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2012 DIGILAW 1089 (ALL)

NISAR AHMAD v. DWARIKA NATH BAKSHI

2012-05-08

RAM SURAT RAM (MAURYA)

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JUDGMENT Hon’ble Ram Surat Ram (Maurya), J.—Heard Sri A.D. Saunders for the appellant and Sri A.K. Shukla for the respondents. 2. This appeal has been filed from the award of Motor Accident Claims Tribunal/VIII Additional District Judge, Meerut, passed in Motor Accident Claim Case No. 180 of 1981, by which Rs. 50,000/- has been awarded as compensation to the claimant. 3. Ramesh Kumar Bakshi (the deceased) was going on his cycle on 4.4.1981 at 14.45 hrs. He was hit by the bus No. UTL 6769 (the bus) belonging to the appellant. In this accident, he received fatal injuries. Dwarika Nath Bakshi, (the father of the deceased) filed MACC No. 180 of 1981 for compensation, which has been partly allowed by the Motor Accident Claims Tribunal by judgment dated 18.5.1985. Hence, the present appeal has been filed by the owner of the bus. 4. Before the Tribunal, Kude Singh was examined as PW-1, who was an eye-witness of the accident. The claimant also filed documentary evidence showing that Mohammad Ishhaq, the driver of the bus was convicted in the criminal case for rash and negligent driving and causing this accident. On behalf of the appellant, one Nizam Ahmad was examined as OPW-1, who claimed to be the cleaner of the bus. He has stated that he was traveling in the bus at the time of the accident. Nizam Ahmad admitted the accident but stated that it was caused due to the negligence of the deceased himself. 5. From the statement of the witnesses, it is proved that the accident was caused at the time when the bus was overtaking a buffalo cart. The driver of a vehicle who has to overtake the other vehicle on the road, is required to take care that the road is vacant and sufficient space is lying for him, in the right side of the vehicle going in his front. He is also required to blow horn and give indication for overtaking the vehicle. If the driver of the vehicle comes in his right side, all of a sudden without blowing horn or any indication, then it will not be possible for a cyclist to avoid accident coming from the front side. Nizam Ahmad has nowhere stated that the driver of the bus had taken any precaution of blowing horn or giving indication before overtaking. Nizam Ahmad has nowhere stated that the driver of the bus had taken any precaution of blowing horn or giving indication before overtaking. The driver of the bus was also convicted for rash and negligent driving and causing this accident. Accordingly, the Tribunal has not committed any illegality in relying upon the statement of PW-1 and holding that the accident was caused due to negligent driving of the bus. 6. The deceased was a young man of 22 years old at the time of accident. He passed High School. The Tribunal, considering the future prospect of the deceased found the dependency of Rs. 400/- per month for the claimant. Compensation has been calculated on the age of the claimant, who is father of the deceased. There is no illegality in this respect also. 7. The counsel for the appellant submits that at the time of the accident, the bus was being plied by U.P.S.R.T.C. under the agreement. Since U.P.S.R.T.C. was not impleaded as opposite party in the claim petition, as such, the claim petition was liable to be dismissed for non-joinder of necessary parties. 8. In this respect, the Tribunal found that the appellant has not produced the alleged agreement relating to the bus being plied by U.P.S.R.T.C. under the contract, nor any paper, order, letter etc. of the proper authority has been filed to show that it was being plied by U.P.S.R.T.C. on contract. The appellant could not substantiate and prove his allegation that the bus was being plied under the contract by U.P.S.R.T.C. The Tribunal has not committed any illegality in not placing any reliance on the allegations of the appellant in this respect. The claim petition cannot be dismissed on this ground. 9. The counsel for the appellant next submits that the bus was being driven by one Hem Chand at the time of accident. Hem Chand was neither impleaded in the claim petition nor he was summoned by the Tribunal in the witness box. In this respect it may be mentioned that the claimant has filed certified copy of the judgment of Criminal Case No. 158 of 1981 as well as the original record of that criminal case was also summoned. From which it is proved that Mohammad Ishhaq was driving the bus at the time of accident and he was convicted for rash and negligent driving in the criminal case. From which it is proved that Mohammad Ishhaq was driving the bus at the time of accident and he was convicted for rash and negligent driving in the criminal case. Statement of PW-1 is corroborated by the documentary evidence as such the Tribunal has not committed any illegality in relying upon the evidence of the claimant. 