Brestu Ram Vs. Anant Ram and ors. - Court Judgment

Bhawani Singh, J.

1. Brestu Ram, once a mason in the Beas-Sutlej Link Project, Sunder-nagar, drawing Rs. 650/- per month at that stage, appears to have been rendered penniless, if not to this extent, at least appears to be bony-structure moving about and into this court on crutches and appeals through his counsel, Mr. Rajeev Mehta, for the decision of his appeal filed in 1983. His complaint is justified as he had the right to move the court and the court has to render justice to the litigants, more so in such like cases, at the earliest. I proceed to examine his case with the assistance of learned counsel appearing for the parties.

2. The facts, in brief, are that Brestu Ram (35) was working as a mason in the Beas-Sutlej Link Project, Sundernagar, and was drawing Rs. 650/- per month. He states that on 19.5.1977, he had gone to village Jakhehar to bring bamboos. He was standing on the correct side of the road and was 2/4 feet away from the metalled part of the same. In the meantime, truck No. HPM 841, belonging to respondent No. 1, came from Mandi side. It was being driven rashly. The bumper of the truck hit his legs. Grievous injuries to his person were caused. His legs were fractured and feet amputated resulting in 100 per cent permanent disablement.

3. The claimant further states that due to the accident, he became physically wrecked and mentally deranged. He got full senses on 15.8.1981. There was none to guide and pursue the matter on his behalf because he had a simpleton wife and small children. He had to remain in Civil Hospital, Mandi, and he was also treated in Snowdon Hospital, Shimla.

4. The claim petition was prepared on 18.8.1981 and was presented on 28.8.1981 and claim of Rs. 1,00,000/- with interest at the rate of 12 per cent per annum from the date of the institution of the application with costs has been made. It has been stated under item No. 24 of this application that the accident took place due to the rash and negligent act of the driver and both his legs were totally fractured and the feet had to be amputated. There were multiple injuries on his person and there was a fracture on his arm also. He remained as an indoor patient in Civil Hospital, Mandi, and thereafter he was treated at Snowdon Hospital, Shimla, and then again at Civil Hospital, Mandi. He was physically wrecked and mentally deranged. He got full senses on 15.8.1981. There was none to guide and pursue the matter on his behalf. He had little children and a village simpleton wife, so, the petition was within limitation.

5. There is an amended petition on the record of this case wherein the petitioner has claimed interest at the rate of 13 per cent per annum and has also impleaded the New India Assurance Co. Ltd. as a party-respondent.

6. The respondents have repudiated the claim of the claimant and it has been denied that the accident took place due to rash and negligent driving by respondent No. 2 on the date, place and time mentioned in the petition as the vehicle was never plied on Mandi-Sarkaghat Road on that day nor any accident took place with the same and the petitioner was not injured with the vehicle of the replying respondent. The vehicle in question was carrying mukh from Harabagh to B.S.L. Project, Pandoh. It has also been asserted that the claim petition was hopelessly time barred and was, on that account, liable to be dismissed. All these facts have been disputed by the claimant in the rejoinder and it has further been submitted that the claimant was absolutely invalid and permanently disabled and thus was prevented by reasons beyond control and thus he could not institute the claim petition earlier and a prayer has been made to condone the delay as facts mentioned in the main petition disclose sufficient grounds for doing so. These are the respective versions of the parties and after trial the Tribunal rejected the claim petition on the ground of limitation as well as on the ground that it has not been proved that the accident took place with truck No. HPM 841 belonging to respondent No. 1 and driven by respondent No. 2. On issue No. 2, relating to the earnings of the claimant and responsibility for the payment of the compensation, the Tribunal found that the earnings of the claimant were at least Rs. 300/- per month which even an ordinary labourer used to earn during those days leaving aside the version of the petitioner that he was earning Rs. 650/- per month as he was working as a mason in the Beas-Sutlej Link Project at Sundernagar. In view of this situation, I proceed to examine the evidence on record to see whether the conclusions drawn by the Tribunal are correct.

