JUDGMENT
I.S. Israni, J.
1. This writ petition has been filed in which interim compensation in a motor accident claim has been prayed to be given as palliative compensation for expenses required for examining witnesses on commission in USA
2. Briefly stated, a motor accident took place in January, 1988, in which petitioner No. 1, who had come to India from U.S.A to participate in peace march, received serious injuries. The peace march commenced from Sabarmati Ashram (Ahmedabad) on 4.12.1987. After crossing Jaipur, when the petitioner No. 1, along with petitioner No. 2, his mother, reached near village Lakher on way to New Delhi, where the peace march was to conclude at Rajghat, bus No. RMP 897, owned by non-petitioner No. 1, was going from Jaipur towards Delhi. The accident took place at about 1.30 p.m. It is said that the bus was driven rashly and negligently at a very high speed by the driver, which hit the petitioner No. 1 from behind, due to which he fell down on the road and became unconscious. Apart from several other injuries, his skull was crushed. He entered into a stage of coma. He was admitted at S.M.S. Hospital, Jaipur, on 8.1.1988, where three major operations were performed. The non-petitioner No. 1 paid Rs. 16,411.69 on account of some expenses for treatment of petitioner No. 1. The petitioner No. 1 could not come out from the stage of coma and he was advised to be shifted to Vadilal Sarabhai Hospital, Ahmedabad, as several hands were required to help him round the clock, which could not be possible at Jaipur. He was discharged on 11.2.1988 and was shifted to Ahmedabad by aircraft under medical supervision of expert doctors and admitted at Ahmedabad, on the same day. Even after treatment of more than one month at Ahmedabad, he remained unconscious and his period of visa was also expiring, besides the hardship of funds. Therefore, doctors and his well-wishers advised petitioner No. 2 to take petitioner No. 1 to their native place in U.S.A. for better treatment, where medical science is more advanced than in India. He was shifted to U.S.A from Ahmedabad on 22.4.1988 via Bombay by aircraft under supervision of Dr. Rajesh Chavada and all arrangements of life saving equipments and medicines were made during the journey. The petitioner No. 1 regained some consciousness after about 7 months’ period, after he was shifted to U.S.A and nearly ten months after the date of accident, but he has not been able to regain control over his organs and has also not regained his memory, power of reasoning and is not in a position to understand, obey the command, speak, write, sign or walk himself. He has further undergone two major operations in U.S.A. He has almost become handicapped and is still under continuous treatment of various specialists. The mother of petitioner No. 1 was working as teacher and drawing about $ 2,000 per month and now looks after petitioner No. 1 for full time with the help of two full professional nurses round the clock. Further, operations of his jaw and eye have to be performed. Therefore, petitioner No. 2 had no alternative but to leave her job of teacher for attending and looking after petitioner No. 1. The monthly expenses for his treatment, even now, are around Rs. 40,000/- per month in Indian currency. Two separate claim petitions have been filed in Motor Accidents Claims Tribunal at Jaipur for Rs. 2,02,36,000/- and Rs. 13,36,000/-. The petitioner No. 1 was working as carpenter and earning $ 2,000 per month, which is equivalent to about Rs. 28,000/- in Indian currency and was planning to study Architecture.
3. It is submitted by Mr. Parag Rastogi, learned counsel, that even though, in the petition, a prayer was made for grant of Rs. 11,00,000/- as an ad interim compensation on palliative ground for medical expenses on further treatment of petitioner No. 1, as all the funds of petitioner No. 2 have been completely exhausted and it is difficult to borrow further amounts from friends and well-wishers, for the present, he confines his prayer to grant of Rs. 1,00,000/- as interim compensation to meet expenses required for examining witnesses on commission in U.S.A It is submitted that summoning witnesses, including experts, medical experts and specialists, who are treating the petitioner as also certain other eye-witnesses will be very expensive and the petitioner No. 1 has no funds to bear the same. It is also pointed out by the learned counsel that Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. He, therefore, submits that the petitioner No. 1 is entitled to protect/save his life and become a normal citizen, for which he has to undergo legal procedure, which he cannot avail of in his peculiar circumstances. It is also pointed out that it will be difficult to manage such important medical experts/ specialists to come to India for giving evidence regarding the treatment and condition of the petitioner No. 1. Out of this amount, Rs. 50,000/- shall be required for meeting travelling expenses and rest of the amount for lodging and boarding and other ancillary expenses in U.S.A.
