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The State of Uttar Pradesh Vs. Dayali Mardan and anr. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Appeal No. 32 of 1970
Judge
Reported inAIR1972MP66; 1971MPLJ873
ActsMotor Vehicles Act, 1939 - Sections 110A(3), 110B and 110D; Code of Civil Procedure (CPC) - Order 41, Rule 33
AppellantThe State of Uttar Pradesh
RespondentDayali Mardan and anr.
Appellant AdvocateR.S. Bajpai, Adv.
Respondent AdvocateN.P. Mittal, Adv. for Respondent No. 1
DispositionAppeal partly allowed
Cases ReferredManlula Devi v. Manjusri Raha
Excerpt:
- - 1. this is an appeal by the unsuccessful respondent no. at the time of the accident, he was fourty-seven years of age and had good health and in the normal course, would have worked up to the age of fifty-eight, but he has been deprived of his earning capacity for next eleven years. (iv) whether the quantum of compensation was properly fixed ? 9. it is well settled that the initial burden of proof of negligence is on the claimant. 2) that he was clearly visible on the road. ' x x x x x a person driving a motor vehicle must keep a good look-out in all directions of the road, on the sides and on the stretch of the road in front of him, 22. in champalal jain v. provided that the high court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied.....dwivedi, j. 1. this is an appeal by the unsuccessful respondent no. 4 (state of uttar pradesh through officer-in-charge of the case. assistant general manager, u. p. government roadways, agra) against the award of rs. 7,500/-(rs. 7,000/- for general damages and rs. 500/- for expenses of treatment) of the claims tribunal, gwalior. 2. the petitioner dayali was working as a permanent employee of the folding department of j. c. mills, ltd., birlanagar, gwalior, drawing pay of rs. 150/- per month. he owned agricultural field near moti jhil on the agra-bombay road. the respondent no. 1 babulal was the driver of the bus no. u. p. a. 8105 belonging to the respondent no. 4. on the relevant date, 11-2-1967. at 4 p. m., the petitioner davali was going to his field on a cycle. the respondent no. 1.....
Judgment:

Dwivedi, J.

1. This is an appeal by the unsuccessful respondent No. 4 (State of Uttar Pradesh through Officer-in-charge of the case. Assistant General Manager, U. P. Government Roadways, Agra) against the award of Rs. 7,500/-(Rs. 7,000/- for general damages and Rs. 500/- for expenses of treatment) of the Claims Tribunal, Gwalior.

2. The petitioner Dayali was working as a permanent employee of the folding department of J. C. Mills, Ltd., Birlanagar, Gwalior, drawing pay of Rs. 150/- per month. He owned agricultural field near Moti Jhil on the Agra-Bombay Road. The respondent No. 1 Babulal was the driver of the bus No. U. P. A. 8105 belonging to the respondent No. 4. On the relevant date, 11-2-1967. at 4 p. m., the petitioner Davali was going to his field on a cycle. The respondent No. 1 was driving the aforesaid bus from Gwalior towards Agra on the Agra-Bombay road which dashed against the petitioner. The petitioner remained in the J. A. Hospital as an indoor patient from 11-2-1967 to 16-3-1967. Dr.. S. S. Sharma (P. W. 6) examined the petitioner on 11-2-1967 and found as many as eighteen injuries on various parts of his body.

3. The petitioner's case is this. He was going on a cycle on the left side of the road, 15 paces ahead of the bus. The respondent No. 1 was driving the bus rashly and negligently. He did not blow the horn. Because of the accident, he had become absolutely incapacitated and was unable to attend to his work and to earn his livelihood. The serious injuries sustained by him had resulted in permanent disablement. At the time of the accident, he was fourty-seven years of age and had good health and in the normal course, would have worked up to the age of fifty-eight, but he has been deprived of his earning capacity for next eleven years. He had to undergo mental loss and suffering. He, therefore, claimed Rs. 15,000/- (for being incapacitated to earn in future) and Rs. 500/- (for expenses of treatment) total Es. 15,500/- against the respondents.