7. Brestu Ram, PW 1, is the claimant. He states that on 19.5.1977 he had gone to village Jakhehar to bring bamboos. He was standing at a distance of 2/4 feet away from the metalled portion of the road on the correct direction. Truck No. HPM 841, belonging to respondent No. 1, came from Mandi side. It was being driven rashly and bumper of the same hit his legs and both of his feet have been amputated and his right hand has also been fractured and he sustained some injury on his back also. He was brought to the District Hospital, Mandi, on the next day by Sukh Dev, PW2, and Sant Ram, PW 3. He remained for about four months in the hospital. He became physically invalid and mentally disturbed after the accident. After the accident, he had become mentally deranged and did not have full senses which he regained somewhere in August, 1981. As such, he could not bring his petition to the court earlier. He has an illiterate wife and children below the age of 12 years and as such, there was none in his house to guide him. Prior to the accident he used to work as mason in B.S.L. Project, Sundernagar and his monthly salary was Rs. 650/- besides rearing milch cattle and doing agricultural work. He mortgaged his land measuring about 1 1/2 bighas and spent about Rs. 10,000/- while he remained admitted in the hospital at Mandi. His children could not pursue studies due to his accident and his wife also remained indisposed. He cannot do any manual and labour work. Being illiterate, he cannot do any other work, including agriculture work. He was referred to Snowdon Hospital, Shimla, by the doctors at Mandi, where he remained for about four days and then he was referred back to District Hospital, Mandi, where he remained admitted and his feet were amputated. The accident, he states, took place due to the negligence of the driver of the truck. At the time of the accident also, he was in the service of B.S.L. Project and after the accident he was retrenched. He could walk about with crutches. He used to get medicines from the hospital and sometimes he used to purchase the same and whichever medicines he had purchased he used to get cash memos thereof and could produce them from his house, in case found.

8. Sukh Dev, PW 2, states that on 19.5.1977, the petitioner was standing outside the road at Jakhehar. Truck No. HPM 841, belonging to respondent No. 1, Anant Ram of Ratti, was being driven at a high speed by its driver. It hit the petitioner with bumper and the petitioner fell down and the tyres of the truck crushed his feet. One of his arms was also fractured and the petitioner sustained injuries on his back. He as well as Sant Ram, PW 3, bandaged the injured portion of the body of the petitioner with the clothes they were wearing. Next morning, the claimant was taken to Mandi Hospital in a bus. The driver of the truck hardly stopped his vehicle for a couple of minutes after hitting Brestu Ram claimant and thereafter ran away with the truck. The claimant remained in Mandi Hospital for three months and after that he was taken to a hospital at Shimla where he remained for 3/4 days. He again came to Mandi. He regained his senses only last year (1981) when he along with Sant Ram, PW 3, advised him to file a case. Prior to the accident, the claimant was employed as a mason in the B.S.L. Project and he used to earn Rs. 600/- to Rs. 700/- per month. He used to rear milch cattle. He used to do agriculture work in his small holdings which he had mortgaged after the accident. This accident took place due to the negligence of the truck driver who was driving the vehicle rashly. In cross-examination, he states that at the place of accident two vehicles could pass. He had told the wife of the petitioner about the number of the vehicle which had hit the claimant. The matter was not reported at police station, Ratti, situated at some distance from the place of accident, as they were very much puzzled due to the serious condition of the claimant. They could not think of lodging a report at police station, Mandi. He had advised the petitioner to file a petition to get compensation and although the petitioner had said 'yes', but in his opinion the claimant had not understood what the witness was suggesting to the claimant. He had himself read the name of the owner of the truck and its number written on its body. The number was written in English digits. In cross-examination, he states that he was not working along with the claimant in B.S.L. Project but he was working in a separate Division of the Project as a labourer and the petitioner used to get Rs. 650/- per month and on the date of the accident the petitioner was an employee of the Project.

9. Sant Ram, PW 3, also supports the claimant and Sukh Dev, PW 2, although he states that he could not identify either the driver or the owner of the truck or its number, being illiterate. He also states that the claimant was an employee of the B.S.L. Project where he was also working as a labourer.

10. Dr. P.P. Vaidya, PW 5, states that the claimant was under his treatment from 20th May, 1977 to 4th June, 1977 as per the hospital records. The claimant had sustained injury to both feet by truck accident as per the statement of the claimant. He was operated upon on 20th May, 1977 and Syme's amputation of left foot (that is forefoot amputation) was done and transmeta tarsal amputation of right foot was performed. He was discharged on June 4, 1977. He gave medical certificate (Exh. PW 5/A) and opined that the injuries could be caused if the tyres of the vehicle crossed over the feet. As per the record of the hospital, the claimant was admitted on May 20, 1977 at 10.45 a.m. and this accident took place at 7.30 p.m. on 19.5.1977. He further states that prior to his examination, Dr. K.C. Sharma had examined the claimant and it was he who had recorded the history and the time of the accident. He did not remember whether the patient (claimant) was out of senses but as per the hospital record, he was in a state of shock. There is no mention in the record with regard to the fact that the claimant was not mentally fit nor any treatment has been given by him for the same.

