JUDGMENT
1. In this appeal, the claimant has challenged the finding of the Tribunal on the question of actionable negligence of respondent No. 3 and the quantum of compensation awarded by the Tribunal.
2. The facts giving rise to this appeal, in brief, are as follows:
The appellant was working as an operator in Pandyan Cements and Minerals Industries, Bommanahalli, Bangalore, on a salary of Rs. 1,300/- p.m. On 14-9-1989 at about 2 p. rn. he was riding a scooter bearing No. MER 883 on 9th Main Road, Jayanagar, Bangalore, on the left side of the road. At that time, a motor cycle bearing No. CKJ 6155 driven by the 3rd respondent suddenly entered the main road from 33rd cross and dashed against the appellant. As a result, he fell down and sustained some grievous injuries. According to him, he was taken to Sanjay Gandhi hospital where first aid was given and then he got himself shifted to Rajalakshmi Nursing Home where he was treated as an inpatient. A complaint was lodged before the Jayanagar police against the 3rd respondent and the police have registered a criminal case against him. It is stated that he has suffered some physical disability and, therefore, claims certain amount of compensation against the respondents.
3. The respondents have resisted the claim. They have denied the rash and regligent driving of the motor cycle by the 3rd respondent. According to them, the accident was due to the negligence of the claimant himself. It is further contended that the claim is highly exorbitant.
4. The parties have examined themselves before the Court apart from the evidence of Dr. S. V. Janardhan, who is examined on behalf of the petitioner therein. The petitioner has marked 47 documents on his behalf. The Tribunal on consideration of the material has held that both the drivers were negligent and have contributed to the accident and therefore held that the 3rd respondent has contributed negligence to the extent of 60% and the petitioner to the extent of 40%. Having regard to the nature of injuries, the expenditure incurred and other circumstances, the Tribunal has granted total compensation of Rs. 26,223/ – after deducting 40% towards the contributory negligence.
5. Sri K. T. Gurudeva Prasad, learned counsel for the appellant has contended that the finding of the Tribunal on the question of actionable negligence and also on the quantum of compensation granted is erroneous. The Tribunal has not properly appreciated the evidence available on record. It is pointed out that the 3rd respondent, driver against whom a charge-sheet has been laid, pleaded guilty before the Criminal Court and this plea of guilt made by the 3rd respondent is prima facieevidence of negligence. The Tribunal has not considered this aspect at all. It is further submitted that the Tribunal has ignored the guidelines laid down by this Court in catena of decisions as to how compensation has to be assessed in personal injury action.
6. Sri G. R. Ramesh, counsel for respondent No. 1 submits that the plea of guilt was made on certain special circumstances as could be seen from the statement of respondent No. 3 and, therefore, it cannot be stated that there is prima facie material to hold that he is guilty of negligence. It is further submitted that the quantum of compensation granted is just and adequate.
7. In the light of these submissions, the points that arise for consideration are:
1. Whether the trial Court erred in holding that the petitioner-appellant was also negligent in driving his vehicle and has contributed to the extent of 40%?
2. Whether the quantum of compensation
granted by the Tribunal is not just and
reasonable?
8. Re. Point No. 1:– The motor accident occurred on 14-9-1989 at about 2 p. m. at the intersection of 9th main road, Jayanagar, and 33rd cross wherein the petitioner-appellant sustained some injuries is not in dispute. Though the statement of respondent No. 3 discloses that he also sustained some injuries in the said accident, has not chosen to report the accident to the police and to make a claim before the Claims Tribunal. Respondent No. 3 is a medical practitioner who is expected to know his rights. Respondent No. 3 who was charge sheeted by the Jayanagar police appeared before Criminal Court through his advocate. Without defending the charges, he preferred to plead guilty to the charges framed against him. It is now submitted that he was persuaded by the police to plead guilty on the ground that plea of guilty would not harm him in any manner. It is difficult under the circumstances to accept this contention.
