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2004 DIGILAW 329 (HP)

H. R. T. C. v. RAJ KUMAR

2004-12-12

DEEPAK GUPTA

body2004
JUDGMENT Deepak Gupta, J. (Oral): This appeal under Section 173 of the Motor Vehicles Act, has been filed against the award of the Motor Accident Claims Tribunal (I) Kangra at Dharamshala dated 22.2.1997. 2. The appellants have filed this appeal mainly on the ground that the accident had occurred due to failure of the brakes and, therefore, there was no negligence on the part of the driver and hence the liability could not be fastened upon the appellants. The appellants have also assailed the compensation granted as being excessive. 3. The respondent T daimant has filed The, Cross Objections claiming enhancement of the amount. 4. The claimant-respondent aged about 30 years was travelling in a Bus bearing registration No. HP-39-0290 belonging to the appellant No. 1. The said bus met with an accident on 26.4.1995 in which the respondent suffered injuries. 5. The claimant-respondent in support of his case has proved on record the F.I.R. and has examined himself and other witnesses. Admittedly, the accident had occurred when the bus was going downhill and struck against hill side. The case of the appellants is that the accident had occurred due to failure of the brakes of the vehicle. Shri Suresh Kumar, appellant No. 3-driver of the bus while appearing as his own witness in the case has also stated that when he was driving the bus towards down hill side his brakes failed and in order to avoid injuries to the passengers, he had turned the vehicles towards hill side. The appellants have failed to examine any mechanic to prove fact that the accident had occurred due to latent defect in the vehicle. No evidence has been led before the learned Tribunal below to show that the vehicle in question was being maintained in a proper way prior to the accident. 6. It is well settled law that to take the benefit of defence that the accident has occurred due to mechanical defect or failure, the onus is upon the owner and driver of the vehicle to prove that there was a latent mechanical defect in the Vehicle which could not be discovered despite due care and diligence. There is nothing to show that despite due diligence that latent defect could not be discovered prior to the accident. There is nothing to show that despite due diligence that latent defect could not be discovered prior to the accident. No evidence has been led in this behalf and, therefore, the finding on the issue negligence recorded by the learned Tribunal is upheld. 7. With regard to quantum, the evidence led before the Tribunal reveals that the claimant was taken to hospital at Una he remained admitted for 11 days, and it was stated that he was under plaster for about 1-1/2 months. He claims to have spent about Rs. 15,000/- on treatment but no documentary evidence in this behalf has been proved before the learned Tribunal. The receipts/bills of the medical expenses are Exts. PW5/A to PW5/11, which are for about Rs. 5,000/-. Admittedly, the claimant is presently working at Ludhiana. He has stated that he cannot do the work of electrician after the accident but there is no medical evidence to support this. 8. PW-4 Dr. S.K. Nanda, was a member of the Medical Board has assessed the disability suffered by the respondent. The disability has been assessed as 20% to the left lower leg. In his statement in Court, he has clearly stated, that the disability is temporary. PW2 has stated. That the appellant has worked with him as electrician with effect from 10.10.1994 to 20.4.1995 and he used to pay him the salary of Rs. 2200/- p.m. This is the entire relevant evidence led in the case. 9. The learned Tribunal has taken the disability of the respondent as 20%. However, as per the statement of the doctor the disability assessed by him is 20% temporary disability. The respondent remained out of job for about 5 months and, therefore, the amount of Rs. 13,000/- awarded to him under the count is reasonable. The respondent also produced receipts/bill of Rs. 5000/- for medical treatment. Keeping in view that he may have spent some other amount without receipts as well as also on his diet etc., he is awarded a sum of Rs. 10,000/- for medical treatment. The disability is only temporary and assessed at 20% to the right leg. Even if the case of the claimant is to taken at its best, the disability would be about 5% in relation to the entire body. There is no evidence on record to show that the injury has in any way affected the earning capacity of the claimant. The disability is only temporary and assessed at 20% to the right leg. Even if the case of the claimant is to taken at its best, the disability would be about 5% in relation to the entire body. There is no evidence on record to show that the injury has in any way affected the earning capacity of the claimant. Keeping in view the injury suffered by him in the accident, he can at best be awarded compensation by taking the loss of earing capacity of 5% of his income. The income being Rs. 2200/-, 5% would come to Rs. 110. Keeping in view the age of the claimant a multiplier of 17 is reasonable. The loss on this amount would be 110x12x17=Rs.2244O which can be rounded off to Rs. 23,000/-. 10. The petitioner is also entitled to Rs. 25,000/- on account of pain and suffering and future discomfort etc. The total amount payable to the respondent comes to Rs. 71,000/-. The appeal is allowed to this context and the compensation payable is reduced from Rs. 90,000/- to Rs. 72,000/-. In view of the fact that the learned Tribunal has awarded 12% interest, the same is maintainable. 11. In view of the fact that the appeal has been allowed and the compensation payable has been reduced, the Cross Objections for enhancement of compensation are hereby dismissed. 12. The appeal is accordingly disposed off.