11. On the other hand, respondent No. 1 states that during 18th, 19th and 20th May, 1977, his vehicle carried mukh (debris) between Harabagh and Pandoh, reference to which he had made in his daily diary of 1977. Whenever their vehicle used to go to Pandoh, the time of its arrival used to be marked at the main gate of the Project. On 18th, 19th and 20th May, 1977, his vehicle never went towards Rewalsar side nor he was ever called by the police as no report was lodged. In cross-examination, he states that he did not accompany the truck every time. Then said that he never accompanied it. On 18th and 19th May, 1977, his truck had gone to Jaraid. Finally, he states that his truck was not involved in the accident nor the accident took place due to the negligence of his driver.

12. Beli Ram, RW 2, is the driver. He also states that during those days, the vehicle was carrying debris from Harabagh to Pandoh and did not have any other work. He used to go straight from Harabagh to Pandoh and come back to the same place. On the night of 18th and 19th May, 1977 the vehicle remained at Harabagh where it reached at about 8/8.30 p.m. because it unloaded the material at Pandoh at about 6.30 p.m. On 18th, 19th and 20th May, 1977, he did not go to Rewalsar nor towards Ambla-ka-galu. He denies the suggestion that on 18th and 19th May, 1977, he had taken the truck to Jakhehar and was involved in the accident in question and after injuring the claimant, he ran away from that place.

13. Kuldip Sharma, RW4, is an employee at the Project. He states that the entry of the vehicle is made at the gate of the Project and this vehicle was carrying mukh from Harabagh to Pandoh on 18th, 19th and 20th May, 1977. In cross-examination he states that some papers of this register were loose and pages 73 to 76 were used on both sides. These pages, he states, can be lifted from the register without untying as they were loose. He was never posted at the check post. The register remains in the custody of the Chowkidar and he could not say as to who had made the entries in this register for the month of May, 1977. The words 'arrival' and 'departure' have not been mentioned in the register. The last column of the same was for obtaining the signatures of either the driver or conductor of the vehicle. He admits that against most of the entries in the register, signatures of either the driver or of the conductor had not been obtained and against entry No. 7627, relating to vehicle No. HPM 841, no signatures of either the driver or the conductor have been taken. He admits certain overwriting and cuttings at various places in this register and that they have not been initialled by anyone.

14. Ram Singh, RW 5, is the conductor of the vehicle. He also states that the truck was carrying debris from Harabagh to Pandoh during this time. In the evening of this day, the truck was parked at Harabagh where one Titu Ram used to issue slips for the trucks for loading of the debris. He could not say at what time they returned from Pandoh on 19th May, 1977. However, an entry regarding the arrival and departure of the vehicle was incorporated in the register by the Project people. A truck takes two hours to reach Harabagh from Pandoh. The distance between Pandoh and Ambla-ka-galu is about 65 km. The distance between Pandoh and Harabagh is about 90 km. He had not maintained any diary regarding the plying of the truck. He remembers the dates from 17th to 20th May, 1977 by heart only but could not say whether the truck was plied on 24th July, 1977 nor le could say where it was plied between 1st July to 31st July, 1979. The register of the Project used to be signed by him and that was done from 17th to 20th May, 1977 also. He denies the suggestion that on 17th May, 1977 to 20th May, 1977, the truck had gone towards village Jakhehar and that the petitioner was hit by it due to the negligent driving.

15. Dr. Jiwan Lal Kapoor, PW 4, Deputy Director of Health Services (retired) has also given medical certificate, Exh. PW 4/A and there is no dispute as to the injuries sustained by the claimant.

16. One of the two points which arise for determination in this case relates to the fact whether this truck was involved in this accident. The whole emphasis of the respondents is to demonstrate that this vehicle was not involved in this accident, so they are not responsible for the payment of compensation to the claimant for the personal injuries sustained by him. The Tribunal has come to the conclusion that this vehicle is not involved in this accident and, therefore, the compensation is not claimable from the respondents. In my opinion, the conclusions of the Tribunal are thoroughly baseless and perverse.

