70,000/- as resulting from a permanent nature of functional disability would seem appropriate to me. Even the head of pain and suffering assessed at Rs. 25,000/- cannot be said to be low, for, not more than a fracture and a surgical intervention for reduction of fracture were shown. He was said to have injuries on his face, abdomen etc and the amount assessed would seem proper. For a month long treatment, a provision for Rs. 10,000/- that included special diet, transport and attendant charges would also be appropriate. I was looking whether there were any particular aspects of evidence regarding transport, special diet and attendant charges with any specific details of expenses. If there was none, the Tribunal was justified in approximating under all the three heads at Rs. 10,000/-. Both as regards the quantum as assessed and the negligence as apportioned, I will find no justification for interference.