10. In any case, burden lies upon the appellant to prove that the bus was being driven by Hem Chand and not by Mohammad Ishhaq. The appellant has failed to discharge his burden and accordingly the Tribunal has not committed any illegality in this respect. 11. The counsel for the appellant next submits that Motor Accident Claims Tribunal is constituted by State of U.P. under Section 110 of the Motor Vehicles Act, 1939. The Governor, by the notification dated 7.3.1967 appointed the District Judge of the district, a single member, as Motor Accident Claims Tribunal. The Additional District Judges has no authority to dispose of the cases relating to the compensation filed under the Motor Vehicles Act, 1939. Since in this case, the judgment and award was passed by VIIIth Additional District Judge, as such, the judgment is without jurisdiction. 12. Civil Courts are constituted under the Bengal, Agra and Assam Civil Court Act, 1887. Under Section-3 of this Act, classes of the Court are given as (i) the Court of the District Judge, (ii) the Court of the Additional Judge, (iii) the Court of the Civil Judge, and (iv) the Court of the Munsif. Section-8 of this Act, which is relevant for deciding the aforesaid controversy is extracted below: Section-8- Additional Judges : (1) Where the business pending before any District Judge requires aid of Additional Judges for it’s, speedy disposal, the State Government may, having consulted, the High Court, appoint such Additional Judges as may be requisite. (2) Additional Judges so appointed shall discharge any of the functions of the District Judge which the District Judge may assign to them and in discharge of those function they shall exercise the same power as the District Judge. 13. Article 233 of the Constitution of India provides for appointment of District Judges. Article 236 of the Constitution of India, which is relevant is extracted below: Article 236. 13. Article 233 of the Constitution of India provides for appointment of District Judges. Article 236 of the Constitution of India, which is relevant is extracted below: Article 236. Interpretation : In this Chapter : (a) the expression “District Judge” includes judge of city Civil Court, additional district judge, joint district judge, assistant district judge, chief judge of small cause Court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge. 14. In view of the interpretation as provided under Article 236 of the Constitution, the word “District Judge” will include the ‘Additional District Judge'. As such notification dated 7.3.1967 by which the District Judge of the district has been appointed as Motor Accident Claim Tribunal will include Additional District Judges of that district also. 15. Section-8 (2) of the Bengal, Agra and Assam Civil Court Act, 1887 authorizes Additional Judges to discharge any of the functions of the District Judge which the District Judge may assign to them and in discharge of those function they shall exercise the same power of the District Judge. Normal practice before the Civil Court is that all the cases in which District Judge is the authority to take cognizance, are filed before the District Judge. Thereafter the District Judge used to transfer the cases to Additional District Judges and assign it for disposal. Under Section-8 (2) of the Bengal, Agra and Assam Civil Court Act, 1887, the Additional District Judge exercises the power of the District Judge in respect of cases transferred and assigned to him. Accordingly the claim petition filed under Motor Vehicles Act, 1939, before the District Judge was transferred to the Additional District Judge who has decided it. It cannot be said that the Additional District Judge has no authority to decide the claim petition. 16. This Court, in Ram Kishor Sharma v. Gopi Nath, AIR 1979 All 281 , while considering provisions of Section 92 C.P.C. held that the suit filed under Section-92 C.P.C. was transferred by the District Judge to the Additional District Judge, then the Additional District Judge was competent to decide the suit. 17. 16. This Court, in Ram Kishor Sharma v. Gopi Nath, AIR 1979 All 281 , while considering provisions of Section 92 C.P.C. held that the suit filed under Section-92 C.P.C. was transferred by the District Judge to the Additional District Judge, then the Additional District Judge was competent to decide the suit. 17. This Court again in Pyare Lal Sharma v. VIIth Additional District Judge, 1981 ALJ 406 and others while considering the provisions of Section 25 of the Provincial Small Cause Court Act, 1887 (as Amended in U.P.) held that Additional District Judge, to whom, the revision was transferred by the District Judge was competent to decide the revision. 18. In view of the aforesaid discussion, there is no substance in the arguments that Additional District Judge had no jurisdiction to decide the motor accident claim petition filed under the Motor Vehicles Act, 1939. The appeal has no force and is liable to be dismissed. The appeal is hereby dismissed. The parties shall bear their own costs. ———————