Ayyub Khan vs Mpsrtc and Others

N.K. Mody, J.—Being aggrieved by the award dated 30.6.2001 passed by 1st AMACT, Khargone in Claim Case No. 37/2001 whereby the claim petition has been dismissed, the present appeal has been filed.

Learned Counsel for appellant submits that appellant was driver of the truck bearing No. MP09 K 6366. On 25.1.1999, a bus bearing No. CIW 7263 which was owned by respondent No. 1 was coming from opposite direction. At the time of over-taking, the bus dashed the truck of the appellant from the back side resulting with the truck of the appellant fell down and appellant sustained injuries. Appellant was hospitalized with effect from 25.1.1999 to 28.1.1999. Appellant sustained fracture in his hand, hence claim petition was filed.

Respondent No. 1 filed written statement wherein it is submitted that no c accident took place by the bus of respondent No. 1. It was submitted that truck of the appellant fell down itself and respondent No. 1 is not responsible for the same. Hence, it was prayed that claim petition be dismissed.

Learned Tribunal after framing of the issues and recording the evidence found that appellant sustained injuries and it was held that amount of compensation comes to Rs. 3,271. It was also found that since the appellant was himself negligent, therefore, the appellant is not entitled for any amount of compensation. Hence, claim petition filed by the appellant was dismissed.

Learned Counsel for appellant submits that in para 9 of the award, learned Tribunal has come to the conclusion that it appears that accident took place on account of rash and negligent driving of the bus which was owned by respondent No. 1. Learned Counsel further submits that in the concluding para, learned Tribunal held that since the accident took place on account of carelessness on the part of the appellant, therefore, claim petition is dismissed. Learned Counsel submits that findings of para 9 and findings of concluding para are contradictory. It is submitted that immediately after the accident, appellant lodged the police complaint wherein it is mentioned that the accident took place on account of rash and negligent driving of the bus bearing No. CIW 7263 which is Ex. P/1. In the map which is attached to Ex. P/1 and marked as Ex. P/2 it was submitted that on account of rash and negligent driving of the bus, the accident took place.

So far as injuries are concerned, learned Counsel submits that from the medical certificate which is Ex. P/5 it is evident that appellant sustained fractures of humerus bone and another is of wrist bone. It is submitted that the amount calculated for compensation is on the lower side. Similarly, learned Tribunal committed error in dismissing the claim petition.

Mr. S.H. Karanjawala, learned Counsel for respondent No. 1 submits that claim petition has rightly been dismissed. There is no contradiction. On the contrary it appears that in para 9, the observations made by the learned Tribunal is on account of typing error. It is submitted that since no accident took place by the offending bus owned by respondent No. 1, therefore, respondent No. 1 is not liable for payment of any amount of compensation. Learned Counsel further submits that driver of the bus which was owned by respondent No. 1 has not been impleaded as party, therefore, claim petition has rightly been dismissed. 8. Mr. Lokesh Mehta, learned Counsel for respondent No. 3 submits that since the appellant himself was negligent for the accident, therefore, claim petition has rightly been dismissed.

Learned Counsel for appellant submits that for the purpose of awarding the compensation, it is not necessary to prove that accident took place due to rash and b negligent driving of vehicle. It would suffice if it is proved that vehicle was involved in the accident. For this contention, reliance was placed in the matter of Kore Laxmi and Others Vs. United India Insurance Company Limited and Others, .

After scrutinising the evidence on record, it appears that there was a c congestion on Agra-Bombay Road and the bus of respondent No. 1 was in queue. Learned Tribunal found that the truck was corning from opposite direction. The driver of the truck tried to save the truck from a pit, at that time the truck fell down.

The truck which was being driven by the appellant was coming from opposite direction. There are two important reasons on the basis of which this Court can safely reach to the conclusion that the offending bus was equally responsible for the accident. Firstly in the criminal case driver of the offending bus was accused. Secondly the truck was dashed by the bus from the back side. Apart from this, there was a convoy on the highway. The offending bus was in queue. The truck was on its way coming from the opposite direction. Since the bus was coming out, therefore, it was expected from the driver of bus to be extra cautioned.

So far as compensation is concerned, the learned Tribunal has found that appellant has spent a sum of Rs. 1,771 on account of medicine and stay at Indore. The amount appears to be on lower side. Same is enhanced to Rs. 7,000 (Rs. seven thousand) which shall carry interest @ 6% per annum from the date of application.

Thus, the appeal stands allowed. Impugned award is set aside. The f respondents are liable to pay a sum of Rs. 7,000 along with interest @ 6% per annum from the date of accident along with the costs throughout.

With the aforesaid modifications, the appeal stands disposed of. No order as to costs.

C.C. as per rules.