IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: FAO.No.345/2004. Reserved on.9th September, 2008. Date of Decision: September 12,2008. Arun Kumar. …Appellant. Versus: Karan Singh. …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting?1 .Yes. For the appellants: Mr.Sanjeev Bhushan, Advocate. For the respondent. Mr.Rakesh Jaswal, Advocate. Sanjay Karol, J. The present appeal arises out of the impugned award dated 18th May, 2004 passed by Motor Accident Claims Tribunal (II), Hamirpur, H.P. in M.A.P.No. 57 of 2000 titled as Karan Singh Pathania Vs. Arun Kumar and others, awarding compensation of Rs. 1,25,560/- to the claimant. Claimant-Sh.Karan Singh Pathania filed a petition under Section 166 of the Motor Vehicles Act, pleading that on 4th October, 1999 he was driving his scooter bearing No.HP- 22-9002 and at about 2.30 P.M. when he reached near the Circuit House, Hamirpur, H.P., Sh. Arun Kumar (appellant herein), who was driving vehicle No.PJS-919 came from behind in a rash and negligent manner and hit the complaint’s 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 scooter as a result of which the claimant fell down and sustained injuries. The claimant was taken to the Zonal Hospital, Hamirpur from where he was referred to the Post Graduate Institute (P.G.I.), Chandigarh and remained admitted as an indoor patient from 6th October, 1999 to 23rd October, 1999. Even after discharge from the Hospital, he continued to take medical treatment as an outdoor patient for the grievous injuries i.e. fractures of bone of his right leg sustained by him. Claimant who is a Government employee remained on earned leave from 4th October, 1999 to 23rd November, 1999 and leave without pay from 24th November, 1999 to 4th June, 2000. He resumed duties only after he was declared fit by the Assistant Professor, Department of Orthopedics, Nehru Hospital, PGI, Chandigarh. Claimant demanded Rs.3,00,000/- as compensation. Respondent No.1-Arun Kumar filed written statement admitting the incident but, however, held the claimant responsible for the same. The vehicle was not insured and another respondent Sh.Ramesh Kumar, the registered owner of the vehicle, filed his written statement pleading that the vehicle stood sold by him to respondent No.1. Based on the pleadings of the parties, the Tribunal framed the following issues: 1. Whether on 4-10-1999 respondent No.2 was not the owner of the motor cycle as he had sold the same to respondent No.1.?. ..OPR-2. 3 2. Whether respondent No.1 was driving the motor cycle bearing registration No. PJS 919 on 4-10-1999 at 2.30 P.M. near circuit house, Hamirpur, rashly and negligently and happened to hit the applicant which caused fracture of the right leg of the applicant?. ..OPA. 3.If issue No.1 is prove, what has been the magnitude of the injury sustained by the applicant?. ..OPA. 4.If issues No.2 and 3 are proved, to what amount of compensation the applicant is entitled to and from whom?. …OPD. 5. Relief. The parties led their evidence. Appreciating the material on record, the Tribunal found that respondent No.1- Sh.Arun Kumar the owner of the vehicle had been negligent in driving the vehicle at the time of the accident due to which the claimant received multiple and grievous injuries. Considering that the claimant was on leave without pay, the Tribunal awarded the following compensation: Travelling expenses Rs. 7500-00 Attendant Charges: Rs. 8000-00 Loss suffered in respect of the Rs. 74,400-00 Salary due to leave and without pay. For eight months. Special diet. Rs. 5,000-00 Scooter repair charges Rs. 660-00 Pain and sufferings Rs 30,000-00 Rs.1,25,560-00 4 The liability was fastened upon Sh.Arun Kumar, who alone assailed the present award by filing the present appeal. Mr.Sanjiv Bhushan, learned counsel for the appellant has argued that the Tribunal has seriously erred in holding that the accident occurred due to the appellant’s fault as he was not driving the vehicle in a rash and negligent manner. In any event, the compensation awarded is much on the higher side. Per contra, Mr.Rakesh Jaswal, learned counsel for the claimant has supported the award for the reason set out therein. I have heard learned counsel for the parties and also perused the record. That the vehicles in question involved in an accident were being driven by the claimant and the appellant at the time of the accident is not in dispute. That the claimant sustained injury as a result of the accident is also