JUDGMENT
Inder Sen Israni, J.
1. This appeal under Section 110-D of the Motor Vehicles Act, 1939 (hereinafter referred to as “the Act”) against the award dated 14-9-1981 passed by the Motor Accident Claims Tribunal, Jaipur in M.A.C.T. Petition No. 161/80, by which a sum of Rs. 49100 was awarded to the appellant, along with interest at the rate of 10%p.a. from the date of petition till the payment was made to the appellant.
2. It will suffice to state for the purpose of this appeal that the accident took place on 17-5-1980 at about 8-30 P M while the claimant appellant was coming on a scooter along with PW 4 his sister-in-law and a child who was standing in front of the appellant on the scooter The appellant was driving his scooter from Pink City Petrol Pump to Ajmer Road opposite Vidhayakpur, Police Station, Jaipur, P.W. 4 Sushila was sitiing on the pillion of the scooter. It is averred in the claim petition that the appellant was driving the scooter cautiously on the correct side of the road When he went ahead about 100 yards from the said police station, truck No. RSG 8942, which was driven rashly and negligently, collieded with the scooter, which resulted in grevious injuries including fracture to the appellant. Child Alka died on the spot in the accident and the pillion driver PW 4 Sushila also received injuries.
3. There is no controversy regarding the amount of Rs, 73,650/-awarded to the appellant, but the contention of the learned Counsel Shri S.C. Srivastava appearing for the appellant is that the trial court held the appellant to be responsible for contributory negligence and deducted l/3rd amount on this account from the amount of award. Therefore, the appellant in fact received only Rs 49,100/-. It is asserted by the learned Counsel that it is. clear from the evidence that the appellant was driving his scooter 6-7 ft. on left side from the middle line of the road and the truck came on wrong side and collided with the scooter, which resulted in the accident. It has also come in evidence that the scooter was at the distance of about 3 ft. from the end of the road. In these circumstances, it is contended that the appellant cannot be held responsible for contributory negligence merely because a child was standing in his front when he was driving the scooter. It is also contended that the defence theory of the respondents that a portion of the road was blocked on account of stones lying there or a cyclist taking sudden turn, on account of which the accident took place cannot be relied upon and it was raised during the cross examination merely to avoid the responsibility of the accident. It is also contended that the liability of the Insurance Company in this case is unlimited as Section 1 of the policy regarding limit of liability of the company is vacant. Reliance in this respect was placed on Bomanji Rustomji v. Ibrahim Vali and Ors. in which it was held that when the insurance policy limits the liability on account of death or bodily injuries to Rs. 50,000/-, but the column is kept blank, in such circumstances, the liability of the company shall be held to be unlimited regarding payment of compensation to the claimant. The same view was taken by this Court in the matter of Smt Darsani Devi and Ors. v. Shivram and Ors. 1987 R.L.R. 577. It is also contended by the learned Counsel that the appellant should have been awarded interest at the rate of 12% p.a. and therefore, the amount of interest be also increased to that accident.
4. Shri Man Singh, learned Counsel appearing for the respondent No. 1 contends that even though the fact of stones lying on the road was not mentioned in the written statement, however NAW-1 Shyam Beharilal driver of the truck and NAW-2 Damodar have stated in their evidence that stones were lying on the road on account of which the truck driver had to cross the middle line of the road. It is further stated that the trial court has rightly held the appellant to be responsible for contributory negligence and deducted l/3rd amount from the compensation on this account, as even Sushila who was sitting on the pillion of the scooter has stated that Baby Alka was about 4 ft. in height and was standing in front of the appellant who was driving the scooter, therefore, he could not see the road in the front on this account. It is, therefore, contended that in such circumstances, the trial court has rightly deducted l/3rd amount from the compensation and held the appellant to be responsible for contributory negligence. He further contends that in such circumstances, the appellant should be held to be responsible for contributory negligence to the extent of 50% of the compensation awarded to him. He, therefore, prays that the amount awarded to the appellant should be reduced to that extent.
5. Shri Girendra Bhartiya, learned Counsel appearing for the respondent No. 3 National Insurance Company contends that the liability of the company cannot be held to be unlimited as it is clear from the Policy (Ex. 2) placed on record that in the column regarding limits of liability Rs. 50,000/- has been mentioned and has not been left blank as asserted by the counsel for the appellant.
