JUDGMENT
P.C. Misra, J.
1. This is an appeal under Section 110-D of Motor Vehicles Act, 1939, filed by the appellant, insurance company, against the award passed by the 4th Motor Accidents Claims Tribunal, Puri.
2. The applicant was injured in an accident which took place on 26.2.1982 on the road leading from Rasulgarh to Vani Vihar. As a result of the accident, the right leg of the applicant was fractured and did not join and ultimately he became unable to resume his normal life. He claimed compensation of Rs. 1,00,000/- from the owner of the vehicle as the driver of the truck which caused the accident was negligent according to the claimant. The appellant being the insurer of the truck was impleaded as a party. The Claims Tribunal allowed compensation of Rs. 80,000/- with interest at the rate of 12 per cent from the date of filing of the claim petition, i.e., 21.8.1982. The Tribunal further directed that if the amount is not paid within 3 months from the date of the award, interest shall be chargeable at the rate of 15 per cent per annum from 20.5.1988. Since the maximum liability of the insurer as per the policy was Rs. 50,000/-, the present appellant was made liable to pay Rs. 50,000/- to the claimant and the balance amount was directed to be paid by the owner of the vehicle. The insurance company has preferred this appeal alleging that the award is not in accordance with law and the insurance company has no liability at all to pay any part of the compensation.
3. The case of the claimant is that on 26.2.1982 at about 4 p.m. he was going on his motor cycle from Rasulgarh to Vani Vihar. A truck bearing registration No. ORU 2758 was going ahead of the applicant and the applicant was maintaining a distance of 25 feet from the said truck. After crossing the overbridge, the truck suddenly went to the right side of the road towards Sainik School which emerges from the road from Rasulgarh to Vani Vihar without showing any signal. According to the applicant, on account of sudden change of direction of the truck, of which he had no notice, he dashed against the rear wheel of the truck causing bodily injury to his person. He was taken to the hospital in an unconscious state with fracture of right tibia and fibula and also ankle joint. According to him, in spite of the treatment carried on, the bones did not unite, as a result of which he is not able to resume a normal life though he is a youngman of 21 years. His claim is that he was earning about Rs. 1,200/- at the time of the accident and was expected to earn more in future years. The accident having taken place, according to the claimant, due to the negligent driving of the driver of the truck he is entitled to compensation from the owner. The owner of the truck did not contest the proceeding. The insurance company filed a written statement denying all the allegations made and denying the injuries to be as a result of the alleged accident. The claimant examined five witnesses including himself and none was examined on behalf of the insurance company. The Tribunal came to a conclusion that the accident was caused due to the rash and negligent driving of the driver of the vehicle for which the owner was liable and awarded compensation of Rs. 80,000/-in his favour. Since the maximum liability of the insurance company was Rs. 50,000/-as per the terms of the policy, the insurance company was directed to pay the said amount with interest as stated earlier.
4. Mr. Mohanty, the learned counsel for the appellant, has strenuously urged mainly two points for consideration. According to him, on the admitted facts and circumstances as disclosed in the evidence the accident cannot be said to have been caused due to the negligence of the driver of the truck alone. According to him, the applicant who was moving on a motor cycle behind the truck has also contributed for the accident. In that view of the matter his submission is that the Tribunal should have awarded compensation in proportion to the negligence of the driver of the vehicle. His next contention is that the doctor who examined the gravity of the injuries sustained by the applicant was not a specialist in orthopaedics for which reason his evidence should not have been relied upon by the Tribunal. According to him, the X-ray photograph would indicate that the fracture sustained by the claimant was not so serious and if the bones did not unite, it must be due to the negligence on the part of the doctor who treated the applicant and not due to any lapse on the part of the owner or the insurance company.
I would, therefore, proceed to examine the merits of the aforesaid contentions.
