M.K. Khar vs Delhi Transport Corporation & ...
2008 Latest Caselaw 1115 Del

*      HIGH COURT OF DELHI : NEW DELHI

                    FAO No.5/2002

%               Judgment reserved on: 16th July, 2008

                Judgment delivered on:23rd July, 2008


M.K.Khar
S/o Sh.M.L.Khar,
R/o 8-A, Hydel Society,
Sector-46, Faridabad.
Haryana.                              ....Appellant
               Through: Mr.N.Safaya, Adv.

                         Versus

1. Delhi Transport Corporation,
Through its Chairman,
I.P.Estate,
New Delhi.

2. Shri Sadhu Singh, Driver,
Badge No.12561, Okhla-II,
D.T.C. Depot, New Delhi.
     ...Respondents.
                   Through:     Mr.J.N.Aggarwal, Adv.
                               for R-1.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                  Yes

2. To be referred to Reporter or not?               Yes

3. Whether the judgment should be reported
   in the Digest?                                   Yes

FAO No.5/2002                                  Page 1 of 9
 V.B.Gupta, J.

The present appeal under section 173 of the

Motor Vehicles Act, 1988 (for short as the "Act") has

been filed against the award dated 04.10.01 passed by

Sh. G.P.Mittal, Judge, Motor Accident Claims Tribunal

(for short as the "Tribunal"), New Delhi for

enhancement of compensation.

2. Brief facts of the case are that on 29.02.92,

Appellant along with his sister was travelling in D.T.C.

bus no. 6185, route no. 405. Since the bus was over

crowded, he was standing near the emergency door of

the bus. When the bus reached the crossing of Zoo and

Mathura Road, it took a very sharp turn, as a result of

which emergency door flung open. He fell down from

the said emergency door and sustained injuries on the

right lumber area, left knee and left wrist etc. He was

removed to AIIMS and made a report to the police as

well as to the D.T.C.

3. The Appellant claimed compensation of

Rs.1,00,000/- from Delhi Transport Corporation and

driver of D.T.C. bus no.6185 for having caused injuries

to him in a roadside accident.

4. Respondent D.T.C. filed a written statement

contesting the claim of the Appellant and took up the

plea that since the complete particulars of the D.T.C.

bus alleged to have been involved in the alleged

accident have not been given, it was not in a position

to admit or deny the factum of involvement of the bus

in the accident. It was denied that the Appellant had

suffered the injuries as alleged or was entitled to any

compensation.

5. Vide impugned judgment, the Tribunal has

awarded the compensation of Rs.3,000/- along with the

interest @ 9% per annum from the date of filing of the

petition till realization.

6. It has been contended by the Ld. Counsel for the

Appellant that the Tribunal has failed to appreciate

that the appellant remained under treatment for about

8 months and could not join his duties. The Appellant

at that time was drawing a salary of Rs.4,000/- per

month and the Appellant also travelled to the hospital

for physiotherapy exercises frequently and spent about

Rs.7,000/- to Rs.10,000/-. The Tribunal has failed to

consider the fact that the injury of the Appellant on

neck of humerus was grievous in nature and the

Appellant proved the same by Ex.PW1/3. The Appellant

also proved his injuries by Ex.PW1/2 and 1/3 and

PW1/1. The bone of the left hand wrist of the Appellant

which was fractured was dislocated and the Appellant

remained under treatment for a long time and still the

pain persists. The Tribunal has erred in not awarding

the appropriate amount spent by the Appellant on his

treatment, travelling to hospital, medicines and

treatment received at Faridabad. The Tribunal also

erred in appreciating the facts of the case that at the

time of accident, the Appellant was posted at Srinagar

and this is a clear fact that the Appellant cannot visit

or produce any evidence from Srinagar J&K being a

disturbed area and the Tribunal failed in taking the

judicial notice of this fact. The Appellant got treatment

in AIIMS and in the other Hospital, but no FIR was

recorded by the Police even on written complaint of

the Appellant. The Appellant could not care about the

documents of treatment and expenses being busy in

treatment and the trauma suffered by him.

7. On the other hand, the Ld. Counsel for the

Respondent has contended that neither the doctor

who has treated the appellant has appeared nor the

nature of injuries have been proved by the Appellant.

Thus, in the absence of any evidence, the

compensation awarded by the Tribunal is just and

reasonable.

8. The D.T.C. had failed to produce any evidence

before the Tribunal that it had no bus with no. 6185

plying on route no. 405 at 1.45 p.m. on 29.02.92.

Further, the testimony of the Appellant, that the driver

of the D.T.C. had taken a sudden turn at the crossing

of Zoo and Mathura Road, as a result of which

emergency door where he was standing was flung

open, has remained unchallenged and unrebutted.

Thus in the absence of any proof, the Tribunal believed

the Appellant that the accident was caused by the

D.T.C. bus bearing no. 6185.

9. The Appellant has not proved any bills regarding

purchase of medicines or fees paid to the doctor. The

Appellant before the Tribunal has simply proved on

record only one bill cum receipt of one X-Ray as

ex.PW1/4 which shows that the Appellant had paid a

sum of Rs. 125/- for the X-Ray. The causalty card,

photocopy of which was proved as Ex. PW1/1 would go

to show that the Appellant was admitted to

casualty/emergency department of AIIMS with history

of fall from moving bus. Ex.PW1/1 reveals that the

Appellant had suffered multiple abrasions and there

were bruises over right elbow, abrasions, over left

knee and there was complaint of pain over right

lumber area.

10. Though he claimed that he suffered grievous

injuries, however injury reported are simple injuries.

Moreover, he was not even admitted in the hospital,

but was discharged on the same day.

11. Further, Ex. PW1/3 shows that the Appellant had

at sometime suffered fracture of neck of humerus.

However, this fracture was not connected by the

Appellant with the injuries suffered by him in the

accident by leading any evidence, as the accident has

taken place in the year 1992 whereas the OPD slip

shows fracture of neck of humerus is of the year 1999.

12. The Appellant has not produced before the

Tribunal any evidence, to show that he had taken any

leave at all on account of injuries suffered by him in

the accident. The injuries which are seen from the

casualty card Ex.PW1/1 would show that these were

not serious, for that the appellant required to take

leave for a day or two. Thus the Appellant has failed to

show that he had suffered any loss on this count. The

medical expert was also not examined, for proving the

nature of the injuries.

13. Thus, in the circumstances of the case, the

tribunal has rightly awarded the compensation of

Rs.1,000/- for the amount spent on purchase of

medicine, treatment, physiotherapy and conveyance

and a sum of Rs.2,000/- for pain and suffering and the

shock which the Appellant received on account of

being flung off from the bus.

14. Though the compensation awarded by the

Tribunal looks as a pittance but this fact cannot be

ignored that the accident took place in 1992 and at

that time the value of money was much more than the

present value of money.

15. In view of the above discussion, the award given

by the Tribunal is just and sufficient. Accordingly, no

infirmity can be found with the order of learned

Tribunal.

16. The present appeal is, therefore, dismissed.

17. No order as to costs

18. Trial Court record has been sent back.

July 23, 2008                     V.B.GUPTA, J.
ac