Hansraj and ors. Vs. Neelam Chopra and ors. - Court Judgment

Prithpal Singh, J.

1. An accident took place on December 23, 1978 at about 11.30 a.m. at the crossing of sectors 34/35, 43/44 at Chandigarh in which the scooter driven by the deceased Mohan Lal Suri and the truck driven by Shri Chand respondent were involved. Neelam Chopra was sitting on the pillion seat of the scooter. As a result of the accident Mohan Lal Suri died at the spot and Neelam Chopra sustained injuries. The truck belonged to Hans Raj respondent and it was insured with the New India Assurance Company. The truck was financed by the Punjab and Sind Bank. In the wake of the accident two separate claim petitions under Section 110-A of the Motor Vehicles Act were filed against the aforesaid Shri Chand, Hans Raj, New India Assurance Company and Punjab and Sind Bank; one by Smt. Maina Wati and Sunita Suri, mother and sister respectively of the deceased Mohan Lal Suri and the other by the injured Neelam Chopra. Both the petitions, having arisen out of the same accident, were tried jointly by the Motor Accident Claims Tribunal, Chandigarh.

2. The case of the claimants before the Tribunal was that the accident had taken place due to the rash and negligent driving of the truck driver Shri Chand. This was denied by Shri Chand and Hans Raj respondents. According to them the negligence on the part of the deceased Mohan Lal Suri had resulted in the accident. They also challenged the right of the deceased's sister to claim compensation. The Insurance Company toed the line of the Insurer Hans Raj, owner of the truck, and pleaded that in any case its liability is restricted to Rs. 50,000/- in each of the two cases. The Punjab and Sind Bank denied its liability to pay any compensation due to the accident. The Bank contended that simply because it had financed the truck no liability for payment of compensation can be fixed on it.

3. The Tribunal, on appraisal of evidence, held that the accident was attributable to the rash and negligent driving of the truck driver Shri Chand. The sister of the deceased Mohan Lal Suri, namely Sunita Suri was found entitled to claim compensation on account of her brother's death. She and Smt. Maina Wati, mother of the deceased, were granted compensation of Rs. 2,00,000/- against all the four respondents. Neelam Chopra was also awarded compensation of Rs. 1,00,000/- against the respondents. In both the cases interest at the rate of 10 per cent per annum from the date of application till realization was allowed on the amounts of compensation. The liability of the Insurance Company was declared limited to Rs. 50,000/- in each case.

4. From these two awards of the Tribunal four appeals have arisen; two filed by Shri Chand, Hans Raj and the Insurance Company and the other two by the Punjab and Sind Bank (F.A.O. Nos. 177, 260 of 1983 and F.A.O. Nos. 272 and 273 of 1983 respectively). In these appeals the two awards of the Tribunal granting compensation to the mother and sister of the deceased and to the injured Neelam Chopra have been assailed. The claimants have also filed cross-objections in all the four appeals. Common questions of fact and law being involved in all the four appeals and the cross-objections the same are being decided together.

5. The foremost question for determination is as to who was responsible for the accident. Admittedly, the deceased Mohan Lal Suri was going on bis scooter from the side of Attawa and was proceeding towards Burail. The truck driven by Shri Chand came from the side of Aroma Hotel. Both the vehicles collided at the crossing of Sectors 34/33-43/44. Neelam Chopra claimant who was sitting on the pillion seat of the scooter appeared as PW 8 and gave description of the accident. She stated that dome drums were placed in the middle of the crossing. When the scooter had crossed the drums, the truck driven at a high speed came from the side of Aroma Hotel and hit the scooter. The deceased Mohan Lal Suri fell down with the impact whereas she herself was dragged along with the scooter by the truck upto a distance of 40 yards. The statement of Neelam Chopra was supported by the two eye-witnesses, namely. Nanu (PW 6) and Mohinder Singh (PW 7). Both of them stated that the scooter was being driven at a moderate speed and had covered more than half of the area of the crossing when the truck came to the crossing from the side of Aroma Hotel at a very fast speed and it hit the scooter. They corroborated the statement of Neelam Chopra that Mohan Lal Suri fell on the ground due to the accident and Neelam Chopra along with the scooter was dragged by the truck upto a distance of about 35 to 40 yards. The statements of these two witnesses were recorded on December 13, 1979. Subsequently, on the prayer of the appellants, Nanu (PW 6) was recalled for further cross-examination after a lapse of about 21/2 years. He was allowed to be further cross-examined on May 6, 1982. This further cross-examination was necessitated because in the meantime the driver of the truck had been prosecuted in a criminal court for causing the death of Mohan Lal Suri by his rash and negligent diving, and in those proceedings Nanu (PW 6) had appeared as a prosecution witness. By that time, apparently, be had been won over by the truck driver which becomes obvious from the fact that as a prosecution witness in that case he changed his story completely and stated that the truck was coming at a slow speed and that the deceased Mohan Lal Suri bad caused the accident by his negligent driving of the scooter. When he was further cross-examined, he reiterated his later statement made in the criminal court and declared that his earlier statement recorded by the Tribunal on December 13, 1979 was wrong. Evidently, this witness had changed his version after a lapse of more than two years simply to help the driver in the criminal trial. I am convinced that the earlier version of the accident given by him before the Tribunal supporting the statement of Neelam Chopra (PW 8) portrayed the true state of affairs. Even if on account of his later resiling from the earlier statement, the evidenciary value of his statement is rendered doubtful, there is still the testimony of the other eye-witness Mohinder Singh (PW 7) who had categorically deposed that the accident had taken place due to the rash and negligent driving of the truck driver. The learned appellants' counsel drew my attention to Exhibit R-2 which is a copy of the statement supposedly given by Mohinder Singh (PW 7) in the aforesaid criminal trial. Relying upon the contents of Exhibit R. 2 the learned Counsel contended that Mohinder Singh (PW 7) had also resiled from his earlier statement which he made before the Tribunal when he appeared in the criminal trial. The learned claimants' counsel objected that since Mohinder Singh (PW 7) had not been confronted with the statement Exhibit R. 2, this statement recorded in the criminal case cannot be used as evidence in this case. I find that this objection is well founded. In the light of Section 145 of the Evidence Act. Exhibit R. 2 not having been confronted to Mohinder Singh (PW 7), cannot be used as evidence. The requirement of Section 145 is that the portion of the statement by which a witness is sought to be contradicted, must be put to him unless that is done the contradictory statement would not be read in evidence. I am supported in this view by an earlier judgment of this Court in Jagan Nath v. Ganesh and Ors. 1981 ACJ 483.

