A.M. Ahmadi, J.@mdashHis Lordship after stating the facts further observed:
2. On the night of the accident three brothers, Nitin, Dhiren and Haresh along with Baby Nipa, daughter of Nitin and two others, namely, Manubhai and Pravinbhai were travelling in the auto-rickshaw driven by one Ibrahim on their way back to Bhavnagar and when they were near Sihor, opposite the bakelite factory, the omnibus belonging to the Gujarat State Road Transport Corporation, driven by Gohel Surendrasinh alias Surubha Pragraisinh came from the opposite direction with headlights switched on and dashed against the front of the auto-rickshaw. The impact was so violent that the auto-rickshaw was thrown to a distance of almost 77 feet with its front turned in the opposite direction. Nitin, his daughter Nipa, Dhiren and the rickshaw driver Ibrahim died almost instantaneously while Pravin and Haresh were removed with serious injuries for medical treatment. The third brother Haresh also succumbed to his injuries while he was receiving treatment at the Civil Hospital, Ahmedabad, on 12th September, 1978. The other inmate of the rickshaw Manubhai also died on the date of the incident.
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5. It is indeed amusing that the Tribunal seems to think that because the rickshaw was thrown at a distance of 77 feet after the impact as evidenced by the scratch marks on the road, the rickshaw driver must be driving the vehicle at excessive speed. This is what the Tribunal observes at the conclusion of paragraph 17 of its judgment:
The marks of dragging show that he was driving the rickshaw on the wrong side of the road. The very impact resulting in pushing back the rickshaw to a distance of 77 feet shows that he must also be driving his rickshaw at the speed higher than required in the situation. He certainly contributed to the occurrence of the accident. He was, therefore, equally responsible for the occurrence of this accident.
On this logic the Tribunal came to the conclusion that the rickshaw was being driven at a speed higher than that required in the situation. Now the Tribunal also came to the conclusion from the fact that the omnibus covered a distance of one kilometer after the impact that it was being driven at uncontrollable speed at the time of the impact. The impact was so violent that the rickshaw was thrown to a distance of 77 feet to the west even though it was proceeding at the time of the impact towards the East. The Tribunal forgets that as soon as an impact takes place between two vehicles, the speed is first neutralised by the impact and thereafter the vehicle which is proceeding at a higher speed throws back the other vehicle in the direction in which it is proceeding depending on the speed of the said vehicle after neutralisation. If this principle had been borne in mind by the Tribunal, it could not have inferred that the rickshaw was being driven at a speed higher than the situation demanded at the time of the impact from the mere fact that it was thrown to a distance of 77 feet in the opposite direction because of the collision. We find it difficult to understand the logic of the Tribunal that because the rickshaw was thrown in the opposite direction to a distance of 77 feet by a vehicle which was being driven at uncontrollable speed coming from the opposite direction, the rickshaw must be proceeding higher than the normal speed at which the vehicle ought to have been driven in the given situation. Therefore, both the premises on which the Tribunal has proceeded are thoroughly erroneous and hence the Tribunal fell into an error in concluding that the rickshaw driver was guilty of contributory negligence.
