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Rajasthan High Court · body

2014 DIGILAW 1427 (RAJ)

Sonu v. Girraj Singh

2014-07-25

J.K.RANKA

body2014
JUDGMENT 1. - Instant appeal u/s 173 of the Motor Vehicle Act, 1988 has been filed by the claimants-appellants assailing the award dated 05/10/2001 passed by the Motor Accident Claims Tribunal, Bundi in claim case No.527/2001 (92/92) while assessing the quantum of compensation to the tune of Rs. 75,000/-, only 50% of the same i.e. Rs. 37,500/- has been awarded in favour of the claimants-appellants by holding that there was 50% negligence of the guardian of the injured child also. 2. The brief facts, as emerging on the face of record gathered on perusal of the material available on record and impugned order are that on 16/03/1992, when the claimant-appellant No.1-Sonu was going on the road, a bus bearing No. RPM-3444, which was being driven by its driver in a rash and negligent manner, hit him from backside resulting in sustaining injuries to him. 3. The claimants-appellants submitted claim petition before the Tribunal impleading the driver and owner of the offending vehicle as respondents No. 1 & 2 and since the bus was insured with the insurance company, the insurance company was impleaded as respondent No.3. It was pleaded in the claim petition that the claimants-appellants sustained head injury and other injuries in the inner part of the body and ultimately claimed for awarding compensation to the tune of Rs. 10,20,000/-. 4. The respondent No.1, driver of the offending vehicle did not submit any reply and the respondent No.2-owner of the vehicle filed reply denying the averments made in the claim petition and it was averred that there was negligence on the part of the guardian of the child who allowed the child to come on the road while the driver of the offending vehicle was driving the bus in the right direction and there was no fault on the part of the driver although it was admitted that the bus was insured on the date of the alleged incident. As regard respondent No.3-Insurance Company, it denied the averments made in the claim petition and averred that there was no fault or negligence of the driver of the bus and he was driving the bus in the right side and in the additional pleas, it was averred by the Insurance Company that the driver of the offending vehicle was not having valid driving licence and thus the Insurance Company cannot be held liable to pay compensation and ultimately prayed for dismissal of the claim petition. 5. The Tribunal, after analyzing the evidence and material on record, framed as many as five issues including the issue of relief and while deciding the issue No.1 partly in favour of the claimants-appellants, arrived at a finding that there was 50% negligence of the guardian of the injured child also and on the basis of material and evidence available on record, though assessed total compensation to the tune of Rs. 75,000/- in favour of the claimant-appellant under the different heads but awarded only 50% of the total compensation assessed i.e. Rs. 37,500/-. Feeling aggrieved of awarding only 50% of the compensation assessed and so also alleging that the amount assessed of total compensation being on lower side, the instant appeal has been preferred by the claimants-appellants. 6. None appears on behalf of both the parties. 7. In my view, on the basis of material available on record and the fact that the incident is of the year 1992, the present appeal can be decided. 8. After going through the award passed by the Tribunal so also the material available on the file, as regards the total quantum of compensation assessed by the Tribunal, in my opinion there is no illegality or perversity in the finding arrived at by the Tribunal in view of the fact that on 26/09/2001 the claimant-appellant No.1-Sonu was examined and in his statement he stated that he was studying in Class 5th and that in Class 3rd and 4th, he secured 95% marks. He further stated that he was able to play cricket, hockey and volleyball. When he was asked to put of his shirt and trouser, he put off and again wore the same so also closed the buttons easily without help of anyone. He further stated that he was able to play cricket, hockey and volleyball. When he was asked to put of his shirt and trouser, he put off and again wore the same so also closed the buttons easily without help of anyone. The Tribunal has also arrived at a finding that in the discharge ticket (Exhibit-5), there is no mention of any injury on the left hand of the child Sonu and there is only mention of head injury. It is also a finding of fact arrived at by the Tribunal that the child Sonu has been diagnosed with the decease of 'Child Asthmatic' and 'Asthmatic Bronchitis' which has no connection with the injury sustained by him on account of the incident occurred. In view of the discussion made above, in my view, as regards the quantum of compensation assessed by the Tribunal to the tune of Rs. 75,000/-, considering the incident of the year 1992, the same is just and proper and is not liable to be enhanced . 9. However, as regards the finding arrived at by the Tribunal holding 50% negligence of the guardian of the child Sonu and accordingly awarding only 50% of the total compensation assessed, in my view, the same appears to be perverse as once the Tribunal has come to the conclusion that the child Sonu, being a minor child, was hit by the offending vehicle which was being driven by its driver in a rash and negligent manner, then, looking to the nature of the beneficial piece of legislation as provided under the Motor Vehicles Act, such a finding cannot be sustained. It is equally important to mention that an FIR of the alleged incident was also lodged and the Police, after investigation, filed challan before the competent court of jurisdiction. It may not be out of place to mention that the finding arrived at by the Tribunal that the child Sonu was being carried by his guardian on the right side, may be correct to a certain extent but by no stretch of imagination, it can be said that only because the child was on the right side of the guardian, therefore, there was 50% negligence of the guardian of the child. 10. 10. Accordingly, in my view, the finding of the Tribunal to the extent of awarding only 50% of the total compensation assessed in the instant case, being perverse, is liable to be quashed and set aside and the claimants-appellants deserve to be held entitled to receive total compensation as assessed by the Tribunal to the tune of Rs. 75,000/- 11. Consequently, the instant appeal is partly allowed. The award impugned dated 05/10/2001 passed by the Motor Accident Claims Tribunal, Bundi in Claim Case No.527/2001 (92/92) is hereby quashed and set aside to the extent it has awarded only 50% amount of the total compensation asssessed and the claimants-appellants are held entitled to receive total compensation as assessed by the Tribunal to the tune of Rs. 75,000/-. The rest 50% ( Rs. 37500/-) amount of compensation assessed by the Tribunal be also paid to the claimants-appellants by the non-claimants-respondents with interest @ 9% per annum from the date of filing the claim petition before the Tribunal within a period of three months. The same be paid by bankers cheque/draft. 12. Let a copy of this order be sent to the Tribunal as well as appellant and respondents.Appeal partly allowed. *******