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2007 DIGILAW 185 (UTT)

State of Uttaranchal and another v. Motor Accidents Claims Tribunal/Additional District Judgel Fast Track Court-VII, Dehradun

2007-04-16

J.C.S.RAWAT, RAJEEV GUPTA

body2007
Judgment J.C.S. Rawat, J. 1. This appeal, under section 173 of the Motor Vehicles Act, 1988, has been filed against the award dated 05-01-2005 passed by Motor Accidents Claims Tribunal/Additional District Judge / Vllth F.T.C., Dehradun (hereinafter referred as 'Tribunal') in M.A.C. No. 245/ 2003, Roshan Lal Joshi Vs. Chief Project Director and another whereby the learned Tribunal had awarded a sum of Rs. 1,96,400/- as compensation against the opposite parties, i.e., Chief Project Director Watershed Management and Manoj Kumar driver jointly and severally. 2. Brief facts of the case are that the claimant filed a claim petition before the Tribunal for compensation of Rs. 18,00,000/- alleging therein that on 04-09-2003 claimant Roshan Lal Joshi was going on his motorcycle from Doiwala to Dehradun. When he reached near Mianwala, a Jeep No. UA-07 /0818 which was coming from opposite direction and being driven rashly and negligently by its driver dashed the motor cycle resulting in fracture of the leg of the claimant. It was alleged that the injured was driving the motor cycle in slow speed in his side. Thereafter, the injured was admitted to Johri Hospital, Haridwar Road, Dehradun and later on shifted to Harish Kohli Hospital, Dehradun. It was alleged that the injured was 33 years of age at the time of accident and was earning Rs. 6,000/- per month. It was alleged that due to the injuries sustained by the injured he had spent Rs. 1,00,000/- towards medical expenses and became disabled. Thus, the claimant-injured had filed a claim petition before the Tribunal. 3. The opposite parties contested the claim petition and filed separate written statements. The opposite party No.1 Chief Project Director pleaded that the driver of the Jeep was not rash and negligent rather the motor cyclist himself was rash and negligent in driving. The opposite party NO.2 driver of the jeep in his written statement pleaded that the motor cyclist was rash and negligent and the motor cyclist dashed the stationed jeep due to which he sustained the injuries. As such, the claimant / injured was not entitled to any compensation. 4. The opposite party NO.2 driver of the jeep in his written statement pleaded that the motor cyclist was rash and negligent and the motor cyclist dashed the stationed jeep due to which he sustained the injuries. As such, the claimant / injured was not entitled to any compensation. 4. On the basis of the pleadings, the learned Tribunal framed necessary issued and ultimately, the learned Tribunal came to the conclusion that the injured sustained the injuries in the accident on 04-09-2003; the accident occurred due to rash and negligent driving of the driver of the offending jeep; and the opposite parties are liable to pay the compensation to the tune of Rs. 1,96,400/- to the claimant/injured jointly and severally. 5. The Tribunal assessed the income of the injured at Rs. 2,400/- per month, i.e. Rs. 28,800/- per annum. The learned Tribunal had applied the multiplier of 15 and the amount of compensation was assessed at Rs. 4,32,000/-. As the injured had become 30% disabled, the Tribunal awarded 30% of the assessed compensation, i.e. Rs. 4,32,000/- which worked out to Rs. 1,29,000/-. Apart from this, the Tribunal awarded Rs. 15,000/- towards Pain and Agony; Rs. 50,000/- towards Medical Expenses; and Rs. 2,400/- towards one month's salary during his admission in the hospital. Thus, the Tribunal had awarded a sum of Rs. 1,96,400/- to the claimant injured as compensation. The opposite parties/appellants were directed to pay the compensation to the claimant-injured. The Tribunal further directed that in default of payment of compensation within a period of sixty days, the claimant-injured would be entitled to receive interest thereon at the rate of 6% per annum from the date of award upto the payment. 6. Feeling aggrieved by the impugned award, the opposite parties/appellants have preferred the present appeal. 7. Heard learned counsel for the parties and perused the record. 8. Shri Lalit Sharma, Brief Holder for the appellants contended that the accident did not take place due to rash and negligent driving of the driver of the offending Jeep. It was contended that when the driver of the offending jeep saw the motor cycle of the claimant coming rashly and negligently from the wrong side, the driver of the offending Jeep parked his jeep on his side on the road and it was almost in a stationed condition. It was contended that when the driver of the offending jeep saw the motor cycle of the claimant coming rashly and negligently from the wrong side, the driver of the offending Jeep parked his jeep on his side on the road and it was almost in a stationed condition. However, due to rash and negligent driving of the claimant/respondent No.2, motor cycle dashed the jeep. It was further contended that the claimant/respondent No.2 was under the influence of liquor at the time of accident, as such, he himself was responsible for the accident. Therefore, the appellants are not liable to pay the compensation to the claimant/respondent NO.2. It was contended that the appellants had made the above averment in his written statement and the Tribunal had not framed any issue in this regard. The Tribunal had erred