Allahabad High Court
U.P.S.R.T.C. Bhaisali Road Depot ... vs Mohd. Azad And Another on 7 December, 2019
Equivalent citations: AIRONLINE 2019 ALL 2019
Author: Pradeep Kumar Srivastava
Bench: Pradeep Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 55 Case :- FIRST APPEAL FROM ORDER No. - 473 of 2016 Appellant :- U.P.S.R.T.C. Bhaisali Road Depot Meerut Respondent :- Mohd. Azad And Another Counsel for Appellant :- Rahul Agarwal Counsel for Respondent :- Bed Kant Mishra,Raghuvansh Chandra,Ram Jee Saxena Hon'ble Pradeep Kumar Srivastava,J.
1. Heard Shri Rahul Agarwal, learned counsel for the appellant and Shri Bed Kant Mishra, learned counsel for the opposite parties.
2. This appeal has been filed against the judgement and award dated 31.10.2015 passed by Motor Accident Claims Tribunal /Additional District Judge, Court no. 18, Meerut, in MAC No. 619 of 2014 by which the learned tribunal has awarded a compensation of Rs. 3,64,500/- with 7% simple interest per annum from the date of filing of this claim petition.
3. Aggrieved by the impugned award, the UPSRTC/appellant has filed this appeal stating that the plea of contributory negligence on the part of TATA-407 was not properly considered. The claimant was driving a motor cycle without a valid driving license and there was contributory negligence on his part. The disability certificate was not issued by the CMO, it was issued by a private doctor and the same should not have been relied. The compensation amount has been arbitrarily assessed and is in the higher side. The injury sustained by the claimant is not in the nature of permanent disability. It was also not shown that after the accident the claimant was terminated or removed from his job. The injury which was sustained by the claimant was on his jaw and it could not effect the job of the claimant weigh man clerk. There was no cogent evidence with regard to income of the claimant. The compensation and interest is highly excessive and the award being not acceptable under law should be set aside.
5. In respect of an accident dated 11.05.2014 which took place at about 6:30 AM when the claimant was going on his motor cycle from Hapur to Meerut. When he reached to town Kharkhauda, the Roadways Bus No. UP 15 AT -0814 which was driven by driver very rashly and negligently came from the side of Meerut and dashed the motor cycle and the claimant sustained serious injuries. The claimant remained under treatment for a very long period and it resulted in permanent disability. He was working in the Suger Mill Modi Nagar as claimant clerk and he was aged about 28 years. Therefore, this petition has been filed for compensation.
6. The defendant UPSRTC filed a written statement denying the allegations of the petition and stating that the accident did not occurred because of the rashness and negligence of the driver of the Bus. The driver was having valid and effective driving license. The said accident took place because of rash and negligent driving of a truck U.P. 37-T-0371 which dashed the bus resulting collision with the motor cycle. The claimant was not having the valid driving license. He was not wearing the helmet. There was contributory negligence on his part, the driver of the truck and the owner has not been made party.
7. The driver Satyaveer Singh has also filed written statement who has stated that at the time of the accident, he was having a valid driving license. He has denied that the accident took place by his bus and has stated that, if at all, there is any responsibility of paying compensation the same should be paid by the UPSRCT.
8. On the basis of pleadings of parties, following issues have been framed, the English translation thereof is as follows:
1. Whether on 11.05.2014, at 6:30 a.m. when the claimant was going on his motor cycle from Hapur to Meerut and when he reached to town Kharkhauda, the Roadways Bus No. U.P. 15 AT -0814 which was driven by driver very rashly and negligently came from the side of Meerut, dashed the motor cycle and the claimant sustained serious injuries?
2. Whether the accident occurs due to rash and negligent driving of Truck no. U.P. 37 T-0371 by the driver who dashed the motor cycle of the claimant?
3. Whether the said accident is the result of rash and negligent driving of claimant itself?
4. Whether the accident is the result of contributory negligence?
5. Whether the driver of Roadways Bus No. U.P. 15 AT-0814 was having valid and effective driving license on the date of accident?
