U P State Road Transport Corporation v. Sahajanand & Anr.

1. This appeal has been filed challenging the Award dated 10.03.2017 passed by the learned Motor Accidents Claims Tribunal, Shahadara, Karkardooma Court, Delhi (hereinafter referred to as the ‘Tribunal’) in MACT No. 285/2014, titled Sahajanand v. Arvind Kumar & Anr..

2. It was the case of the claimant/respondent no.1 herein that on 21.06.2014 at about 3:50 AM, he was going on foot, and when he reached Hapur Mor, Chowki Tela Bhatta, Police Station Kotwali, Ghaziabad, Uttar Pradesh (in short ‘UP’), the offending vehicle, that is, the bus bearing no. UP-14BT-2016, being driven by the respondent no.2 herein in a rash and negligent manner and at a high speed, hit the respondent no.1, as a result of which he fell down and sustained grievous injuries in his right leg. As a result of the accident, he had to suffer amputation of his right leg below the knee. His permanent disability was assessed at 60%.

3. The appellant challenges the Impugned Award on the following grounds:

I. that the learned Tribunal has erred in not attributing any contributory negligence on the claimant/respondent no.1 herein;

4. The appellant challenges the Impugned Award contending that the learned Tribunal has failed to appreciate that the accident had taken place at a spot where there was no zebra crossing for a pedestrian. Placing reliance on the evidence of respondent no.2 herein, that is, the driver of the offending vehicle, the learned counsel for the appellant submits that the driver had clearly stated that he was driving the vehicle, abiding by all the rules and regulations of traffic, when suddenly the claimant/respondent no.1 came near the bus. The respondent no.2 further stated that he tried his level best to stop the bus, however, the same hit the respondent no.1. The learned counsel for the appellant submits that, therefore, the learned Tribunal should have attributed contributory negligence on the respondent no.1.

5. He also draws my attention to the site plan prepared by the police to show that the accident took place when the bus was turning right while coming from the side of Hapur under a flyover. He submits that clearly the respondent no.1 should not have been crossing the road at that spot.

6. On the other hand, the learned counsel for the respondent no.1 submits that the manner in which the accident took place was described by the respondent no.1 herein, who appeared as PW-1 before the learned Tribunal. He was not cross-examined by the appellant or respondent no.2 on the same and, therefore, now the appellant cannot be allowed to challenge the manner in which the accident took place.

7. I am in agreement with the submission made by the learned counsel for the respondent no.1. The respondent no.1 in his statement had clearly stated that the accident had taken place when he was going on foot and was hit by the offending vehicle being driven in a rash and negligent manner and at a very high speed while it was coming from the Hapur side. He was not cross-examined by the appellant or by respondent no.2 on this aspect. It was also not put to him that there was no zebra crossing at the spot of the accident. This was not even the case of the respondent no.2 in his evidence. The appellant is now placing reliance on the site plan to contend that there was no zebra crossing at the spot of the accident. However, the site plan alone cannot be considered to be evidence of the same.

8. Even otherwise, the offending vehicle was taking a right turn from under the flyover. It was supposed to be, therefore, plying at a less speed. The very fact that the respondent no.2 herein could not stop the bus in spite of him seeing the respondent no.1 indicates that the offending vehicle was being driven in a rash and negligent manner. I, therefore, find no merit in the challenge of the appellant on this account. Functional Disability:

9. The next challenge of the appellant to the Impugned Award is on the functional disability of the respondent no.1 assessed by the learned Tribunal.

10. The learned counsel for the appellant submits that the permanent disability suffered by the respondent no.1 was only 60% of lower limb as he had undergone amputation of right leg below his knee. It was the case of the respondent no.1 that he was self employed on the date of the accident, though, no evidence in this regard was led by the respondent no.1. He submits that, therefore, the learned Tribunal has erred in taking the functional disability of the respondent no. 1 to the whole body also as 60%.

11. On the other hand, the learned counsel for the respondent no.1 submits that the respondent no.1 was, in fact, working as a labourer and was aged around 59 years. He submits that, therefore, no fault can be found in the learned Tribunal taking the functional disability of the respondent no.1 as 60%.

12. I have considered the submissions made by the learned counsels for the parties. The learned Tribunal while assessing the functional disability suffered by the respondent no.1 has rightly relied upon the judgment of the Supreme Court in Raj Kumar v. Ajay Kumar and Another, (2011) 1 SCC 343, while has laid down the principles to be followed in such determination, as under:-