not in dispute. Sh.Mohinder Singh (PW-1) has proved that F.I.R. No.165/99 dated 4th October, 1999 (Ext.PW-1/A) was registered against the appellant under Sections 279 and 337 I.P.C. Sh.Karan Singh (PW-3) has deposed that on 4th October, 1999 he was riding on his scooter bearing registration No. HP.22-9002 and he signaled through the indicator for turning towards right and just as he had taken 5 the right turn, motor cycle bearing registration No.PJS.919 driven by Sh.Arun Kumar came from behind in a rash and negligent manner and collided with the scooter. Due to the accident, he fell down and sustained fracture on his right leg and received multiple injuries on his body. Sh.Guddu, who was present at the site picked him up and took him to the Zonal Hospital, Hamirpur. In spite of the extensive cross- examination, his veracity stands impeachable. In fact, there is no serious cross-examination on the aforesaid point. He clarified that his speed was about 25 Km. Sh.Guddu (PW-5) has totally corroborated the version of PW-3. According to him, the accident took place in front of the house of one Ms. Anita Verma with whom he was employed as a servant. He witnessed the occurrence of the incident. The claimant had signaled the indicator to take a turn when the motor cycle being driven by Sh.Arun Kumar in a rash and negligent manner came from behind and collided with the scooter. He has categorically deposed that the accident occurred due to the fault of the appellant. No doubt, this witness in cross-examination has deposed that he has deposed what was told to him, but, however, in my considered view, this alone would not be enough to shatter the veracity of this witness as his deposition is clear and consistent. This witness is not related to or in any manner associated with the claimant and he was just a spot witness and his presence at the time of the 6 accident is not disputed by the appellant which is evident from the cross-examination of PW-1. Sh. Arun Kumar (RW-3) also has examined himself. No doubt, he has sought to depose in support of his case but he has admitted that at the time when the claimant was taking the turn, the indicator was on. This is the entire evidence on record with regard to the accident. The apex Court after considering its earlier decisions and also various decisions rendered by the Courts abroad in Rajkot Municipal Corporation Vs.Manjulben Jayantilal Nakum and others 1997 (9) SCC 552, has held as under: “12 Negligence and tort have been viewed without elaborately embarking upon the definition of “tort” applicable to varied circumstances and the scope of negligence in its wider perspective. Let us proceed to consider the meaning of “negligence” in the context of tort liability arisen in this case. In very case giving rise to tortuous liability, tort consists of injury and damage due to negligence. Claim for injury and damage may be founded on breach of contract or tort. We are concerned in this case with tort. The liability in tort may be strict liability, absolute liability or special liability. The degree of liability depends on degree of mental element. The elements of tort of negligence consist in--(a) duty of care; (b) duty is owed to the plaintiff; (c) the duty has been carelessly breached. Negligence does not entail liability unless the law exacts a duty in the given circumstances to observe care. Duty is an 7 obligation recognized by law to avoid conduct fraught with unreasonable risk of damage to others. The question whether duty exists in a particular situation involves determination of law. Negligence would in such acts and omissions involve determination of law. Negligence would in such acts and omission involve an unreasonable risk of harm to others. The breach of duty causes damage and how much is the damage should be comprehended by the defendant. Remoteness is relevant and compensation on proof thereof requires consideration. The element of carelessness in the breach of the duty and those duties towards the plaintiff are important components in the tort of negligence. Negligence would mean careless conduct in commission or omission of an act connoting duty, breach and the damage thereby suffered by the person to whom the plaintiff owes. Duty of care is, therefore, crucial to understand the nature and scope of the tort of negligence. 