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2014 DIGILAW 982 (GUJ)

Sajjanben Chenaji Thakor v. G. S. R. T. C.

2014-09-02

BHASKAR BHATTACHARYA

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JUDGMENT : BHASKAR BHATTACHARYA, J. 1. This appeal under section 173 of the Motor Vehicles Act is at the instance of an unsuccessful claimant in a proceeding under section 166 of the Motor Vehicles Act and is directed against an award dated 15th November 2006 passed by the Motor Accident Claims Tribunal (Main), Mahesana in MAC Petition No. 93 of 1995 thereby dismissing the claim-application on the ground that the claimant could not prove the involvement of the vehicle mentioned in the claim-application. 2. Being dissatisfied, the claimant has come up with the present appeal. 3. After going through the materials on record, it appears that in the claim-application, it was alleged that on 27th January 1994 at about 4-00 p.m. at Visnagar bus stand within the jurisdiction of Visnagar Police Station, due to rash and negligent driving of the driver of the ST bus, the victim, while boarding the bus, had fallen down as a result, the wheel of the ST bus passed over her both legs and she sustained serious injuries. According to the claimant, she was immediately brought to the General Hospital, Visnagar and after giving primary treatment, she was shifted to the private hospital of Dr. G.K. Patel, Orthopaedic Surgeon, Mehsana where she was admitted as an indoor patient for about 3 to 4 months. According to the claimant, operations were performed and she had to spend Rs. 20,000/- toward medical treatment and Rs. 15,000/- towards medicines. She alleged that she was aged 30 years at the time of accident and used to earn Rs. 950/- a month by way of agricultural labour and due to injuries, there is permanent disability of the claimant and thus, she claimed a sum of Rs. 2 lakh with interest. 4. The claim-application was opposed by the Gujarat State Road Transport Corporation, the owner of the ST bus, and, according to the written statement, there was no such accident as alleged at all. Everything including allegation of rash and negligent driving, the age, the income and injury sustained by the victim were denied. It was further asserted that in the claim-application, there was no mention of the registration number of the ST bus and the route of the ST bus was also not mentioned. Therefore, the owner of the vehicle prayed for dismissal of the application. 5. It was further asserted that in the claim-application, there was no mention of the registration number of the ST bus and the route of the ST bus was also not mentioned. Therefore, the owner of the vehicle prayed for dismissal of the application. 5. At the time of hearing, the victim herself gave evidence in support of the claim-application and apart from the said victim, one Sahebkhan, an officer of the local police station, who was invested with the duty of investigation of the accident, gave evidence and produced photocopy of his investigation report which was marked as exhibit. It appears that the owner of the bus did not cross-examine him. 6. It may not be out of place to mention there that on behalf of the State Road Transport Corporation, no person gave evidence to controvert the allegation or evidence given on behalf of the claim petitioner. 7. The learned Tribunal below disbelieved the case of the claimant that the bus in question was involved in the accident mainly on twofold grounds. First, no registration number of the bus was given either in the claim-application or in the deposition of the claimant and secondly, in her deposition the claimant stated that the accident occurred at about 4-00 p.m. in the afternoon while it appears from the documents relating to investigation that the accident occurred at about 1-30 p.m. The aforesaid variation, according to the Tribunal below, clearly indicated that the ST bus in question was not involved in the accident. Thus, in spite of its specific finding that the victim suffered a loss of Rs. 79,400/- the Tribunal below refused to award compensation as the involvement of the vehicle in question was not established. 8. Mr. Thakore, the learned advocate appearing on behalf of the appellant, strenuously contended before this Court that in arriving at the conclusion that the ST bus was not involved in the accident, the Tribunal below totally misread the evidence on record including the documents issued by the hospital authorities and also the investigation report given by the police officer. Mr. Thakore points out that there was no cross-examination of the witness no. 2 on behalf of his client and at the same time, no evidence in rebuttal was given on behalf of the Gujarat State Road Transport Corporation. 9. Ms. Mr. Thakore points out that there was no cross-examination of the witness no. 2 on behalf of his client and at the same time, no evidence in rebuttal was given on behalf of the Gujarat State Road Transport Corporation. 9. Ms. Pandey, the learned advocate appearing on behalf of the respondent, namely, the Gujarat State Road Transport Corporation, however, opposed the aforesaid contentions of Mr. Thakore and contended that in the absence of even the registration number of the bus, the Tribunal below rightly disbelieved the version of the claimant. She further asserted that even the time of accident, as appearing from the hospital documents or the documents coming from the investigation of the police, did not tally with the one given by the victim in deposition. Thus, this Court sitting in the appellate jurisdiction should not interfere with the finding of fact arrived at by the Tribunal below on the basis of evidence on record. 