9. Respondent No. 3 has not disputed that he was charge sheeted before the Magistrate and was convicted on his plea of guilt. Relying on the observation made by Lord Denning, M. R. in Neitteship v. Weston, (1972 Acc CJ 115), this Court in Vinobabi v. KSRTC, (1979 Ace CJ 282 (Kam) at para 8 has observed as follows:
“Thus, the law is settled that when the driver is convicted in a regular trial before the Criminal Court, the fact that he is convicted becomes admissible in evidence in a civil proceeding and it becomes prima facie evidence that the driver was culpably negligent in causing the accident. The converse is not true; because the driver is acquitted in a criminal case arising out of the accident, it is not established even prima facie that the driver is not negligent, as a higher degree of culpability is required to bring home an offence.”
Thus this case refers to the case where the accused is convicted in a regular trial before the criminal court and is not an authority on the question of admissibility of evidence on plea of guilt made by the driver of the yehicle.
10. In Seth Pribhidas v. B. N. Rehuka, that the police have charge sheeted the driver of the offending vehicle and the driver of the vehicle was compelled to plead guilty in a criminal case and put forth certain other defences. Then the driver in his written statement offered an explanation that he was coerced to confess before the Court. But the driver desisted from entering the witness box offering himself for cross-examination. He did not offer any explanation for his confession. It is therefore held relying on the ratio in Vinobabi’s case, (1979 Ace CJ 282) (Kant) cited supra as follows:
“Admission, therefore, becomes decisive on the facts of the present case that the accident was the result of negligent drive of the car in question by its driver.
11. In Vinobabai’s case the driver was convicted upon full trial while in Seth Pribhidas case, the driver has not entered the box to offer his explanation for his confession.
12. The Madras High Court in the case of Govind Singh _v. A. S. Kailasam, held as under:
“The admission of the driver made before a Criminal Court that the accident was committed by his rash and negligent driving shifts the legal burden on the driver to show that such an admission if at all, was made by extraneous motive.”
The Madras High Court has not accepted the story presented by the driver that his pea of guilt before the Criminal Court was not one of truth but was one of convenience, viz., to avoid making frequent visits to the Court to defend the case. This explanation is hardly convincing and at any rate cannot be allowed to be successfully projected. An admission against his interest made either before the Tribunal or elsewhere has got to be taken into account in rendering a decision on the relative stand taken by the parties in the controversy.
13. I am in respectful agreement with the observation made by the Madras High Court in the case cited supra. But there may be cases and cases where the drivers.of the vehicles who pleaded guilty before the Criminal Courts fan still establish the circumstances under which they were forced .to make the plea of guilt before the Criminal Courts. In a case where the driver of a lorry from far off State transporting a load of perishable or other goods had to leave the place of accident as early as possible. He may find it difficult to visit the jurisdiction of the Criminal Court in a far-off places frequently. This circumstance cannot be ignored by the Courts. Il is relevant to point out at this stage that the Criminal Court recording the plea of guilt has necessarily to peruse the final report submitted by the police and prima facie hold that there is a prima facie material to frame a charge against the accused. There may be cases and cases where the final report filed before the Criminal Court may not disclose the. particular offence alleged by the prosecution. In such a circumstance, if the driver of the vehicle was to plead guilty and if such a plea is recorded by the Magistrate, that would offend the very mandatory provisions of Sections 227 and 228 of the Cr.P.C. In a situation like this, the accused is also not in a position to question the prima facie material for framing a charge. Therefore, under these circumstances, it cannot be stated that the plea of guilt alone would prove the rash and negligent driving of the vehicle resulting in an accident. In a case where accident had occurred at the intersection of two or more roads, the Tribunal has to assess the oral evidence available with utmost care and also take into consideration the plea of guilt made by the driver. It is only then that a Tribunal can conclusively decide the issue.
14. In this case, the plea of guilt is made by none other than a medical practitioner who is expected to know the consequences of pleading guilty before the Criminal Court for a criminal charge, tries to show his innocence in a civil proceedings. More over, he was represented by an advocate and had the benefit of legal advice.
