Judgment:
Usha Mehra, J.
(1) Dr. P.S. Bhargava in this appeal has assailed the award passed by the Motor Accident Claim Tribunal, Delhi (herein after called the Tribunal) dated 31/07/1975. The award has been assailed interalia on the ground of inadequacy of compensation as well as on the finding of contributory negligence and for having not given interest from the date of the application.
(2) In brief, facts are that on 4/06/1968 at about 4.00 p.m. Dr.Bhargava was going on a Scooter No. DLS-9792, from the library in front of Sri Ram College, Delhi University, towards Model Town, when a bus bearing No. DLP-3472, driven negligently, recklessly and at fast speed hit the scooters after coming on the wrong side. The bus driver was negligent in driving the bus and he was not keeping proper look out. As a result of this accident. Dr. Bhargava sustained compound fracture in his right leg beside other injuries.I Dr. Bhargava was about 60 years old at the time of accident and was working as Lecturer in English in P.G.D.A.V. College,Chitre Gupt Road, Delhi, on a monthly salary of Rs. 1,100/'. Driver, DevRaj, was under the employment of Sh. P.C. Kohli of Kohli Transport Service and the said bus was insured with M/s. Northern India General Insurance Company Limited, now M/s. New India Assurance Company Ltd.On account of the compound fracture Dr. Bhargava claimed a compensation of Rs. 50.000.00. I The Tribunal held it was a case of contributory negligence in which driver of each vehicle was responsible fifty percent respectively.The Tribunal assessed the compensation to Rs. 11,800.00 but awarded to the claimant 50% i.e. a sum of Rs. 5.900.00 in all and 6% interest in case the amount is not paid within two months.
(3) Challenging the contributory negligence, the appellant has placed reliance on para 22 of his claim petition where he had pleaded that bus was driven negligently, recklessly and at a fast speed and that the bus had come on the wrong side and hit the scooter. The scooter had already come out from the library gate and was going towards Model Town. These pleadings were not refuted by the Driver of the bus. He had not filed the writtenstatement. thereforee, it should be presumed that he accepted the averments in the claim petition. The owner of the bus in its written statement in reply to para 22 denied that the accident was due to negligence of the driver.owner of the bus had no personal knowledge, hence his denial of claimant'sassertion regarding negligence is no denial in the eye of law. In the written statement no plea of contributory negligence was raised nor alleged that the claimant came on the wrong side and hit the bus, though two written statements were filed by the owner of the bus, one on 9-12-68 and other on11-2-69. In the written statement filed on 11-2-69, except mere denial of the averments made in para 22 of the claim petition no Explanationn or his version given regarding the accident. Mr. Goyal, Counsel for appellant rightly contended that no amount of evidence can be looked into which is contrary to or which is beyond or in variance with the pleadings. the driver of the bus having not refuted the version of accident given by the claimant could not step into the witness box and state that the claimant wasnegligent. No reliance can be placed on his testimony. If his testimony is ignored then there is not an iota of evidence available on record to arrive at the conclusion that the claimant also contributed in any manner for thisaccident. In fact there had been a shifting stand of the respondents with regard to the cause of accident. Beside the claimant, the Driver of the bus was the other person to have known what was the cause of accident. But he choose not to file his defense nor refuted the version of accident given by the claimant. He, however, appeared in the witness box and took a stand which was not pleaded and thus took the appellant by surprise. According to Baldev Raj, RW-1, he was driving the bus at the speed of about 15 miles per hour. This is not even the stand taken by the owner of the bus in his written statement. Whereas to Dr. Bhargava not even a suggestion was given that the bus was being driven at the speed of 15 miles per hour.According to Dr. Bhargava the distance where the accident took place and the library gate was about 5-6 yds. Baldev Raj appearing as RW-1, also admitted that he was near the library gate i.e. he had not reached in front of the library gate, hut was still away from the same. This admission of Baldev Raj corroborates the testimony of Dr. Bhargava