6. I have heard learned Counsel for the parties and have also gone through the award, evidence and record of the case.
7. Learned Counsel for the appellant has mainly stressed two grounds in the appeal. Firstly, that the appellant has been wrongly held to be liable for contributory negligence and in connection with this the deduction of 1/3rd of the compensation amount on this account is in any case excessive, even if he is held to be liable for contributory negligence. Secondly. the liability of the Insurance Company is unlimited in this case. AW/2 Vijay Kumar has stated in his statement that on seeing the truck, he took his scooter still more towards his left side. He has also stated that at that time there was no other vehicle except the scooter and the truck involved in the accident. He has stated that some stones were lying near the wall of the Police Station as it was under repair. He has stated that Alka was standing in his front on the scooter. He has denied the suggestion that the accident took place on account of confusion caused by coming of a cyclist. It has been proved by the medical evidence that his foot has become 1-1/4 inch small in comparison to his normal leg. He has also stated that the truck came on wrong side and collieded with him. It is pertinent to note that no question has been put to him in the cross-examination whether he was not able to see in his front as child Alka was standing in his front. However, this question has been put to AW/7 Sushila who was sitting on the pillion of the scooter. This witness has supported the statement of AW/2 in all respect and has stated that the scooter was running at a distance of about 3 ft. from the foot-path on its left side and the truck came and collieded with the scooter at that place. She has also denied the suggestion that any cycle came in front of the scooter, on account of which the accident took place. In a question regarding height of child Alka, she has stated that she was of such height that the person infront may not be seen, but it has not been put to even this witness that on account of standing of Alka, the appellant was not in position to see the road in front. Therefore, the argument of the learned Counsel for respondent No. 2 that this witness has stated that the appellant was not in position to see the road infront is not correct. Moreover, the face of the person who sits on the pillion of the scooter is generally not in the direction, in which the scooter is driven and is rather on the left side of the person who drives the scooter. It has come in evidence that some stones were lying on the road near the wall of the police station and it has been argued by the learned Counsel for respondent No. 2 that it was on this account that the driver of the truck had to cross the dividing line of the road and go on his right as he had no choice but to do the same. Evidently, this argument is falicious as when some obstruction is lying on the road, the driver of the vehicle should be doubly caucious rather than carry on in the same speed and go in the wrong side and cause accident. The theory of confusion caused by a cyclist also seems to be after-thought.
8. From the evidence discussed above, it is clear that the appellant was driving his scooter on the extreme left side of the road and the truck came and dashed against him on the wrong side on account of which the accident took place. I am clearly of the opinion that it is dangerous to allow a child to stand in front of the person, who drives the scooter as this can be a cause of accident in many ways. However, as per the evidence, the accident took place while the appellant was about 3 ft. away from the foot-path on his left side and therefore, he cannot be said to be responsible for the accident. However, if this accident had taken place near the dividing line of the road it could have been said that the appellant is also liable to some extent for causing accident. In these circumstances, since a child was standing in front of the deceased while he was driving the scooter, he is liable for contributory negligence, but in the circumstances since he was on the extreme left side of the road and the truck came and collieded with him on the wrong side, I hold him liable for contributory negligence to the extent of 10% only. Therefore, 10% amount shall be deducted from the amount of compensation awarded to the appellant by the trial court.
9. So far as the contention of the learned Counsel for the appellant that the responsibility of the respondent No. 3 is unlimited, I find no force in this argument as in the Column of limits of the liability, the amount of Rs. 50,000/-has been mentioned. The contention of the learned Counsel for the appellant is that nothing has been mentioned in separate two columns, one provided under Section II-l(i) and second, Section Il-l(ii), therefore, the liability of the company should be held to be unlimited. However, there is 3rd column also, in which the total amount of the above mentioned two columns has to be mentioned and in this column the amount of Rs. 50,000/- has been shown. Therefore, it cannot be said that there is no mention of any amount, on account of which the responsibility of respondent No. 3 becomes unlimited.
10. The trial court has awarded interest @ 10% p.a. on the amount of award from the date of filing of the claim petition. Generally the interest is granted @ 12% p.a. and I am fortified in my opinion by the authority of Jagbeer Singh and Ors. v. General Manager, Punjab Roadways . In this case, the Apex Court has opined that 12% interest per annum should be awarded to the petitioner from the date of application for compensation till the date of payment. I, therefore, hold that the appellant shall be entitled to receive interest @ 12% p.a. on the total amount awarded to him including 20% amount that he is entitled to receive on account of this judgment, from the date of claim petition till the payment is made to him.
11. The respondents are directed to make the payment within two months from today.
12. In the result, the appeal is partly allowed as indicated above. No order as to costs.
