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2004 DIGILAW 195 (MP)

Shriram v. Rajendra alias Pappu

2004-02-26

SHANTANU KEMKAR

body2004
JUDGMENT 1. This appeal under section 173 of the Motor Vehicles Act, 1988 has been directed against the award passed by the II Additional Claims Tribunal, Burhanpur, in Claim Case No. 75/2001 dated 21.1.2002. 2. Briefly stated, on 23.7.2000 the appellant was traveling as a passenger along with his wife Durgabai and mother Dhanabai in a bus bearing registration No. MP 12B 0132 and was going from Burhanpur to Borgaon. The respondent No.1 was driver of the bus, respondent No 2 was the owner of the bus and the respondent No. 3 was its insurer. It was alleged that the bus was being driver rashly and negligently by respondent No.1 as a result of which it turned turtle near, dargah situated in between village Asirgarh and Dhoopgarh. The appellant sustained grievous injuries resulting into fracture of ribs. He was hospitalized for 26 days and his treatment continued for further period. It was stated in the claim petition that he was engaged in the work of making and selling of brooms. His earning was Rs. 1,000/- per month. He suffered permanent disability which resulted in loss of earning capacity. He accordingly claimed Rs. 99,000/- towards compensation under various heads. 3. The claim petition was resisted by the respondents No.1 and 2 by filing a join reply stating therein that there was no negligence on the part of the driver of the bus. The driver was driving the bus slowly but because of steep curve, the steering of the bus failed and in spite of best efforts the bus turned turtle. The respondent No 3 Insurance Company in its reply has submitted that the driver of the bus was no having valid and effective driving license and the vehicle was being plied contrary to the policy condition and, therefore, the Insurance Company is not liable to pay compensation. 4. The Tribunal framed as many as four issues and recorded evidence. The Tribunal held that the accident occurred because the steering rod was broken and therefore there was no negligence on the part of the driver and in the result, dismissed the claim petition of the appellant. 5. Heard Shri Sameer Seth, learned counsel for the appellant, Shri Rakesh Jain learned counsel for respondents No.1 and 2 and Shri B.D. Jain, learned counsel with Shri Sunil Jain, learned counsel for the respondent No.3. Record perused. 6. 5. Heard Shri Sameer Seth, learned counsel for the appellant, Shri Rakesh Jain learned counsel for respondents No.1 and 2 and Shri B.D. Jain, learned counsel with Shri Sunil Jain, learned counsel for the respondent No.3. Record perused. 6. In order to prove the occurrence of the accident and the negligence on the part of the driver of the bus, the appellant examined himself and his mother Dhanabai. Appellant Shriram (AW 1) has deposed that the respondent No. 1 was driving the bus at an excessive speed rashly and negligently and in spite of his request to him for slowing it down, he paid no heed to his request. He further deposed that when the bus reached near Dhoopgarh, it turned turtle near dargah. A that time the bus was at excessive speed Dhanabai (AW 3) in her evidence has deposed that the driver of the bus was driving it at a very high speed and it turned turtle near Dhoopgarh. She further deposed that the cause of accident was rash and negligent driving of the bus by the driver. In her cross-examination she has deposed that the bus turned turtle because of the fact that the steering rod was broken Rajendra (NAW 1), driver of the bus, has deposed that he lost control over the bus because the steering rod got free due to its breaking. He produced mechanical report Ex. P-5 which finds a mention that the steering is in broken condition. On the basis of the aforesaid evidence, the Tribunal has concluded that the negligence on the part of the driver is not proved and therefore, dismissed the claim of the appellant in its entirety. 7. In my opinion, the Tribunal has committed gross illegality in dismissing the claim petition of the appellant. Admittedly, the owner of the bus did not lead any evidence to sustain the plea that the accident was due to mechanical defect. There is no evidence that the defect was latent and was not discoverable by the use of reasonable care. It was the duty of the respondent No.2 to show that he had taken all reasonable care and despite such care the defect remained hidden. There is no evidence that the defect was latent and was not discoverable by the use of reasonable care. It was the duty of the respondent No.2 to show that he had taken all reasonable care and despite such care the defect remained hidden. In the present case, though from the evidence it has been fully established that the driver of the bus was driving the bus rashly and negligently as a result of which accident occurred, however, even if it is accepted that the bus turned turtle because of breaking of the steering rod, still in the absence of any evidence by the respondent No.2 owner to show that he was maintaining the bus with reasonable care, the owner of the bus cannot be absolved from his liability to compensate. Thus, the finding of the Tribunal that the respondents No.1 and 2 were not negligent is set aside and the respondents are held liable to pay compensation to the appellant. There is no dispute that the said bus was insured with the respondent No.3 and the driver of the bus was possessing a valid and effective driving license Ex. D-1 (C) to drive the bus and, therefore, the respondent No.3 shall pay the compensation. 8. Now coming to the quantum of compensation, appellant (AW 1) has deposed that he was engaged in the business of making and selling brooms and was earning Rs. 1,000/- p.m. He was hospitalized for a month and was unable to perform his work for four months, he sustained fracture of his 7th, 8th and 9th rib. Dr. Ashok Pagare (AW 2) has proved the hospitalization and the injuries sustained by the appellant. However, the doctor has deposed that the injuries though grievous, but have not caused any permanent disability. Thus, considering the nature of injuries, in my view the appellant is entitled to get compensation of Rs. 5,000/- for medical expenses, Rs 5,000/- for pain and suffering, Rs. 4,000/- for loss of earning during the period of treatment, in all Rs. 14,000/- The appellant would be entitled to get the interest on the compensation amount @ 9% per annum from the date of application to the date of receipt of compensation amount. 9. The appeal, therefore, stands allowed with no order as to costs.