Delhi High Court
Dtc vs Mohinder Jha & Anr. on 13 February, 2013
Author: Suresh Kait
$~R97
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 13th February, 2013
+ MAC.APP. 973-74/2006
DTC ..... Appellant
Through: Mr. J.N. Aggarwal, Adv.
Versus
MOHINDER JHA & ANR. ..... Respondents
Through: NEMO.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J. (Oral)
1. Present appeal has been preferred against the impugned award
dated 21.09.2006, whereby, ld. Tribunal has awarded Rs.91,440/- with
interest @ 6% per annum from the date of filing of the petition i.e.
15.03.1997 till realisation in favour of the respondent no. 1 / claimant.
2. Mr. J.N. Aggarwal, ld. Counsel appearing on behalf of the appellant
has argued the instant appeal on two grounds firstly, the offending bus has
not met with any accident, therefore, the appellant is not liable to pay any
compensation to the respondent no. 1 / claimant. The second issue ld.
Counsel has argued is that the disability of the respondent no. 1 / claimant
has taken 20%, which was on a higher side and it is contrary to the settled
law.
3. I note ld. Tribunal has framed issue no. 1 "Whether the accident has
taken place due to rash and negligent driving of bus no. DL-1P-9528 by the
driver of the said bus"
4. On this issue, appellant has submitted before the ld. Tribunal that no
accident took place with the aforesaid bus and the respondent no. 1 /
claimant has involved the bus just to claim the compensation amount.
5. It is further submitted that respondent no. 1 / claimant was taken to
General Hospital, Gurgaon where he gave bus no. as DL-1P-905.
6. On the other hand, ld. Counsel for the respondent no. 1 / claimant had
argued before the Tribunal that in above noted bus respondent no.1 /
claimant subsequently went to General Hospital, Gurgaon, however,
accident took place with bus no. DL-1P-9528. Therefore, there was no
reason for the respondent No.1 / claimant to exonerate the driver and owner
of the bus no. DL-1P-905 and to falsely implicate the driver and owner of
the bus in question.
7. Moreover, after the accident, he himself made a complaint to SHO,
District Gurgaon for registration of the case against the driver of bus no. DL-
1P-9528, however no case was registered against him. Even he wrote a
letter to Commissioner of Police, Haryana even then the case was not
registered.
8. To this effect, respondent no. 1 / claimant apart from himself
examined Shiv Nandan Chowdhary (PW4) and his wife Vibha Devi (PW5).
9. Respondent no. 1 / claimant has categorically testified that on the date
of accident he was travelling by bus no. DL-1P-9528 and he had boarded the
bus from Dhaula Kuan for going to his work place at Udyog Vihar. While
he was getting down from the bus at the bus stop, the driver of the offending
bus had started moving rashly and negligently, as a result of which, he fell
down. Due to the aforesaid accident, his left hand was crushed under the
front wheel of the bus.
10. Ld. Tribunal has noted that no suggestion was put to this witness in
cross-examination that the accident had taken place with DL-1P-905. Had
such a suggestion being given to him, he would have definitely explained as
to why this number was given in the record of the General Hospital,
Gurgaon.
11. Shiv Nandan Chowdhary (PW4) filed his affidavit and stated that he
had noted down the bus number and gave the same to the wife of the injured
(respondent no. 1 herein) who was also present at the spot. Ld. Tribunal has
noted that no suggestion was put to him in cross-examination that the bus in
question was not involved in the accident. However, he further stated in
cross-examination that after the respondent no. 1 / claimant has alighted
from the bus, no other person alighted from the bus. Therefore, his
statement is corroborated by statement of PW5, Smt. Vibha Devi, wife of the
injured (respondent no.1 herein).
12. PW5 Vibha Devi in cross-examination stated that she herself did not
read the bus no, rather the person present at the spot had given her the bus
number. She further stated that she did not give the bus no. DL-1P-905 to
Doctor of General Hospital at Gurgaon.
13. Ld. Tribunal has noted that RW1, who is the driver of the offending
vehicle stated in his statement that he had started his bus from Dhaula Kuan
at 5.40 PM and reached Gurgaon at 7 PM. He further stated that pressure
pipe of his bus leaked due to which the bus was taken to Haryana Roadways
Depot, Gurgaon, where it was repaired and then he left that Depot and
reached Mayapuri at 10.15 PM.
14. Likewise, the conductor of the bus, Sh. Sher Singh, RW2 testified that
they left Dhaula Kuan at 5.40 PM and reached Gurgaon at 7 PM and no
accident took place with this bus. Driver of the bus had told him at Gurgaon
that the pressure pipe of the bus was leaking. Thereafter the bus was taken
to Haryana Roadways Depot, Gurgaon and they left Gurgaon at 9 PM and
reached Mayapuri at 10 PM.
15. In view of the discussion as above, it is established from the statement
of driver and conductor of offending vehicle that the said bus left Dhaula
Kuan around the time when the respondent no. 1 / claimant boarded the bus
and it reached at Gurgaon at that very point of time only. DTC was having
the records as to what time the bus in question had left Dhaula Kuan and
reached Gurgaon. However, the appellant has not filed any document to
show that on that day, the bus was taken to Haryana Roadways Depot for
repairing of the pressure pipe.
16. Additionally, driver of the offending vehicle has admitted that the
time of entry and exit of bus is always recorded whenever the bus is taken to
the Depot. However, to this effect he has not proved any such document.
17. In fact, in written statement nowhere it has been mentioned as to what
time the bus left Dhaula Kuan and reached Gurgaon. Moreover, nowhere it
is mentioned in the statement that pressure pipe of bus leaked and bus was
taken to Haryana Roadways Depot.
18. On the issue of disability, respondent no. 1 / injured has produced
disability certificate issued from Safdarjung Hospital, which shows that
respondent no. 1 / claimant had suffered 60% permanent disability in
relation to his left upper limb. Therefore, the ld. Tribunal has assessed his
functional disability as 20%.
19. As the respondent no.1 / claimant was in the age group of 35-40 years,
therefore, as per the second schedule, the appropriate multiplier has been
applied as sixteen. Thus, the loss on account of disability has been awarded
as Rs.61,440/-.
20. In view of the above discussion and on perusal of the impugned
judgment, I find no discrepancy in the impugned award passed by ld.
Tribunal, therefore, I am not inclined to interfere therewith.
21. Consequently, instant appeal is dismissed with no order as to cots.
22. I note, pursuant to order dated 02.03.2007, amount was lying with the
SDM, Darya Ganj and he was directed not to disburse the amount to the
respondent no. 1 / claimant without the permission of this Court. Further,
the SDM was directed to invest the money in FDR.
23. Since the appeal has been dismissed, the SDM, Darya Ganj is directed
to disburse the compensation amount in favour of the respondent no. 1 /
claimant as per the terms and conditions fixed by the ld. Tribunal in the
award dated 21.09.2006.
24. Statutory amount shall also be released in favour of the appellant.
CM. Nos. 16319/2006 and 3191/2007
In view of the above, instant applications have become infructuous
and disposed of as such.
SURESH KAIT, J
FEBRUARY 13, 2013
Jg
