New India Assurance Co. Ltd. vs Sunil Kumar And Ors.
1995 Latest Caselaw 728 Del

JUDGMENT

C.M. Nayar, J.

1. The present judgment will dispose of F.A.O. No. 179/82 as well as Cross Objections, C.M. No. 3317/82 filed by the respondent/claimant. The brief facts of the case are that Sunil Kumar, aged about 22 years was driving the Ambassador car bearing Registration No. UPH 6922 going from his residence to Nangloi at about 9.30 a.m. on 27th June, 1973. When he reached Ring Road, Oil Tanker bearing Registration No. DHG 728 driven by respondent No. 2, Suraj Prasad and owned by respondent No. 3 came from the opposite direction at a fast speed without blowing any horn and dashed against the car of the respondent/claimant. It was alleged that the tanker came at such high speed that its driver could not control it even after the impact and stopped it at some distance from the place of the accident and the respondent received multiple injuries on his body and his left hand received long and deep cut injuries. The respondent was removed to Delhi Nursing Home where he remained admitted as indoor patient for three days. The said vehicle was insured with appellant Insurance Company. The claim for compensation was made in the sum of Rs. 50,000/-. Respondent No. 2 was proceeded ex-parte vide order dated 11th April, 1974. It was alleged that respondent/claimant must have obtained claim for damage to the car from the Insurance Company with which it was insured. On merits, the facts about the driver, owner and Insurance Company were not denied. The factum of accident was admitted but it was denied that it was due to rash and negligent driving on the part of respondent No. 2. It was further pleaded on behalf of respondent 3 that maximum liability of the Insurance Company as regards damage to the car was limited to Rs. 2,000/-. The following issues were framed:

1. Whether the petitioner sustained injuries due to rash and negligent driving of vehicle No. DHG 728 on the part of respondent No. 1?

2. Whether the petitioner is entitled to recover any damages to the car, if so, its amount?

3. Whether the accident took place due to the contributory negligence of the petitioner, if so, its effect?

4. To what amount of compensation, if any, is the petitioner entitled and from whom?

Additional Issue Whether the New India Assurance Co. is not liable for the objections raised in the preliminary objections of the written statement?

2. The learned Judge on appreciation of evidence on record, particularly of PW 2 Roshan Lal who was eye-witness of the occurrence and the site plan Exhibit PW 5/1 came to the conclusion that the Tanker came to the wrong side of the road and thereafter hit against the car. It was for the driver respondent No. 2 to prove as to how he was not negligent to the accident and as to how the accident was inevitable and beyond his control. These averments have not been pleaded or proved. The Tribunal on the basis of the evidence held that the accident was caused due to rash and negligent driving on the part of respondent No. 2.

3. I have also perused the evidence and heard learned Counsel. The finding that the Tanker had come on the wrong side of the road and hit the car, is unexceptionable and supported by evidence on record. There is no evidence to the contrary to hold otherwise. I see no infirmity and illegality in the finding of the Tribunal. The same is accordingly affirmed. The respondent-claimant was held to be the owner of the car as on the date of accident and accordingly entitled to file the compensation application in respect of damage to the car. The liability of the Insurance Company in respect of the damage to the car by virtue of insurance Ex. RW 1/1 being extended to Rs. 50,000/-, the liability to pay the amount of Rs. 10,000/- which was awarded to the respondent on account of damage caused to the car in accident was held payable jointly and severally on the part of appellant and other respondents.

4. The learned Judge then assessed the amount of compensation as payable to the respondent on other heads. The respondent claimant received multiple abrasions on right hand, fore-arm and shoulder and lacerated wounds on the left elbow. The wounds had been stitched. The Tribunal noted that respondent had been discharged within three days which showed that he had not received any major injury and the injuries suffered by him were thus simple in nature. The claimant in this background was awarded a sum of Rs. 1,000/- on account of injuries sustained and Rs. 500/- for pain and suffering which was considered as reasonable and just. In the ultimate analysis and on the basis of evidence on record the learned Judge awarded the following compensation under the respective head:

        Damage to the car                                 Rs. 10,000/-
       Injuries sustained by                             Rs.  1,000/-
       the respondent
       For pain and suffering                            Rs.    500/-
       Expenses on medicines etc.                        Rs. 1,000/-
       Conveyance                                        Rs.   200/-
       Special Diet etc.                                 Rs.   400/-
       Total                                             Rs. 13,100/-
 

5. The respondent was also awarded interest @ 6% p.a and the claim was allowed in the above said amount with costs. The grounds raised in the appeal are meritless and there is no scope to interfere. F.A.O. 179/92 is accordingly dismissed.

6. The respondent-claimant has filed his cross objections and it is strongly contended that the accident was caused by the Tanker by coming on the wrong side and the respondent passed through a trauma as a result of the accident, he was treated in hospital for three days and suffered injuries including multiple abrasions and lacerated wounds. The injuries were held to be simple in nature but obviously the respondent suffered mental and physical shock, pain and suffering and the damages in the sum of Rs. 1,500/- cannot be held to be adequate in the facts and circumstances of the present case. The award under this head need to be revised. The sum of Rs. 7,500/- will meet the ends of justice and can be considered as just, fair and reasonable. The respondent-claimant is accordingly held entitled to the sum of Rs. 19,000/- which will indicate that the damages under the head as referred to above will now be Rs. 7500/-. The respondent/claimant shall also be entitled to interest on this enhanced amount @ Rs. 15% p.a. from the date of petition till realisation. The Appeal is dismissed and the Cross-Objections are allowed to the extent indicated above. The respondent/claimant shall also have costs assessed at Rs. 2,000/-.