4. The respondents 1, 2 and 3, filed separate written statements but raised similar pleas. They denied that the respondent No. 1 was driving the bus rashly or negligently. They asserted that the driver had blown the horn. They contended that there is a railway crossing and a petrol pump at the Moti Jhil. Near the petrol pump, a cart was proceeding towards Gwalior. When the bus and the cart crossed each other, the petitioner, at this juncture, at once moved towards his right side and did not heed to the horn of the bus. He did mot give signal for crossing the road. The driver moved towards his right to avoid the accident and went to the extreme of the footpath but the petitioner struck against the rear wheel of the bus and fell down. They urged that the accident occurred due to the negligence and absent mindedness of the petitioner himself and that there was no fault of the driver.

5. The petition was filed on 10-4-1967 against three respondents Babulal, U. P. Government Roadways, Lucknow, through General Manager and U. P. Government Roadways through Branch Manager Agra Depot. The respondents 2 and 3 filed their written statements on 7-8-1967. The respondent No. 1 Babulal filed his written statement on 8-9-1967. These respondents urged that the U. P. Government Roadways was neither a Corporate body nor a legal entity and as such the U. P. Government Roadways could not be sued. The claim should have been preferred against the State of Uttar Pradesh.

6. In view of the above objection, the petitioner filed an application dated 19-9-1967 for joinder of State of Uttar Pradesh as a party. It was stated that the respondents mentioned that the U. P. Government Roadways was owned by the State of Uttar Pradesh and, therefore, in the interest of Justice, the State of Uttar Pradesh deserves to be impleaded as a party. It was also mentioned that the application was bona fide. After the amendment, the State of Uttar Pradesh was noticed which filed its written statement on 27-11-1967. It raised similar pleas and added that the claim against it was barred by limitation.

7. The Claims Tribunal held that the driver of the bus did not blow the horn and was driving rashly and negligently. It negatived the respondents' contention that the accident occurred due to the applicant's latches and negligence. It further held that the petitioner was not permanently disabled. It held that there was loss of earning capacity and in view of the reduced earning capacity, awarded Rs. 7,000/- as general damages and Rs. 500/- for medical treatment against Respondents 1 and 4. The respondents 2 and 3 were discharged. It further held relying on Harbans Singh v. Gurmeet Kaur, ILR (1966) 2 Punj 212, that the petition was within time against the respondent No. 4, the State of Uttar Pradesh.

8. The points for decision in this appeal are:

(i) Whether the accident occurred due to the negligence of the respondent No. 1, the driver of the bus or the petitioner himself?

(ii) Whether there was sufficient cause for condonation of delay in filing this appeal?

(iii) Whether the claim against the State of Uttar Pradesh Government was barred by limitation?

(iv) Whether the quantum of compensation was properly fixed

9. It is well settled that the initial burden of proof of negligence is on the claimant. (See Mangilal v. Parasram, 1970 MPLJ 1 = (AIR 1971 Madh Pra 5)).

10. According to the petitioner, he was proceeding towards his field and the bus without blowing the horn struck him down. Dayali (P. W. 5) denied that he had turned to the right and asserted that he was going on his left, He denied that there was any bullock cart coming from the opposite direction. His evidence established that he was going on his cycle on his left and the bus without blowing horn, dashed him down.

11. Badriprasad (P. W. 2), Shri-ram (P. W. 3) and Shyamlal (P. W. 4) supported the evidence of Dayali (P. W. 5). They are positive that Dayali (P. W. 5) was on his left side and thus, bus without blowing any horn came from behind and dashed him down with the result that he with the cycle was dragged to some distance. They are positive that there was no bullock cart coming from the opposite direction. They have thus materially corroborated Dayali (P. W. 5).

