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2009 DIGILAW 3341 (ALL)

U. P. STATE v. AMIT KUMAR

2009-10-26

RAJESH CHANDRA, S.P.MEHROTRA

body2009
JUDGMENT By the Court.—We have heard Shri J.N. Singh, learned counsel for the Appellant/Corporation, and perused the record filed with the Appeal. 2. The present Appeal has been filed against the award dated 28.7.2009 passed by the Motor Accidents Claims Tribunal, Meerut in Motor Accident Claim Case No. 868 of 2008. 3. The case of the claimant/respondent was that the claimant/respondent alongwith his colleagues was going to village Singhawali Hajipur, District-Ghaziabad by Maruti Van No. UP85J-5307. When they reached near village Bhagwanpur, U.P. Roadways Bus bearing Registration No. UP21J-9561 which was being driven by its driver rashly and negligently and on wrong side, hit the said Maruti Van whereby the claimant/respondent sustained serious injuries and three passengers died. The claimant/respondent received four fractures in left hand and serious injuries in other parts of the body. 4. The claimant/respondent was examined by Dr. Satyendra Attry pertaining to Attry Medicare Centre, Meerut and the Doctor found swelling around left elbow and X-ray of left elbow was advised. The claimant/respondent was hospitalized in Ajay Nursing Home, Meerut. 5. The accident took place on 27.4.2008 at about 10.30 a.m. at Gerth Road near village Bhagwanpur, Police Station Mundali, District-Meerut. First Information Report was lodged. 6. The claimant/respondent claimed compensation amounting to Rs. 13,44,000/-. 7. The Appellant/Corporation filed its Written Statement wherein the factum of the accident was not admitted. It was, interalia, further alleged that the Claim Petition was bad for non-joinder of the necessary parties, i.e., the owner and the Insurance Company of the aforesaid Maruti Van; and that the compensation claimed by the claimant/respondent was highly excessive and exorbitant; and that the driver of the said Maruti Van had no valid and effective licence; and that the driver of the Roadways Bus in question was having a valid and effective licence on the date of the alleged accident. 8. The Tribunal framed the following five issues : “1. Whether the accident took place due to rash and negligent driving of the driver of Roadways bus No. UP-21J-9561 and hit the Maruti Van and the claimant received the injuries? if so, its effect? 2. Whether the claim petition is bad for non-joinder of the necessary parties? 3. Whether the van driver had no valid and effective driving licence at the time of accident? If so, its effect? 4. if so, its effect? 2. Whether the claim petition is bad for non-joinder of the necessary parties? 3. Whether the van driver had no valid and effective driving licence at the time of accident? If so, its effect? 4. Whether the driver of bus No. UP 21-J-9561 had a valid and effective driving licence at the time of accident? 5. To what extent and from whom is the claimant entitled to get the compensation?” 9. The claimant/respondent examined himself as P.W.-1, Dr. Ravinder Singh as P.W.-2 and filed certified copies of FIR, site plan, chargesheet and other papers including bills and treatment prescription. 10. The Appellant/Corporation examined Joginder Singh as D.W.-1 and Sanjiv as D.W.-2. 11. Issue No. 1, which was in regard to factum of the accident having taken place on account of rash and negligent driving of the driver of the aforesaid Roadways Bus in question and hitting the said Maruti Van thereby causing injuries to the claimant/respondent, was decided by the Tribunal in favour of the claimant/respondent and against the Appellant/Corporation. 12. The Tribunal referred to the statement of P.W.-1. The Tribunal also referred to the admission made by Joginder Singh,D.W.-1 in his examination-in-chief regarding the factum of the accident. The said Joginder Singh further stated that he was driving the aforesaid Roadways Bus in question and the accident happened and the claimant/respondent received injuries. In cross-examination, the said Joginder Singh admitted that he was bailed out in the criminal case and he was also facing departmental inquiry. 13. It will, thus, be noticed that while in paragraph 26 of the Written Statement, the Appellant/Corporation denied the factum of the accident, the driver of the aforesaid Roadways Bus in question, namely, Joginder Singh , who was examined as D.W.-1, admitted the factum of the accident and the claimant/respondent having sustained injuries in such accident. In the circumstances, we are of the opinion that the version of the claimant/respondent is trustworthy, and the same has rightly been accepted by the Tribunal. No error has been pointed-out by the learned counsel for the Appellant/Corporation in the finding recorded by the Tribunal on the said Issue. 14. Issue No. 2 was as to whether the Claim Petition was bad for non-joinder of necessary parties. No error has been pointed-out by the learned counsel for the Appellant/Corporation in the finding recorded by the Tribunal on the said Issue. 