10. After hearing the learned counsel for the parties and after going through the materials on record, I find that there is no dispute that the victim was seriously injured while boarding "one ST bus" though she could not disclose the registration number of the said vehicle. There is, however, no dispute that the incident occurred within the bus depot of the Gujarat State Road Transport Corporation at Visnagar. It further appears from the evidence adduced by the police officer that one Mr. Nazirkhan Mohabbatkhan, the driver of the concerned bus himself reported to the police authority that on 27th January 1994 at 13-30 hours, a lady had fallen down from the bus while trying to board into it and suffered injuries. It further appears that from the injury certificate issued by the General Hospital that at about 13-30 hours on that very day, the claimant, namely, Sajjanben Chenaji Thakor was brought to the hospital after being seriously injured. 11. There is no dispute that the victim is an illiterate village lady and only mistake she committed was that she wrongly stated the time of the accident to be 4-00 p.m. in the afternoon, whereas the accident occurred at 1-30 p.m. 12. In my opinion, the aforesaid mistake committed by the claimant is of no consequence when the fact that she was injured in the accident and that the accident occurred within the bus depot of the ST bus has also been established. In my opinion, the aforesaid mistake committed by the claimant is of no consequence when the fact that she was injured in the accident and that the accident occurred within the bus depot of the ST bus has also been established. In the history-sheet given by the hospital, it appears that the injury has been recorded as one resulting out of ST bus accident. Therefore, from the aforesaid facts, it is well-established that the incident occurred within the bus depot of ST bus and the driver himself reported the incident to the police. Such being the position, it was the duty of the Gujarat State Road Transport Corporation to examine the said Nazirkhan Mohabbatkhan for the purpose of showing that the driver had no negligence in the accident and it was due to contributory negligence on the part of the victim that the accident occurred. Not having brought the best witness in the witness-box who could controvert the allegation of the claimant, in my opinion, adverse presumption should be drawn against the owner of the vehicle. If the driver was brought to the witness-box, he could be cross-examined by the learned advocate for the claimant and truth would have come before the Tribunal. From the aforesaid conduct of the respondent, it appears that they were afraid of facing the truth and simply tried to rely upon the mistake on the part of the village lady who was seriously injured by pointing out difference of time of the accident. 13. I, thus, find that the Tribunal below failed to consider those documents produced by the police authority and the veracity of the statement contained therein, was not in dispute. Even the respondent has not explained the admission of the bus driver, namely, Nazirkhan Mohabbatkhan and in such circumstances, in the absence of any deposition from the said driver, adverse presumption should be drawn against the owner and driver of the bus. I, thus, find from the materials on record that it has been well-established that the vehicle of the Gujarat State Road Transport Corporation was very much involved in the accident. 14. As regards the compensation, it appears that the Tribunal below, assessed the monthly income of the victim at Rs. 800/- and added to it a sum of Rs. I, thus, find from the materials on record that it has been well-established that the vehicle of the Gujarat State Road Transport Corporation was very much involved in the accident. 14. As regards the compensation, it appears that the Tribunal below, assessed the monthly income of the victim at Rs. 800/- and added to it a sum of Rs. 1600/- and then divided it by 2 and arrived at the conclusion that the prospective income of the claimant would be Rs. 1200/-. As regards disability, the Tribunal arrived at the conclusion that permanent disability in this case should be taken to be 20%, although according to the certificate given by Dr. Anil Nayak the victim had received 50% permanent partial disability. Thus, the Tribunal assessed the future loss of income to be Rs. 1200 x 20% = Rs. 240/- a month i.e. Rs. 2880/- per annum. As the victim was aged 30 years, the learned Tribunal applied the multiplier of 15 and arrived at a figure of Rs. 43,200/- towards future loss of income. Apart from the said amount, Rs. 3200/- as actual loss of income for four months, Rs. 5000/- towards pain, shock and suffering and Rs. 25,000/- as medical expenses and further sum of Rs. 3000/- for food, transport and attendant charges were assessed by the Tribunal. It appears that there is no dispute that the victim was in the nursing home for four months and medical expenses of Rs. 25,000/- cannot be said to be in excess. 15. In my opinion, having regard to the fact that both the parties agreed that disablement should be treated to be 20% and the victim being aged 30 years and the accident having occurred for the sole negligence of the bus driver, for pain, shock and suffering and loss of amenities for the rest of life, at least Rs. 25,000/- should be paid to the victim instead of Rs. 5000/-. I, thus, enhance the amount of Rs. 79,400/- by a further sum of Rs. 20,000/- and the amount comes to Rs. 99,400/- which I make a round figure of Rs. 1 lakh. 16. 25,000/- should be paid to the victim instead of Rs. 5000/-. I, thus, enhance the amount of Rs. 79,400/- by a further sum of Rs. 20,000/- and the amount comes to Rs. 99,400/- which I make a round figure of Rs. 1 lakh. 16. Since the accident occurred in the month of January 1994, the claimant will be entitled to get interest at the rate of 12% per annum, the then usual bank rate of interest, from the date of filing of the application till 31st December 1999 and at the rate of 9% per annum from 1st January 2000 till actual payment. The owner of the bus, the respondent before this Court, is directed to deposit the amount before the Tribunal within two months from today. After deposit of the amount, the Tribunal will release the amount in favour of the claimant upon proper verification, by account payee cheque, within a month thereafter. 17. The appeal is, thus, allowed to the extent indicated above. No order as to costs. 18. Registry is directed to return the Record and Proceedings to the Tribunal forthwith. Appeal allowed.