Where such plea of guilt is made, it is for the respondent to place satisfasctory and convincing material to dislodge the presumption arising out of plea of guilt made before the Criminal Court. In my opinion, this legal burden has not been satisfactorily discharged. He cannot be allowed at this stage to plead innocence or ignorance. This plea of guilt is sufficient apart from the material available on record to hold respondent No. 3 guilty of negligence. Under the circumstances, it cannot be said that the appellant-petitioner has also contributed his negligence to this accident. The finding of the Tribunal without scrutiny of evidence and ignoring the law laid down by this Court is erroneous and it is difficult to concur with the said finding.
15. The Tribunal has relied on the evidence PW. 2 Dr. Janardhan, who had treated the petitioner at Rajalakshmi Nursing Home is a competent Orthopaedic Surgeon. His evidence discloses that the petitioner-appellant has sustained fracture of right radius with dislocation of interior radio ulnar joint and fracture of meta carpal — communited. Subsequently he was shifted to Rajalakshmi Nursing Home where he was admitted as an in-patient and took treatment from 14-8-1989 to 27-9-1989. During this period, he has undergone an operation with internal fixation of D. C. P. plate. He opined that there is no physical disability in this case.
16. The contention of Mr. Ramesh that the petitioner has failed to produce the wound certificate issued by Sanjay Gandhi hospital where he was initially treated immediately after the accident raises suspicion regarding the nature of injury sustained by him in the accident. However, it is noticed that the injured after initial treatment at Sanjay Gandhi hospital got himself shifted to Rajalakshmi Nursing Home on the very day, and he was examined by PW. 2 Dr. Janardhan and therefore there is nothing to suspect the nature of injury sustained by the appellant. Even otherwise, respondent No. 3 was present at the time of the accident. It appears that respondent No. 3 has not assisted the injured in taking him to the nearest hospital for medical treatment. The fact that the appellant-petitioner has sustained grievous injuries was not at all questioned before the Tribunal. Therefore, I do not find any merit in this submission.
17. Admittedly, petitioner has fracture of right radius with dislocation of interior radio ulnar joint and fractures of 2nd meta carpal which is communicated. He was treated as in patient for a period of one month thirteen days. He must have undergone immense pain and suffering as a result of injury and surgical operations. The Tribunal appears to have not taken into consideration the loss of amenities even if it is for a temporary period. The Tribunal has awarded a sum of Rs. 20,000/-towards pain and suffering, but no award is made under the head loss of amenities and enjoyment of life. While accepting the awarded compensation under the head ‘pain and suffering’, I propose to award a sum of Rs. 5,000/- towards loss of amenities. The Tribunal has awarded medical expenditure of Rs. 3,000/- even though the petitioner has produced bill for Rs.8,811/-. The claim appears to be reasonable in view of the fact that he was treated in a private nursing home. Therefore, a sum of Rs.8,811/- is granted towards medical expenditure. The Tribunal has granted Rs. 1,500/- towards conveyance charges, which is retained. The Tribunal has granted a sum of.Rs. 1723/- towards loss of salary. It is contended that the petitioner was working as an operator in a factory earning Rs. 1700/- p.m. He was not able to do any work for a period of three months. However, it is noticed that the petitioner has claimed salary of Rs. 1300/- p.m. in his petition. The Tribunal referred to Ex. P-7, the salary certificate produced by the appellant. But the Tribunal has clearly erred in granting loss of one month salary. The appellant could not attend to any work for about three months in view of the fractures sustained. In my opinion, he is entitled for the loss of salary for three months i.e., 1700 x 3 = 5,100/ -. Thus the total compensation works out to Rs. 40,411/-which is rounded of to 40,450/-. This amount is just and adequate.
18. In the light of the discussion made above, this appeal is liable to be allowed and the same is allowed in part. In modification of the award passed by the Tribunal, compensation of Rs. 40,450/- is grunted in favour of the appellant-petitioner together with interest at 6% p.a. from the date of petition till the date of realisation. The appellant is entitled, to costs. Advocate’s fee is fixed at Rs. 3000/-.
19. Order accordingly.
