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2000 DIGILAW 1192 (MP)

M. P. S. R. T. C. , And Anr. v. Rateesh

2000-11-03

R.VYAS, SHAMBHOO SINGH

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JUDGMENT Shambhoo Singh, J. 1. This judgment shall govern the disposal of M.A. No. 349/95, M.P.S.R.T.C. and Anr. v. Rateesh and Anr. and M.A. No. 578/95, Rateesh v. Saifuali and Ors. against the award dated 18.4.1995 passed by M.A.C.T. Dewas in Claim Case No. 125/90. 2. The facts of the case, in brief, are that on 16.7.1990 the appellant-claimant (M.A. No. 578/95) was coming from Ujjain to Dewas by travelling in passenger bus No. M.B.W. 1538 driven by non-applicant No. 1 belonging to Madhya Pradesh State Road Transport Corporation (for short 'the Corporation'). Near village Singawda, another bus bearing Registration No. M.B.E. 1837 belonging to the Corporation and driven by respondent No. 2 came from opposite direction in rash and negligent manner and dashed against the bus No. M.B.W. 1538, as a result of which the claimant sustained compound fracture in his both legs, three fractures in left leg and four fractures in right hand and fracture of both collar bone. He was admitted in District Hospital Ujjain. Plaster was applied. He suffered 54% permanent disability in his lower and upper limb. He had to remain on leave for a period more than 6 months. He, therefore, filed claim case seeking compensation of Rs. 4,10,000/-. The respondent-Corporation who is the owner of both the vehicles resisted the claim and inter alia pleaded that a she-baffalo came before the bus, for avoiding accident the driver applied brakes all of a sudden, as a result of which this bus struck against the bus coming from Ujjain. The learned Tribunal on appreciation of evidence held that the bus No. M.B.W. 1538 was driven by respondent No. 2 in rash and negligent manner and it dashed against the bus No. M.B.E. 1837 in which the appellant was travelling and he sustained fracture of his lower and upper limbs. The Tribunal held that it could not be proved that the appellant-suffered permanent disability and awarded compensation of Rs. 22,200/-. The appellant felt aggrieved and filed M.A. No. 578/95 and the Corporation also filed MA. No. 349/95. 3. Mr. Vijayvargiya, learned Counsel for the appellant-claimant, submitted that the learned Tribunal committed error in disbelieving the evidence of Dr. Arun Kumar Dubey (A.W. 6) who proved that the claimant suffered 54% permanent disability in his lower limb. 22,200/-. The appellant felt aggrieved and filed M.A. No. 578/95 and the Corporation also filed MA. No. 349/95. 3. Mr. Vijayvargiya, learned Counsel for the appellant-claimant, submitted that the learned Tribunal committed error in disbelieving the evidence of Dr. Arun Kumar Dubey (A.W. 6) who proved that the claimant suffered 54% permanent disability in his lower limb. He also contended that the learned Tribunal further committed error in not allowing any compensation for his leave period of six months, during which he took treatment. He also submitted that due to the permanent disability chances of future promotion have been reduced. He, therefore, prays for enhancement of compensation amount. On the other hand, Mr. Dhuper, learned Counsel for the respondent-Corporation, submitted that the accident did not take place due to rash and negligent driving of the bus and, therefore, no compensation could be granted. 4. We considered the arguments advanced by learned Counsel for both sides and perused the record. From the evidence of Rateesh (A.W. 1), Narsingh Laxmanprasad (A.W. 2) and Mahesh Kumar Chorasiya (A.W. 3) it has been proved that the driver of the bus of the Corporation coming from Dewas came driving the bus in rash and negligent manner and dashed against the bus in which they were travelling. They denied that any buffalo came in front of this bus. It is true that Saifu Ali (N.A.W. 1), the driver of the bus coming from Dewas, deposed that he was driving the bus at moderate speed, a buffalo came in front of this bus, he, therefore, applied brakes, due to which this bus slipped and dashed against the bus coming from Ujjain. Bhagirath Mali (N.A.W. 2), the conductor of the bus did not support Saifuali fully. He did not state that a buffalo came in front of the bus, according to him it came on the side of the bus. There is variance between the evidence and the pleading. In para 7 of written statement it was averred that the bus did not dash against the bus coming from Ujjain. However, in para 10 by way of amendment, story of buffalo was introduced. There is variance between the evidence and the pleading. In para 7 of written statement it was averred that the bus did not dash against the bus coming from Ujjain. However, in para 10 by way of amendment, story of buffalo was introduced. In our opinion, the learned Tribunal considered the evidence of both sides deeply and rightly held that the bus coming from Dewas was driven in rash and negligent manner,as a result of which it hit the bus coming from Ujjain in which the appellant was travelling and he sustained injuries. 5. Now the question is whether the claimant suffered permanent disability. From the evidence of Dr. Sharad Nayak (A.W. 4) it Is proved that the claimant suffered fractures of his both legs and hand and also fracture of clavicle bone vide Certificate Ex. PI. Dr. Sharad Nayak had treated the claimant. Dr. Arun Kumar Dubey, Asstt. Surgeon, Govt. District Hospital, Dewas, examined the appellant on 5.12.1994 and opined that the appellant suffered 54% permanent disability vide his Certificate Ex. P54. The learned Tribunal disbelieved the evidence of Dr. Arun Kumar Dubey on the ground that he did not treat the claimant and he examined the appellant after four years on 5.12.1994. The claimant also did not depose that he had become permanently disabled. Under such circumstances, it cannot be said that the learned Tribunal committed error in holding that the appellant could not prove that he suffered permanent disability. 6. However, the Tribunal fell in error in not granting compensation for the leave period of six months which has been proved by Branch Manager Ashok (A.W. 5). It has come in the evidence of the appellant that his salary was Rs. 5,500/- per month. He is, therefore, entitled to compensation for the leave period amounting to (5,500 x 6) = Rs. 33,000/-. So far as the expenditure made on treatment and compensation for pain and suffering are concerned the Tribunal awarded Rs. 15,000/- and Rs. 7,200/- respectively. It cannot be said that this amount is inadequate. Thus, the total amount of compensation comes to Rs. 55,200/-. It is rounded up to Rs. 56,000/-. 7. In the result, M.A. No. 578/95 is partly allowed. The impugned award is modified and it is directed that the respondents shall pay Rs. 15,000/- and Rs. 7,200/- respectively. It cannot be said that this amount is inadequate. Thus, the total amount of compensation comes to Rs. 55,200/-. It is rounded up to Rs. 56,000/-. 7. In the result, M.A. No. 578/95 is partly allowed. The impugned award is modified and it is directed that the respondents shall pay Rs. 56,000/- severally and jointly to the claimant with interest at the rate of 12% per annum front the date of filing of claim application till realisation (after adjusting the amount already deposited). M.A. No. 349/95 is dismissed. No order as to costs.