Heeralal vs Ramgovind Sharma and Others

G.D. Saxena, J.—This appeal u/s 173 of the Motor Vehicles Act 1988 has been preferred by claimant/appellant against an Award dated 27th July 2005 in Claim Case No. 76/2003 by the Third Additional Motor Accident Claims Tribunal, Morena (M.P.) dismissing thereby entire claim of the appellant/injured for award of compensation u/s 166 of the Act. The facts of the case are that on 22nd April 2001, the appellant-injured was coming in a Bus bearing registration No. MP06/B-0591 from Morena to Jora. At around 10 p.m., when the bus reached at M.S. Road, by the side of the house of Laxmininarayan and the appellant was likely to get down, at that juncture, it is alleged that the driver of the bus without caring and observing signal from the side of the conductor, moved the bus rashly, as consequence of which, the appellant fell down on the road and received serious injuries on his left leg. On report of the injured, the FIR was lodged against the driver of the bus involving in accident upon which a Crime was registered. After investigation, the charge-sheet was filed against the driver before the criminal court. On medical examination, a grave injury on the leg of injured was detected. At the time of accident, the appellant was working as IV class employee in Judicial Court at Jora and was getting monthly salary of Rs. 4,000/-. It is stated in the claim petition that due to injuries received by the appellant, he got permanent disablement which results in functional disability and future prospects in service. The appellant, in these circumstances, prayed for compensation to the tune of Rs. 2,57,000/- (Rs. Two Lac Fifty Seven Thousand Only) in all heads for the injuries against the respondents. The learned tribunal after recording the evidence of the parties and by considering the evidence on record concluded that the petitioner/injured was negligent in alighting from running bus and no negligence on the part of the driver of the bus was found to be proved. Consequently, the learned Claims Tribunal rejected the claim petition, hence, this appeal.

The contention of the appellant/injured is that the findings recorded under the Award are erroneous and without consideration of the facts and evidence on the record. It is submitted that the learned tribunal erred in recording negligence against the appellant and not against the driver, who was negligent in driving the bus rashly resulting in accident. On these submissions, it is prayed that by allowing the appeal, the findings of the tribunal that the claimant could not prove the negligence on the part of the driver may be set aside and by considering the evidence on record, an appropriate award of compensation may be passed in his favour.

Learned counsel appearing for the respondent No. 3-Insurance Company in support of the findings under the impugned Award contended that the claimant was himself negligent in alighting from the running bus and therefore he cannot be permitted to take advantage of his own wrong. He further submitted that the driver was not responsible for causing the accident. So, in this manner, the respondent No. 3-Insurance Company should not be compelled to indemnify the liability for the acts which were not appeared from the evidence of the claimant. Consequently, prayer for dismissal of the appeal is made.

Admittedly, in this case the bus was validly insured with the Insurance Company, respondent No. 3. The bus was driven by respondent No. 2 under valid driving licence and under valid permit issued by the authority. It also appears from the record that the respondent No. 2, i.e., the driver of the offending bus did not appear before the learned claims tribunal and was proceeded ex parte. Even before this court, after service of notice of this appeal, respondents No. 1 and 2 are not present.

The questions for consideration in this appeal is, whether the learned claims tribunal was justified in the realm of appreciation of the evidence available on record to conclude that the claimant/injured himself was negligent in alighting from the running bus and so the respondents were not liable to satisfy the damages for the injuries sustained by him?

Heard the learned counsel present for the parties and also perused the record of the case with relevant provisions of law.

On perusal of the record, it appears that in the written statement submitted by the respondent No. 1, bus owner, he has mentioned the fact that the bus was insured with the Insurance Company/respondent No. 3 which was driven by respondent No. 2, at the time of accident, under valid driving licence and under valid permit issued by the authority.

However, the Insurance Company, respondent No. 3, in its written statement raised an objection regarding the insurance policy of the bus involving in an accident stating that the policy was issued in the name of other person, namely, Ram Pratap Singh Sikarwar who was neither party to a claim petition nor was kept present by the respondent No. 1-owner Ram Govind Sharma. Even the driver of the bus was not paid employee and he did not possess valid driving licence at the time of accident. Apart the aforesaid, it is stated that the claimant without informing the driver suddenly alighted from the running bus and therefore for the negligent on the part of the claimant himself, the Insurance Company cannot be made liable for indemnifying the insured in order to satisfy the award.

The evidence led before the tribunal contained the statement of claimant Heeralal (AW-1), certified copy of the FIR, spot map, seizure memo of the bus permit, registration certificate, insurance policy of the bus, inspection report of the bus, injury report as well as X-ray report, which are found to be proved. If the statement of the claimant is read as a whole, it satisfies his claim. In cross-examination while answering to the suggestion of the defence, the claimant admitted that before the bus could stop at a place, he got down from running bus. However, he denied that the accident was of result of his own negligence. Therefore, his entire statement could not be negated. If the statement of the injured is considered in the light of the FIR lodged, it proves that the alleged accident was on account of the negligence on the part of the driver of the bus who drove the bus rashly without observing the passengers. It is also evident that the driver did not appear before the tribunal for controverting his negligence in causing the accident. So, it appears that the driver of the bus involved was responsible for causing accident. On vicarious liability, the owner of the bus is held responsible for satisfaction of the award. In case of non-proving the defence as available under Sections 147 and 149(2) of the Act, the Insurance Company has to indemnify the claims payable by the insured for injuries caused in accident to the passengers insured under the policy issued by the insurer.

In this case, the claimant did not file the papers relating to the injuries caused except injury report and the report of X-ray from the District Hospital, Morena. No other paper relating to treatment and prescriptions, medical bills and cash memos of purchasing medicines, the certificate of disability issued by the Medical Authorities were filed on record. On perusal of the injury and X-ray reports filed by the Investigating Agency with charge sheet, it transpires that in accident the claimant got injuries on left leg and fracture of medial malleolus with middle tarsal bone of left foot. So, the injury caused was grave but not of permanent or partial permanent in nature. In routine personal injury cases, compensation is awarded only under heads (i), (ii) (a) and (iv), i.e., (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure, (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising, (a) Loss of earning during the period of treatment and (iv) Damages for pain, suffering and trauma as a consequence of the injuries. It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation is granted under any of the heads (ii) (b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. For assessment of pecuniary damages under above heads (i) (ii)(a) same do not pose much difficulty as they involve reimbursement of actuals and are easily ascertainable from the evidence.

So, after considering the evidence as discussed above, for want of specific medical evidence corroborating the evidence of the claimant regarding nature of injuries with further taking into consideration the statement of the claimant in which he himself has mentioned that he was admitted in the hospital for eight days and plaster was applied on his leg for one month and that he spent near about Rs. 7,500/- during his treatment, he is held to be entitled to receive a sum of Rs. 25,000/- (Rs. Twenty Five Thousand Only) in all heads, i.e., medical expenses, pain and suffering, special diet and transportation etc. alongwith simple interest @ 7% annum from the date of claim petition till realisation of the amount in question. Subject to above, the appeal stands disposed off with no order as to cost.