AO/447/2006 of DELHI TRANSPORT CORP Vs VIKAS KUMAR @ MINTU and ANOTHER on 30 December 2008

IN THE HIGH COURT OF UTTARAKHAND AT

NAINITAL.

A.O. No. 447 of 2006

Delhi Transport Corporation through its

Regional Manager

………. Appellant.

Versus

Vikas Kumar @ Mintu and another … Respondents.

Sri Anil Kumar Joshi, learned counsel for the appellant. Sri Manish Arora, learned counsel for respondent No.1.

Dated: 30-12-2008

’UHonble B.C. Kandpal, J.

This appeal under Section 173 of the Motor Vehicle Act, has been preferred against the judgment and award dated 3-5-2006, passed by Motor Accident Claim Tribunal/Addl. Sessions Judge/Ist F.T.C. Roorkee, in MACT Case No. 23/2005, Vikas Kumar alias Mintu Vs. Regional Manager, Delhi Transport Corporation and another.

2- Brief facts of the case giving rise to this appeal are that on 20-12-2000 at about 2 P.M. the claimant Vikas Kumar was going towards Purkaji after giving half yearly examination of class 11P[th]P from Raja Mahendra Pratap Inter College and when he reached at the moar of village Jungle-Khedajet, Bus No. D.L. –1- PA –3025 owned by D.T.C. came there in a high speed and dashed the cycle of the claimant due to which he sustained grievous injuries. He was admitted in Gurukul Narsan Hospital. Thereafter he was shifted to Kuriyal Nursing Home, Dehradun on 20-12-2000 where he remained admitted for 17 days. He was treated for about six months and still he is taking medicines. According to the claimant he spent about Rs. 90,000/- on his treatment.

Therefore, he filed claim petition for compensation of Rs. 5,91,000/-.

3- The opposite party No.1, owner of the offending bus and opposite party no.2, driver of the bus filed written statement before the tribunal and denied the averments made in the claim petition. According to them the claimant himself has dashed his cycle on the standing bus and there was no any fault on the part of bus driver. It is also alleged that no income certificate of the injured has been filed and the petition is liable to be dismissed.

4- On the pleading of parties the tribunal framed following issues in the petition:- 1- Whether on 20-12-2000 at about 2 P.M. the injured Vikas Kumar sustained injuries at the moar of village Khedajet due to rash and negligence of DTC Bus No. DL-1-PA-3025? If so, its effect?. injured Vikas Kumar sustained injuries at the moar of village Khedajet due to rash and negligence of DTC Bus No. DL-1-PA-3025? If so, its effect?.

2- Whether the injured sustained injuries due to his own rash and negligence?. to his own rash and negligence?.

3- To what relief if any, the claimant is entitled to get and from whom?. to get and from whom?.

5- Thereafter, both the parties adduced evidence in support of their case. The learned Tribunal after hearing learned counsel for the parties and considering the evidence on record, awarded a sum of Rs. 1,17,000/- as compensation along with interest @ 6% per annum from the date of filing the petition till the date of actual payment against the opposite party/Delhi Transport Corporation.

6- Feeling aggrieved the Delhi Transport Corporation has preferred this appeal before this Court.

7- Heard learned counsel for the appellant as well as the counsel for the claimant/respondent and perused the record.

8- Learned counsel appearing on behalf of the appellant has submitted that the accident has occurred due to the own negligence of the claimant as he had dashed his cycle on the standing Bus owned by the D.T.C. but the tribunal has failed to appreciate the evidence adduced in the case and has wrongly held the D.T.C. liable to pay the compensation.

9-On the other hand learned counsel for the claimant/respondent No.1 has supported the finding of the tribunal and has submitted that the D.T.C. Bus involved in the accident has dashed the cycle of the injured/claimant from behind in a rash and negligent manner, therefore, the tribunal has rightly fixed the liability fixed upon the appellant to pay the compensation and the appeal has no substance.

10-I have perused the evidence adduced by the parties in the claim petition. The claimant Vikas Kumar has examined himself as P.W.1 and has deposed that at the time of accident he was going on his cycle and the D.T.C. Bus D.L. 1-PA-3025 came there at a high speed and dashed his cycle from behind and his cycle was damaged completely and he fell down and became unconscious. The claimant also examined P.W.2 Vikram Singh who is an eyewitness of the accident. According to this witness at the time of accident he was working at Sugarcane Center situated at three road junction Khedajet. He had gone to drink water from the water tape fixed at the side of the road and then he saw that Bus No. 3025 came there from Narsan side and dashed the cycle of Vikas in a high speed. The opposite parties could not bring out anything unfair, which may turn the testimony of this witness as untrustworthy. No reason has been assigned to this witness as to why he would depose falsely against the opposite party. Therefore, from the above eyewitness account the plea taken by the opposite party that the bus was standing at the place of accident and the claimant himself was dashed with the bus, cannot be said to be a trustworthy. The result is that the interested testimony of D.W.1, Satbir, driver of the Bus cannot be believed that the claimant dashed the standing bus. Further, this witness D.W.1, Satbir has admitted in his cross-examination that he has admitted his offence before the Judicial Magistrate Roorke U/Ss 279,337, 338 and 427 I.P.C. in case crime No. 359/2000. Therefore, in the aforesaid facts and circumstances of the case the learned Tribunal was justified in holding the sole negligence of Bus driver in causing the accident and fixing the liability upon the shoulder of the appellant D.T.C. I do not find any infirmity in the finding recorded by the tribunal.

11-So far as the quantum of compensation is concerned, the claimant has filed his injury report before the tribunal which shows that as many as four lacerated wounds and one contusion wound were found on the skull, knee and ear. According to the claimants he was admitted for 17 days in Kuriyal Nehru Science Center Dehradun in connection with his treatment. He filed the medical bills for a sum of Rs. 17,000/- which amount the tribunal has awarded to the claimant under the head of medical expenses. The Tribunal further awarded a lump-sum amount of Rs. One lac towards mental and physical pain and suffering and expenses on his treatment. The tribunal also held that the injured remained admitted in the hospital for about 17 days and he should have spent some amount towards living expenses etc beside the medical expenses. In the aforesaid circumstances the amount of compensation awarded by the tribunal cannot be said to be excessive. In my opinion the tribunal has awarded a just and reasonable amount in this case.

12- In view of above discussion the appeal lacks merit and is liable to be dismissed.

13-Accordingly the appeal is dismissed. The impugned judgment and award is hereby confirmed.

14- Let the statutory amount deposited with this Court, be remitted to the tribunal concerned.

ISB

(B.C. Kandpal, J.)