17. The claimant and the witnesses belong to adjoining villages. Ratti is a small place. Respondent Nos. 1 and 2 also belong to this place. Vehicles and their owners are quite well-known to people of the area to a greater extent. It is not a case of big cities or places where hundreds and thousands of vehicles are owned and plied on the roads daily and it is difficult to know them and their owners. Further, the vehicle is not only noticed by the claimant but Sukh Ram, PW 2, specifically states that he himself read the name of the owner of the truck and its number written on the body of the truck and the number was written in English digits. No question on this aspect has been asked from him by the respondents in cross-examination. Next, the contention of the respondents that the vehicle in question was carrying mukh from Harabagh to Pandoh and entry to this effect was sought to be proved through Kuldip Sharma, RW 4. Even if it is admitted that the vehicle in question was carrying mukh from Harabagh to Pandoh, that does not eliminate the fact of this vehicle coming over to the site of the accident as asserted by the claimant and his witnesses. As already observed, Ratti is a place to which respondent Nos. 1 and 2 belong. Therefore, coming of this vehicle to the site of the accident cannot be considered to be out of question; rather the same is easily inferable. Further, looking to the fact whether there was time for the vehicle to come to this site or not, in my opinion, it could come very easily as the place of accident is not far away from Nair Chowk where the vehicle has to come while going between Harabagh and Pandoh. The place of accident takes hardly about 15 to 20 minutes from Nair Chowk. Look at annexure RW 4/A which discloses that this vehicle has left Sambala (Pandoh) at 4.18 p.m. for Harabagh in an empty condition and goes back from Harabagh to Sambala (Pandoh) loaded at 9.52 p.m. The time of accident is 7.30 p.m. on 19.5.1977. Although RW 5, the conductor of the vehicle, has stated that a truck takes two hours to reach Harabagh from Pandoh, to cover a distance of about 90 km. between these two points, but this is an exaggeration not only of the distance but also of the time. It is stated that a truck hardly takes 45 minutes to cover these two points. Let us give some more margin. Even if it takes one hour or one and a half hour, still there was enough spare time at the disposal of the driver of the vehicle before he reached at Harabagh to load the vehicle again. In case the distance takes 45 minutes, in that case, respondent No. 2 had about 4 1/2 hours spare time at his disposal. According to second assessment, he had about four hours. Even according to the calculation of Ram Singh, conductor, respondent No. 2 had about 3 1/2 hours. Therefore, in these circumstances, it can be safely and reasonably concluded that the vehicle could come and had actually come to this site and it was this vehicle which was involved in this accident and, therefore, responsible for the same. The evidence adduced by the respondents in this case is thoroughly weak and unbelievable. Much reliance has been placed on the testimony of Kuldip Sharma, RW 4, and the record maintained as to the entry and exit of the vehicles at the Project. Analysis of the same discloses that it is, in fact, an evidence on which no reliance can be placed. I am not impressed by the assertion of the respondents that no report to the police was made as to this accident. Circumstances have been explained by Sukh Dev, PW 2, as to why the same was not lodged. In case the same was not done by the claimant or Sukh Dev, PW 2, and Sant Ram, PW 3, it is not understood as to why the same was not made by the doctor as it was a medico-legal case. In case it was not done by the doctor, who was legally bound to do so, could it be expected that an injured person and Sukh Dev, PW2 and Sant Ram, PW 3, who were looking after him, would do so after leaving the claimant in such a stage of tragedy. Therefore, even if no report to the police was made, no adverse inference can be drawn out of this failure. The Tribunal has drawn certain inferences as if it was trying a criminal case. Such a course is not available to the Tribunal.

18. Now, I come to the findings regarding the earnings part of the claimant. It is in evidence that the claimant was a mason in B.S.L. Project before the accident and was drawing Rs. 650/- per month. After the accident, his services were retrenched. The factum of his employment with B.S.L. Project and his salary to the extent of Rs. 650/- per month have been proved on record. In the claim petition also, the petitioner has mentioned under item Nos. 4 and 5 that he was working as a mason, token No. 2330-AA in B.S.L. Project, Sundernagar, at Rs. 650/- per month and this fact has not been specifically denied in the replies filed by the respondents. Therefore, it can be safely said that the claimant was earning Rs. 650/- per month as salary from B.S.L. Project before this accident and the conclusion of the Tribunal on this aspect is also erroneous.

19. Now comes the issue of limitation. It is contended by Mr. K.D. Sood, learned counsel appearing for the insurance company, that the claim petition is grossly barred by time and, therefore, has been rightly rejected by the Tribunal. On the other hand, Mr. Rajeev Mehta has specifically referred to the averments made in the claim petition wherein grounds for the late filing of the claim petition have been specifically referred besides the statements of the witnesses as to the state of physical health of the claimant. It is, therefore, contended that it is a fit case where sufficient cause existed for not making the petition in time and the Tribunal should not have disallowed the claim of the petitioner on the ground of delay. In order to appreciate the submissions of the learned counsel appearing for the parties, it is necessary to reproduce the provisions of Section 110-A of the Motor Vehicles Act, 1939:

110-A. Application for compensation.-(1) An application for compensation arising out of an accident of the nature specified in Sub-section (1) of Section 110 may be made-

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(3) No application for such compensation shall be entertained unless it is made within six months of the occurrence of the accident:

Provided that the Claims Tribunal may entertain the application after the expiry of the said period of six months if it is satisfied that the applicant was prevented by sufficient cause from making the application in time.