12. Badriprasad (P. W. 2) stated that the tar road is 15 feet wide with Patri (Kachha portion on either side). Shriram (P. W. 3) stated that after the impact, the bus dragged Dayali (P. W. 5) and stopped at a distance of 10 or 15 paces. Shriram (P. W. 41 also stated that Dayali was dragged to a distance of about 15 or 20 paces. There is, no doubt, slight contradictions with regard to the portion of the bus which struck Dayali but that will not discredit the above evidence because it is definitely established that Dayali (P. W. 5) was going on his extreme left and the tar portion of the road being wide enough and there being no intervening object, the driver had clear visibility and there could be no reason for him to dash against the cyclist going on the extreme left. Further, the fact that the bus dragged the applicant to a distance of 10 or 15 paces, itself indicated that it was in speed. The applicant's evidence, therefore, established that the driver did not take the precaution of blowing the horn and dashed against the cyclist going ahead. There was thus clear negligence on the part of the respondent No. 1.

13. In the written statement, the respondent No. 1 admitted that the applicant was on the left side of the bus (Paragraph 4 of the written statement). The respondent No. 1 further pleaded that his bus and cart were crossing each other and at this juncture, the applicant moved towards his right and in spite of his attempts to take the bus to the right, the petitioner struck against the rear wheel of the bus and fell down. The respondent No. 1's case was that there was a bullock cart on the right side of the road but the respondent's evidence is contradictory on this point. According to the written statement and the evidence of Jagannath (D. W. 1), there was only one bullock-cart on the road but according to the respondent No. 1, there were three bullock-carts. Apart from this, the bullock-cart story is a subsequent development which is apparent from the fact that the respondent No. 1 himself lodged the first information report but did not state about the bullock-cart (paragraph 8).

14. According to Jagannath (D. W. 1), the bullock-cart was on the kaccha portion. If this is correct, then there could be no question of the driver trying to avoid it by taking his bus on the right side. Further, he was sitting on the front seat and it was not possible for him to see which portion dashed against the petitioner. Jagannath (D. W. 1) admitted that the bus started from Gwalior and its first halt was Morena. There is no explanation why as against this, the bus stopped in between and picked up Jagannath (D. W. 1). Thus, the presence of this witness in the bus is highly doubtful. He is known to the respondent No. 1 for the last 10 or 12 years because both of them worked together as driver and conductor in a private bus. We, therefore, hold that the evidence of Jagannath (D. W. 1), besides being interested, is definitely false.

15. Babulal (D. W. 2) stated that he saw the cyclist on the middle of the road, but this is contrary to his own pleadings that the applicant was on the left side of the road. Then. he stated that the bullock-cart was half on the kachha road and half on the tar portion and this contradicted by Jagannath (D. W. 1) who stated that the bullock-cart was on the kaccha portion. He saw the petitioner for the first time ahead of the bullock-cart going on his left. He admitted that the petitioner was two paces ahead of the bullock-cart and on the extreme side of the pucca road. This being the position and the tar road being 10 or 15 feet wide, the driver had sufficient vacant road andhe could without any difficulty by-pass the petitioner. In the aforesaid circumstances, there could be no occasion for the driver to avoid collision with the cart and the cyclist. Further, there is no explanation why the petitioner who was already ahead of the bullock-cart, would take a sudden right turn. The evidence of Babulal (D. W. 2) is definitely false.

16. Hariharnath (D. W. 31 stated that the driver took his bus to the right to avoid a dash against the bullock-cart coming from the opposite direction. He did not see the cyclist prior to the dash though there is positive evidence of Jagannath (D. W. 1) and Babulal (D. W. 2) that he was clearly visible on the road. He stated that the bullock-carts were on the tar road which is contrary to the evidence of Jagannath (D. W. 1) and Babulal (D. W. 2). He admitted that he is known to Jagannath (D. W. 1) and thus he also is an interested witness.

17. The evidence of Dr. Sharma (P. W. 7) disclosed that Dayali sustained eighteen injuries on his person. Dr. Sharma was definite that the injuries could be caused by a dash from bus. He was positive that the lacerated wounds could not be caused by a fall on the road but they could be caused by a collision against a bus. The medical evidence supported the petitioner's story and negatived the defence version.

18. The analysis of the evidence established (a) that the bus did not blow the horn: (b) that the petitioner was going on his cycle on his extreme left; (c) that the theory of bullock-cart is a subsequent development and is definitely false; (d) that the driver dashed against the petitioner on his extreme left; and (e) that there is no truth that the petitioner suddenly turned to the right and dashed against the rear portion of the bus.

