Research › Search › Judgment

Uttarakhand High Court · body

2004 DIGILAW 10 (UTT)

Shekhar Chandra Suteri v. Saraswati Shishu Mandir

2004-01-27

K.D.SHAHI, LUXMI SINGH, SURENDRA KUMAR

body2004
JUDGMENT Delivered by Sri Surendra Kumar, Senior Member : This is an appeal against the judgment and• order dated 06.05.2003 passed by the District Forum, Udham Singh Nagar by the appellant. 2. The brief facts of the case are that the appellant's daughter Neha Suteri was a student of Class II in the respondent school. She used to go to school by cycle rickshaw from her residence and come back. The respondent was charging Rs.70/- (Rupees Seventy) per month as fare from him. On 25.04.2001 when the daughter of the appellant was coming back from school, the cycle rickshaw met with an accident in which the daughter of the appellant was injured and the elbow of her right was fractured. Appellant spent a sum of Rs. 20,000/- (Rupees Twenty Thousand) on her treatment. He asked for financial help from the opposite party but it did not hear. Hence he filed the complaint. 3. The respondent in its written statement admitted that the cycle rickshaw is for taking the students to school and for sending them to their residence and the transport service is maintained properly. They till today have not received any complaint about this. They denied that the accident on 25.04.2001 and said that when the daughter of the appellant after leaving the cycle was walking, she fell down at a stone and she was injured. The rickshaw puller (driver) brought her from there to her residence and the respondent has also visited appellant's residence to see the injury of its student and there is no deficiency of service on their part, it was a simple injury, there is no question of any compensation. 4. The Learned Forum dismissed the complaint, therefore the complainant filed this appeal. We have heard the learned counsel for the parties and come through the records. 5. The first question is whether the daughter of the appellant got injured by falling from rickshaw of the respondent, if so whether there was any deficiency in service on the part of the respondent or not and what compensation can be allowed to the appellant? 6. It is admitted fact that there is a cycle rickshaw which belongs to the respondent for the students of its school to bring them from their residence and to take them back to their residence on payment of charges of Rs. 70/- (Rupees Seventy) per month. The respondent no. 6. It is admitted fact that there is a cycle rickshaw which belongs to the respondent for the students of its school to bring them from their residence and to take them back to their residence on payment of charges of Rs. 70/- (Rupees Seventy) per month. The respondent no. 3 is the rickshaw puller (driver). On 25.04.2001 he was taking the students including the daughter of the appellant back from the school to their residence. On the way to their residence, the rickshaw overturned in which the daughter of the appellant got the elbow of her right hand fractured. Sh. Harjeet Singh, Sh. Arun Kumar, Sh. Bhupendra Singh, Pushpa Suteri, Sh. Vivek Kumar Yadav, etc. are said to be witnesses of the accident. It is said that Sh. Arun Kumar and Sh. Harjeet Singh have seen the accident and all the others have arrived at the root after the accident. According to Sh. Harjeet Singh he was standing on his Dairy Shop to the time at the accident and he saw a rickshaw going at a fast speed near the Departmental Store overturned and he listened the noise of the children crying and then he came near the rickshaw. According to Sh. Arun Kumar he was purchasing goods in Arora Departmental Store at that time where the rickshaw overturned. This incident is of 25.04.2001. At that day Neha was brought to the Rastogi Nursing Home for treatment. It is admitted fact that there is no F.I.R. 7. The appellant sent a legal notice through his Advocate on 18.07.2001 to the respondent. The respondent inquired about the health of Neha. On 28.04.2001 the appellant asked the complainant for financial help. The appellant denied the allegations of the respondent that his daughter met with an accident and overturning of the rickshaw injured her. 8. The case of the opposite party is totally false that the victim fell down at a stone and got the injury. At least it is admitted fact that the victim was on the rickshaw just before the accident. Affidavit of rickshaw puller has been filed to prove this contention, but he has also admitted his presence at the time of accident & the injury the victim at the elbow. 9. At least it is admitted fact that the victim was on the rickshaw just before the accident. Affidavit of rickshaw puller has been filed to prove this contention, but he has also admitted his presence at the time of accident & the injury the victim at the elbow. 