20. Mr. Rajeev Mehta, learned counsel for the appellant, has very strenuously urged that the evidence on record is so cogent and convincing that the Motor Accidents Claims Tribunal should have considered the same to condone the delay in question. It is further urged by him that the Tribunal has interpreted the provisions of Section 110-A (3) of the Act very narrowly whereas these provisions have to be construed quite liberally in favour of the claimant keeping in view the special circumstances of this case. It is also contended by him that the appellant is an illiterate, rustic villager and his wife is a simpleton and his children were below the age of 12 at the time of the accident. Therefore, these factors should have been taken into consideration while deciding the application under Section 110-A (3) of the Act. In order to appreciate his submissions, reference to a few decisions can be made.

21. In State of Himachal Pradesh v. Jagdip Singh Pathania, 1970 ACJ 216 (P&H;), the claimant Jagdip Singh Pathania (35), an Executive Officer, Municipal Committee, Pathankot, sustained serious head injuries affecting brain and other parts of the body on 29.7.1966 and filed the application on 22.1.1967 beyond the period of 60 days prescribed under the Act. The question arose whether there was sufficient cause for the condo nation of delay in filing the claim petition. The Tribunal not only allowed the application but also the claim to the extent of Rs. 75,000/-. In appeal, it was contended that the claim petition should have been dismissed as barred by time and the Tribunal was not justified in condoning the delay. Dealing with the question, the learned Judge rejected the objection regarding delay after seeing that the result of the accident was that the claimant was an utter wreck having sustained fracture of the skull, dislocation and fracture of one of his shoulders and fracture of one of his legs and because of these injuries, he had remained confined to bed till 19.12.1966 and thereafter when he was advised to resume his duty on 19.12.1966, as an experimental measure to test his mental condition consequent to his head injury, he could attend his office only for a few days and even then could not devote his attention and time to the work he was expected to do. These facts were proved not only by the evidence of the two doctors under whose treatment he was, but also from the testimony of one Balak Ram, AW 14, Secretary of the Municipal Committee, Pathankot. Relying on New India Assurance Co. Ltd. v. Punjab Roadways, 1958-65 ACJ 381 (Punjab), wherein it was held that the words 'sufficient cause' used in proviso to Section 110-A (3) have to be liberally construed so as to advance substantial justice where no serious negligence or inaction or want of bona fides is imputed to the claimant, the contention of the appellant was found to be of no substance.

22. In Captain Komal Charan v. State of U.P. 1971 ACJ 320 (Allahabad), the delay was due to the fact that the claimant remained in the hospital for four months and thereafter the claimant went to his village to meet his parents for a few days and then made inquiries and came to know that he could file an application under the Motor Vehicles Act. The explanation was not found sufficient by the Tribunal and it rejected the claim petition. However, in appeal, a Division Bench of Allahabad High Court allowed the plea by accepting the explanation of the claimant in his affidavit that he came to Bareilly for consulting lawyers with a view to take proceedings for recovery of damages. By this, he had an idea to take legal proceedings and on meeting V. N. Mathur, he came to know that he could file a petition under the Motor Vehicles Act just as Chuni Lal had done. He filed the petition immediately. The court further said as under:. there is no element of laches in the conduct of the appellant. The explanation offered by him is natural and reasonable. He was confined to hospital for a long time. Thereafter, his desire to meet his parents was only natural. He spent a few days with his parents before coming to Bareilly where alone he could take appropriate proceedings. We are unable to agree with the view taken by the Tribunal that the appellant was negligent in not having taken any legal advice in respect of the question of limitation provided for filing an application for compensation under the Motor Vehicles Act. We are satisfied that the appellant was prevented by sufficient cause from making the application within time.

23. In Raju Narrayan v. Chogalal Bhagirath 1972 ACJ 183 (MP), the accident took place on 17.2.1964 and the claimant remained in the hospital upto 1.5.1964 and the claim petition was filed on 8.5.1964. He was permanently disabled. On the ground of delay, the Tribunal rejected the petition. The High Court, in appeal, reversed the order of the Tribunal and in para 4 of the judgment, the learned Judge observed as under:

(4) In my view it is proper for the Tribunal to take a humane and not a mechanical view of delay that might occur in the filing of the claims. It is not suggested that the claims presented long after due date should be entertained blindly without any inquiry as to the sufficiency of the cause; but the Tribunal should, as it were, place itself in the situation of a person who has suffered a motor accident or if it has been fatal, his dependants looking for their daily bread to the earnings of the dead man. Their immediate reaction is not a plan to file a claim but one of shock. If the victim has died then and there the dependants are, as it were, stupefied for some time; if he is alive, the sufferer has almost always to spend some time in the hospitals quite often on the margin between life and death...