19. We would now refer to law. In Indian Trade and General Insurance Co Ltd. v Madhukar Govind Bhagade, 1966 Acc CJ 244 = (AIR 1967 Madh Pra 110), it has been laid down-

'As between a cyclist and a driver of a motor vehicle, undoubtedly, the latter's responsibility to use care and diligence is greater. The duty to use care increases proportionately with the danger involved in dealing with a particular type of vehicle. If it is found that the negligent act or omission of a driver was the proximate and efficient cause of an accident, it will not be a valid defence to say that the person injured was also negligent unless it is shown that the person injured had made it extremely difficult for the other to avoid the accident.'

20. In Gyarsilal v. P. Sitacharan Dubey, 1963 MPLJ 162 = (AIR 1963 Madh Pra 164), it is observed as follows:--

'It is axiomatic that when two persons are so moving in relation to one another as to involve a risk of collision, each owes to the other a duty to move with due care no matter whether they both are in control of vehicles, or both are proceeding on foot or whether one is on foot and the other is a moving vehicle. If one party is negligent in driving his car, owing a duty to the other side to take and exercise due and proper care while driving the car, and the other side suffers injury, he is liable in damages to the sufferer.'

21. In Seethamma v. Benedict D'sa, AIR 1967 Mys 11 it is observed as follows:--

'A person driving a motor vehicleon a highway must drive the vehiclewith reasonable care, strictly observingthe traffic regulations and the rules ofthe road, so as not to imperil the safetyof other persons whether they are pedestrians or cyclists or others who havea similar right to use the highway onwhich he drives it.'

x x x x x

'A person driving a motor vehicle must keep a good look-out in all directions of the road, on the sides and on the stretch of the road in front of him, .........'

22. In Champalal Jain v. B P. Venkataraman, AIR 1966 Mad 466, it is held,--

'The driver must keep a proper look-out for pedestrians or other users of the road. He must whenever expedient give warning of his approach as at crossroads. Even if another user of the road is negligent, he must exercise due skill in trying to avoid the consequences of that negligence.'

23. We have scrutinised the evidence in the light of the law as above and the submissions made before us, and we do not find any substantial ground to differ from the conclusion of the first Court that there was negligence on the part of the respondent No. 1. We agree with the trial court that the negligence of the respondent No. 1 is fully established.

24. We would now consider whether there was sufficient cause for condonation of the delay in filing the appeal. The award of the Tribunal was given on 26-8-1969, this appeal was filed on 29-6-1970. Excluding the copying days, the appeal appears to be barred by one hundred and four days. The respondents, along with the appeal, filed an application for condonation of delay. (Interlocutory application No.686 of 1970). They stated that their counsel applied for certified copy on 28-8-1969 which was delivered on 18-12-1969. The counsel sent it to the Assistant General Manager, U. P. Roadways, Agra, who received it on 19-12-1969. The authorities, after taking necessary action to file an appeal, deputed one Masoom Raza, a clerk of the Agra Depot, to get the appeal filed through the Government Advocate, Gwalior. The said Masoom Raza, on 31-1-1970 obtain-ed Rs. 100/- as expenses for filing the appeal and reported that he went to Gwalior, contacted the Government Advocate and filed the appeal in the High Court. The Assistant General Manager, however, received a notice from the petitioner's counsel on 27-5-1970 to pay the amount. On this, another clerk of the office was deputed to contact the Government Advocate for obtaining stay order. On 6-6-1970, the Government Advocate informed that Masoom Raza did not come to him on 31-1-1970, did not give him any expenses and hence no appeal was filed. The Assistant General Manager reported the matter to the ' higher authorities and the police and, thereafter, took action to file this appeal. It was urged that the aforesaid circumstances were beyond the control of the respondent No. '4 and constituted sufficient cause for not preferring an appeal in time. This application was supported by an affidavit of Shri V. P. Mishra, Officer-in-charge of the case. Vide Order sheet dated 29-8-1970, it was ordered that this application shall be considered along with the appeal. The appellants' counsel opposed this application.

