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2020 DIGILAW 115 (UTT)

Uttarakhand Transport Corporation Kumaun Region v. Vikash Kumar

2020-02-20

LOK PAL SINGH

body2020
JUDGMENT Lok Pal Singh, J. - This appeal, under Section 173 of the Motor Vehicles Act, 1988, is directed against the judgment and award dated 12.06.2012 passed by M.A.C.T./2nd F.T.C./Additional District Judge, Haridwar, whereby the Tribunal has allowed the claim petition for a sum of ? 7,33,333/- along with 9% interest from the date of filing of the claim petition till the date of its realization. The Appellant and the respondent no.2 have been directed to pay the amount of compensation to the claimants jointly and severally. 2. Factual matrix of the case is that on 30.05.2010 at about 09.20 pm at Chutmalpur Roorkee Road, District Haridwar, when the claimant Vikash Kumar was going by his motorcycle and reached near Mahdi, a bus no.UA07M-4166 being driven by its driver in a very rash and negligent manner, hit the claimant, due to which the claimant sustained injuries. In this regard, an FIR being case crime no.121/2010 was registered at P.S. Bhagwanpur under Sections 279, 338, 427 IPC. The claimant alleged that he was hale and hearty before the accident. He was a mechanic and was earning ? 8,000/- per month. Due to the injuries sustained in the accident, he has suffered permanent disability. With these averments, the claimant claimed compensation to the tune of ? 17,00,000/-. 3. The appellant contested the claim petition and filed its written statement denying most of the averments made in the claim petition. In additional pleas, it was stated that the claim petition is not legally maintainable; the bus driver was plying the bus at a moderate speed; and it was the motorcyclist who while driving the motorcycle in a rash and negligent manner, lost controlled over its vehicle, and dashed with the bus. It was also asserted that the claim petition is bad for non-joinder of necessary parties as claimant has not made the owner and insurance company of the motorcycle as party respondent. 4. On the pleadings of parties, the Tribunal framed the following issues:- i) Whether on 30.05.2010 at about 9.20 pm at Chutmalpur-Roorkee road, District Haridwar, the bus driver while driving the bus in a rash and negligent manner, hit the motorcycle of the claimant/injured, due to which the claimant/injured suffered grievous injuries? ii) Whether the claim petition is bad due to nonjoinder of necessary parties? iii) Whether the accident occurred due to rash and negligent driving of the motorcyclist? ii) Whether the claim petition is bad due to nonjoinder of necessary parties? iii) Whether the accident occurred due to rash and negligent driving of the motorcyclist? iv) Whether the claimant is entitled to receive any compensation? If yes, to what extent and from which party? 5. Thereafter, the parties led oral and documentary evidence. In oral evidence, PW1 Vikash Kumar, injured/claimant, PW2 Tejpal, PW3 Dr. Rajesh Maheswari and PW4 Sunil Kumar were examined. In documentary evidence, the claimant filed disability certificate, certified copy of FIR, certified copy of charges framed against the driver Narendra Singh, certified copy of site-plan, medical bills in original, medical prescription, etc. 6. On behalf of the appellant-Transport Corporation, neither any oral evidence was adduced nor any documentary evidence was produced. 7. After hearing the parties and upon perusal of evidence, learned Tribunal pass the impugned judgment and award, as above. 8. I have heard learned counsel for the parties and perused the entire record. 9. Learned Tribunal has decided issue nos.1 and 3 altogether and has recorded a finding that the accident in question has occurred due to rash and negligent driving of the bus driver which caused serious injuries to injured/claimant. While doing so, the tribunal has carefully perused the oral and documentary evidence. PW2 Tej pal, who is the eyewitness of the incident, specifically stated that on the date of incident, he along with his son was coming back from Chutmalpur to Roorkee. At 09.20 pm, when they reached near Mahdi, a bus UK07M-4166 coming from the side of Bhagwanpur, which was being driven by its driver very rashly and negligently, hit the motorcycle of the claimant due to which the claimant Vikash Kumar suffered multiple injuries. The appellant Corporation pleaded in the written statement that the bus was being driven by its driver, at a moderate speed, following the rules and regulations; and it was the claimant/injured, who while driving the motorcycle in a very high speed, lost its control and came in front of the bus. It was pleaded that the bus driver is not at fault. The tribunal recorded finding that the appellant Corporation has not produced any evidence to substantiate its claim that the accident has occurred due to rash and negligence of the motorcyclist. The tribunal decided issue nos.1 and 3 accordingly. It was pleaded that the bus driver is not at fault. The tribunal recorded finding that the appellant Corporation has not produced any evidence to substantiate its claim that the accident has occurred due to rash and negligence of the motorcyclist. The tribunal decided issue nos.1 and 3 accordingly. Findings recorded by the Tribunal are based on proper appraisal of evidence and, therefore, no interference is required. Learned counsel for the appellant also could not point out any illegality or perversity in the findings so recorded by the Tribunal on the issue no.1 and 3. Thus, the findings recorded by learned Tribunal on issue nos.1 and 3 are hereby affirmed. 10. On issue no.2, the Tribunal held that as the accident has occurred due to rash and negligent driving of the bus driver alone and there was no contributory negligence of the injured/claimant, therefore, the claim petition is not bad for mis-joinder of necessary parties. On the basis of findings recorded on issue nos.1 and 3, issue no.2 has rightly been decided by the Tribunal. Findings recorded on issue no.2 are hereby affirmed. 11. Insofar as the quantum of compensation is concerned, the tribunal has dealt with this issue in issue no.4 and has recorded finding that the medical bills and medical prescription have been proved by PW3 Dr. Rajesh Maheshwari. In order to prove the disability certificate issued by Medical Board, Haridwar, PW4 Sunil Kumar, Junior Assistant, Office of Chief Medical Officer, Haridwar, was examined, who proved the said disability certificate. Disability of the injured was assessed between 70-80%. The injured/claimant was doing the work of a mechanic, thus, his loss of future income was considered as 100%. In the absence of any reliable evidence in support of claimant's income, principle of notional income was taken and claimant's notional income was assessed as ? 36,000/-. The claimant was between the age 30-32, hence, a multiplier of 17 was applied. As such, the total loss of income was calculated as ? 6,12,000/-. Besides this, ? 1,01,333 was granted towards the expenses incurred on medical treatment, ? 10,000/- towards physical pain and suffering and ? 10,000/- towards loss of amenities. In this way, the compensation was calculated as ? 7,33,333/- and the appellant and driver were held liable to pay the amount of compensation jointly and severally. 6,12,000/-. Besides this, ? 1,01,333 was granted towards the expenses incurred on medical treatment, ? 10,000/- towards physical pain and suffering and ? 10,000/- towards loss of amenities. In this way, the compensation was calculated as ? 7,33,333/- and the appellant and driver were held liable to pay the amount of compensation jointly and severally. Findings recorded by the Tribunal on issue no.4 are wellreasoned and are based on proper appraisal of evidence. No interference is, therefore, called for. 12. In view of the foregoing discussion, there is no merit in the appeal. Same is hereby dismissed. 13. Let the statutory amount, along with the interest accrued on it, if any, be remitted to the Tribunal concerned. 14. Lower court record be sent back.