Delhi High Court
State Of Haryana & Anr. vs Mohd. Kalia & Ors. on 23 May, 2016
$~R-92
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23.05.2016
+ MAC.APP. 628/2007
STATE OF HARYANA & ANR. ..... Appellants
Through: None.
versus
MOHD. KALIA & ORS. ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. On 04.11.2005, the second respondent was driving motorcycle bearing
No. DL 3SL 0162 (the motorcycle) with the first respondent sitting on the
pillion. Both suffered injuries in a motor vehicular accident involving the
said motorcycle at about 6 p.m. near interstate bus terminus (ISBT) close to
Nigam Bodh Ghat, Delhi. They filed accident claim cases (suit Nos.
37/2006 & 38/2006) on 01.12.2005 impleading Haryana Roadways (the
appellant) as one of the respondents. The other respondent Karamvir Singh
(third respondent in appeal) being its employee (driver), seeking
compensation under Sections 140 & 166 of Motor Vehicles Act (MV Act)
on the averment that the accident had occurred on account of bus bearing
registration No. HR 55B 3246 (the bus) of the appellant having been driven
in a negligent manner causing collision against the motorcycle.
2. The tribunal clubbed both the claim cases and held inquiry and, by
common judgment dated 09.02.2007, upheld the case of the claimants that
they had suffered injuries due to negligent driving of the bus. Compensation
in the sum of ` 1,91,500/- was awarded in favour of the first respondent and
` 38,400/- in favour of the second respondent. The appellant was directed to
pay the said amount of compensation to the two claimants with interest from
the date(s) of filing of the petition(s) till realization.
3. The appeal was filed challenging the finding on the issue of
negligence, the contention primarily being that the accident had occurred
due to negligence of the motorcyclist. Additionally, the appeal also
challenged the awards of compensation stating the same are excessive and
exorbitant.
4. By order dated 21.04.2010, the appeal was directed to be shown in the
category of finals for arguments and disposal at its own turn. When the
appeal has been taken up, no one has been appearing over the last several
dates of hearing. Given the fact that this appeal is the oldest on the board,
there is no good reason why hearing should be deferred yet again.
5. Record has been perused and the contentions urged in appeal are
considered.
6. On the issue of negligence, both the claimants had appeared as
witnesses (PW-3 and PW-4) affirming facts about the sequence of events. It
came in their testimony that the accident occurred when the motorcycle was
taking a U-turn and the bus, having come at rash speed, had hit it from
behind. Though the third respondent (driver of the bus) also appeared as
witness (R1W1) and claimed that when the bus, having undertaken the
journey from Patiala to Delhi, had reached the place of occurrence, he had
noticed that some vehicle had slipped/skidded on the road resulting in the
two persons travelling on it falling down and sustaining injuries. But,
during cross-examination, he admitted that there was actually a collision
with the bus and that the motorcycle had not slipped as stated by him during
his examination in chief. Taking note of this contradiction of great import in
the version of the driver of the bus, the tribunal proceeded to accept the
version of PW-3 and 4 and on that basis returned a finding of negligence
against the bus driver.
7. This Court finds no error in the view taken by the tribunal and,
therefore, the finding on the issue of negligence is affirmed.
8. The tribunal found, on the basis of scrutiny of evidence adduced, that
the first respondent had suffered multiple fractures in his right leg, besides
other injuries. As a result of the grievous hurt in the right leg, he had
developed bony deformity, his disability having been proved by medical
opinion to be to the extent of 15% in the right lower limb on account of
shortening of leg by 1 inches. The tribunal did not accept the oral word of
the claimant that he was earning ` 5,000/- per month as a tailor. Instead,
minimum wages of unskilled worker was adopted as the benchmark. It
having been proved before the tribunal that the claimant was unable to work
for gain on account of injuries for a period of four months, loss of income
for the said period was granted besides loss of future income on account of
permanent physical disability to the extent of 15%. The tribunal added `
30,000 on account of pain & suffering, ` 25,000/- towards loss of amenities
of life and ` 20,000/- as general damages which was meant to cover
expenditure on future treatment as well.
9. The appeal questions the award over loss of income on the ground that
the view taken by the tribunal was inherently contradictory as it has also
observed that no evidence had been adduced with regard to income,
employment, education or training as a tailor. The objection is without
substance as the tribunal proceeded to assess the loss of income for the
period of treatment and in future notionally, on minimum wages of an
unskilled worker, it having rejected the claim of income at ` 5,000/- per
month.
10. Having regard to the nature of injuries and the permanent disability
consequently suffered by the first claimant, the non-pecuniary damages
awarded by the tribunal cannot be said to be exorbitant.
11. In the case of the second claimant, similarly, the tribunal did not accept
the oral word that he was earning ` 5,000/- per month as scooter mechanic.
The income loss for the period of two months of treatment was compensated
on the income notionally assessed at the rate of minimum wages for
unskilled workers. It is noted that even this claimant (second respondent)
had suffered grievous hurt in the form of fracture of clavicle bone besides
bleeding injuries suffered in the right ear and left knee. In this view, the
non-pecuniary damages in the sum of ` 20,000/- on account of pain &
suffering and ` 12,000/- as lumpsum general damages cannot be said to be
excessive.
12. Thus, the appeal is found to be unmerited and dismissed.
13. It was submitted on 21.04.2010 that the awarded amounts had been
deposited with the tribunal by the appellant. If the amounts have not been
released thus far, the same shall now be released to the claimants in terms of
the impugned judgment.
14. Statutory deposit, if made, shall be refunded after the registry has
confirmed that the awards has been satisfied.
R.K. GAUBA
(JUDGE)
MAY 23, 2016
nk
