J.V.Gupta, J. - (1.) THIS appeal arises out an application for claim of compensation under section 110 -A of the Motor Vehicles Act, (hereinafter called the Act), whereby an amount of Rs. 358,461.00 has been awarded to the injured, A.I. Mehta, respondent No. 1.
(2.) SHRI A.I. Mehta, claimed a compensation of Rs. 8,00,000/ - on account of the injuries suffered by him in the accident which took place on April 17, 1976, at Faridabad. According to the injured claimant, he hired a rickshaw driven by the Law Dev for going from his house, 8 D/7 A, Railway Road, new Industrial Area Township, Faridabad to Market No 1, Faridabad. The rickshaw driver drove the rickshaw on the duel carriage way connecting Neelam Chowk with Bata Chowk. The rickshaw then turned towards the right hand through the gap in the central verge in order to go to Market No. 1. The rickshaw had covered more than half of the width of the carriage way after taking the turn, when truck No. HRG -5043 which was being driven by Sunder Lal, respondent No. 5, came from the side of Bata Chowk on its way to Neelam Chowk and struck against the rickshaw into the rear wheel. With the impact of the collision, both the rickshaw driver as well as the claimant were thrown on the road and the right leg of the claimant came under the front wheel of the truck. It was further alleged that the truck was being driven at an excessive speed rashly and negligently by its driver Sunder Lal, respondent, and on that account, the truck driver lost control of the vehicle and could not apply breaks. After the collision, the rickshaw was dragged till it came to a stop after hitting wire fencing on the corner of the road meant for the protection of an Electricity Sub Station bending the iron -wire fencing. It was also alleged that said Sunder Lal, respondent, was driving the offending truck during the course of his employment and control, under the authority of Shri Samant Singh Vashisht, the owner of the truck. The truck, in question, was insured with the New India Assurance Company Limited and thus, they were liable to pay compensation on account of vicarious liability. It was also stated that the claimant suffered permanent disability as his right leg was crushed as a result of the accident and had to be operated upon five times and had to be put under plaster three times and as a result thereof, the same had been shortened by three inches. The claimant remained confined to bed as an indoor patient for a long time and had to undergo a lot of pain and agony on account of the various operations and the grafting of skin from the left leg to the right leg. On account of his inability to walk, he also suffered deterioration in health resulting in shortening of his life At the time of the accident, he was General Manager (Technical) with M/S Apollo Tyres Limited, getting a monthly salary of Rs. 8,122/ -. It was also stated that on account of the accident, he had lost contact with professional and technical progress which otherwise would have brightened his future prospects. He claimed Rs. 8,00,000/ - as compensation against the driver, the owner of the truck and the insurance company jointly and severally under 15 different heads including special and general damages, damages on account of mental pain and physical pain, loss of personality and presentation, permanent scars, deficiency and disablement, special diet, medical expenses and treatment, conveyance charges incurred by his wife for paying two visits a day from Faridabad to Delhi, loss of expectancy of life, loss of salary and the claim raised by his employer, M/S Apollo Tyres Limited against him. He also claimed future interest at the rate of 12 per cent per annum on the amount awarded till the date of payment. In the written statement, filed on behalf of the driver and the owner of the truck it was admitted that truck No. HRG -5043 belonged to Samant Singh Vyshisht. It was also admitted that it was being driven by Sunder Lal, respondent, at the time of the accident as an employee of the owner of the truck and that the truck was under insurance cover issued by the New India Assurance Co. Ltd. However, it was denied that the truck was being driven rashly or negligently by Sunder Lal, respondent, or that the accident had occurred on account of his negligence or rashness. It was also denied that the claimant had suffered any permanent disability or that his leg would he shortened after the plaster was removed. It was further denied that the claimant would not be able to walk or that his future prospects in life had been diminished. It was, however, added that the claimant could not be allowed to take advantage of the unfortunate accident to have a windfall by extracting a huge amount. According to them, the accident had taken plate entirely due to rash and negligent driving of the rickshaw by us driver Lal Dev as he had brought in the same through the traffic circle where other traffic was also passing and had banged it into the body of the truck.
