Uttar Pradesh State Road ... vs Baldev
2011 Latest Caselaw 4915 Del

*             THE HIGH COURT OF DELHI AT NEW DELHI

+                           MAC APPEAL No.176 OF 2006

                                 Decided on: 30.09.2011


UTTAR PRADESH STATE ROAD TRANSPORT
CORPORATION                                               ...... Appellant

                            Through:     Mr. Garima Prasad, Advocate

                                    Versus

BALDEV                                                ...... Respondents

                            Through:     Mr. Y.R. Sharma, Advocate

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

1.     Whether Reporters of local papers may be
       allowed to see the judgment?        -    No
2.     To be referred to the Reporter or not ?- No
3.     Whether the judgment should be reported
       in the Digest ?                     - No

M.L. MEHTA, J. (ORAL)

1. By way of present appeal, the appellant has assailed an

award dated 25.10.2005 passed by learned Tribunal whereby a

sum of `1,18,400/- was awarded as compensation to the claimant/

respondent Baldev in Claim Petition No.17/04 filed for

compensation on account of injuries sustained by him in a road

accident which took place on 10.11.2003 when he was going on

his bicycle and was struck by a bus bearing registration number

UP-15Q-9967 being driven by Rajinder Kumar, driver of the

offending bus.

2. Award of compensation of `1,18,400/- was made up of

`50,000/- on account of loss of earning capacity due to the

injuries sustained by the claimant; `6,000/- on account of the

expenses incurred by the claimant on treatment, `10,000/- on

account of conveyance and special diet; `8400/- on account of

loss of income during the period of treatment and `25,000/- on

account of pain and agony and loss of future enjoyment of life.

3. The impugned award is assailed mainly on the ground that

the injured Baldev was under the influence of liquor and that the

accident was caused due to his negligence and secondly that the

compensation awarded is excessive.

4. I have heard learned counsel for the appellant and perused

the record.

5. The contention that the accident was caused due to the

negligence of the claimant on account of his being under the

influence of alcohol is misplaced. The learned Tribunal had dealt

with this submission of the learned counsel by recording that

mere presence of smell of alcohol in the breath of a person does

not make him under the influence of liquor. I am in entire

agreement with the reasoning given by learned Tribunal. The fact

that the injured had consumed some alcohol and was so smelling

would, per se, not bring him in the category of negligent to

contribute to the cause of accident. There is nothing on record to

suggest that he was under the influence of liquor. It is also noted

that the plea of the appellant/insurance company before the

Tribunal was that it was the half body truck which was going in

front of the bus which hit the cyclist and not the bus. This plea

was turned down by the Tribunal as an afterthought. It is

pertinent to note that no such plea had been taken by the

appellant before this Court and as noted above, no other plea

with regard to the accident was taken except that it was due to

contributory negligence of the claimant on account of his smelling

alcohol. The appellant seems not to have acted fairly in

presenting this appeal.

6. With regard to the amount of compensation, it is noted that

the Tribunal has awarded only `1,18,400/- made up on different

heads. Though the injured was unable to obtain disability

certificate, but, from the evidence of Dr. Rakesh Kumar, it would

be seen that the claimant had received multiple head injuries with

left front temporal hemorrhagic contusions with SAH and SDH

with fracture clavicle. The accident occurred on 10.11.2003, but,

he continued to follow treatment in OPD till 08.07.2005 and he

had throughout been complaining headache, giddiness and

seizures. Dr. Rakesh Kumar also noted that due to these injuries,

the claimant may not recover fully and may suffer permanent

disability.

7. Keeping in view the nature of injuries, I do not see any

infirmity in the Tribunal awarding the aforesaid amount of

`1,18,400/- to the claimant under different heads and the

compensation as awarded under different heads cannot be said to

be excessive.

8. The appeal has no merit. The same is hereby dismissed.

M.L. MEHTA (JUDGE) 30TH SEPTEMBER, 2011 awanish