24. The court has also relied upon the New India Assurance Co. Ltd. v. Punjab Roadways 1958-65 ACJ 381 (Punjab), as to the meaning and parameters of sufficient cause used in proviso to Section 110-A (3) of the Act.

25. In Hemalata Devi v. S K. Lokman 1973 ACJ 257 (Orissa), the accident took place on 15.2.1969 and the claim petition was filed on 6.2.1970 as the claimant remained ill and was suffering from gout and sciatica for about two years. The Tribunal allowed the petition and in appeal it was contended that this act of the Tribunal allowing the petition after the same was barred by time, was wrong, It was held that the discretion given to the Claims Tribunal under the proviso is not any arbitrary or capricious discretion. It is a discretion guided and conditioned by judicial principles. It is not left to the whim and fancy of the Claims Tribunal to decide whether to entertain the application or not despite the expiration of the prescribed period, But the Tribunal is bound to entertain the application when it is made out by the applicant that he was prevented by sufficient cause in making the application. While dealing with 'sufficient cause', the court came to the conclusion that the same means: 'some cause beyond the control of the party and for successfully invoking the aid of the court, the claimant must have acted with due care and attention.'

26. In Vasava Hiraben v. Ishwarbharti Karsanbharti Gauswami 1976 ACJ 464 (Gujarat), the claim petition was filed within time. However, the same had to be returned due to some defect as to its maintainability and the new application was filed beyond the period of limitation along with an application for condonation of delay. The Tribunal rejected the application for condonation of delay on the ground that the petitioner had failed to explain the delay from 18.6.1974 to 18.7.1974. Justice P.D. Desai (as he then was), found on facts that the claimant was an unfortunate and illiterate widow belonging to a scheduled tribe, whose husband died in a motor vehicle accident and so driven to the court on her petition being rejected by the Tribunal on the ground that the same was barred by limitation and no sufficient cause for condonation of delay was made out. The learned Judge, after examining all the facts and circumstances of the case and the principles to be applied for the interpretation of 'sufficient cause' under proviso to Section 110-A (3) of the Act, came to the conclusion that a liberal construction has to be given to these words. Further, the learned Judge observed that where the claimant is a rustic and illiterate, in that circumstance in appreciating the testimony, the court cannot apply the same standards as might be applied in dealing with sophisticated persons.

27. To the same effect are the observations of Karnataka High Court in Krishna Bai v. B.S. Desai 1981 ACJ 263 (Karnataka), wherein it has been held that the existence of factors such as illiteracy, ignorance, desperation, financial stringency and illness constitute sufficient cause for condoning the delay.

28. The other judgments on this aspect which throw light are Gursharan Singh Sandhu v. State of Haryana 1985 ACJ 641 (P&H;), Niranjan Kaur v. New India Assurance Co. Ltd. 1986 ACJ 1107 (Gauhati), Gurdial Singh through Ajmer Kaur v. Sawinder Singh 1987 ACJ 706 (P&H;) and Chief Engineer, Electricity-cum-Electrical Project, Bhubaneswar v. Bhanumati Mishra 1986 ACJ 909 (Orissa). In the last case, the learned Judge of Orissa High Court, while dealing with the onus of proof under the provisions of the Motor Vehicles Act and Section 5 of 'the Limitation Act and relying on the judgment of the same court in Hemalata Devi v. S.K. Lokman 1973 ACJ 257 (Orissa), held that the question of delay in an application under Section 110-A of the Act is to be considered liberally and it is more liberal than the standard of judging sufficient cause for condonation of delay under Section 5 of the Limitation Act.

29. In Mangal Chand v. Forest Department through Divisional Forest Officer, Nichar, 1985 ACJ 8 (HP), the court accepted the contention of the claimant under the Workmen's Compensation Act, 1923 that the claim could be filed after 61/2 years as the claimant was pursuing the matter with the department concerned under the genuine hope and belief that the authorities would voluntarily make the payment.

30. Keeping in view the trend of judicial decisions on this aspect of the matter, I am of the opinion that the claimant has fully established a case for the late filing of the claim petition after a period of about 4 years and 4 months due to the reasons of the seriousness of the accident, his hospitalization, his ignorance as to the filing of the claim petition, his poverty and complete helplessness due to the peculiar nature of the injuries to his person affecting his health about which enough has been said by the claimant as well as his witnesses. Even if it is taken that the claimant was not unconscious throughout or had not become insane, still the nature of the infirmity to his person was of such a nature that he was rendered completely helpless in the matter. A man may not be rendered to be of unsound mind, say insane, yet he may become mentally and physically so infirm as to render him incapable of looking after his interests. He is rendered so weak and helpless that his mental outfit is by no means an outfit of a normal and healthy man. Although he filed his claim petition on 27.8.1981, however, there appears to be no positive change in his physical and mental frame and health even today. I, therefore, hold that there was sufficient cause for the late filing of the claim petition and the order of the Tribunal on this aspect is erroneous and is accordingly set aside and the petition is treated to have been filed in time.

