Dinanath And Anr. vs Des Raj And Anr.
1989 Latest Caselaw 264 Del

JUDGMENT

S.B. Wad, J.

1. This appeal is filed by Dina Nath, the owner of offending vehicle No. DLG 9246 which caused multiple injuries to the petitioner Des Raj (here respondent No. 1) in an accident caused on 16th December 1968 on Najafgarh Road. Appellant No. 2 is the M/s Premier Insurance Co. Ltd. which is no more in existence after the nationalization of the insurance companies.

2. The Tribunal held that the accident was caused due to rash and negligent driving by the said truck No. DLG 9246 and awarded a sum of Rs. 32,000/- as compensation. The injured/claimant was 46 years old at the time of accident and his income was Rs. 225/- per month. He was working with one Modern Electrical Manufacturing Corporation. It is an admitted fact that after the accident, he was not taken up on duty by the manufacturer.

3. After the accident the injured claimant was taken up to Willingdon Hospital in an unconscious state. Dr. K.N. Jain, who attended on him had found that he was bleeding from his left ear and nostrils and had a wound in the skull region. He had also a fracture of right clerical and compound fracture of both bones of left leg. He was discharged from the hospital on 6th January 1969. According to the claimant after the discharge from Willingdon Hospital he went to Meerut and continued the treatment there for about eight months. On his return from Meerut, he started the treatment from Orthopaedic Department of Tirth Ram Hospital. He claimed that even after six or seven years he is not completely cured. He had lot of difficulties in standing and doing other activities. He had developed abnormal behavior also. One Dr. T.R. Chadha, who had allegedly examined the claimant in Willingdon Hospital on 20th December 1968, he said that the injured was under plaster and practically unconscious. After five/six months he again examined him and he found that apart from the physical infirmities of vertigo and shortening of leg he has suffered in his mental abilities and has become schizophrenic.

4. The evidence of Dr. T.R. Chadha is strongly attacked by the counsel for the appellant. It is stated that Dr. Chadha was only a Homeopathic doctor and was not working in Willingdon Hospital at all. It was also stated that he has exaggerated the ailments from which the injured was suffering. It was also stated that PW-11 who had brought the record of the Willingdon Hospital had not stated that Dr. Chadha was working in Willingdon Hospital at the relevant time. However, no such question has been put to Dr. Chadha in the cross-examination. Even his diagnosis and state of injury of the claimant is not challenged in the cross-examination. Even if the evidence of Dr. Chadha is ignored for the time being, evidence of Dr. K.N. Jain of Willingdon Hospital is quite convincing and would show the seriousness of injuries received by the injured claimant. From the nature of injuries described by him, it is possible that due to trauma the petitioner had lost his normal mental composure and also had his leg permanently infirmed.

5. Having seen this medical evidence and the nature of injuries, we may now go to the main contention of the appellant. According to the appellant the injured himself was responsible for the accident because while turning on Najafgarh Road he did not watch out the truck coming from the distance. But this story is not supported by any evidence at all. In fact no evidence was produced by the appellant in the Tribunal; even the driver was not examined. It is a submission of the appellant that the driver was the relative of PW -4, one of the eyewitnesses, and, therefore, he did not prefer to appear for the appellant. The driver was himself one of the respondents and he preferred not to appear after service of notice. In these proceedings the finding of negligence has to be recorded on preponderance of probabilities, therefore, both, the appellant and the respondent, must lead appropriate evidence in support of their claim. The appellant, therefore, cannot merely press that the eyewitnesses were chance witnesses or their version of the accident is unreliable. There should be positive evidence. I have gone through the evidence of the eyewitnesses in detail and I find that the Tribunal's assessment on their evidence is correct. They have fully supported the version of injured claimant. I, therefore, hold that the appellant Dina Nath is liable to pay the compensation in this case as awarded by the Tribunal.

6. The claimants have filed cross objection requesting for payment of compensation of Rs. 50,000/-. It is submitted that the Tribunal's award of Rs. 5,000/- towards general damages is too much on the low side and at least Rs. 20,000/- ought to have been awarded for the pain, suffering and agony suffered by the claimant. The effect of injuries was loss of salary for ten years and the Tribunal has correctly awarded Rs. 24,000/- towards the said loss. The pain and suffering of a person in the accident, if reflected in loss of means of livelihood. In the matters of giving just compensation, the Tribunal should consider that aspect as more important, which the Tribunal has done in the present case. I do not, therefore, think that the payment of Rs. 5,000/- towards pain and agony is not an adequate sum. Claimant had also claimed Rs. 10,000/- towards medicine, conveyance and special diet etc. The Tribunal has awarded Rs. 3,000/- on this account. It is an admitted fact that the injured claimant received most of his treatment in Government hospital and charitable hospital. Considering this fact the amount of Rs. 3,000/- awarded to wards these special damages is proper.

7. For the reasons stated above the claimant is entitled to Rs. 32,000/- towards compensation and six per cent simple interest on the said amount from March 1979 till date. By order dated 13th of February 1980, this Court had directed the appellant to deposit the sum of Rs. 32,000/- with the Tribunal and had given further directions regarding withdrawal of the amount by the injured claimant. If the amount is so deposited and it has been withdrawn by the injured claimant, the appellant would be entitled to get credit of the said amount as well as proportionate interest. If, as ordered by this Court, the claimant had furnished a bank guarantee and/or security before the Tribunal, the same will be stand discharged.

8. Both the appeal (F.A.O. 141/79) and the cross objections (C.M. No. 1399/80) are dismissed. There will be no order as to costs.