D.T.C. vs Ram Nath Mishra And Ors.
2003 Latest Caselaw 957 Del

JUDGMENT

S.K. Mahajan, J.

1. This order will dispose of the appeal filed by the appellant challenging the award of the Motor Accident Claims Tribunal whereby the Tribunal had awarded the compensation of Rs.3,47,500/- with interest to respondent no.1 for injuries sustained by him in a road accident alleged to have been caused by the rash and negligent driving of the bus owned by respondent/appellant and driven by its driver respondent no.2. A few facts relevant for deciding this appeal are:-

2. On 17.8.1989, at about 9.15pm when respondent no.1 was trying to cross the road at DCM Chemical Works, Zakhira, Najafgarh Road, Delhi, the DTC bus bearing registration no. DHP-3935 came from behind and despite respondent no.1 raising his hand signalling the driver to allow him to cross the road, the driver of the bus did not pay any heed and hit against the respondent no.1. As a result of the accident respondent no.1 was injured and was taken to ESI Hospital from where he was referred to Willington Hospital where he remained for three days and was again sent to ESI Hospital, Basai Darapur, New Delhi. After the accident seven surgical operations were alleged to be performed on the left hand of respondent No.1 as flesh and the bones of the hand had come out and during the course of these surgeries skin was grafted after taking it from his both legs. Despite surgeries, it is alleged by respondent no.1, he cannot feel any sensation in the said hand and he has been disabled. Respondent no.1 at the relevant time was employed as a fitter with M/s Ashoka Tool Machine Corporations and was getting a salary of Rs.1,000/- per month. Alleging that after the accident he was rendered unfit to do the job of fitter and he had suffered permanent disability in respect of his left hand and he has also been left unemployed and the same has also adversely affected future prospects in his career and alleging that the accident was caused due to the rash and negligent driving of the bus by its driver, respondent no.1 filed a petition before the Motor Accident Claims Tribunal claiming compensation of Rs.6 lakhs..

3. In the written statement while the factum of the accident was admitted, defense taken by the appellant was that respondent No.1 was a passenger in the bus and he jumped out of the moving bus as a result of which he fall down and received injuries. It was stated that accident was not caused due to the rash and negligent driving of the bus but it was as a result of respondent no.1 having jumped from a moving bus for which the appellant could not be held liable. On the pleadings of the parties the Tribunal framed the following issues:-

1. Whether the petitioner got injuries due to rash and negligent driving of DTC bus No. DHP-3935 on the part of respondent no.1?

2. Whether the petitioner is entitled to any amount of compensation and if so, for what amount and from whom?

3. Relief.

4. The Tribunal decided issue no.1 in favor of respondent no.1 and held that the accident was caused due to the rash and negligent driving of the bus by respondent no.1 and left hand of the said respondent was crushed under the wheel of the bus which resulted in grafting of skin on his hand by taking it out from other parts of the body. Respondent No.1 remained in the hospital firstly for four days immediately after the accident and thereafter from 11.8.1989 to 4.10.1989, then again from 11.10.1989 to 18.11.1989 during which period number of surgical operations were performed by the doctors. The Tribunal held that respondent not.1 was a beneficiary of ESI, however, he must have spent some money on medicines during the long period of treatment when he remained in the hospital as also during the subsequent period. A sum of Rs.15,000/- was allowed by the Tribunal as the amount spent on medicines by respondent no.1. Holding that the treatment of respondent no.1 continued up to December 1995, i.e. for a long period of 6-1/2 years and his left hand was totally crippled because of which he could not frequently use the public conveyances, he must have spent some amount for conveyance for going to the hospital and other places. The Tribunal, accordingly, allowed Rs.20,000/- being the amount spent on conveyance by respondent no.1. Agreeing with respondent no.1 that he must have gone weak because of number of surgeries performed by the doctors and was in hospital for 6-1/2 months, the Tribunal was of the opinion that respondent no.1 must have taken special diet for recuperation and a sum of Rs.20,000/- was, therefore, allowed on account of special diet by the Tribunal. Taking the income of respondent no.1 to be Rs.1000/- per month at the time of the accident and applying the principles laid down in Sarla Dixit Versus Balwant Yadav 1996 ACJ 581 , the Tribunal took his average income at Rs.1500/- per month. Respondent no.1 was 29 years of age at the time of the accident and since according to the Tribunal disablement compensation has to be higher than in cases of death as the same is given not only for his personal loss but also for economic loss, the Tribunal directed a sum of Rs.2,70,000/- to be paid to respondent no.1 due to disablement. Another sum of Rs.30,000/- was directed to be paid towards pain and sufferings. The Tribunal, therefore, in all awarded a sum of Rs.3,55,000/- as compensation to respondent no.1. As already mentioned above, this award has now been challenged by the appellant by filing this appeal.

5. The contention of learned counsel for the appellant is that except the statement of respondent No.1 no other evidence has been produced to prove that the accident was caused due to the rash and negligent driving of the bus by respondent no.2. It is submitted that both the driver and the conductor of the bus had appeared as witnesses before the Tribunal and they had clearly stated that respondent no.1 was a passenger in the bus and he was injured as he had jumped from a running bus and as the accident was not caused due to the rash and negligent driving of the bus by its driver, appellant could not be held liable to pay compensation to respondent No.1. It is also contended that neither any salary certificate was produced by respondent no.1 nor any details were furnished about the expenses incurred on medicines etc and and the Tribunal has, therefore, erred in awarding the amount allegedly spent on medicines, conveyances and special diet etc. It is contended by learned counsel for the appellant that the award in any case is highly exaggerated.

