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2004 DIGILAW 343 (HP)

HIMACHAL ROAD TRANSPORT CORPORATION v. RAJ KUMAR

2004-12-21

DEEPAK GUPTA

body2004
JUDGMENT : Deepak Gupta, J. 1. This appeal u/s 173 of the Motor Vehicles Act has been filed against the award of the Motor Accidents Claims Tribunal (I), Kangra, at Dharamsala 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-claimant has filed 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 the 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. 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 downhill side, the brakes failed and in order to avoid injuries to the passengers, he had turned the vehicle towards hill side. 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 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 the 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 of negligence recorded by the learned Tribunal is upheld. 7. There is nothing to show that despite due diligence the 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 of 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 where he remained admitted for 11 days and it was stated that he was under plaster for about l 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 Exh. 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 an electrician after the accident but there is no medical evidence to support this. 8. Dr. S.K. Nanda, PW 4, a member of the Medical Board has assessed the disability suffered by the respondent. The disability has been assessed at 20 per cent to left lower leg. In his statement in court, he has clearly stated that the disability is temporary. PW 2 has stated that 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. 2,200 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 per cent. However, as per the statement of the doctor the disability assessed by him is 20 per cent 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. Respondent also produced receipts/bills of Rs. 5,000 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 is assessed at 20 per cent to right leg. Even if the case of the claimant is to be taken at its best, the disability would be about 5 per cent in relation to the entire body. 10,000 for medical treatment. The disability is only temporary and is assessed at 20 per cent to right leg. Even if the case of the claimant is to be taken at its best, the disability would be about 5 per cent 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 earning capacity of 5 per cent of his income. The income being Rs. 2,200, 5 per cent would come to Rs. 110. Keeping in view the age of the claimant a multiplier of 17 is reasonable. The loss on this account would be 110 x 12 x 17 = Rs. 22,440 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. Appeal is allowed to this extent and the compensation payable is reduced from Rs. 90,000 to Rs. 71,000. In view of the fact that the learned Tribunal has awarded 12 per cent interest, the same is maintained. 11. In view of the fact that the appeal has been allowed and the compensation payable has been reduced, cross-objections for enhancement of the compensation are hereby dismissed. The appeal is accordingly disposed off.