JUDGMENT
Bhawani Singh, J.
1. Appellant, Gulaba Ram, was working as beldar under Divisional Forest Officer, Bilaspur on daily wages since 1976. He preferred the present claim petition alleging that he was travelling in jeep No. HIB 99 from Namohal to Bilaspur. It was being driven rashly, negligently and at high speed by its driver Dandu Ram (deceased). It fell down nearly 120 feet from the road as a result of which the claimant sustained injuries on head and arm. He was shifted to Civil Hospital, Bilaspur where he remained from 21.9.1988 to 1.10.1988 whereafter due to the rush at the Hospital he was discharged and continued the treatment at Namohal Hospital for about two weeks and even thereafter the claimant is suffering from severe pain in head, weakness in eyesight and pain in the right hand, thereby disabling him from doing work properly. The further case of the claimant is that at the time of accident his age was 49 years and was earning Rs. 2,000/- from all sources. He has also claimed Rs. 8,000/-spent by him for his treatment. In his claim petition, the total amount of compensation to the extent of Rs. 2,00,000/- has been claimed.
2. On the other hand, the respondent claims exoneration by submitting that the petitioner got into the jeep at his request made to the driver and the accident took place due to mechanical defect and not because of rash and negligent driving by the driver which fact stands concluded by the version of the police which investigated into the matter and cancelled the criminal case. It is also stated that the petitioner was not working as a beldar but was daily wage labourer on Muster Roll and that he was allowed to perform his daily duties after he was discharged from the hospital, so he did not suffer any loss.
3. On the pleadings of the parties, the Tribunal framed the following issues:
(1) Whether the accident was a result of rash or negligent driving on the part of the driver of jeep No. HIB 99? OPP
(2) Whether the petitioner is entitled to compensation, if so, how much and against whom? OPP
(3) Relief
The Tribunal held issue Nos. 1 and 2 against the claimant and dismissed the petition. It is this order of the Tribunal that has been assailed by the claimant in this appeal.
4. Mr. R.K. Gautam, counsel for the claimant, submitted that judgment of the Tribunal deserves to be set aside since the same is against the evidence establishing quite conclusively that the accident was the result of rash, negligent and fast driving by the driver. It was also submitted by the learned counsel that the claimant is entitled to compensation for not only the injury suffered by him but also the continued sufferings undergone as a result of this accident. Expenses incurred for treatment are also payable to the claimant, learned counsel urged.
5. Although S.I. Duni Chand, PW 1, has stated that as per the police investigation the accident took place because of the failure of the brakes, however, this does not appear to be correct position. In the first information report recorded on 22.9.1988 at 2 a.m. in this case, soon after the accident, it is stated that the accident took place due to the fast speed and negligence of driver Dandu Ram. There is no indication that it was due to failure of brakes. Then there is statement of the claimant Gulaba Ram, PW 3. He states that he was working at village Khlota and Forest Ranger Amar Nath came there in his jeep and took him from this village since he wanted to show him some work on Brahampuker to be executed on the following day. The driver was in a hurry and he was driving the jeep at a fast speed. He asked the driver to lower the speed but he continued to drive it at fast speed and when they reached near village Daksach, the jeep rolled down in a khad. He sustained injuries on head, below the shoulder (right arm). He became unconscious and regained consciousness the next day at the District Hospital, Bilaspur. Twenty stitches were applied on his head and 14 stitches were applied on his arm. He remained in the hospital for 11/12 days and was discharged from hospital on 1.10.1988.
6. Because of the accident and injuries, he lost vision of his right eye and because of stitches, the vision of the left eye was also reduced considerably. He feels giddy while working in the sunlight nor can he do work properly with his right arm which cannot be lifted properly and completely, the same is the position with the right hand fingers.
7. After the discharge from District Hospital, Bilaspur he kept on getting treatment from Primary Health Centre, Namohal and from private doctors. He had been taking medicines and tonics during the course of his treatment. The prescription slip is Exh. P-2 and he has been suffering on account of these injuries. He also purchased medicines for his treatment (Exh. P-2, Exh. P-4 and Exh. P-5). He has not preserved the other cash memos by which he purchased the medicines. He has spent a sum of Rs. 10,000/- on his treatment and during the course of his treatment in hospital and at home his wife and the son of his cousin attended on him continuously and the cost of treatment at the District Hospital was approximately Rs. 20/- per day.