(3.) IN written statement filed on behalf of the New India Assurance Co. Ltd., similar pleas were taken. It was further contended that the liability of the company was, in any case, limited to Rs. 50,000/ -. On the pleadings of the parties, the following issues were framed: 1. Whether the accident took place due to rash and negligent driving by Sunder Lal, respondent, as alleged? 2. To what amount of compensation is the petitioner entitled and from whom? On issue No. 1, the learned Motor Accidents Claims Tribunal came to the conclusion that the accident took place due to the rash and negligent driving of the truck by Sunder Lal Respondent On issue No. 2, the tribunal calculated the amount of compensation under various heads, as follows: - and thus allowed a total compensation of Rs. (sic) Feeling aggrieved against the same, the appellants who are the legal representatives of Samant Singh Vashisht, deceased, the owner of the truck (who died during the pendency of the claim petition before the tribunal), have filed this appeal in this Court. 5. The learned counsel for the appellants, vehemently contended that it has been wrongly held by the tribunal that the accident took place due to rash and negligent driving of the truck by Sunder Lal, respondent. As a matter of fact, the truck was going on the main road on its left side and therefore, it was under no obligation to stop at every junction or chowk. According to the learned counsel, the motor vehicle being on the main road has a right of way and vehicle coming from the side of main road, has to be aware that it n ay not endanger the safety of any person thereon. Reference in this behalf was made to regulation 6 of the Tenth Schedule of the Act. He further contended that from the circumstances which have come on the record, it could never be held that it was the truck driver who hit the rickshaw from its left side as alleged by the claimant. All this could happen only if the rickshaw banged in to the truck on its right side, as pleaded by the truck driver in the written statement. 6. In order to appreciate the various contentions raised by the learned counsel for the parties, on the question of negligence, it will be necessary to refer to the pleadings of the parties in this respect. In paragraph 23 of the claim application, it was inter alia stated: - The accident was caused due to rash and negligent driving of respondent No 3 The petitioner was travelling by a rickshaw hired by him and driven by one Mr. Lal Dev for going from his residence to Market No. 1. The rickshaw after crossing Neelam Chowk, took a right turn to go towards Phawra Singh Chowk. The rickshaw driver had indicated the direction of the road he wanted to take and had almost crossed the road, when the offending truck driven by Sh. Sunder Lal came from the Bata Chowk side on the Bato -Neelam Road and driven very negligently and rashly and at a very high speed banged into the rear wheel of the rickshaw. With the shear impact of the collision the rickshaw driver fell down on the road at a distance. Mr. Ashwani Kumar Mehta, the petitioner, also fell down on the road and his right leg came under the front wheel of the truck. The truck was at such a speed that the driver lost control and could not apply the brakes, and dragging the rickshaw along with it, stopped only by the wire fence on the corner of the road, at the crossing, meant for protection of the sub section with the result that even the iron wire fence bent down. At the time of accident, the offending vehicle HRG -5043 was driven by respondents No. 3 during the course of his employment and control and under the authority of respondents No. 1, the employer, or either of respondent No. 1 or 2. The offending vehicle was being driven absolutely negligently and rashly, and at a very high speed and the driver could not control the vehicle at all Respondent No. 3 was driving the vehicle in a rash and negligent manner and in total disregard of all the traffic rules regulations and obligations to the other road users and without seeing and giving response to the indication given by the other road users. Respondent No. 3 along with respondent No. 1 and/or respondent No. 2 are primarily liable and responsible to pay compensation along with the insurance company, i.e. respondent No. 4, for the torts committed by the respondent No. 1 or 2 vicariously for the acts of respondent No. 3. The truck is insured with M/s New India Assurance Co. Ltd. who have their local office near Mahajan Nursing Home, Colony Mode, Gurgaon, Haryana, and Regional/Area offices at B -Block, Connaught Place, New Delhi 110001, vide cover note No. 141744 and Policy No. 45725, 1744 dated the 23rd March, 1976 issued by Rewari Office. The name of the owner is not clear at the moment but on enquiry it was revealed that the truck stands insured in the name of Mr. Samant Singh Vashisht, son of Shri Hadlu Ram, Sbhna Adda, Gurgaon, Haryana. If the respondent, No. 3 had not driven the truck rashly and ignoring all the driving rules and regulations, the accident would have been avoided. The petitioner has suffered permanent disability and his right leg will be shortened after the plaster is removed. With the accident caused, because of the rash and negligent driving of respondent No. 3, petitioner's right leg was crushed and it has been operated upon five times, and his right leg was plastered three times before it could come to the present stage, though the doctors are not yet hopeful and they are not even sure whether the petitioner will be able to walk at all or not. Ever since the time of accident, the petitioner is bed ridden. His future prospects in life have also diminished. Because of rash and negligent driving of respondent No. 3, the petitioner had to undergo a lot of pain, and agony, on account of various operations and grafting of skin from left leg to right leg. Due to his inability to walk, petitioner has also suffered deterioration of health, thus resulting in shortening of his longivity. The petitioner has been on the bed for the last six months and will be on the bed for six months, and as such he is losing contacts with the professional and technical progress which otherwise would have brightened his future prospects. It may be submitted that petitioner is a highly qualified technical man and was in prime of his health at the time of his accident. Due to the injuries suffered in the accident, his prospects as a technical man have suffered irreparable and permanent injury. He would have achieved distinction in his career on account of his job held, training and qualifications. This accident caused by rash and negligent driving has caused him loss of confidence in his own mind about his potentialities and capabilities. Principles of resa ips loquitur applies to the present case and the principle of presumptive negligence also