ORDER
C.Y. Somayajulu, J.
1. The case of the appellant is when he was proceeding as a pillion on the scooter of his brother, a military jeep bearing No. 84 B 36360-Y came in their opposite direction in a rash and negligent manner and dashed against that scooter, resulting in injuries to him. He sought Rs. 2,00,000 as compensation from the respondents- the owner of the jeep. Respondents filed a common counter admitting the accident and contending that the accident occurred only due to the negligence of the driver of the scooter who was not having a driving licence. Appellant examined himself as P.W.1 and marked Exs. A1 to A5. No evidence, either oral or documentary, was adduced on behalf of the respondents. Holding that the appellant failed to establish that the accident occurred due to the rash and negligent driving of the driver of the jeep the Tribunal dismissed the OP, even without giving a finding on the quantum of compensation to which the appellant would have been entitled to, had the accident occurred due to the rash and negligent driving of the driver of the jeep. Hence, this appeal by the claimant.
2. The points that arise for consideration are
(i) whether the accident occurred due to the rash and negligent driving of the driver of the jeep of respondent
(ii) if so what is the compensation to which appellant is entitled to
POINT NO. (I):
3. The contention of the learned counsel for the appellant is that in as much as the evidence of P.W.1 shows that the accident occurred due to the rash and negligent driving of the driver of the jeep, and since the driver of the jeep did not go into the witness box to counter the evidence of P.W.1. The accident should be held to have occurred due to the negligence of the driver of the jeep. The contention of the learned standing counsel for the respondents is that since the appellant did not examine the driver of the scooter, who gave report to the police about the accident and since there is no other evidence except the interested evidence of the appellant to show that the accident occurred due to the negligence of the driver of the jeep appellant failed to discharge the burden that lay on him and so the failure of the respondents to examine the driver of the jeep is of no consequence and the finding of the Tribunal on this issue is unassailable.
4. The evidence of appellant, as P.W.1, is that when he and his brother were proceeding on a scooter, a jeep came in the opposite direction at a high speed to be wrong side of the road and dashed against the scooter resulting in injuries to him and his brother. During cross-examination, he denied the suggestion that his brother, was driving the scooter at a high speed and dashed the scooter against a stationery jeep and apologized to the driver and that his brother alone was responsible for the accident. Ex.A1 is the certified copy of the First Information Report issued in connection with the accident, which shows that the report regarding the accident was given by the brother of the appellant, who was driving the scooter. The respondents, in the counter, admitted the accident and took a specific plea in the counter that the driver of the jeep is a well experienced driver and was driving the vehicle very carefully and very slowly and was turning the vehicle towards right slowly by giving signal by showing his hand and blowing the horn and flashing the lights of the vehicle while negotiating the turn and noticed a scooterist coming in the opposite direction at an uncontrollable speed very negligently. So, as a precautionary measure, he stopped the vehicle by applying brakes before the speeding scooter approached the jeep and the driver of the scooter could not control his scooter and when he applied the brake, it skidded and hit the stationery jeep and the Police, after investigation, found that there was no fault on the part of the driver of the jeep.
5. The contention of the learned counsel for the respondents that since no independent witnesses are examined, the evidence of the appellant cannot be accepted is not a tenable argument. Since the accident is admitted and admittedly, the appellant received injuries in the accident, it cannot be denied that he was a witness to the accident, because, in fact, he was the victim of the accident. So, his evidence is of great importance and it cannot be thrown away merely because he is an interested witness. His evidence clearly shows that the jeep came to the wrong side of the road and dashed against the scooter. The averments in the counter also disclose that the jeep was taking turn to the right by showing signals and stopped on seeing the scooterist coming in the opposite direction. Thus, the fact that the jeep was taking a right turn by the time of the accident cannot cease to be an admitted fact. When the evidence of the appellant, prima-facie establishes that the driver of the jeep came to the wrong side of the road and dashed against the scooter and when the factum of the jeep being taking the right turn at the time of accident is admitted in the counter, the question as to whether the jeep was halted just before the accident and was in a stationery position at the time of accident or whether it was in motion is a question of fact to be decided on the basis of the evidence adduced by the parties. The evidence of P.W.1 shows that the jeep was moving at the time of the accident and he specifically denied the suggestion that the jeep was stationery at the time of the accident. When it is the case of the respondents that the accident occurred due to the negligence of the scooterist and not the driver of the jeep, the respondents, who filed the counter, are not, in fact, witnesses to the accident and their knowledge is only hearsay, they ought to have examined the driver of the jeep to speak about the facts and circumstances relating to the accident. Apart from the appellant and the driver of the scooter, the driver of the jeep is the best person to speak about the facts leading to the accident. It is no doubt true that the appellant did not examine his brother. But, it is well known that the Evidence Act does not require any particular number of witnesses to be examined to prove a fact. Because the appellant might have thought his evidence is sufficient to establish his case and he could prima-facie establish before the Court that the accident occurred due to the negligence of the driver of the jeep, therefore, it is for the respondents to adduce evidence to show that the evidence of P.W.1 need not be accepted. So, the best person to be examined by them is the driver of the jeep, but for reasons best known to them they did not choose to examine the driver of the jeep. Therefore, an adverse inference has to be drawn against the respondents for not examining the driver of the jeep. The question as to whether the Police disbelieved the case or not is not very relevant, more so, because the respondents did not take steps to produce the final report of the Police into the Court. Moreover, it is well known that the proceedings in the criminal case are not relevant or binding on the civil Court and proceedings under the Motor Vehicles Act. Therefore, even if the Police have closed the case as a mistake of fact that has no bearing or relevance for deciding the point as to how the accident occurred. In view of the evidence of P.W.1 and in view of the fact that the respondents did not examine the driver of the jeep, the only inference that can be drawn is that the accident occurred due to the rash and negligence on the part of the driver of the jeep.