25. Section 110-D of the Motor Vehicles Act, 1939, runs as follows:--

'Appeal (1) Subject to the provisions of Sub-section (2), any persons aggrieved by an award of a Claims Tribunal may, within ninety days from the date of the award, prefer an appeal to the High Court;

Provided that the High Court may entertain the appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.'

X X X X X

26. We have considered the submissions made before us. Under Section 110-D, proviso, the Court has to be satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. The affidavit of the officer-in-charge disclosed that due steps for filing the appeal were taken within time. Not only this, a clerk Masoom Baza was deputed with Rs. 100/- to con- tact the Government Advocate, Gwalior. The respondents thus did all that lav in their power to file an appeal within time, but the clerk, Masoom Raza, misappropriated the amount and wrongly informed that the appeal has been filed. It is only on receipt of the notice of the petitioner's counsel that the true facts came to the notice of the respondents, who promptlv moved into the matter and filed the appeal on 29-6-1970. No counter-affidavit was filed to controvert the allegations of the affidavit. The respondents made bona fide attempts but the clerk committed fraud and not only misappropriated the money but wrongly informed that an appeal has been filed. In the circumstances, the respondents were in dark because of the lapse of the clerk who was in-charge of such duties and was also deputed to file an appeal.

27. There were sufficient bona fides and due diligence on the part of the respondent No. 4, because their own agent practised deception on them by keeping them in dark about the correct position. In the circumstances of the case, we feel that there is sufficient cause and we condone the delay in filing this appeal.

28. It was contended that the petition against the respondent No, 4. State of Uttar Pradesh, was barred by time. The petition was presented on 10-4-1967. The respondents 1 to 3 filed their written statements and contended that the U. P, Government Roadways belonged to the State of Uttar Pradesh and the claim ought to have been preferred against the State of Uttar Pradesh. In pursurance of this objection, the petition was amended and the Uttar Pradesh State Government was joined as a party admittedly after sixty days of the presentation of the petition. The question is whether the petition could be held within time against the State of Uttar Pradesh.

29. A perusal of the petition would show that the respondents 2 and 3 were described as 'U. P. Government Roadways, Lucknow, through General Manager' and 'U. P. Government Roadways through Branch Manager, Agra Depot.'. This meant that the petitioner had in his mind the 'Uttar Pradesh Government' but misdescribed the respondents. The reason urged was that the petitioner did not know that the U. P. Government Roadways was not a body corporate. We may mention that before filing this petition, the petitioner served a notice, Ex. P. 1, describing the respondents 2 and 3 in the same way as he had done in the petition. No reply to this notice was given denying that the'U. P. Government Roadways' were not liable but the 'U. P. State Government' should be noticed. This could reasonably induce the petitioner to think that he was proceeding against proper parties.

30. Section 110-A (3) of the Act runs as follows:--

'No application for compensation under this section shall be entertained unless it is made within sixty days of the occurrence of the accident:

Provided that the Claims Tribunal may entertain the application after the expiry of the said period of sixty days if it is satisfied that the applicant was prevented by sufficient cause from making the application in time.'

This Act is a special law and since a different limitation is prescribed under it for application for compensation, the question would be purely governed by the provisions of this Act. The extension of period of 60 days would be granted only if the Tribunal is satisfied that the applicant had sufficient cause for the delay. The words 'sufficient cause' used in the proviso should receive a liberal construction so as to advance substantial justice, if no negligence or inaction or want of bona fides is imputed to the claimant. (See Dinabandhu Sahu v. Jadumoni Mangaraj, AIR 1954 SC 411 and New India Assurance Co. Ltd., New Delhi v. Punjab Roadways, Ambala, AIR 1964 Puni 235). While giving a liberal interpretation to the words 'sufficient cause', the Court's interpretation must be in accordance with judicial principles and the Court must guard itself against the danger of being led away by sympathy. In this case, the petitioner, on the objection of the respondents came to know that the owner of the bus was the State of U. P. and, therefore, it would appear that the petition misdescribed the owner as U. P. Government Roadways. Thus there was only misdescription for want of correct knowledge of the owner. In ILR (1966) 2 Punj 212, it is observed:

'Where the name of the owner of the vehicle could not be known to the claimant within the period of limitation and was consequently impleaded later, it was held that the Tribunal was entitled to entertain the application for im-pleading the owner of the vehicle even beyond the period of limitation for entertaining the claim.'