applies. In reply to this paragraph, the respondents stated thus in paragraph 23: - 23 Paragraph 23 with all its contents is not admitted as correct and hence denied. The petitioner is put to strict proof to prove each and every allegation, assertion and facts stated therein. It is vehemently denied that the accident, as alleged, was caused due to any rash and negligent driving of truck No. HRG -5043 by respondent No. 3. The alleged manner of accident is denied as the same false, concocted and manipulated at the instance of the local police in order to help the petitioner in filing this petition. It is admitted to the extent that respondent No. 3 was driving the truck No. HRG -504 as an employee of respondent No. 2 at the time of alleged accident. It is wrong that respondent No. 3 could not control the truck. On the other hand the respondent No 3, was driving the truck in question at a very slow speed due to the traffic circle and taking all precautions of traffic as expected of a prudent driver. It is denied that respondent No. 3 was driving the truck in question in total disregard of the traffic rules, regulations and obligations to the other road users. It is denied that the petitioner has suffered a permanent disability and that his right leg will be shortened after the plaster is removed, as alleged. It is denied that the petitioner's right leg was crushed due to rash or negligent driving of truck by respondent No. 3. It is further denied that the petitioner will not be able to walk or that his future prospects in life have been diminished. Anyhow, the petitioner is to prove each and every head, on the basis of which he is claiming such a huge amount of compensation. The petitioner cannot be allowed in law to take any advantage of this unfortunate accident to have windfall for extracting such a huge amount. It is vehemently denied that the principles of res ipsa loquitur are applicable to the present case or that the principles of presumptive negligence also apply. The petitioner is strictly to prove rash or negligent driving of the truck in question at the time of alleged accident. However in the preliminary objections, taken in the written statement, in paragraph 6, the plea taken was thus: - that the alleged accident has taken place entirely due to one Lal Dev, rickshaw -puller who negotiated the rickshaw in the round traffic in a most rash, negligent and reckless manner while the traffic was passing through the traffic circle and thereby bringing the rickshaw in the passing vehicles and banging his rickshaw into the body of the truck. Respondent No. 3, under the circumstances, cannot be blamed with any rash negligent or reckless driving of the truck No. HRG -5043. 7. Along with these pleadings, the documentary evidence on this point is also relevant to be examined. It consists of two site plans produced by both the parties. Site plan, Exhibit R.W. 3/1, has been produced by Sunder Lal, respondent, driver of the truck. It has been shown therein that the rickshaw had practically covered a distance of 14 feet from the outer wall of the central verge up to the place where the accident took place. It is further clear from the site plan that the road was 24 feet -wide on one side of the central verge. It is matter of common knowledge that if the road is that much wide and the traffic is only in one direction on that road, then the fast moving vehicle is never on its extreme left because that side is generally meant for cyclists. If that is so, then the very fact that the offending truck was going on its extreme left side on the main road is indicative of the careless and negligent driving by its driver. Apart from that, it the is common case of the parties, that on the main road, there was no obstruction of any kind as to the visibility of the vehicle coming from either direction and this where as rickshaw driver could see the truck coming the truck driver could also easily see the rickshaw crossing the main road. If this was the situation, then, it could not be argued that the truck driver was under no obligation to take necessary care in order to avoid any mishap or collision simply because he was going on the main road on which he had the right of way. If this proposition as such is accepted, it will mean that any driver of a motor vehicle going on the main road is at liberty to cause any damage etc. though the same could be easily avoided by careful driving particularly when he had become aware of the danger earlier. 8. In the present case, it is not the case of the appellant, that the truck driver had not seen the rickshaw crossing the main road or the rickshaw had suddenly appeared on the main road from any side road. According to the truck driver, the rickshaw banged into the body of the truck on its right side and thus caused the alleged accident. This version is highly improbable and cannot be accepted as such particularly when there is no reliable evidence to support this version. It has been argued by the learned counsel for the appellant on this aspect from the evidence, that the injured was found on the right side of the truck, which according to the learned counsel was only possible if the rickshaw hit the truck at its right side. However I do not find any merit in this contention. What and how it happened after the accident is a matter of conjectures In the present case, the Court is to find out the versions put forward by the parties in their pleadings, which one is more probable. Once the version of the driver is held to be improbable, than the only conclusion, under the circumstances of the case would be that the accident was caused by the careless driving of the truck In this behalf, the following observations of the Lordships of the Supreme Court in N.K.V. Brother's (P) Ltd. v. M. Karumal Ammal and others, A.I.R. 3980 S.C. 1354, may be reproduced with advantage: - Road accident are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the Courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitor. Accidents Tribunal must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable The Court should not succumb to niceties, technicalities and mystic maybes. Reference in this respect may also be made to Pushpabai Parshottam Udeshi ana others v. M/s Ranjit Ginning and Pressing Co. Pvt. Ltd. and another : A.I.R. 1977 S.C. 1735, Normally, it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him, but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loqitur. The general purport of the words res ipsa loquitur is that the accident speaks for itself or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part. For the application of the principle it must be shown that the car was under the manage rent of the defendant and that the accident is such as in ordinary course of things does not happen if those who had the management used proper care. ;