6. Admittedly, the appellant is the pillion rider on the scooter and there was collision between a jeep and the scooter on which the appellant was traveling. Even assuming that there was compound negligence on the part of the drivers of both the vehicles, the appellant has a right to proceed against any of the joint tort feasors and claim damages from them, because, he himself is not responsible for the accident. It is well know that the victim of an action by joint tort-feasors can proceed against any or all of the joint tort feasors and if one of the joint tort feasors feels that he is not liable and the other joint torn feasor should be made liable, his remedy is only to proceed against the other tort feasor and seek reimbursement of the amount paid to the victim. For that reason also, the question as to on account of whose negligence the accident occurred is not very relevant for deciding the claim of the appellant, who is a third party to the accident. He can claim damages against either or both the drivers and owners of the vehicles involved in the accident.
7. The next question that arises for consideration is the quantum of compensation. Unfortunately, the Tribunal did not discuss the evidence on record and arrive at a finding as to what amount of compensation the appellant is entitled in case the accident is held to have occurred due to the negligence of the driver of the jeep. In my opinion, in all the motor vehicle accident cases, irrespective of the finding on the point as to the negligence of the driver of the vehicle, the Tribunals should invariably give a finding on the quantum of compensation payable to the claimants because this Court, as an appellate Court, cannot have the advantage of the finding of the Tribunal to decide the quantum of compensation without remitting the case back to the Tribunal for a decision on the quantum of compensation. Otherwise, this Court will have to decide it for the first time in the appeal and thereby, there will be disadvantage to the parties to the appeal because they would be losing a chance of appeal. In this case, since the Tribunal failed to give a finding on the quantum of compensation. In normal circumstances, I should have remitted the case to the Tribunal for a decision on the quantum of compensation. But, keeping in view the fact that the O.P. is of the year 1994, it would be unfair on the part of this Court to remit the case to the Tribunal for deciding the question as to quantum of compensation. Therefore, I am proceeding to decide the question of quantum of compensation also in this case.
8. Since, admittedly, the appellant sustained fracture, he must have undergone pain and suffering. Since the accident occurred in 1994, an amount of Rs.7,500/- would be reasonable amount of compensation on this count. The bills produced by the appellant show that he spent Rs.19,531-90 towards purchase of medicines etc. So, he can be awarded Rs.19,500/- towards purchase of medicines. Since he underwent treatment in a hospital and since an attendant must have attended on him, Rs.2,500/- can be awarded as attendant charges and Rs.2,000/- can be awarded towards extra nourishment. Since the appellant was working as a Conductor in R.T.C. and underwent treatment for a period of three months, he can be granted Rs.9,000/- as compensation towards loss of earnings during the period of treatment. There is no evidence to show that the appellant sustained disability as a result of the accident and since it is also not the case of the appellant that there any loss of earnings to him as a result of the injuries received by him in the accident, he is not entitled to any compensation towards loss of future earnings. Thus, the appellant is entitled to Rs.40,500/- as compensation. Since the respondents are the owners of the jeep which involved in the accident and since the accident occurred due to the rash and negligent driving of the driver of the jeep, they are vicariously liable to pay the compensation to the appellant.
9. The appeal is allowed and the award is passed for a sum of Rs.40,500/- with interest at 9% per annum from the date of the petition till the date of realization. The appellant is entitled to costs in the trial Court. But, the parties are directed to bear their own costs in this Court.