Also see Mehta Goods and Carrier (P) Ltd., Delhi v. Smt. Darshan Devi, AIR 1962 Punj 425, where it is held that,--

'the application was originally moved within time and that the Tribunal could entertain the application under Sub-section (3) even after the expiry oflimitation if there was sufficient cause for the delay being condoned, and that in the circumstances, the Tribunal was well within its rights to implead the owner company and entertain the application against it after the expiry of the period of sixty days.'

Thus, we are of the view that there being only a defect in the description of the respondents and the original petition being in time, the claim against the 'U. P. Government' was rightly held within time.

31. With regard to the quantum of compensation, the Tribunal awarded Rs. 7,500/-, out of which the amount of Rs. 500/- was awarded on account of expenses of treatment. This figure was not contested before us and we hold that this amount was correctly allowed.

32. The amount of Rs. 7,000/- was allowed, 'looking to the injuries sustained by the applicant and the reduced capacity for earning after the accident'. The Tribunal held that the applicant was not disabled permanently for all purposes. It also held that at the best, it amounted to that all the injuries, including that on the region of the eyes, have resulted in the petitioner giving up the job in the folding department and he could not work as he could before the accident. This finding was challenged before us.

33. The evidence of Badriprasad (P. W. 2), Shriram (P. W. 3) and Dayali (P. W. 5) that the petitioner, on account of the accident, suffered in his eye-sight is negatived by the testimony of Dr. S. S. Sharma (P. W. 7) who stated that the injuries on the eyes would have no effect on the eye-sight. The petitioner did not adduce medical evidence to support that the accident resulted in partial or permanent loss of eye-sight. Likewise, their evidence that the petitioner has gone mad or suffered from giddiness is unsupported by the medical evidence and is further disproved from the fact that the petitioner prosecuted the petition and gave evidence in Court alright.

34. With regard to the loss of earning capacity, the petitioner's evidence is again inconclusive. The evidence of Raipalsingh (P. W. 1) shows that after the accident, the petitioner did not report on duty and himself left the job. He further stated that the petitioner was unable to work on the machine or on the jobber's post. He did not state that the petitioner was totally unfit to work on other posts in the mill. The petitioner did not adduce evidence that he sought employment of other places but was refused because of his incapacity. All the same, his evidence which was unchallenged by cross-examination, disclosed that he had sustained numerous injuries on his person, was an indoor patient in the hospital from 11-2-1967 to 16-3-1967 and is not now able to work as before. He must have suffered physical and mental pain because of these injuries.

35. The Tribunal relied on M. P. State Road Transport Corpn., Bhopal v. Sudhakar, 1967 MPLJ 258 = (AIR 1968 Madh Pra 47) but the facts of that case are quite different. In that case, Sudhakar suffered from burn injuries on his entire body including chest, stomach and back making his condition very serious. He had also suffered mental shock as his wife and child had died in the same accident, and Rs. 10,630/- was held proper in view of the serious injuries suffered by him as also the mental shock suffered on account of the death of his wife and the, only child. In the same accident, another plaintiff Vasudeo having a simple fracture on the right humerus bone in the middle and infected burns on the left thigh, buttock and part of the abdomen, was awarded Rs. 10,000/-. It is apparent that the petitioner's injuries are not akin to the above injuries.