8. He joined his duties with the Forest Department on 2/3.10.1988 and he was assigned only light work. Besides serving in the Forest Department, he looked after the agricultural work and because of the accident it was impossible for him to look after the same. As a result it is being looked after by labourers and with the assistance of his relations. His thresher was lying idle since he could not operate. He was earning Rs. 4,000/-to Rs. 5,000/- during the harvesting season. He had two buffaloes and two cows and used to sell milk also. By this sale he was earning a sum of Rs. 700/- or Rs. 800/- per month. This income has also been stopped. He admits during the cross-examination that he was working in the Forest Department from 9.00 a.m. to 5.00 p.m. and was in continuous service with the Forest Department. He denied the suggestion that his land did not remain uncultivated because of the injuries. He also denies that he did not suffer any loss relating to the sale of milk. He states that he was selling the milk at government society, Namohal and they were maintaining the accounts regarding the same. Dila Ram, PW 4, also states that the claimant sustained injuries in this jeep accident. He had seen the jeep before the accident since he was going to village Navgaon along with Rup Lal and the jeep crossed them. They saw that the jeep was running at a fast speed and they also escaped hardly when the jeep crossed them. Soon after the jeep fell into a field at a distance of 200 feet from the road. They reached the spot and saw the claimant lying in an injured condition. They brought him to the hospital and the claimant sustained injuries on his head and was bleeding profusely. Whereas he has denied the suggestion that he has not seen the accident. Dr. J.P. Nadda is a Surgical Specialist at District Hospital, Bilaspur. He treated the petitioner as an indoor patient from 21.9.1988 to 1.10.1988. He applied stitches to the claimant on the head and the arm. Medicines were administered to the petitioner, although he could not say how many of them were supplied free and how many were purchased by the petitioner himself from the market. Respondent has not led any evidence in this case. Here also, the respondent has not appeared, although served. From the aforesaid evidence, it is quite clear that the petitioner sustained injuries on head and right arm in this accient. He was taken in the jeep by the Range Officer, for the purpose of assigning him the work for the next day. The driver was driving the jeep rashly and at a fast speed. He did not slow down the speed although the claimant asked him to do so. According to the first information report, the road at the place of the accident was 29 feet vide. Dila Ram, PW 4, has also stated that the jeep was being driven at a fast speed. It was likely to hit them when it passed by their side before the accident took place 200 yards from that point. The defence of the respondent that it was due to mechanical defect that the accident took place is thoroughly without any basis. When such a defence is taken, the burden lies on the respondent to prove that the respondent had used all reasonable care in the maintenance of the vehicle and its brake system and that the vehicle was subjected to periodical checks and was in a roadworthy condition. Evidence has not been led by the respondent to discharge this burden. Accordingly, there is a presumption that the accident was caused by the negligence of the driver. [See Jayamma v. General Manager K.S.R.T.C. 1977 ACJ 322 (Karnataka)]. In Lakshmiammal v. State of Tamil Nadu AIR 1975 Madras 157, while dealing with the same defence the court held:
The fact of sudden failure of the brake is not by itself sufficient to hold that the accident was not due to negligence. The fact that the driver of the bus could not have anticipated such failure of the brake also does not alter the position. In all cases of such latent defects the defendant can get over the liability only if it is further shown that latent defect was not discoverable in spite of reasonable care.
9. It is also worthwhile to refer to the observation of the Supreme Court reported in N.K.V. Brothers (P) Ltd. v. M. Karumai Ammal 1980 ACJ 435 (SC), that:
… Accidents Claims Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save the plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasizing this aspect because we are often distressed by transport operators getting away with it, thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving…
10. The statement of S.I. Duni Chand, PW 1, cannot be accepted because there is no report on the record of this case. Further, it cannot be ruled out that the defect in the brake system must have appeared subsequent to the accident as a result of the rolling down of the vehicle. It is a fit case where the principle of res ipsa loquitur applies and the burden that shifts on the respondent has not been discharged. Accordingly it is held that issue No. 1 stands proved and the conclusion of the Tribunal on this issue is absolutely against the evidence on record.
11. Now comes the question of compensation. It is clear from the evidence that the claimant remained in the hospital from 21.9.1988 to 1.10.1988. Thereafter he was discharged owing to rush of patients at the hospital. He continued receiving medical aid at Primary Health Centre, Namohal. It also appears from his statement that his health after the accident is not good. He cannot make full use of his eyesight, right arm and fingers. The claimant has undergone sufficient mental pain and suffering on account of this accident.
12. The claimant incurred expenses for meeting the medical treatment. He had to engage an attendant at the hospital for a number of days. Further he lost his income from sale of milk and by use of the thresher machine. The respondent has not rebutted any of these submissions effectively. The defence taken for exoneration from the liability is thoroughly superficial and no serious attempt was made to support it by proper evidence. The result of the aforesaid examination of the matter is that the claimant is entitled to compensation in this case and the order of Motor Accidents Claims Tribunal, Bilaspur in rejecting the claim petition is thoroughly against the evidence on the record and the legal principles involved in this case and the same is set aside. Instead of allowing compensation on each of the items discussed above, it is desirable to allow lump sum compensation the claimant. The claim petition is allowed and the respondent is ordered to pay Rs. 15,000/- to the claimant along with interest at the rate of 12 per cent per annum from 17.3.1989 till payment. No order as to costs.
