K.KANNAN J - (1.) THE appeal is for enhancement of compensation assessed for certain crush injuries alleged to have been suffered by the appellant. In the course of trial, the petitioner gave evidence to the effect that the accident took place on 12.03.1990 when the petitioner was crossing the road. He had been admitted in a private Christian Missionary Hospital where he had treatment for nearly 3 months and discharged on 18.09.1990. The medical certificate, which had been issued referred the case of lacerated wound in both legs with fracture of bone of left leg and at the metatorsal bone. The doctor's evidence was that the certificate relating to disability was to the effect that the person was 100% mentally disabled. It is not very clear from the evidence whether the abnormal behaviour and disorientation of what the medical certificate states was resultant to the accident but the Tribunal, however, found that there was no reference to the medical mental illness in the petition or the evidence of the father, which was examined on his side, assessed the compensation only for the injuries suffered in his leg.
(2.) LEARNED counsel appearing for the appellant states that in the manner of assessment of compensation, the Tribunal was in error in holding that there had been any contributory negligence. I would also find that in a case of accident involving death or injuries to a pedestrian a greater amount of circumspection and care must be always taken by the owner and responsibility is wholly on the driver of such vehicle for the accident. In India, roads are used more by pedestrian than by motorists and therefore, there shall be a duty of every operator of a motor cycle to apply enough care to ensure that he does not cause any harm to a person using the road as pedestrian. I will, therefore, reverse the finding of the Tribunal that there had been any contributory negligence on the part of the claimant. I would hold the driver of the vehicle to be wholly responsible for the accident. In the manner of assessment of compensation, the Tribunal had provided for Rs. 20,000/- towards medical expenses and Rs. 14,000/- towards the disability and the miseries caused on fracture of both bones. The Court awarded additional amount of Rs. 20,000/- towards pain and suffering. The payable compensation assessed was at Rs.80,000/- and making an abatement to the extent of 50%, awarded Rs.40,000/- in favour of the petitioner.
(3.) I find that even apart from the evidence of PW-1, who had spoken about the hospitalization, PW-4 Dr. R.K. Patnaik, who was a senior psychiatrist, gave evidence to the effect that the possibility of mental handicap at 100% due to head injury received by Jai Pal could not be ruled out. This is rather an intriguing revelation, for the PW1 did not talk about any injury on his head. Even the regimen of treatment adopted on the petitioner appears to be only for fracture of his legs in which he was advised to consult an orthopedic surgeon for operation of his leg. I cannot, therefore, find any virtue about the evidence given by PW4 assessing the mental disability of the petitioner. The petitioner himself has not been examined evidently on account of the mental condition of the claimant and again curiously if the petitioner was so severely mentally disabled, the petition itself could not have been presented in his own name. It could have been presented only by a lawfully competent guardian describing his mental condition as requiring appointment of a guardian, even apart from the representation of father as guardian to a minor. I have gone through the evidence of PW3, who was the father. This evidence was given on 09.01.1991 and the medical certificate which has been filed in Court was issued on 11.02.1991. Evidently, the assessment of mental disability itself has come about subsequently after the evidence of PW3. PW-3, therefore, has only spoken about the inability of the claimant to walk or even sit with the support of his legs. His own long hospitalization and his confinement to bed with severe injuries in his leg, he had claimed that his mental faculties also got affected. Since a reference to mental ailment came in with no definite nexus about mental condition to the accident, it was suggested in the cross-examination that the accident itself was on account of the fact that his son was mentally retarded person and he crossed the road without minding the vehicle which was plying on the road.;