that when the accident took place Dr. Bhargava had already come out from the librarygate. He was on the road going towards Model Town, when the bus hithim. Baldev Raj's testimony that the scooter came suddenly does not inspire confidence because this version is contrary to the evidence which has come on record. The cause of accident given by Shri Surender Kumar Sharma (PW-3) corroborate in material particular to the version given byDr. Bhargava appearing as PW-4 stated that the bus was being driven in the middle of the road. This fact has not been controverter either by putting suggestions to Dr. Bhargava or by the testimony of Baldev Raj appearing asRW-1. Raj Pal (RW-2) admits that the scooter had already come out of the gate from the University side and had turned towards Patel Chest side. He further admits that bus did not stop after the accident rather it stopped after covering 4 or 5 feet. This part of Raj Pal's testimony contradicts the statement of Baldev Raj when he stated that after the impact bus did not move even a foot. By stating so he wanted to prove that bus was being driven very slowly. However this part of his statement is even not supported by this alleged eye witness Raj Pal. Rather Raj Pal's statement lend support to the version of the appellant when he stated that the scooter had already come out of the library gate and was on the road. From this statement, it is clear that scooters did not come out suddenly as the driver of the bus tried to make out. Testimony of Dr. Bhargava is corroborated by the statement of Surender Kumar Sharma, who happened to be there and witnessed the accident. Neither from the cross examination of Dr. Bhargava,nor from the cross examination of PWs any material contradiction could beelicited, in fact their version of accident has remained unrebutted on therecord, rather from the testimony of the respondent's witnesses an inference can be drawn that the bus must be in a fast speed when it hit the scooter.That is why after the impact it could not stop immediately moreover scooter was thrown away at a distance of 8 to 10 feet. The fact that the driver of the bus alone was challaned is an additional factor to establish his negligence. He was convicted by the Trial Court, but acquitted by the appellate Court. The mere fact that he got the benefit of doubt from the appellate Court is no ground to presume that there was not negligence. To my mind,the Tribunal fell in grave error in coming to the conclusion that there was negligence on the part of the scooters also. This conclusion cannot be arrived at from the evidence on record. I, thereforee, set aside the finding on the issue No. 1 and bold that the entire responsibility of this accident was that of the bus driver.
(4) Now coming to the question of quantum of compensation, the appellant suffered compound fracture of both bones, i It is, however, an admitted fact on record that the appellant had not sustained any permanentdisability./ thereforee, to my mind, the /Trial Court rightly awarded the general damages to the tune of Rs. 10.000.00. So far as the award of compensation on account of transport and diet and purchase of medicine isconcerned, that has also been correctly assessed by the Tribunal. So far as the compensation worked out by the Tribunal. I do not find any infirmity in the same Mr. Goyal, however, contended that the appellant lost six months leave and. thereforee, entitled to be compensated. I am afraid this was neither claimed in the petition nor any evidence has been led to prove that the appellant lost six months leave. According to Shri Sada Nand Talwar,PW-2, the appellant was on leave on account of this accident w.e.f. 16-7-68to 31-8-68 (47 days), 1-9-68 to 27-9-68 (27 days), 16-10-68 to 23-11-68 (39days),24-l 1-68 to 12-12-68, The college remained closed for summer vacation from May 1968 to 15/07/1968 and the appellant was on full pay leave during this period. From 16/10/1968 to 27/11/1968 he had been granted sick leave. There is no record produced by which it could he inferred that he lost six months leave. In the absence of there being any evidence, Mr. Goyal's contention that the appellant lost six months leave is not tanable. (
(5) In view of my above observations the appeal is partly accepted and t order that the appellant shall be paid compensation of Rs. 11,800.00recoverable jointly and severely from the respondents. The amount already received by him is to be adjusted. Appellant will be entitled to interest at the rate of 6/o from the date of the application till realisation.