5. The undisputed fact is that the accident was caused when the truck mentioned above took a right turn to go on the road leading to Sainik School. The evidence led on behalf of the applicant which I accept to be correct is to the effect that the driver before taking a sudden tum did not indicate so by any recognised signals. The consequence was the motor-cyclist, i.e., the applicant who was proceeding in the same direction from behind dashed against the truck and hit the rear wheel of the truck. It is apparent from the narration of events which I accept to be true that a truck before taking a turn must have slowed down as a turn cannot be negotiated without reducing the speed. If no indication was given by the driver of the truck that he was intending to turn to the right, the vehicular traffic from behind and coming from any other direction cannot know about the sudden change of direction of the truck. When a truck slows down without giving any indication, it is natural for the vehicles coming from behind to presume that the truck would either stop or move at a slow speed for reasons not known to them. It is also possible to create an impression in the minds of the drivers of the vehicles coming from behind that the driver of the truck slowed down to give scope to them to overtake. In the present case, it is likely that the claimant moved forward intending to overtake the truck because of its reduction of speed but met with an unfortunate accident due to the unexpected change of direction of the truck. Thus no negligence can be attributed to the claimant in the facts and circumstances of the case.
6. The next point urged by the learned counsel for the appellant is about the competency of the doctor whose opinion has been relied upon by the Tribunal. I find that PW 4 is a retired Government servant who had examined the injured on 24.9.1987 and issued a certificate. According to him, there were multiple fractures of lower half on right fibula which was mal-united. He also found that the 5th metacarpal bone of right foot was mal-united. His further observation is that multiple fractures of small bones of right ankle joint were mal-united and a particular portion of the bone was missing. His right ankle joint was stiff, swollen and immobile and he was unable to walk. Mr. A.K. Mohanty, the learned counsel for the appellant, submits that PW 4 was not a specialist in orthopaedics and, therefore, neither his report nor his evidence can be relied upon in support of the conclusion reached by the Tribunal. Though PW 4 was cross-examined by the insurance company, nothing was asked to him as to the subject in which he had specialised. Nothing has been asked challenging his proficiency in the branch of the medical science. It is, therefore, not possible for this court to appreciate the argument of Mr. Mohanty that PW 4 was not a competent person or that his report is not reliable.
7. Some arguments were advanced as to the amount of compensation awarded by the Tribunal which, according to Mr. Mohanty, is arbitrary and heavy. Looking at the injury which the applicant has suffered and taking into consideration his income at the time of accident as disclosed from the evidence of other witnesses, I do not consider the compensation to be heavy or arbitrary.
8. It was lastly contended by Mr. A.K. Mohanty that the award of interest from the date of application under Section 110-A of the Motor Vehicles Act till the date of payment and that too at the rate of 12 per cent per annum was unjustified and inequitable. He also commented upon the default clause which provides that 15 per cent interest would be payable if the amount is not paid within three months from the date of award. On perusal of the record I find that originally when the claim application was filed on 21.8.1982, the present appellant insurance company was not impleaded as a party by the applicant. The present appellant insurance company was impleaded as a party only on 19.12.1986. This was probably due to the fact that the claimant was misinformed about the name of the company who had issued a policy covering the risk of the truck in question. I, therefore, think it proper to allow interest against the appellant from the date of impleading the company in the proceeding, i.e., on 19.12.1986 till the date of payment. Mr. Mohanty, however, argued that the rate of interest at 12 per cent per annum was excessive and prays for reduction of the same. I am not in favour of reducing the rate of interest which was awarded at the rate of 12 per cent per annum. But in the facts and circumstances of the case since the insurance company was pursuing its remedy bona fide by filing this appeal, I will modify the order deleting the default clause. Thus the appellant shall be liable to pay a sum of Rs. 50,000/-, the same being the maximum amount payable under the policy together with interest at the rate of 12 per cent per annum from 19.12.1986 till the payment and the balance compensation with interest shall be recoverable from the owner of the vehicle.
This appeal is partly allowed to the extent indicated above.
The amount of compensation which has already been deposited by the insurance company in fixed deposit shall be released in favour of the applicant, respondent No. 1, after the expiry of the term of the fixed deposit. The insurance company will deposit the balance amount payable towards interest before the Tribunal within a period of three months.