15. Negligence would include both acts and omissions involving unreasonable risk of having done harm to another. The breach of duty must cause damage. How much of the damage to be compensated by the defendant should be attributed to his willful conduct and how much to his willful negligence or careless conduct or remissness in performance of duty, are all relevant facts to be considered in a given act or omission in adjudging duty of care. The element of carelessness or the breach of duty and whether that duty is towards the plaintiff or the class of persons to which the plaintiff belongs are 8 important components in tort of negligence. Negligence would, therefore, mean careless conduct in commission or omission of an act, whereby another to whom the plaintiff owed duty of care has suffered damage. The duty of care is crucial in understanding the nature and scope of tort of negligence. The question in each case is whether the defendant has been negligent in the performance of duty or omission thereof. Determination of duty of care also involves statutory action which requires detailed examination. Local authority, when it exercises its public law function, generally owes no private law duty of care. Duty of care must be owed to a person or class of persons to which the plaintiff belongs and must be to avoid causing particular type of injury or damage to his person or property.” The principle has been reiterated subsequently in M.S.Grewal and another Vs. Deep Chand Sood and others 2001 (8) SCC 151 and Jacob Mathew Vs.State of Punjab and another, 2005(6) SCC 1, wherein following the principle of res ipsa loquitur, the court shifted the burden on the defendants to prove that there was no negligence. Said cases were dealing with the accidents of the motor vehicles. Applying the aforesaid principle it is proved that the claimant had taken all precautions before turning towards the right. His speed was 25 Km. as deposed by him. He had signaled and it was for the appellant to have taken all steps to protect the occurrence of the accident in which he miserably failed. The version of claimants’ witnesses is clear cogent, 9 reliable and consistent. His only explanation is that the claimant had not given any signal by hand before taking the right turn. From the narration and the discussions herein- above, it cannot be said that the Tribunal has erred in holding that the accident occurred due to the fault of the claimant. The Tribunal has held that the version in the F.I.R. is same as deposed in the Court by PW.3 and PW-5. The Tribunal has rightly dis-believed the version of RW-3 and held him responsible for the accident. The submission of the learned counsel for the appellant on this account is rejected. On the point of quantum, the challenge is only on the ground that a sum of Rs. 74,400/- was wrongly awarded as there was no proof with regard to the same. PW-3 has categorically deposed that he remained under medical treatment at P.G.I., Chandigarh both as an indoor and outdoor patient. He took leave with and without pay. This version is fully supported by Sh.Agya Ram (PW-2), Superintendent, Senior Secondary School, Kotla, where the claimant was employed, who has proved that the claimant was on earned leave from 4th October, 1999 to 23rd November, 1999 and w.e.f. 24th November, 1999 to 4th June, 2000 was on leave without salary. He has proved certificate (Ext.PW-2/A) from which it is evident that the claimant’s salary was Rs. 9,306/- and w.e.f. 24th November, 1999 up to the date of the issuance of the certificate i.e. 4th June, 2000 10 the claimant was on medical leave without pay. There is no cross-examination on the aforesaid deposition. The salary of the claimant is proved to be Rs. 9,300/-. There is no doubt that the claimant has suffered financial loss due to the accident and therefore, he is entitled for the losses. However, in my view, the Tribunal has erred in awarding the salary for eight months, it should actually be for less period for the reason that the claimant remained on leave without salary for a period of six months and ten days (w.e.f.24th November, 1999 to 4th June, 2000) Therefore, the claimants shall be entitled to compensation on the said account as under: Loss suffered in respect of the Rs. 58,900-00 Salary due to leave and without pay. (Rs.9300x6 months & 10 days =Rs.58,900/-) The impugned award is accordingly modified to the aforesaid extent. The claimant shall be entitled to all other benefits as determined by the Tribunal. The appeal is partly allowed in the aforesaid terms. (Sanjay karol), Judge. September 12, 2008(R)