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9. The Tribunal next took the view that both the driver of the omnibus and the driver of the auto-rickshaw were equally negligent. On that finding and holding that Nitin was the owner of the rickshaw it took the view that Nitin, if alive, would have been vicariously liable to the extent of 50 per cent as his driver was guilty of contributory negligence. In this view that the Tribunal took, it sliced down the compensation determined in each claim application by SO per cent as if all the claimants were vicariously guilty of contributory negligence to the extent of 50 per cent. Now assuming for the sake of argument, though we do not so hold, that the Tribunal is right in concluding that the drivers of both the vehicles involved in the accident were equally negligent, it is elementary that in any case where there are two tortfeasors it is open to the third parties (who do not claim through either of the tortfeasors) to claim compensation in full from either or both of them and so far as they are concerned the claim cannot be scaled down in the manner in which it has been done by the Tribunal. We think it is elementary and no authority is required to support our view that such third parties are entitled to chase either or both the tortfeasors for their claim of compensation and it cannot be sliced down on the ground that one of the tortfeasors who was the owner of the vehicle happened to be a co-passenger in the vehicle and a near relative of such third parties or that such third parties were co-passengers with the tortfeasor in the said vehicle. In fact this principle was restated in
[His Lordship in case of injured Pravin, after stating the facts and discussing the evidence, further observed:]
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14. Dr. Dholakia opined from the above facts noted by him on the examination of the injured that he had suffered a permanent disability to the extent of 40% so far as the right lower extremity is concerned. In his cross-examination he stated that the patient was not operated upon but close reduction might have been done. He then stated that if the patient had received prompt and proper treatment he would not have suffered the disability to the extent he has suffered. He states that he would be able to ride a cycle but would not be able to paddle it fast and would soon get tired. It is thus clear from the medical evidence discussed above that the injured had suffered serious injuries in the accident including the fracture of the femur bone which has ultimately resulted in a permanent disability to the extent of 40%. From the statement made by Dr. Dholakia that if prompt and proper treatment had been given to the patient he would not have suffered this much of disability, the Tribunal holds that if the claimant suffered the disability, it is not because of the injuries sustained in the accident but because of either carelessness or want of prompt and proper treatment. He conjectures that the wasting of muscles might be due to want of proper physiotherapy treatment though no question was asked to Dr. Dholakia in the witness-box. He goes to the length of saying that the injured has not suffered any permanent disability assessed by Dr. Dholakia and ultimately concludes that it is not possible to believe that the injured has suffered any permanent disability whatsoever. This, in our opinion, betrays a total inhuman approach on the part of the Tribunal. In the face of evidence of Dr. Dholakia that the injured has suffered a permanent disability to the extent of 40 per cent, we fail to understand how the Tribunal could come to the conclusion that no such permanent disability as assessed by the witness was suffered by the victim. We also fail to understand how the Tribunal could conjecture that the wasting of muscles may be due to want of proper physiotherapy treatment in the absence of any medical evidence in that behalf. No such question was put in cross-examination to Dr. Dholakia and yet the Tribunal on its own holds that the wasting of muscles might be due to want of proper physiotherapy treatment. So also the Tribunal conjectures that the victim suffered the disability because of carelessness on his part or because of want of proper and prompt treatment. If proper and prompt treatment was not given to the victim, is the victim responsible for the same? If those in charge of the victim at the hospital were responsible for not giving proper and prompt treatment to him, it would be open to the tortfeasors to sue the hospital authorities to recover a part of the compensation money by way of indemnity. We fail to understand how the Tribunal could refuse to pay compensation to the victim on such unwarranted conclusion based on no evidence whatsoever and in total disregard of first principles governing the liability of tortfeasors to pay compensation to the victims of accidents. The claimant has stated that because of the deformity and the permanent disability suffered by him including the shortening of the leg, his marital prospects have suffered a set-back. He has deposed that talks regarding his betrothal were in progress immediately before the accident but they had to be given up because of the injuries suffered by him. There can be little doubt that the deformity and the permanent disability will certainly affect his marital prospects and it beats common-sense to say that the marital prospects will not be adversely affected as observed by the Tribunal. We are loath to use harsh language while dealing with a judgment of a Claims Tribunal but this is one case in which the approach of the Tribunal is so perverse, callous and inhuman that we cannot shirk our duty to stigmatise his approach.
FA. No. 1555 of 1980 allowed and claimants awarded additional compensation of Rs. 54,500/- with 6% interest.
F.A. No. 1556 of 1980 allowed and claimants awarded additional compensation of Rs. 4,500/- with 6% interest.
F.A. No. 1557 of 1980 partly allowed and the claimants allowed additional compensation of Rs. 19,850/- with 6% interest.
F.A. No. 1559 of 1980 allowed and claimants awarded additional compensation of Rs. 33,500/- with 6% interest.
F.A. No. 1558 of 1980 allowed in toto and claimants awarded additional compensation ef Rs. 21,250/ with 6% interest.