9. After examining the evidences of the parties, it is clearly evident that the daughter of the appellant got the elbow of her right hand fractured by overturning of the rickshaw which was provided by the school authorities on payment of fare. The respondent admitted that they provide cycle rickshaw to the students on payment of fare and it is also clear that the rickshaw puller (driver) is an employee of the respondent. There is no ground to disbelieve the in dependent witnesses. After examining the records it is also clear that the daughter of the appellant got injured by overturning of the rickshaw and that happened due to the negligence of the rickshaw puller (driver). 10. After discussion of the above facts, it can be said that there was negligence on the part of the rickshaw puller (driver) due to which the accident took place and the daughter of the appellant got the elbow of her right hand fractured. The appellant went pillar to post before the school authorities to get financial help for the treatment of his daughter. The act of the school authorities is totally irresponsible, inhumane to the extent that they have denied the accident totally, which is not appreciable. 11. Two of us, namely, Sri Surendra Kumar and Ms.Luxmi Singh are also social workers and we would like to direct the school authorities and the administration of the State to take care of the students by providing proper transport facilities to bring students to the school and send them back to their homes safely. They should pay attention towards the overloading of the students in the rickshaw, scooter rickshaw and buses, which should be avoided to avoid any such accident in future. We see daily on roads rickshaws, tempos and other school transport vehicles dumped with students like animals. 12. The Learned Counsel for the appellant referred the ruling reported in II (1995) CPJ 127, Somasundaram Vs. The Correspondent, C.I.M.A. Madras to show that the appellant is a consumer. We see daily on roads rickshaws, tempos and other school transport vehicles dumped with students like animals. 12. The Learned Counsel for the appellant referred the ruling reported in II (1995) CPJ 127, Somasundaram Vs. The Correspondent, C.I.M.A. Madras to show that the appellant is a consumer. In this ruling it has been held that the complainant has admitted his daughter in the opposite party on payment of necessary fees. He has, therefore, hired or availed of the services of the opposite party for consideration and was, therefore, a consumer under Section 2 (1) (d) (ii) of the Consumer Protection Act. In the same manner the present appellant is also a consumer. 13. The appellant has claimed a sum of Rs. 4,81,750/- (Rupes Four Lacs Eighty One Thousand Seven Hundred Fifty) as compensation. A sum of Rs. 20,000/(Rupes Twenty Thousand) has been spent by him on the treatment of his daughter. The complainant had requested the opposite party to get the victim treated but they did not take care, then she was prefer by admitted in Nursing Home where her fracture was treated and plaster, etc. was The receipt of expenses has been filed. Naturally in a case like this a sum of Rs. 20,000/- (Rupees Twenty Thousand) must have been spent in the treatment. The other compensation as claimed is highly exaggerated. If the complainant took the leave, he cannot be given any compensation for that. For mental pain and agony to the complainant and the victim a sum of Rs. 10,000/- (Rupees Ten Thousand) shall meet the ends of justice. Under the provisions of Motor Vehicle Act, in cases like this certain amount has been fixed as compensation and Rs. 25,000/- (Rupees Twenty Five Thousand) can be the highest one. There being no specific law, we have to borrow from the Motor Vehicle Act. The complainant shall also get a sum of Rs. 2,000/- (Rupees Two Thousand) as cost of litigation. 14. Looking to these facts the complaint is to be allowed to that extent. The order of the Learned Forum is not at all correct and is against the facts. It did not take any notice of the fact that a guardian will have no reason or motive to claim unnecessary compensation on the basis of injury of his daughter. 14. Looking to these facts the complaint is to be allowed to that extent. The order of the Learned Forum is not at all correct and is against the facts. It did not take any notice of the fact that a guardian will have no reason or motive to claim unnecessary compensation on the basis of injury of his daughter. He will not made a subject matter of false earning by making his daughter a victim of any false accident. Therefore the judgment and order of the Learned Forum is to be set aside. ORDER The appeal is hereby allowed. The judgment and order dated 06.05.2003 passed by the District Forum is hereby set aside. The complaint is allowed to the extent that the complainant will get and the opposite party will pay a sum of Rs. 20,000/- (Rupees Twenty Thousand Only) as expenses of treatment of the victim and Rs. 10,000/ - (Rupees Ten Thousand Only) as compensation. He shall also get a sum of Rs. 2,000/- (Rupees Two Thousand Only) as cost of litigation. This total amount of Rs.32,000/- (Rupees Thirty Two Thousand Only) shall be paid with in a month, failing which the complainant shall get interest @12% on this amount from the date of accident, i.e. 25.04.2001.