36. In Vinodkumar Shrivastava v. Ved Mitra Vohra, 1970 MPLJ 306 = (AIR 1970 Madh Pra 172) at p. 313, it is observed that before cases can be regarded as comparable they must bear a reasonable measure of similarity. It is necessary to ensure that in main essentials, the facts of one case must bear comparison with the facts of another before any comparison between the awards in the respective cases can fairly profitably be made. In the above case, the following observations have been made:

'Although human suffering resulting from any serious bodily injury cannot from its very nature be valued in terms of money, yet Courts endeavour as best as they can to quantify non-pecuniary damage in terms of money having regard to the injury and the damage resulting from it. The wide discretion that the Courts exercise in making awards of compensation, like any other judicial discretion, has canalized itself into a set of rules. These rules are-

(i) The amount of compensation awarded must be reasonable and must be assessed with moderation;

(ii) Regard must be had to awards made in comparable cases; and

(iii) the sums awarded should to a considerable extent be conventional. It is only by adherence to these self-imposed rules that the Courts can decide like cases in like manner and bring about a measure of predictability

of their awards. These considerations are of great importance if administration of justice in this field is to command the respect of the community.'

37. In Vinod Kumar's case 1970 MPLJ 306 = (AIR 1970 Madh Pra 172) (supra), the left leg of the petitioner came under the wheels of the motor truck resulting in a compound fracture of one-third tibia and fibula bones and his leg was immobilised from toe to thigh and was kept in plaster for nearly three months. The medical evidence showed that the permanent disability resulting from the injuries was not of any appreciable nature. Therefore, an amount of Rs. 5,000/- was not considered low.

38. In Kumari Deepti Tiwari v. Banwarilal, 1966 MPLJ 464 = (AIR 1966 Madh Pra 239) a young girl aged 15 years was involved in an accident resulting in fracture of the spine fourth lumber vertebra. She was put under a plaster jacket for three months. There was disability as regards playing badminton or strenuous games and riding a bicycle. She was likely to develop osteo arthritis changes and low back aches. On these facts, she was awarded a sum of Rs, 4.000/- as general damages.

39. In Balkrishna v. Mahaball Prasad Tiwari, 1969 Acc CJ 189 (Madh Pra) the plaintiff's right leg was fractured resulting in partial permanent disability and was awarded a sum of Rs. 4,000/- as general damages.

40. In Union of India v. Bhag-wati Prasad Mishra. 1957 MPLJ 585 = (AIR 1957 Madh Pra 159) the plaintiff suffered fracture of the leg resulting in 40 per cent permanent disability and was unable to walk without pain and support. He was then about 30 years of age and .was earning about Rs. 50/-per month. He was awarded a sum of Rs. 4,000/- as general damages.

41. It was contended on the basis of M. P. State Road Transport Corpn. Jabalpur v. Jahiram, 1968 MPLJ 828 = (AIR 1969 Madh Pra 89) and Champalal Jain v. B. P. Venkataraman, AIR 1966 Mad 466, that appeal upon quantum of compensation should not be allowed unless the Tribunal has applied wrong principles of law or misdirected itself or the amount awarded is inordinately so low or high that it must be held to be erroneous. We are in complete agreement with the above principles but in this case, after scrutiny of the evidence in the light of comparable cases we have found that the amount of compensation fixed was erroneously high and needs interference in appeal.

42. In the above light, we have scrutinised the petitioner's evidence.His eye-sight was not impaired. He sustained no permanent disability. There is no evidence that he was totally unfit for work. In the above circumstances, we hold the compensation of Rs. 7,000/- on the high side and find that a sum of Rs. 3,000/- will be reasonable compensation.

43. The award was against Babulal, respondent No. 1, the driver of the bus and the State of U. P., respondent No. 4. Babulal neither filed an appeal nor a cross-objection. We are reducing the amount of compensation and the question would be as to how the award would work against Babulal, respondent No. 1. We think that under Order 41, Rule 33 of the Code of Civil Procedure, the appellate Court can pass an order as may be necessary for the ends of justice benefiting a party who has not appealed. For this, Manlula Devi v. Manjusri Raha, 1967 MPLJ 972 is an authority. Thus, the respondent No. 1, Babulal would also be jointly liable for the amount of compensation fixed in appeal along with the State of U. P.

44. In view of the above, the appeal partly succeeds and is allowed. The compensation amount of Rs. 7,500/-is reduced to Rs. 3,500/-. In the circumstances of the case, we order that the parties shall bear costs as incurred in appeal while the costs in the lower Court shall be borne as ordered therein. Hearing fee Rs. 200/-.


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