1. The instant appeal has emanated from judgment and award dated 21.02.2011 passed in Motor accident Claim Petition No.138 of 2009 (Anjani Kumar @ Girindra Kumar Vs. Ram Bux Singh & 2 Others) passed by Motor Accident Claims Tribunal / Additional District Judge, Court No.7, Raibareli for enhancement of the compensation.
2. Brief facts of the case are that on 05.07.2019 at about 03:00 PM, the appellant was coming from Dedaur by his motor cycle having Registration No.-U.P. 33 D-6414. When he reached on the Lalganj- Raibareli road the roadways bus No.U.P 33 T-1470 coming from Lalganj hit the appellant from the back side near the tri-section. The bus was being driven by its driver rashly and negligently. The appellant suffered serious injuries in the accident. The right hand of the appellant was fractured from several places and he also got injuries in left hand, head and back. The persons present on the spot took the appellant to the Government hospital, Raibareli. After primary treatment he was referred to Trauma Center, Lucknow and thereafter he was treated at the Hind Hospital, Safedabad, Barabanki and Vivekanand Hospital, Lucknow. With these allegations the Claimant had filed the claim petition for compensation, which was contested by the respondent by filing written statement. They admitted the accident however stated that the appellant himself, driving the motor cycle rashly and negligently, collided with the bus. There is no fault of the driver of the bus in the accident therefore the appellant is not entitled for any compensation. After exchange of pleadings four issues were framed.
3. The evidence of Anjani Kumar @ Girindra Kumar as PW-1, Ram Shankar as PW-2, Chandra Pal Singh as PW-3 and Uma Shankar as PW-4 was recorded. The bill vouchers alongwith other documents were filed. From the side of respondents, the driver of the vehicle Ram Bux Singh was examined as oral witness and certain documents were filed. The learned Tribunal after hearing and considering the evidence came to the conclusion that the accident was an outcome of the contributory negligence and held that the contributory negligence of the driver of the motor cycle i.e the appellant is 30% and the driver of the bus is 70% and partly allowed the claim petition accordingly after considering the receipts of the medical expenses supported by the prescription and directed to pay an amount of Rs.2,90,967/- alongwith 6% interest from the date of filing of the claim petition by means of the judgment and award dated 21.02.2011. Hence the appellant has filed the present appeal for enhancement.
4. Submission of learned counsel for the appellant is that the learned Tribunal has erred in holding that there was a contributory negligence of the appellant to the extent of 30%. The appellant was going from Dedaur to Raibareli from his motor cycle and the driver of the roadways bus, driving rashly and negligently, hit the motor cycle from the backside and without any evidence of negligence of the appellant, the learned Tribunal recorded a perverse finding that the appellant has not taken proper care as he reached the Lalganj-Rabareli tri-section from Dedaur otherwise the accident would have been avoided. The accident had occurred after the appellant had reached on the Lalganj-Raibareli road which is apparent from the site plan.
5. He further submitted that the learned Tribunal has wrongly and illegally discarded the medical expenses and the bill vouchers of Rs.1,41,500/- on the ground that the medical prescriptions have not been filed in support thereof while all the medicines were purchased during course of his treatment of the injuries suffered in the accident in question and the appellant had filed all the bill vouchers and receipts. Therefore the appeal is liable to be allowed and compensation enhanced accordingly.
6. On the other hand, learned counsel for the respondents submitted that the learned Tribunal has rightly held that there was a contributory negligence of the appellant in the accident to the extent of 30% because the accident had occurred while the appellant had reached at Lalganj-Raibareli tri-section from Dedaur and the roadways bus was coming from the Lalganj side therefore if the appellant would have been careful in coming on the main road the accident could have been avoided. Though a plea was raised that the appellant had collided with the bus but a finding has been recorded by learned Tribunal that the roadways bus had hit the motor cycle from the backside on the tri-section. If the appellant would have been careful in coming on the main road the accident could have been avoided.
7. He further submitted that the learned Tribunal has rightly allowed the medical expenses, the prescription in support of which were submitted by the learned Tribunal. The learned Tribunal after going through the record and medical prescriptions and bill vouchers etc. has recorded a categorical finding that use of so much medicines and the equipment in such short period does not inspire confidence. Therefore the appellant is not entitled rest of the alleged medical expenses as they are not proved. Therefore there is no illegality or error in the judgment and award passed by the learned tribunal so the appeal is liable to be dismissed.
8. I have considered the submissions of learned counsel for the parties and perused the material available on record.
9. The appellant was going from Dedaur to Raibareli on 05.07.2009 by his motor cycle No.-U.P 33 D-6414 at about 03:00 PM. When he reached on Lalganj-Raibareli road from the Dedaur road, the roadways bus No.U.P 33 T-1470 had hit the motor cycle of the appellant from the backside in which he suffered serious injuries, on account of which the claim petition was filed claiming the compensation and the medical expenses incurred in the treatment. The claim petition has been allowed by the impugned judgment and award compensation has been deducted on the ground of contributory negligence and certain expenses have not been allowed, therefore the present appeal has been filed for enhancement.