31. It is in the evidence of the claimant that he was standing 2/4 feet away from the metalled portion of the road and the truck was being driven rashly. He is supported by Sukh Dev, PW 2, who also states that the truck driver was driving the vehicle at a high speed and hit the claimant with the bumper of the truck. He further states that the truck driver hardly stopped the truck for a couple of minutes after hitting the claimant, the driver ran away with the truck. Further, Sant Ram, PW 3, also states that the driver was driving the truck rashly and the claimant was standing outside the metalled portion of the road. He further states that the accident took place due to the mistake on the part of the driver. There is no evidence to the contrary and it can, therefore, be safely concluded that the accident took place due to the rash and negligent driving of the truck by the driver.

32. The claimant has claimed compensation to the extent of Rs. 1,00,000/- and interest at the rate of 13 per cent per annum from the date of the institution of this petition with costs. Now, the question arises as to what just compensation the claimant is entitled. He claims compensation on account of bodily injury received by him which has resulted in the amputation of both of his legs just at the place where foot ends. It is well settled that in disablement cases compensation has always to be higher than even in cases of death since it is given to the living victim of the accident both for his personal loss and for economic loss. It can be said that the bodily injury is to be treated as a deprivation which entitled the victim to claim damages which vary according to the gravity of the injury. Further, due to this injury, there can be loss of earnings completely or partial due to the accident on his capacity to earn the same. Another consequence may be the loss he suffers on account of the enjoyment of life or full pleasures of living.

33. Decisions like Babu Mansa v. Ahmedabad Municipal Corporation Ahmedabad 1978 ACJ 485 (Gujarat), Ranjitsingh Gopalsingh v. Meenaxiben (1972) 13 GLR 662, Bharat Premjibhai v. Municipal Corporation, Ahmedabad, 1979 ACJ 264 (Gujarat) and Amul Ramachandra Gandhi v.Abhasbhai Kasambhai Diwan 1979 ACJ 460 (Gujarat), are some of the many cases which throw light on principles involved in cases of personal injuries and the mode of the calculation of compensation in such cases. Suffice it is to refer to the last case mentioned above.

34. In this case, the injured victim, a young boy (12), sustained injury to his right foot when it was crushed under the front left wheel of the vehicle. The right foot of the victim had to be amputated from above his ankle. It was found that the victim had suffered 20 per cent disability. The learned Judge of the Division Bench assessed the damages for pecuniary loss under two categories-one negative and other positive. In the first category fell the deprivation of earnings or other items which would have been received but for the accident and had been taken away. In the second category fell the burden of expenses required to be incurred as a result of the accident. For the assessment under the first Sub-head, an estimate of the probable future earnings, had there been no accident and the actual earning power after the accident has to be made and the difference between the two is the loss of earning capacity which will have to be justly compensated. Keeping in view the factors like reduced eligibility for employment or loss of chances of favourable employment and loss of career will have to be considered. The Bench felt that it was not easy to make such an estimate in the case of a young boy about whose prospective earning and probable loss one has only to make an estimate-often a very rough estimate- based purely on guesswork, as there are several uncertainties and imponderables involved. Under the second head, the new burden of expenses to be incurred, as a result of the accident, the cost of medical expenses, if any, which the injured may be required to incur in future and his need of nursing and constant attendance and extra nourishment, if any, have to be taken into account. The court found in this case that the total probable income of the victim had been assessed at Rs. 300/- per month by the Tribunal and on the basis of the 25 per cent permanent disability, the prospective pecuniary loss was taken at Rs. 75/- per month and the net figure arrived at was Rs. 900/- per year and by applying the multiplier of 15 years, the net figure of Rs. 13,500/- was found payable to the claimant on the head of loss of prospective income but the court observed that the Tribunal erred in principle in ignoring altogether the second Sub-head of loss in not awarding any compensation to the claimant. Besides, the assessment of the Tribunal in respect of the loss of earning capacity of the claimant was based on a gross under-estimate. It was further observed by the court that the best method to adopt would be to make a global assessment under both the Sub-heads and to award compensation for pecuniary loss taking into account all the relevant factors. The eligibility of the victim for employment in future due to the accident was obviously to be reduced because of the injuries suffered by him. It was held that as compared to an able-bodied person, the chances of the victim of accident were obviously reduced due to the handicap. Further, the artificial limb of the victim will have to be replaced from time to time as the claimant grew in age. The victim would constantly need some attendance besides periodical expenditure on new crutches. Needless to say that expenditure on medicines and nourishment will be needed by the claimant. Taking into consideration these factors, the Division Bench estimated the pecuniary loss of the appellant at Rs. 250/- per month and on that basis calculated the annual loss at Rs. 3,000/- and applying the multiplier of 15 years, the pecuniary loss was estimated at Rs. 45,000/-. So far as the pain and suffering is concerned, the boy aged 12 years had got his right foot amputated above the ankle. In order to ascertain the amount of compensation payable for such pain and suffering by the victim on account of his right foot, it was observed that the victim will have to suffer social discomfiture and will have to give up many pleasures, amenities and enjoyment of life. On pain and suffering, the court found Rs. 25,000/- to be the just and proper compensation keeping in view the fall in the value of money and the larger number of years the victim can live as compared to an old man.