in holding that the driver of the offending jeep was rash and negligent at the time of accident causing multiple injuries on the person of the claimant/respondent NO.2. It was further contended that the compensation awarded by the Tribunal is exorbitant and without any basis. The medical expenses bills submitted before the Tribunal were not credible and cogent as the same had not been proved. It was further contended that the Tribunal has considered the disability certificate issued by the C.M.O. without getting it proved by the claimant/respondent NO.2 while awarding the exorbitant compensation. Learned counsel for the claimant/respondent NO.2 further contended that the same cannot be read in evidence in view of the judgment rendered by the Division Bench of this Court in Kashmir Singh Vs. Santosh Singh Patiner and another reported in 2006 (2) U.D., 693. 9. On the other hand, learned counsel for the claimant/respondent NO.2 had supported the findings recorded by the learned Tribunal. 10. The claimant/respondent NO.2 has examined himself as PW -1 and supported the claim petition. Dharmendra PW-2 is the eyewitness of the accident. The owner of the vehicle has examined the driver of the offending Jeep Manoj Kumar DW 1 who had supported the contentions of the written statement filed by the appellants. The claimant/respondent NO.2 has also filed the disability certificate issued by the C.M.O. Dehradun. Apart from this, the medical expenses bills were also produced before the Tribunal. The owner of the vehicle has examined the driver of the offending Jeep Manoj Kumar DW 1 who had supported the contentions of the written statement filed by the appellants. The claimant/respondent NO.2 has also filed the disability certificate issued by the C.M.O. Dehradun. Apart from this, the medical expenses bills were also produced before the Tribunal. Learned counsel for the appellants/owner of the offending jeep submitted that the medical bills reveal that there are some receipts, which did not belong to any medical store or any Nursing Home. The said bills have been issued on plain papers indicating the different dates in the form of an account maintained by the Shop. There is a receipt of Rs. 200/- for E.C.G. charges. The claimant respondent did not adduce the evidence, as to how the bills are connected with his treatment. It was pointed out that the bills have not been proved in accordance with the law. Perusal of the bills reveal that the claimant/respondent NO.2 has filed a number of bills alongwith the claim petition and has not adduced any evidence as to how these bills are connected with the claim. 11. The claimant/respondent NO.2 has filed the disability certificate issued by the C.M.O. but the same has not been proved in accordance with the law. The other medical bills have not been connected by any credible and cogent evidence to conclude that the claimant/respondent NO.2 has incurred the said expenses in the treatment for the injuries sustained by him. 12. It is well settled position of law that mere filing of the original document is not sufficient to prove the contents of the document. The claimant/respondent NO.2 should have called the doctor before the learned Tribunal so that his statement could have been recorded and the veracity of the contents of the document made in the said document could be proved. This Court had already discussed this aspect in detail in Kashmir Singh (Supra) by relying upon the judgment of the Hon'ble Apex Court rendered in A.P. SRTC Vs. P. Thirupal Reddy 2005 (12) SCC 189. The learned Tribunal had already awarded the compensation to the claimant on the ground of disability. This Court had already discussed this aspect in detail in Kashmir Singh (Supra) by relying upon the judgment of the Hon'ble Apex Court rendered in A.P. SRTC Vs. P. Thirupal Reddy 2005 (12) SCC 189. The learned Tribunal had already awarded the compensation to the claimant on the ground of disability. If this Court proceeds to examine the doctor and if any order is passed against the parties to the claim petition after appreciation of such evidence, the parties would be deprived of their right of first appeal against the said finding. 13. Considering the facts and circumstances of this case, it would be just and proper to set aside the award dated 05-01-2005 passed by the Motor Accidents Claims Tribunal/Additional District Judge/FTC. VII, Dehradun in MAC. No. 245/2003 and remand the matter to the learned Tribunal for the hearing of the case. The Tribunal will provide the opportunity to the claimant respondent NO.2 to adduce the evidence in support of his claim in light of the observation made above. It would also be just and appropriate to further direct the Tribunal to provide the opportunity to both the parties to adduce their evidence before the Tribunal in support of their pleadings. 14. In view of the foregoing discussion, the appeal is allowed and the impugned award is set aside. The matter is remanded back to the learned Tribunal with the direction to dispose of the claim petition in the light of the observation made above expeditiously, preferably within a period of three months from the date of receipt of the record. The amount, if any, deposited by the appellants before the M.A.C.T. concerned shall be adjusted at the time of final disposal of the claim petition. The Registry is directed to release the amount of Rs. 25,000/-, deposited as mandatory deposit, in favour of the appellants immediately. 15. No order as to costs.