6. I have heard learned counsel for the parties and have also perused the Trial Court file but have not been able to make myself agreeable with the submissions made by learned counsel for the appellant. Respondent no.1 while appearing as his own witness has clearly stated that while he was trying to cross the road, the DTC bus came from behind at a fast speed and hit him, as a result of which he fell down and his left hand was run over by the front wheel of the bus and was crushed. He was first taken to RML Hospital where he remained admitted for four days from where he was referred to ESI hospital, Basai Darapur, New Delhi where he remained admitted from 11.8.1989 to 4.10.1989, and he was operated upon for grafting of skin on his hand. It is further stated that bones of his hand were also fractured and he remained admitted in the hospital again from 11.10.1989 to 18.11.1989 during which period 2/3 surgeries were performed on his injured hand. He stated that he was getting a salary of Rs.1,000/- per month but after the accident he was not able to perform the job of fitter and was, therefore, not taken back on duty by the employer. The disablement certificate was produced as Ex. P1/A. Respondent no.1 was not cross-examined by the appellant or by respondent no.2 and his statement has, therefore, gone unrebutted. The appellant has produced the conductor as RW-1. It was stated by the conductor of the bus that on the fateful day when the bus was near the DCM factory he heard the driver telling some passenger to wait to get down because the stand had not yet come but immediately thereafter he heard the sound of some one falling down; that the bus was stopped and he saw that one passenger had fallen down from the front door but no part of body of passenger had come under the bus. He stated that the bus was being driven very cautiously and carefully by the driver and the accident took place due to the fault of the passenger himself. In cross-examination it is admitted by this witness that a complaint book was maintained in the bus. He also stated that a note in respect of the accident was recorded in the complaint book, however, the complaint book was stated to have been stolen about six months back. He stated that he had lodged an FIR in that regard with the police but the copy of the FIR was neither brought nor produced in Court. He did not remember whether his statement was recorded by the police.

7. The driver of the bus has also appeared as RW-2. He also stated that respondent no.1 was injured when he jumped from a moving bus before the driver of the bus stopped the bus and he had asked respondent No.1 not to jump but he did not listen. He stated that respondent no.1 suffered injuries due to the impact with the road and not because of his having been run over by the bus. He stated that he had reported the matter to DTC in writing but no such material was produced by DTC in Court.

8. As already mentioned above, the statement of respondent no.1 has gone unchallenged as he has not been cross-examined either by the appellant or by respondent no.2. The case set up by the driver and the conductor in the statement was that respondent no.1 had jumped from the bus and received injuries because of his having hit the road. Not only that this statement is not in accordance with the FIR recorded immediately after the accident but these submissions can also not be believed for the reason that if respondent no.1 was not injured because of his hand been run over by the bus, there is no explanation as to how his hand was crushed. If the case set up by the driver and the conductor is to be believed, there cannot be any reason for the hand of respondent no.1 to be crushed as merely by falling on the road it cannot be crushed. The fact that the bones of the hand were fractured and bones and flesh had come out clearly shows that it must have been crushed by an heavy object. The MLC recorded immediately after the accident also shows that respondent no.1 was brought to the hospital with injuries on the left arm, forearm, muscles being crushed. These injuries as already mentioned above cannot be caused only by an impact with a hard surface like road. The fact that the hand/ arm of respondent no.1 was crushed clearly shows that the story put forward by the driver and the conductor cannot be believed. Moreover, admittedly a note about this accident was written in the complaint book kept in the bus but neither the complaint book has been produced nor the FIR stated to have been lodged for the loss of this complaint book was produced in Court. Report about this accident was also stated to have been made by the driver and the conductor with the appellant but this report has also not been produced. In the absence of either the complaint book or the FIR or even the report made with the DTC by the driver and conductor an adverse inference has also to be drawn against the appellant and respondent no.2. For all these reasons, I do not find any ground to interfere with the findings of the Tribunal wherein it is held that the accident was caused due to the rash and negligent driving of the bus by respondent no.2 and respondent no.1 had received injuries in the said accident.

9. Coming now to the quantum of compensation awarded by the Tribunal I do not find either the amount awarded by the Tribunal on medicines or amount awarded for conveyances to be excessive or exaggerated. Respondent no.1 had been attending the hospital for about 8 years and this Court can, therefore, take judicial notice of the fact that the said respondent must have spent a considerable amount not only on medicines but also on conveyance during this period. The respondent was hospitalised for a period of more than 3-1/2 months and not only during this period but also for quite some time thereafter he must have been taking special diet for recuperating himself. A sum of Rs.20,000/-, therefore, allowed by the Tribunal under this head cannot to be set to be excessive. The respondent has been crippled through out his life, his left hand has been rendered unfit for the job which he was performing and he had even lost his job because of this accident and award of Rs.2,50,000/-, therefore, considering his salary to be Rs.1500/- per month, in my opinion, is just and reasonable.

10. For the foregoing reasons, I do not find any merits in this appeal and the same is, accordingly, dismissed with no order as costs.