14. Issue No. 2 was as to whether the Claim Petition was bad for non-joinder of necessary parties. The Tribunal has pointed out that as the claimant/respondent had not sought any relief against the driver and the owner of the aforesaid Maruti Van, and the accident was not admitted by the Appellant/Corporation in its Written Statement, the Claim Petition was not bad for non-joinder of necessary parties. 15. Issue No. 2 was decided by the Tribunal accordingly. Nothing has been shown on behalf of the Appellant/Corporation pursuading us to differ from the finding recorded by the Tribunal on the said Issue. 16. Issue No. 3 was as to whether the driver of the Maruti Van had no valid and effective driving licence at the time of the accident. The Tribunal pointed-out that the burden of proof in respect of the said Issue was on the Appellant/Corporation but no evidence was adduced by the Appellant/Corporation in this regard. Issue No. 3 was, therefore, decided against the Appellant/Corporation. We do not find any flaw in the finding recorded by the Tribunal on the said Issue. 17. Issue No. 4 was as to whether the driver of the aforesaid Roadways Bus in question had a valid and effective driving licence at the time of the accident. The case of the Appellant/Corporation was that the driver of the aforesaid Roadways Bus in question had a valid and effective driving licence at the time of the accident. However, as noted by the Tribunal, no evidence was adduced by the Appellant/ Corporation in this regard. The Tribunal further held that even if the driver of the aforesaid Roadways Bus in question had no valid licence at the time of the accident, it did not affect the merits of the case. Issue No. 4 was decided by the Tribunal accordingly. 18. We have considered the reasoning of the Tribunal, and the finding recorded by the Tribunal on the said Issue, and we do not find any error in the same. Issue No. 4 was decided by the Tribunal accordingly. 18. We have considered the reasoning of the Tribunal, and the finding recorded by the Tribunal on the said Issue, and we do not find any error in the same. It is noteworthy that the said Joginder Singh was employed as driver by the Appellant/Corporation itself, therefore, the Appellant/Corporation is vicariously liable for the rash and negligent driving by the driver while driving the said Roadways Bus in question during the course of employment of the Appellant/Corporation. It is not a case where the liability is sought to be enforced against any Insurance Company. The Appellant/Corporation as Master is liable for rash and negligent act of his servant (Joginder Singh), i.e., the driver of the aforesaid Roadways Bus in question. 19. Issue No. 5 was as to what extent and from whom the claimant/respondent was entitled to get the compensation. The Tribunal on a consideration of the evidence of Dr. Ravinder Singh (P.W.2) concluded that the claimant/respondent received about 25% permanent disability. In left fore-arm, according to Dr. Ravinder Singh, the claimant/respondent had received 30% permanent disability due to the fracture of the ulna bone of left fore-arm. However, Dr. Ravinder Singh admitted that there could be variation of 2 or 3% . In view of the statement of Dr. Ravinder Singh, we are of the opinion that the Tribunal did not commit any error in concluding that the the claimant/respondent received about 25% permanent disability. 20. The Tribunal accepted the age of the claimant/respondent as 21 years at the time of the accident. The Tribunal did not accept the version of the claimant/respondent regarding his income, and instead assumed the minimum notional income of Rs. 15,000/- per annum as provided in Item No. 6 of the Second Schedule to the Motor Vehicles Act, 1988 in regard to non-earning persons. As the claimant/respondent received 25% permanent disability, the loss of income of the claimant/respondent was taken to be Rs. 3,750/-. As the age of the claimant/respondent was taken to be about 21 years, the Tribunal adopted multiplier of 16 as per the Second Schedule to the Motor Vehicles Act, 1988. 21. Though the claimant/respondent claimed Rs. 40,000/- in respect of medical expenses, but he produced bills only for Rs. 25,700/-. Accordingly, the Tribunal held that the claimant/respondent was entitled to get an amount of Rs. 25,700/- for medical expenses. 21. Though the claimant/respondent claimed Rs. 40,000/- in respect of medical expenses, but he produced bills only for Rs. 25,700/-. Accordingly, the Tribunal held that the claimant/respondent was entitled to get an amount of Rs. 25,700/- for medical expenses. The claimant/respondent was further awarded a lump-sum of Rs. 16,000/- in respect of physical pain and mental agony as also in regard to special diet during his treatment and also in regard to some-one attending the claimant/respondent during his treatment. 22. In view of the above, a sum of Rs. 1,01,700/- with interest @ 6% per annum was awarded to the claimant/respondent. 23. In our opinion, the Tribunal awarded fair and just compensation for the injuries sustained by the claimant/respondent in the aforesaid accident and there is no infirmity in the award of the Tribunal. 24. In view of the above, the Appeal lacks merits, and the same is liable to be dismissed. 25. The Appeal is accordingly dismissed. However, on the facts and in the circumstances of the case, there will be no order as to costs. ————