6. Whether the petition is having fault of non-formulation of necessary parties.
7. Whether the claimants are entitled for any relief, if yes, then how much and from whom?
9. The claimant PW-1 and PW-2 Dr. R.N. Gupta have been examined in support. The documentary evidence has also been filed showing his disability and treatment. The defendant no. 2 has examined himself as DW-1 and DW-2 conductor Hukum Singh has also been examined.
10. After hearing both the sides and perusing evidence on record, the learned tribunal passed the impugned award.
11. The learned counsel for the UPSRTC has confined his argument to the fact of contributory negligence and that the truck owner of TATA 407 and the driver were not made party and there is non-joinder of necessary party. Further argument is that no eyewitness has been examined and the disability certificate is not valid as it has been issued by a private doctor and relied upon by the learned tribunal. He has however, not disputed the quantum of compensation.
12. It was the case of appellant that it was TATA 407 which dashed the motorcycle of the claimant while overtaking THELA and in the process, it also hit the bus of the appellant and the bus collided with a tree and got badly damaged. From the appellant side DW-1 and DW-2 were examined to prove this fact. On the other hand, the case of the claimant was that the bus hit his motorcycle and the driver of the bus was driving the bus very rashly and negligently at the time of accident. FIR was lodged against driver of the offending bus and after investigation charge-sheet was submitted by police against the driver of the bus who has stated himself in his evidence that in that case he appeared and was released on bail. The claimant-injured examined himself and supported the version of petition. He is an injured witness and obviously his testimony assumes greater weight and therefore much reliance was placed by the Tribunal. The learned Tribunal on the basis of evidence on record and also referring the judgements of this Court in UPSRTC v Shanti Devi 2007 (3) TAC 261 and New India Insurance Co v Lekhraj 2009 ACC 96 (DB) came to the conclusion that that the accident took place because of rash and negligent driving of the driver of the bus. It was also rightly concluded by the Tribunal that, as this was established that the accident occurred due to rash and negligent driving of the bus driver, there was no need to implead the driver and owner of TATA 407.
13. The learned counsel for the appellant has raised the issue of contributory negligence on the part of the claimant. There appears to be no evidence given by the appellant side on this point and even DW-1 and DW-2 have also not stated anything about it. But the learned counsel has submitted that the claimant was not having valid driving licence to drive motorcycle at the time of accident and therefore, it should be inferred that the claimant contributed towards accident.
14. It needs to be mentioned that where an accident is due to negligence of both parties, substantially there would be contributory negligence and both would be blamed. In a case of contributory negligence, the crucial question on which liability depends would be whether either party could, by exercise of reasonable care, could have avoided the consequence of other's negligence. Whichever party could have avoided the consequence of other's negligence would be liable for the accident. It is now well settled that in the case of contributory negligence, Courts have power to apportion the loss between the parties as seems just and equitable. The question raised is that the claimant was not having driving licence and therefore, he is liable for contributory negligence. This argument is of no help to the appellant as it has been settled legal position that the party taking such plea is required to prove the same by adducing evidence. On the contrary, the appellant and the witnesses examined have denied that any such accident took place by the bus. In U.P. State Road Transport Corporation v. Rani Srivastava; 2006 ACJ 1864), it has been held that where the factum of accident is denied by the opposite party, plea of contributory negligence is not available. Moreover, it has been also held in Municipal Corporation of Greater Bombay v. Laxman Iyer; AIR 2003 SC 4182 that mere breach of traffic regulation by injured/victim cannot be a ground to fix responsibility for accident on such injured/victim and there should be concrete, clinching, positive and legally acceptable material for that. In Gujarat State Road Transport Corporation Vs. Thacker Narottam Kalyanji; 2006(1) TAC 678 and Sudhir Kumar Rana Vs. Surinder Singh; AIR 2008 SC 2405), (2007) ACJ 2268 (MP) (DB), it was held that if a person drives a vehicle without a driving licence, he commits offence, but merely because he had no driving licence, the same alone cannot be sufficient to attribute contributory negligence to that driver when the evidence had disclosed him to be an efficient driver. Moreover, the claimant has stated before the Tribunal that he has driving licence and the same is on record which has been issued by RTO, Ghaziabad for driving motor vehicle except transport vehicle. Thus, there is no force in this argument of appellant.