4. It is submitted by Mr. R.R.L. Gupta, learned counsel for non-petitioner No. 1, that under the provisions of Section 140 of the Motor Vehicles Act, 1988, the non-petitioner No. 1 was liable to pay only Rs. 12,000/-to the petitioner No. 1 on principle of no fault. However, the non-petitioner No. 1, on palliative ground, has already spent more than Rs. 16,000/- on the medical expenses of petitioner No. 1, while he was under treatment at Jaipur. It is also submitted that non-petitioner No. 1 has denied that the bus was driven rashly and negligently. It is also submitted that it is on account of petitioner No. 1 himself that the accident took place. Therefore, till the claim petition is settled, non-petitioner No. 1 cannot be saddled with any payment of compensation. It is also submitted that under the Motor Vehicles Act, there is no such provision under which any ad interim compensation on whatsoever ground can be paid to the petitioners. It is further submitted that before M.A.C.T., Jaipur, the petitioner No. 1 himself claimed Rs. 50,000/- as palliative compensation, while in this writ petition, Rs. 11,00,000/- have been claimed on the same ground.
5. I have heard both the parties and also gone through the documents on record. There is no doubt that on principle of ‘no fault’ as provided under Section 140 of the Motor Vehicles Act, 1988, the petitioner No. 1 was entitled to Rs. 12,000/- only from non-petitioner No. 1. So far as the contention of the learned counsel that the petitioner has claimed Rs. 11,00,000/- on palliative ground as interim compensation, it has already been stated by the learned counsel for the petitioners that he does not press to be awarded Rs. 11,00,000/- as interim compensation on palliative ground, but has confined his prayer to award an ad interim compensation to the extent of Rs. 1,00,000/- only, for which also he has offered to give surety to the satisfaction of the court. Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Law gives equal protection to all persons to knock at its door for getting justice. However, this right to life shall be meaningless and hollow, if a person, who is unable to bear the necessary expenses of legal procedure, is denied justice, merely because he is situated in unfavourable financial circumstances. The petitioners came to India to participate in peace march and petitioner No. 1 was involved in accident on the way when the bus belonging to non-petitioner No. 1 struck against him from the back. It is true that non-petitioner No. 1 has denied rashness or negligence on the part of the driver, who was driving the vehicle. Therefore, the petitioner No. 1 has to undergo necessary legal battle to prove the negligence of the driver, as alleged by him. However, it may be mentioned that a driver of a vehicle, while driving on highway, has to be cautious and careful while reaching villages and, more so, when he sees some persons walking on the road. It becomes incumbent on the driver to slow down the vehicle with a view to avoid any accident and to see that other persons, who are using the road by way of walking or going on in any other slower mode or vehicle, are not involved in any accident The petitioner No. 1 has also to meet with necessary expenses of all the witnesses, who may be required to depose regarding aspects of accident or medical treatment which is provided to the petitioner No. 1. There is no doubt that it will be almost impossible for petitioner No. 1 to bring all the medical experts from U.S.A and such other persons who were eye-witnesses of the accident to India for the purposes of examining them here. This will result in great injustice to the petitioner No. 1, who will be deprived of his right to life, merely because he cannot bear the expenses for the same.