6. The driver and the owner of the truck produced Joginder Singh (RW 3) and Surinder Gupta (RW 4) who stated that they had witnessed the accident. According to them the accident had taken place due to the negligent driving of the deceased Mohan Lal Surl. The testimony of these witnesses has been rightly rejected by the Tribunal. Manifestly their presence at the time of accident is extremely doubtful. Assistant Sub-Inspector Sandal Singh (PW 10) who reached the spot soon after the accident stated that only Nanu (PW 6) and Mohinder Singh (PW 7) were present and their statements were recorded by him as the eye-witnesses. He does not speak of the presence of Joginder Singh (RW 3) and Surinder Gupta (RW 4) and it was not even suggested to him that these two persons had also witnessed the occurrence. Mo reliance can, therefore, be placed on the testimony of these witnesses.

7. The testimony of the claimant Neelam Chopra (PW 8) is also supported by the photographs taken by the Photographer Samma Singh (PW 12). The Photographs Exhibits P. 3, P. 6, P. 11 and P. 12 clearly show that the deceased had almost passed the crossing, and had already crossed the drums which were lying in the middle of the crossing, when the truck hit the scooter. The brake-marks indicate that the truck was being driven at a very high speed and it was stopped after a substantial distance bad been covered by it after the accident. These photographs fully support the case of the claimants that the speed of the truck was so fast that the driver was not able to stop the vehicle at once when it hit the scooter.

8. It is significant to note that the accident took place at a crossing. A duty is imposed upon the driver of a motor vehicle by Regulation 6 of the Tenth Schedule of the Motor Vehicles Act to slow down when approaching a crossing and not to enter it until he has become aware that he can do so without endangering the safety of the persons who are already on the crossing. This Regulation has been clearly violated by the truck driver. It is proved from the statement of Neelam Chopra (PW 8), supported by the photographs Exhibits P. 3, P. 6, P. 11 and P. 12, that the scooter driven by the deceased had already entered the crossing. Neelam Chopra stated that the truck was about 40 yards away from the crossing when the scooter had already entered the crossing. In such a situation it was incumbent upon the truck driver to have slowed down before entering the crossing and to let the scooter pass. What 1 find here is that unmindful of the presence of the scooter the truck driver entered the crossing at a great speed, and hit the scooter. I, therefore, find no infirmity in the finding of the Tribunal that the accident had been caused due to rash and negligent driving of the truck driver Shri Chand.

9. The contention of the appellants that Sunita sister of the deceased, is not entitled to claim compensation has merit and deserves to be accepted. It has been held by a Full Bench of this Court in Parkash Chand and Ors. v. Pal Singh and Ors. 1985 PLR 538 that brothers or sisters of the deceased are not his dependents. It was further observed that an estate of a Hindu is inheritable in accordance with the provisions of the Hindu Succession Act. Section 8 of which deals with the intestate succession to a male. According to this Section, brothers and sisters fall in category (b). By virtue of the said Section, person falling in category (a) excludes the persons mentioned mentioned in category (b). As such in the presence of successors of category (a), the brothers or sisters could not even lay claim to the estate of the deceased and, therefore, could not be considered to be such legal representatives as could file an application for compensation in terms of Section 110-A of the Motor Vehicles Act. In the present case the mother of the deceased belongs to the category (a) of the successors and in her presence the sister is incompetent even to lay claim to the estate of the deceased. It is, therefore, plain that Sunita Suri is not entitled to claim any compensation from the appellants on account of the death of her brother.

