Pepsu Road Transport Corporation, Patiala Vs. Qimat Rai JaIn and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 3. the tribunal clearly feel in error in imputing contributory negligence to the claimants. it is now well settled that the driver of a bus while over-taking or crossing another vehicle must keep in mind the normal tendency of a passenger sitting near a window to have his arm resting on it and may be even protruding out a little and he must, therefore, take care to leave sufficient space between his vehicle and the other so that no harm or injury is caused to such passenger. the story of the truck driver regarding the cart which, it is said, the bus was trying to overtake is also clearly an afterthought in that no mention of it was made in the written statement. now with this limitation, he would obviously feel difficulty in writing by having to learn to write with his left hand and so for things like driving a scooter or a car that must clearly be out of question.two passenger qimat rai jain and prashotam dass jindal, while travelling in the bus puv-2102 had their right arms completely cut off, when the truck puj-6628 coming from the opposite direction, grazed against the right side of the bus while passing it. both these passengers were sitting near one of the windows of the bus on the right, with their right arms resting on it. this happened on the grand trunk road near village chackoki in the area of police station phagwara on may 5, 1974.2. the tribunal held this to be a case of contributory negligence with all the parties involved therein namely the drivers of the bus and the truck as also the tow claimants being equally to blame. after making due allowance on this account, a sum of rs. 34,000/- was awarded as compensation to quimat rai jain and rs. 23,500/- to parshotam dass jindal.3. the tribunal clearly feel in error in imputing contributory negligence to the claimants. it is now well settled that the driver of a bus while over-taking or crossing another vehicle must keep in mind the normal tendency of a passenger sitting near a window to have his arm resting on it and may be even protruding out a little and he must, therefore, take care to leave sufficient space between his vehicle and the other so that no harm or injury is caused to such passenger. a precedent for this is provided by my judgment in f. a. o. no. 292 of 1977 (prem devi v. harbhajan singh) decided on october 25, 1982*, which was a similar case of a claimant losing her arm protruding out of the window of the bus she was travelling in, when the bus while passing a stationary bus struck against it. the question posed was 'is a passenger travelling in a bus with his/her arm projecting outside the body of the bus, while resting it on the window thereof to be denied compensation for the injuries caused to such arm by the bus not leaving sufficient space while crossing or going past a vehicle or building'. following sushma mitra v. m. p. state road transport corporation, 1974 acc cj 87: (air 1974 madh pra 68) and chaturji amarji v. ahmad rahimbux, 1980 acc cj 368: (1979 cri lj 107) (guj), it was held that the accident in such a case must be attributed wholly to the rash and negligent driving of the bus driver. it followed, therefore, that no contributory negligence can be attributed to the claimants here.4. as regards the drivers of the bus and the truck, there can be no manner of doubt that they were both rash and negligent and that too equally so.5. both the bus driver as also the driver of the truck blamed each other for the accident. according to the bus driver, the truck had come on to the wrong side of the road when it hit into the bus; whereas the truck driver stated that the bus was trying to overtake a cart when it came and hit into the truck. neither of these versions is supported by either the claimants or the other witnesses examined by the claimants. the story of the truck driver regarding the cart which, it is said, the bus was trying to overtake is also clearly an afterthought in that no mention of it was made in the written statement.6. the witnesses examined by the claimants in both these cases testified to the rash and negligent manner in which both the bus and the truck were being driven at the time of the accident. they denied at the time of the accident. they denied the suggestion that there was any cart which the bus was trying to overtake or that the truck had come on to the wrong side and hit into the bus. the circumstances in which, the accident occurred, in the light of the evidence on record, leads to the irresistible conclusion that the accident here took place dur to the negligence of the two drivers and consequently both the driver of the bus as also that of the truck must be held equally liable.7. next to consider is the compensation payable to the claimants for the injuries suffered by them., both the claimants suffered a similar injury namely, amputation of their right arm. loss of the right arm would indeed be a severe handicap both to the daily life of the claimants as also in their respective careers. the statement of the claimant prashotam dass jindal that on account of this loss he was handicapped in the discharge of his duties cannot, therefore, be questioned. now with this limitation, he would obviously feel difficulty in writing by having to learn to write with his left hand and so for things like driving a scooter or a car that must clearly be out of question. in such circumstances this injury must inevitably adversely effect his career.8. there can be no precise or exact measure of the amount which can really compensate the claimants for the disability, loss of amenities and pain and sufferings such an injury must result in. the guidelines in such matters are usually provided by the amount awarded as compensation for similar injuries. a relevant precedent here is the judgment of the high court of andhra pradesh in a. p. state road transport corporation v. dodda somanyjuly sitaramamurty, 1983 acc cj 44: (air 1982 andh pra 436). this was a case of amputation of the right hand. the injured was an assistant engineer, aged 56 years, who was drawing a salary of rs. 1300/- per month. a sum of rs. 45,000/- was awarded to him as compensation for the handicap caused thereby in his day-to-day life and work, for loss of earning capacity, medical expenses and pain and sufferings.9. keeping in view the comparatively younger age of the claimant here, a somewhat larger amount deserves to be awarded to the claimant parshotam dass jindal. an award of rs. 50,000/- would thus be just and reasonable.10. as regards qimat rai jain, it has come on record that as a result of the injury suffered by him in the accident, his services as a manager of the firm he was working with were terminated. he was being paid a salary of rs. 400/- per month as manager and now he was working on a lower post, where his salary was only rs. 150/- per month. in other words, there is definite evidence here of loss of earning besides the other disabilities of the same nature as in the case of the other claimant parshotam dass jindal. qimat rai jain was 35 years of age at the time of the accident. considering the circumstances of this claimant, he too deserves to be awarded a similar amount as compensation.11. in the result, both the claimants qimat rai jain and parshotam dass jindal are hereby awarded a sum of rs. 50,000/- each as compensation which they shall be entitled to along with interest at the rate of 12 per cent per annum from the date of the application to the date of the payment of the amount awarded. the liability for the amount awarded shall be joint and several of all the respondents including the respondent insurance company.12. both the appeals are consequently hereby dismissed, while the cross-objections are accepted to the extent indicated above. the claimants shall be entitled to their costs in these proceedings. counsel's fee rs. 300/- in each case.14.order accordingly