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2011 DIGILAW 2532 (RAJ)

Rajendra Kumar Modi v. Babulal

2011-11-22

MOHAMMAD RAFIQ

body2011
Hon'ble RAFIQ, J.—This appeal has been preferred by the appellant-claimants whose shop was damaged on account of negligence of the bus driver as the break pipe got punctured and it was steep road and the bus moved in the reverse direction and hit two shops owned by the appellant which was in the tenancy of Mukesh Kumar. Two claim petitions were filed one by tenant Mukesh Kumar and another by the owner i.e. father of the present appellants Mali Ram Modi who died and was substituted by the present appellants. 2. Contention of the learned counsel for the appellants is that the claim petition filed by the tenant Mukesh Kumar was rejected by the learned Tribunal Court holding that he was not owner of the shop. The claim petition of owner was also rejected by misleading the statement of the appellants. The learned Tribunal has failed to correctly appreciate the evidence on record which clearly proved that as a result of the shop getting hit by the bus, it got seriously damaged. The wooden pillars of the side, shutter, electricity fitting, eastern wall of the shop, tin shed were all got broken. The shop was being used for selling the shoes etc. Learned counsel submitted that even in the evidence of the tenant, Mukesh Kumar who has appeared as AW-1 in the claim petition, it has come on record that the shop was substantially damaged. Learned counsel argued that the learned Tribunal has picked one isolated statement of Rajendra Kumar Modi in cross examination where he stated that after the shop was damaged, they did not incur any expenditure, but that does not mean that no expenditure was incurred when the shop was got constructed. The fact that there was eviction suit pending, it does not justify non-grant of any compensation whatsoever. Learned counsel submitted that there were other witnesses who have proved the fact that actually expenses were incurred by the claimants in getting the shop repaired. In this connection, he referred to the statement of AW-5 Hari Shankar, AW-6 Chauth Mal and AW-7 Prahlad, who have proved that the shop got damaged due to the accident as the break pipe got punctured and it was steep road and the bus moved in the reverse side. In this connection, he referred to the statement of AW-5 Hari Shankar, AW-6 Chauth Mal and AW-7 Prahlad, who have proved that the shop got damaged due to the accident as the break pipe got punctured and it was steep road and the bus moved in the reverse side. It is therefore prayed that the compensation in the sum of Rs.18,000 ought to have been awarded to the claimants in terms of the prayer made in the claim petition with interest. The accident had taken place on 4.6.1994 and for last 17 years, the appellants have been deprived of their legitimate compensation and therefore they should also be awarded interest. It was argued that bills for expenditure of Rs.31,170 were produced on record. Even if the expenditure was incurred by the tenant that does not mean that the shop was not damaged or that nothing should be awarded on that head while the tenant has not been believed on the ground that he was not owner of the shop. Now also the appellant-claimants cannot be denied a reasonable amount of compensation for the damages. 3. Smt. Manju Jain, learned counsel for the insurance company argued that accident occurred due to mechanical defect and not because of any negligence of the driver because the break pipe of the bus got punctured and that no actual loss was proved. While on the one hand, the tenant states that it was he, who spent money for getting the shop repaired, but on the other hand the landlord was claiming the same. In any event, learned counsel submitted that Rajendra Kumar Modi in his statement has stated that after accident, the expenditure was not incurred by the appellant in getting the shop repaired, therefore, nothing deserves to be awarded. 4. On hearing learned counsel for the parties, I find that bare statement by the AW-4 Rajendra Kumar Modi in cross examination that after accident money was not spent by them for getting the shop repaired, does not mean that there was no actual damage caused to the shop. The Tribunal could not have ignored the examination in chief of this witness AW-4 Rajendra Kumar Modi wherein he has stated he rented out he said shop to Gordhan, for which a suit for eviction is pending and that the wall which was made of wood log got damaged due to the accident. The Tribunal could not have ignored the examination in chief of this witness AW-4 Rajendra Kumar Modi wherein he has stated he rented out he said shop to Gordhan, for which a suit for eviction is pending and that the wall which was made of wood log got damaged due to the accident. The statement of other witnesses could not have been altogether ignored. AW-1 Mukesh Kumar, who was tenant of the appellant has also proved the substantial damage caused to the shop. AW-2 Gordhan Lal, who is father of Mukesh also proved the damage to the shop. AW-3 Mohan Lal, owner of the adjoining shop also proved the damage caused to the shop. AW-4 Hari Shankar, another son of Mali Ram Modi has also proved the damaged caused to the shop and stated that a loss between Rs.18,000 to Rs.20000 was caused to the shop. This shop was rented to Gordhan Lal and it was situated towards the southern and western side of their house. He stated that shutter worth Rs.2,000, wooden pillars worth Rs.10,000 and window panels etc. of Rs.5,000 were damaged. AW-6 Chauth Mal who is tenant in another shop of the appellant has also proved all these facts. AW-6 Prahlad, the Mason who constructed the shop has proved the fact that he had built the shop about 8 years by digging the foundation and raising the wall of the roof of the shop was built by use of stones. 5. In the light of these evidence, the Tribunal was not justified in accepting the plea with regard to damage and taking an absolutely technical view of the matter. The findings of the Tribunal by relying on only statement of Rajendra Prasad Modi, son of shop owner-Mali Ram would suffer from perversity and cannot be approved. 6. In the result, this appeal succeeds and is accordingly allowed. The appellants though being claimants claimed the amount of Rs.52,500 as damages caused, but that much damage has not been proved. In totality of circumstances, only Rs.15,000/- is ordered to be paid to the claimant with interest @ 7.5% per annum from the date of filing of claim petition.