15. Another argument is with regard to the disability certificate of the claimant which has not been issued by CMO or Medical Board but by a private hospital. In Muthaiah Sekhar v Nesamony Tpt Corporation AIR 1998 SC 3064 and Rajesh Kumar Raju vs Yudhveer Singh 2008 ACJ 2131 (SC), though the disability certificate was not issued by authorized medical officer or board and it has been held that what is necessary is that the doctor who has issued the certificate of disability must be examined to prove it. Unless the author of the certificate examined himself ,it was not admissible in evidence .it was also not known whether the person issued the certificate was competent to to issue such certificate. It is also necessary that such doctor must have treated the injured. If the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is the permanent disability suffered by the person. In Rajesh Kumar Raju (supra) certificate was issued after two years of Accident and it was not known whether the doctor issuing certificate treated the injured, on what basis such certificate was issued two years after the accident was not known and the author of the certificate ass not examined, hence it was held that the same could not be relied upon.
16. In this case, the doctor has been examined as PW-2 and he has stated the claimant remained under his treatment for a substantial period. On the basis of x-ray reports, and treatment, he has stated that the injured sustained serious injuries, his jaws was fractured and plate was inserted by operation. Three upper teeth were also broken. The learned Tribunal has discussed in detail the seriousness of injury and the impact thereof on the functional and physical ability in day to day activities. He was under prolonged treatment and record shows that the learned Tribunal found that as per bills, Rs. 145000/- was spent on his treatment, though, the claimant has stated that Rs. 400000/- were spent on his treatment.
17. In injury cases, the claimants are entitled to pecuniary as well as non-pecuniary damages. In R.D. Hatangadi v. Pest Control (India) Pvt. Ltd., (1995) 1 SCC 551 and Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343, the Supreme Court laid down the general principles for computation of compensation in injury.
"The provision of the Motor Vehicles Act, 1988 (''Act" for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner."
18. Accordingly, disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings. Therefore, the Tribunal has to first decide whether there is any permanent disability and if so the extent of such permanent disability.
19. The doctor has determined the disability of the claimant to be 35% in this case. The learned Tribunal has, however, determined the same to be 25% on the basis of evidence on record. The learned Tribunal assessed his monthly income to be Rs. 4500/- considering that he was working as weigh man in Modi Sugar Mills and also in view of judgement in Sayyad Sadiq v Divisional Manager, United Insurance Company 2014 (1) TAC 369 (SC) determining the income of vegetable seller in view of price rise to be Rs. 6500/- monthly, in Sheela Pandey v New India Insurance (1) ACCD 276 (All) of milkman to be Rs. 6500/- per month and in Ramchandrappa v Manager, Sunderam Royal Insurance Company 2011 (4) TAC (SC), of a coolie to be Rs. 4500/- monthly. Thus the income determined by the learned Tribunal is also reasonable and in the lower side. Correct multiplier of 17 has been applied taking into note the judgement in Sarla Verma v DTC Ltd., AIR 2009 SC 3104 and thereafter 75% deduction in view of 25% disability has been made and after adding the medical expenses Rs. 364500/- has been awarded as compensation with 7% simple interest which cannot be said to be in higher side.
20. In view of above discussion, I find no perversity or illegality in the impugned judgement and award and consequently, the appeal has got no force and is liable to be dismissed.
21. The appeal is dismissed.
22. The office is directed to send a copy of this judgement along with lower court record to the Court concerned for information and necessary compliance.
23. Stay, if any, shall stand vacated. Remit back the amount of Rs. 25000/- deposited by the appellant to the learned Tribunal to be adjusted against the awarded compensation.
Order Date :- 07.12.2019 Bhanu (Hon'ble Pradeep Kumar Srivastava, J.)