10. The next point for consideration is whether the Punjab and Sind Bank who had financed the truck involved in the accident is liable to pay compensation. The answer must be in the negative. The Bank was simply a Financer of the truck and it had no control whatsoever on the vehicle. The vicarious liability to pay compensation would be that of the employer of the truck driver and not the Financer unless the control of the vehicle was with the Financer. The Tribunal was, therefore, clearly in error in making the Bank liable to pay compensation. In this view 1 am supported by an earlier judgment of this Court in Zabar Singh v. Prithi Chand and Ors. PLR 240. The learned claimants' counsel placed reliance on a judgment of this Court in Tulsi Ram v. Shri Pritam Singh and Ors. F.A.O. No. 128 of 1968 decided on March 31,1971. However, this judgment is inapplicable to this case. In that particular case the Financers were in control of the vehicle and bad insured the same claiming to be its owners. The Financers were referred to as owners in the Insurance Policy. In those peculiar circumstances it was held that the Financers were liable to pay compensation. Evidently, the facts of the present case are quite different and it is not even suggested that the Punjab and Sind Bank were in control of the vehicle at the time of accident. Thus simply because the Bank had financed the truck, it would not make them liable to pay compensation to the claimants.

11. I will now take up the controversy regarding the quantum of compensation. The Tribunal, as stated earlier, has granted compensation of Rs. 2,00,000/- to the mother and sister of the deceased and Rs. 1,00,000/- of Neelam Chopra (PW 8) who was injured in the accident. It is contended on behalf of the appellants that the amounts of compensation allowed by the Tribunal are highly excessive. In my view this grievance is not without merit.

12. So far as the compensation which should be granted to Smt. Maina Wati due to the death of her son Mohan Lal Suri is concerned, it is the claimants' own ease that the monthly income of the deceased was Rs. 700/-per month. Didar Singh, employer of the deceased, appeared as PW 3 and deposed that the deceased was working with him as an electrician on a salary of Rs. 450/- per month. The claimant Smt. Maina Wati as well as Bishamber Nath (PW 14), brother of the deceased, stated that besides this salary the deceased used to earn extra Rs. 250/- per month from private jobs. There is no rebuttal to this testimony. The deceased was a bachelor and his mother Smt. Maina Wati was dependent on him. He was about 25 years old at the time of accident and it can be fairly assumed that he would have got married within a few years. Till he was married he would probably have spent a large portion out of his income upon his mother but after the marriage the dependency of the mother would have been considerably reduced. It would, therefore, be fair to quantify Rs. 250/- per month as dependency of the mother which comes to Rs. 3,000/- per year. Applying the normal multiplier of 16 the amount of compensation to Rs. 48,000/-. However, in order to round off the figure it will be reasonable to allow a compensation of Rs. 50,000/- to her.

13. Now taking the case of claimant Neelam Chopra (PW 8), there is no dispute that she suffered loss of salary to the extent of Rs. 3,000/- on account of the accident. Harish Chander (PW 4) stated that Neelam Chopra was working as a clerk in the Printing and Stationery Department of Haryana at a monthly salary of Rs. 380/-. She remained on leave from December 26, 1978 to to October 25, 1979 and during this period she was on leave without pay for 21 days in February, whole of March and 20 days in April 1979. For the remaining period she was paid half salary. In this way she had indeed suffered a loss of Rs. 3,000/-. The Tribunal allowed Rs. 10,000/- to her as medical expenses and I see no reason to interfere with this finding. Dr. V.P. Bansal (PW 13) informed that Neelam Chopra was admitted in the P.G.I., Chandigarh, on December 23, 1978 and was discharged on February 11, 1979. Follow up treatment continued even thereafter. The doctor stated that Neelam Chopra had sustained following injuries:

(1) Fracture of the left humerus.

(2) Fracture of pelvis.

(3) Subtrochanteric fracture of the left femur.

(4) She had crushed injury of both feet and these injuries on both feet were compound.

He further added that due to the injuries suffered by Neelam Chopra her leg was shortened by 1' and permanent deformity of her great toe of the left foot has been caused. Considering the nature and extent of the injuries suffered by Neelam Chopra, evidently she must have undergone a great deal of pain and suffering. What is more, her permanent disabilities mentioned above would crutail her enjoyment of life. There can be no precise measure of determining the amount of compensation for the pain and suffering undergone by her and the consequent deformity to which she has been subjected on account of the accident, but taking an overall view of the circumstances she should be granted in all compensation of Rs. 50,000/- including the loss in pay and medical expenditure. The compensation quantified by the Tribunal is unreasonably excessive.

14. As a result of the aforesaid, the two appeals filed by the Punjab and Sind Bank (F.A.O. Nos. 272 and 273 of 1983) are allowed and both the claim petitions against the Bank are dismissed. The two appeals filed by the driver Shri Chand, the owner of the truck Hans Raj and M/s New India Assurance Company Limited are also partly allowed. The claim petition of Sunita Suri stands dismissed. The claimants Maina Wati as well as Neelam Chopra will now get Rs. 50,000/- each as compensation from these three appellants besides interest at the rate of 12 per cent per annum from the dates of their respective claim petitions upto realization of the amounts awarded to them. There will be no order as to costs. The cross-objections filed by the claimants also stand dismissed.