35. Keeping in view the principles relevant in cases like the present one, the just compensation payable to the victim in this case has to be assessed. It is a case of personal injury not resulting in the death of the victim but he is to be compensated for the loss suffered by him which will render him completely a helpless cripple for the rest of his life. He is a burden not only to himself but to the whole family. It is a case where the victim has to spend the rest of his life in misery and in a state of complete helplessness as to his movement and living.

36. Heads of damages maybe divided into two groups, namely, (1) those capable of calculation in terms of money, commonly known as pecuniary loss, and (2) those that cannot be easily assessed with accuracy, known as non-pecuniary loss. Pecuniary loss is the loss suffered by the victim due to the loss of earnings or other profits which he had been earning and was to earn in future at the same rate or at some more scale keeping in view not only the better avenues of promotions and earnings but also risks to life. This aspect of the assessment can be made easily by taking into consideration at least the monthly income the claimant had been earning if there is no evidence as to the future chances of better earnings. Regarding the loss under the second head, damages may be awarded for pain and suffering, loss of amenities and loss of enjoyment of life and it may not be necessary to trace out the exact amount under each head. A global figure could be arrived at and paid as compensation under this head. In the present case, as the Tribunal has rejected the claim petition of the claimant, the exercise of arriving at this assessment has to be done by this court. It is in evidence, in this case, that the appellant is a complete cripple due to the amputation of his limbs. He moves on crutches. It is not possible for him to do either the work he had been doing or any other agriculture work. The disablement is cent per cent in this case. As said above, he is a cripple and has become a burden for himself and for others for the rest of his life. His wife appears to be completely shaken due to this happening to the head of the family. That is why she is stated to be not in good health. Children left their studies. Little holdings to the extent of 1 1/2 bighas appear to have been mortgaged for medical expenses. This accident has completely ruined the family which was otherwise living reasonably with monthly income of Rs. 650/-, besides, some more from the agriculture and animal husbandry. It is not possible to look for any other source of income as no work can be done in such a state of physical frame. There is, therefore, loss of future income and amenities of life, besides, loss due to pain and suffering. Although there is no evidence as to the longevity in the family of the claimant, but he is an agriculturist, rears milch cattle and does manual work. Such a person, normally and reasonably, lives a long life and in this case the same can be estimated between 60 and 65.

37. The claimant states that he was earning monthly salary of Rs. 650/- besides rearing milch cattle and doing agriculture work. It has not been stated as to how much income the claimant was earning out of rearing milch cattle and doing agriculture work. Therefore, in the absence of evidence, the only exact figure is Rs. 650/-, the appellant was earning from the B.S.L. Project. So the compensation has to be assessed on the basis of this figure without deducting any amount usually deducted in cases of fatal accidents. In this way, the total payable compensation under this head would be Rs. 650 X 12 X 15 = 1,17,000/-. As far as the non-pecuniary damages for shock, pain and suffering and for loss of amenities of life are concerned, looking to the age of the claimant, instead of dividing the amount under different heads, global amount of Rs. 15,000/- is awarded although the latest trend of decisions show increase beyond Rs. 25,000/-. So far as medical expenses are concerned, although the claimant has stated that he incurred expenditure on this account and purchased medicines, in addition to those he got free of cost and travelled in connection with his ailment. It is also pointed out that he mortgaged his 1 1/2 bighas of land for Rs. 10,000/- but did not produce any evidence in the form of cash memos or certificate from the concerned doctor or chemist, but he definitely spent money in this connection. Under this head, an amount of Rs. 3,000/- is awarded. Thus the total of all these amounts comes to Rs. 1,35,000/-.

38. The appeal of the claimant is accepted to the aforesaid extent and the amount will be paid by respondent Nos. 1 and 3 with interest at the rate of 12 per cent per annum from the date of the filing of the claim petition to the date of the payment to the claimant or deposit in this court. The cost of this appeal is assessed Rs. 1,000/-.