10. In regard to the first submission of learned counsel for the parties regarding the contributory negligence of the driver of the roadways bus and the appellant, I have perused the site plan annexed as 4 Ga-1/8 and the evidence adduced before the tribunal. The site plan shows the place of accident and the appellant had fell down after accident, which indicates that the said place is at some distance from the tri-section and the place of accident and falling of the appellant is in the mid of the road. Therefore it appears that after reaching on the Lalganj-Raibareli road the appellant was heading towards the Raibareli while the driver of the bus had hit the appellant from the backside. The witnesses have stated that they had seen the accident and while he reached on the Lalganj-Raibareli road, the driver of the bus, driving rashly and negligently, had hit the motor cycle from the backside in which the appellant suffered serious injuries.
11. The Hon'ble Apex Court in the case of Sunita and Others Vs. Rajasthan State Road Transport Corporation and Others (Civil Appeal No.1665 of 2019); Manu/SC/0204/2019/(AIR 2019 SC 994) has held in regard to the site plan as under:-
"The site plan (Exh. 3) has been produced in evidence before the Tribunal by witness A.D. 1 (appellant No.1 herein) and the record seems to indicate that the accident occurred in the middle of the road. However, the exact location of the accident, as marked out in the site plan, has not been explained muchless proved through a competent witness by the respondents to substantiate their defence. Besides, the concerned police official who prepared the site plan has also not been examined. While the existence of the site plan may not be in doubt, it is difficult to accept the theory propounded on the basis of the site plan to record a finding against the appellants regarding negligence attributable to deceased Sitaram, moreso in absence of ocular evidence to prove and explain the contents of the site plan."
12. The driver of the vehicle who was examined as DW-1 does not dispute the accident and he stated in his evidence that while he was driving the vehicle cautiously with a controlled speed the driver of the motor cycle No.-U.P. 33 D-6414, who was coming from Dedaur to Raibareli, driving rashly and negligently the motor cycle, himself lost the control and collided with bus of the transport corporation due to his negligence. Therefore he has admitted the accident and he has not stated that while he reached at the Dedaur-Lalganj-Raibareli tri-section the motor cycle had suddenly appeared from the Dedaur side on the main road without any precaution on account of which the accident had occurred. Admittedly, the motor cycle was hit from the backside which has not been denied by the respondents and the same is also apparent from the site plan. It appears that he has tried to shift the burden.
13. Therefore this court is of the view that the finding recorded by learned Tribunal that the accident does not seem to be the outcome of rash and negligent driving of anyone vehicle is perverse and merely on the basis of presumption because without recording any finding regarding alleged negligent driving of the motor cycle rashly and negligently, it has held that if any motor cycle has been hit by the backside the said situation arises when the driver of the motor cycle driving the motor cycle rashly and negligently with uncontrolled speed turned towards Raibareli and at the same time the driver of the roadways bus driving the bus rashly and negligently would have reached there and could not control the bus and hit the motor cycle from backside and held that the appellant is also liable for contributory negligence to the extent of 30%. This court is of the view that the said findings is not based on the correct appreciation of the evidence of the witnesses, site plan and material available on record therefore the same is not tenable in the eyes of law.
14. So far as the submission of learned counsel for the appellant in regard to the denial of medical expenses to the tune of Rs. 1,41,500/- is concerned, learned counsel for the appellant has failed to indicate that they are supported with the medical prescriptions. The medicines etc. of huge amount have been purchased at short intervals which could not have been consumed by the appellant therefore the finding recorded by learned Tribunal in this regard and denial of the medical expenses and the bill vouchers to the tune of Rs.1,41,500/- does not suffer from any illegality or error.
15. In view of above, this court is of the view that the the accident was an outcome of the rash and negligent driving of the driver of the roadways bus who had hit the motor cycle of the appellant from the backside and the contributory negligence of the appellant is based on mere presumption without any evidence. Therefore the appeal is liable to be allowed partly and the deduction of 30% on account of the contributory negligence to the tune of Rs.1,24,700/- is liable to be set-aside and it is held that the appellant is entitled for the whole compensation determined by the learned Tribunal to the tune of Rs.4,15,667/- alongwith the interest allowed by the learned Tribunal.
16. The appeal is partly allowed. The judgment and award dated 21.02.2011 is modified to the extent that the appellant is entitled for Rs.4,15,667/- as compensation alongwith interest as awarded by the learned Tribunal. No order as to costs.
17. The respondents shall make the payment after adjusting the amount, if any paid already, within two months.
18. Office is directed to remit the lower court record forthwith.