6. This court has to consider the above aspect of the matter while deciding a petition under its extraordinary jurisdiction under Article 226 of the Constitution, even though there may be no specific provision in the Motor Vehicles Act, 1988 in this regard. What is required is to see that the petitioner No. 1 is able to produce his evidence, which he is required to do under the provisions of law before he can get his grievances redressed. Article 21, which guarantees the right to life and liberty, will be denuded of its significant content if the above-mentioned aspect is ignored. Conferment of right by legal provisions is futile and of no consequence to those, who have no means to avail of the benefits provided by such laws. Reference may be made to Amar Singh v. State of Himachal Pradesh 1986 ACJ 864 (HP). In this case, a person was injured in a motor accident, which resulted in disability in the leg and rendered unemployed. Claim was filed before the Workmen’s Compensation Commissioner and an application was filed before the High Court of Himachal Pradesh, stating that he had been assured by the Irrigation & Public Health Department that he will be given compensation, but nothing has been paid to him. It was found that the proceedings instituted before the Commissioner were not competent as the petitioner was not a workman and his only remedy was to institute a claim before the Motor Accidents Claims Tribunal and the Tribunal was directed to provide legal assistance to the petitioner so as to enable him to prosecute the case and the Tribunal shall also consider the application for condonation of delay. It was further directed that having regard to the undisputed facts of sustaining injury, the State was directed to make an ex gratia payment of Rs. 5,000/-, which shall be adjustable against the compensation, if any, to which the petitioner might be found entitled. In the case of Kalawati v. State of Himachal Pradesh 1988 ACJ 780 (HP), in which, on account of medical negligence, two patients died in Government hospital when they were administered nitrous oxide instead of oxygen during operation, a writ petition was filed, inter alia, with a prayer that respondents be directed to pay compensation to the petitioners in respect of the death of the two patients. A Division Bench of the High Court of Himachal Pradesh directed that petitioners be paid a sum of Rs. 50,000/- as ‘an ad interim measure’. It was also stated that this order will not preclude the petitioners from bringing the suit to recover appropriate damages from the State and its erring officials. The order for compensation passed is in the nature of palliative. It was further stated that the court cannot leave the petitioner penniless until the end of his suit as he may have to go through many appeals and execution proceedings. It was further pointed out that relying on Rudul Sah v. State of Bihar AIR 1983 SC 1086, this court under its writ jurisdiction is authorised to award reasonable sum by way of compensation as an ad interim or interim measure of palliative nature if, on the facts and in the circumstances of the case, its judicial conscience is satisfied that if the suits were to be filed to recover the damages, a decree would follow almost as a matter of course. In the matter ofJaram Singh v. State of Himachal Pradesh 1988 ACJ 1083 (HP), a woman was killed by negligence of P.W.D. employees. The husband of the deceased sought relief through the court. The respondents came forward with an unconvincing defence and the claim for relief was sought to be defeated by all possible means, some of which could not and ought not to have been adopted by the State and its subordinates and limbs. It was held that on the facts and circumstances of the case, it would be just and proper to direct the State Government to pay the petitioner ad hoc or ad interim compensation/ grant in a sum of Rs. 30,000/-.
7. From the facts and circumstances of the present petition, which have been briefly stated above, it is clear that the petitioner No. 1 is unable to defend himself, to protect his life on account of peculiar circumstances of the case and financial constraints, under which he is suffering. He has received serious injuries, some description of which has been already given above. The prayer of petitioner No. 1 to be given ad interim compensation on palliative ground to enable him to prove his case in a proper manner, touches the judicial conscience, inasmuch as, if he is provided some financial assistance, he will be able to prove his case to enable him to get any compensation to which he may be entitled by the provisions of relevant law. The petitioner No. 1 has also offered to give appropriate security to return the amount, if his claim is dismissed. In such circumstances, I am of the considered opinion that this court can come to the rescue of the petitioner No. 1, who is placed in such peculiar circumstances, as mentioned in the present petition.
8. It is, therefore, directed that the non-petitioner No. 1 shall deposit Rs. 1,00,000/-as ad interim compensation in the Motor Accidents Claims Tribunal, Jaipur before 14.9.1990 and the petitioners shall be entitled to draw this amount to utilise the same for expenses etc. for getting the witnesses examined in U.S.A on commission, on furnishing security to the satisfaction of the trial court. It is made clear that if the claim petition fails, the petitioners and the surety shall be liable to return the amount to the non-petitioner No. 1.
It is further directed that the Tribunal shall decide the case most expeditiously on priority basis keeping in view the condition and the medical aid required by the petitioner No. 1 to enable him to regain his health.
9. The writ petition is allowed, as mentioned above.