Judgment:
Gokal Chand Mital, J.
1. On March 16, 1981, in the morning hours, Vijay Kumar, a school going child of six years, was run over by truck No. HRG 4828, owned by Ram Saran and driven by Paras Ram near Badshahpur town on the main highway. His left leg was ultimately amputated above the knee. The minor child through his next friend claimed Rs. 1 lakh in the claim application filed before the Motor Accidents Claims Tribunal, for short 'the Tribunal'. The claim application was contested by the driver and owner of the truck by filing a joint written statement. The New India Assurance Company with which the truck was insured filed a separate written statement. One of the additional points raised was that the liability, if any, of the company was limited to Rs. 50,000. On the pleadings of the parties, the following issues were framed:
(1) Whether the petitioner, Vijay Kumar, sustained injuries in an accident caused by rash, negligent and careless driving of truck No. HRG 4828, driven by Paras Ram, respondent No. 1 ?
(2) If issue No. 1 is proved, whether the petitioner is entitled to compensation If so, its amount and against whom ?
(3) Relief.
2. After evidence was led, the Tribunal by a well-considered award dated November 4, 1982, awarded Rs. 87,840 with 6 per cent, per annum interest. Out of the awarded amount, Rs. 31,800 were ordered to be paid to the next friend of the minor to reimburse him for the expenses of the treatment, for his maintenance and for providing artificial limb. The rest of the amount was to be deposited so as to earn interest with a direction that the deposited amount was to be paid to the minor on his attaining majority. The liability of the insurance company was limited to Rs. 50,000 with proportionate costs and interest. Against the aforesaid award, FAO No. 62 of 1983 has been filed by the legal representatives of the owner of the truck in which cross-objections have been filed by the claimants and FAO No. 130 of 1983 has been filed by the insurance company. Since they arise out of the same proceedings and the same award of the Tribunal, they are being disposed of by this common judgment.
3. On behalf of the owners of the truck and the assurance company, the following common points were raised :
(1) That the driver of the truck was not negligent;
(2) That the left leg of the claimant was not amputated although he had suffered injury in that leg ; and
(3) In case it is found that the left leg was not amputated as a result of the injury suffered in the accident, the award of the court below is highly excessive. Even if it is proved that the left leg was amputated, even then the award is on the high side.
4. In addition to the points, one of the points raised on behalf of the owners of the truck was that the liability of the assurance company was unlimited, and, therefore, the entire amount was payable by the company.
5. In the cross-objections, the claimants have sought further enhancement, and one of the arguments raised is that the Tribunal has found Rs. 97,600 payable and had committed an error in imposing a cut of 10 per cent, on account of lump sum payment.
6. Adverting to the point of negligence, we have the statements of Jaswant Ram, AW-5, and Jaswant Singh, AW-6, who are eye witnesses to the occurrence. According to their statements, when the claimant was about to cross over to the metal road, the truck came at a high speed and ran over him. The school of the children was in the vicinity and some students had already crossed the road and the claimant was left behind. Once the presence of the students near the road was noticed, it became the duty of the truck driver to be more careful. His negligence is proved from the fact that he was going at a high speed and did not blow any horn. The spot where the accident took place clearly proves the negligence that when the minor was still to cross over to the road, he was run over by the truck. The statement of the driver of the truck is beyond the pleadings when he stated that the claimant emerged from behind the camel cart all of a sudden. Accordingly, I endorse the finding of the Tribunal that the driver of the truck was negligent.
7. To start with, it was disputed that the leg of the claimant was amputated but when the photograph of the minor was shown, no doubt was left that the leg had been amputated above the knee. We have the medical evidence on the record, which clearly shows that the leg of the minor was amputated from above the knee and he had become a permanent disabled person. In view of the photograph, learned counsel appearing for the owner of the truck and the assurance company did not seriously dispute this matter.
8. Now, coming to the quantum of compensation, I am of the view that it will meet the ends of justice if Rs. 80,000 is awarded on account of special and general damages. The statement of the claimant's father was that he had spent Rs. 15,000 to Rs. 20,000 for the treatment of the claimant. The claimant remained an indoor patient in Safdarjang Hospital from March 16, 1981, to May 17, 1981. The Tribunal has allowed Rs. 87,840 after imposing a cut of 10 per cent, on account of lump sum payment on the amount of Rs. 97,600, payable to the claimants, the breakup of which is as follows :
(i) Rs. 10,000 spent oh the treatment and for the provision of artificial limb.
(ii) Rs. 3,000 for pain, shock and suffering.
(iii) Rs. 19,800 for attendant and special diet at the rate of Rs. 150 per month for a period of 11 years till the minor attains majority.
(iv) Rs. 64,800 due to disability in earning capacity, at the rate of Rs. 300 per month with 18 years multiplier.
9. No serious fault can be found with the aforesaid assessment of the court below. However, in the interest of justice, on account of the aforesaid assessment-break-up, a total sum of Rs. 80,000 is awarded.
10. Certain reported cases were cited for fixing the compensation payable. I am of the view that each case has to be decided on its own facts keeping in view the larger principles of awarding compensation. In the present case, the accident is of the year 1981, whereas in the cited cases, accidents had taken place in the year 1970, or before that. The assessment of Rs. 80,000 on account of special and general damages in the year 1981 cannot be said to be either on the higher side or on the lower side. To this extent, the award of the court below is modified.
11. Adverting to the last point, whether the liability of the company is limited to Rs. 50,000 or unlimited, the argument raised on behalf of the owner of the truck is that in view of the Division Bench judgment of this court in Ajit Singh v. Sham Lal [1984] PLR 314; [1986] 59 Comp Cas 946, it was the duty of the insurance company to have placed on record the policy of the truck to show that under the policy, the liability of the company was limited because there could be unlimited liability also, and if the company wanted to take that benefit, it should have produced the policy for the relevant period and since the company has failed to do so, in view of the aforesaid decision, the entire liability deserves to be placed on the company. In this case, exhibit R-1 is the insurance policy for the previous year and only a copy of the motor renewal endorsement has been placed on record for the relevant year which is exhibit R-2 and the policy which was issued has not been placed on record. The cited case fully supports the argument that in the absence of the policy being produced in court by the company, the liability of the company would be considered to be unlimited.
12. Since the Division Bench judgment came later, this aspect of the matter was not considered by the court below. Accordingly, it is held that the liability of the company is unlimited.
13. For the reasons recorded above, it is ordered that the company would be liable to pay Rs. 80,000 along with 12 per cent, per annum interest from the date of filing of the claim application till payment of the amount of Rs. 80,000. The amount is to be distributed as follows :
(i) Rs. 30,000 to Satya Pal, son of Chaman Lal, father of Vijay Kumar, claimant, to reimburse him for the expenses incurred by him on the treatment of the child, for purchasing artificial limb for the child, for his special diet and conveyance expenses, etc., till he attains majority ;
(ii) The remaining amount of Rs. 50,000 along with 12 per cent, interest on the amount of Rs. 80,000 would be deposited in a scheduled bank in the name of Vijay Kumar (minor), claimant, through his father in fixed deposit for a period of five years to be renewed for another five years because by then the minor would become major.
14. In view of the above observations, the appeal and the cross-objections stand disposed of.