NATIONAL INSURANCE CO. LTD. Vs. ROOP LAL GUPTA

JUDGEMENT

(1.) BRIEF facts giving rise to this appeal are that claimant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 for compensation for injuries sustained by him in a motor accident on 10.12.1990 at Shimla (Khalini) at about 10 p.m. The case of the claimant was that he was Divisional Manager in the H.P. State Forest Corporation Ltd. and on 10.12.1990, he had come to Shimla in connection with his official duty in the office of Managing Director of respondent No. 2 in the official vehicle HIS 1311. This vehicle was insured with the appellant. Claimant further stated that on the fateful day at about 10 p.m., he was going to Khalini where he was to stay for the night but the vehicle met with an accident there. It was being driven by driver Jagdish Chand at a very high speed though the road had steep gradient and he had been asked not to drive it at such a high speed. The accident was the result of rash and negligent driving on the part of the driver. Claimant was 51 years old at the time of accident and he was drawing a monthly salary of Rs. 4,800/ . He further averred that he suffered multiple injuries and paralysis and after receiving the injuries, he cannot work throughout his life. He claimed Rs. 4,00,000/ as compensation. Respondent No. 2 while admitting the factum of accident, pleaded that the claim of the petitioner was highly exorbitant and he was not entitled to the compensation claimed. Appellant raised numerous objections such as the claim petition was lacking in material particulars, non joinder of necessary parties and the same being not maintainable against it; the vehicle was not being driven in accordance with the terms and conditions of the insurance policy and the driver of the vehicle was not holding a valid driving licence and the vehicle was insured in the name of the petitioner. While repudiating the allegations of the claimant, the injuries sustained by him were not denied.

(2.) IT was on the aforesaid pleadings that the parties went to trial before the learned Tribunal, which on 4.1.1992, framed the following issues:

(3.) IN support of their respective pleas on the aforesaid issues, the claimant has examined as many as four witnesses. The claimant appeared in support of his case. Amongst other things, he pleaded that the vehicle was being driven at a high speed and the accident was due to the rash and negligent driving on the part of the driver. After the accident, he became unconscious and when he regained consciousness he found himself in the Snowdon Hospital. According to him, as a result of this accident, the entire right portion of the body became paralysed for sometime due to cervical fracture. He also received head injury, injuries on the left leg and teeth. He was under treatment up to 23.12.1990 at Snowdon Hospital, from where he was referred to P.G.I., Chandigarh, where he remained under treatment for 15 20 days. Thereafter, he got treatment in Sir Ganga Ram Hospital, New Delhi, where he was operated for bone grafting. He had been going to the hospital for consultation and treatment every month for about 4 to 5 months and he had not fully recovered. So, he had to consult a Neuro Surgeon at Delhi, who advised him M.R.I., a special type of X ray, which he did and underwent that treatment that was prescribed by this doctor. Still he has not fully recovered and his right hand and foot are not perfectly in order. He cannot properly work with the same speed as he used to work earlier and the doctors have opined that the defect is incurable. He produced copy of policy, Exh. PA and also the correction letter whereby the risk covered by Exh. PA was stated to be in respect of vehicle bearing registration No. HIS 1311 and not HIC 1311. He had produced other documents showing his admission at P.G.I., Chandigarh and at Sir Ganga Ram Hospital, Exh. PC to PE. He has placed a detailed statement, Exh. PF, on record showing the expenses incurred by him. Finally, he has prayed for the grant of Rs. 4,00,000/ as compensation. In his cross examination, by both the appellant as well as respondent No. 2, nothing material has come out and the factum of claimant having sustained injuries, his having been operated upon etc. stood unrebutted. Dr. Kashmir Singh, PW 2, Assistant Professor of Neuro Surgery, Indira Gandhi Medical College and Hospital, Shimla has stated that the claimant was admitted for multiple injuries from fracture of cervical vertebra fifth (C 5) with right haemiparesis with bladder involvement on 10.12.1990 in the hospital at about 10.15 p.m. and he remained there up to 23.12.1990. He was catheterised and head halter traction was applied to him. According to him, at the time of admission, there was weakness on the right half of the body (both upper and lower limbs on the right side), which is known as 'right haemiparesis, and according to him, after the operation, the patient showed some improvement in power but still he was having weakness plus sensory impairment and mild bladder involvement in the form of hesitancy and frequency. This disablement is of permanent nature. With this disability the petitioner cannot work with the same vigour as he could prior to the accident and even the petitioner cannot properly walk as a result of the above injury. In these circumstances, for full investigation, the patient was referred to P.G.I., Chandigarh. In cross examination of this witness also, nothing material has been elicited either by the appellant or respondent No. 2. HC Madan Lal, PW 2 , has proved F.I.R. No. 418/90 dated 11.12.90, registered under Sections 279, 337, 338 and 304 A, Indian Penal Code, Exh. PP. Shamsher Singh Dod, PW 4, who was also sitting in the same vehicle states that when the vehicle reached near Khalini Temple it was at a steep gradient, the speed was at once increased. When he asked the driver as to what he was doing but in the meantime, the vehicle firstly struck against the railing and then with another car just near the temple and according to him, another employee of the Forest Department had got down at a place known as 'Mist Chamber'. At the time of accident, there were only four persons in the vehicle. As a consequence of the accident, Roop Lal and one Pratap Singh, both fell unconscious, received injuries as a consequence of this accident. In his opinion, the accident was the result of negligence on the part of the driver, as he could not control the vehicle on account of high speed. He further says that he called his brother, G.S. Dod and other persons. The claimant was still not fully recovered and he walks limpingly. In cross examination, he states that injuries were also sustained by him and he was treated at Snowdon Hospital, though not admitted there. He has not filed any claim petition though he admits that the driver was driving the vehicle from D.C. office side and that the speed of the jeep was 50 60 km. per hour and he denied the suggestion that the accident was due to mechanical failure. On behalf of the appellant, Prakash Chand, Assistant Divisional Manager at Shimla has appeared as RW 2 and placed on record the complete copy of the insurance policy which is marked as RW 2/A, whereas on behalf of respondent No. 2, Jagdish Chand, driver states that the accident was the result of failure of brakes and the speed of the vehicle was 25 30 km. per hour and the accident was not due to any mistake on his part, but was due to failure of brake. He further states that the vehicle was being properly maintained.