IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 572/2007 Uttarakhand Transport Corporation Regional Office, Nainital …. Appellant. Versus Anand Ram and others …… Respondents. Smt. Seema Sirohi, learned counsel for the appellant. Sri S.S. Chaudhary, learned counsel for respondent No.1. Sri H.C. Pande, learned counsel for respondent No.2. Sri M.K. Goyal, learned counsel for New India Ass. Co./Respondent No.3. Dated: 11-6-2009 Hon’ble B.C. Kandpal, J. This appeal U/S 173 of the Motor Vehicle Act, arise out against the judgment and award dated 20-9- 2007, passed by Motor Accident Claim Tribunal/ Ist Additional District Judge, Nainital, in MACT Case No. 49 of 2006, Anand Ram Vs. Smt. Parwati Sharma and others. 2- Brief facts of the case are that on 30-5-2005, claimant Anand Ram was travelling in Roadways Bus No. U.P. 02-C/ 8506 from Bareilly to Haldwani. When the said Bus reached near Mandi Teen Pani, the Bus driver drove the vehicle in a high speed due to which it dashed with some unknown vehicle coming from opposite direction due to which the right hand of the claimant was badly crushed. He was brought to Soban Singh Jeena Hospital Base Hospital Haldwani where he remained admitted from 30-5-2005 to 14-6-2005 and his crushed hand had to be amputated from the knee. He also alleged that he spent about Rs. 20,000/- on his treatment. According to him he was working as skilled worker in Mejban Hotel, Shahjahanpur and was getting Rs. 5,000/- per month and after amputation of his right hand he has become disabled to perform his work. Therefore he 2 claimed compensation of Rs. 10,90,000/- due to injuries suffered by him in the accident. 3- The owner of the offending Bus/opposite party no.1 filed his written statement and alleged that his Bus is plied by the Uttarakhand Transport Corporation on contract and at the time of accident it was being plied under the control of Uttarakhand Transport Corporation. He also alleged that the accident was caused due to own fault of the deceased as he had put his hand outside the window in spite of specific instructions in this regard. He further alleged that the vehicle was being plied by a valid license holder driver and it was insured with New India Assurance Company. 4- The opposite party No.2, New India Assurance Company filed its written statement and denied the allegations made in the claim petition. The insurance company also alleged that the accident has occurred due to own fault of the claimant and there was no fault on the part of Bus driver. The insurance company also alleged that the Bus was being plied under the control of the Transport Corporation therefore the insurance company is not liable to pay any compensation. 5- The opposite party No.3, Uttarakhand Transport Corporation, alleged that as per clause 10 of contract agreement, the liability of the Bus owner and the insurer is in equal part and the Corporation has wrongly been made party to the petition. 6- The opposite party No.4, driver of the Bus also filed his written statement and denied the averments made in the petition. He also alleged that at the time of accident he was driving the vehicle at a moderate speed 3 and the accident has occurred due to the fact that the claimant put his hand outside the window of the bus and it was dashed by some unknown truck. 7- The learned tribunal, on the basis of pleadings of parties, framed relevant issues in the claim petition. Thereafter parties adduced evidence in the claim petition. The tribunal after hearing learned counsel for the parties and considering the entire material available on record, decreed the claim petition for a sum of Rs. 3,79,000/- against the Uttarakhand Transport Corporation along with interest @ 6% per annum from the date of filing the petition till the date of actual payment. 8- Feeling aggrieved the Uttarakhand Transport Corporation has filed this appeal before this Court. 9- Heard learned counsel for the parties and perused the entire material available on record. 10- Learned counsel for the appellant has submitted that the claimant sustained the injury due to his own fault and there was no fault on the part of the Bus driver and as per agreement between the owner and the Transport Corporation the liability of compensation would be upon the insurance company or the owner of the vehicle, but the learned tribunal has failed to appreciate the above facts and wrongly held the appellant liable to pay the compensation. 11- I do not find any force in the above submission of learned counsel for the appellant. So far as the rash and negligence on the part of the Bus driver is concerned, it is the case of the claimant that at the time of accident the driver of the Bus was driving the vehicle 4 in a high speed and it dashed with an unknown vehicle coming from opposite direction. The claimant has deposed that he was sitting on the right side of the Bus. The driver of the bus also admitted this fact that the claimant sustained injury due to dashing of the Bus with some unknown truck. It appears that the driver did not drive the vehicle keeping sufficient distance from another vehicle passing through the road. Had the driver of the Bus been vigilant and cautious in driving the vehicle, he could have avoided the dashing of the vehicle on the road. In the above facts and circumstances of the case the tribunal was justified in holding that the claimant suffered injury due to rash and negligence of the Bus driver. I do not find any infirmity in the above conclusion drawn by learned tribunal. 12- As far as the liability of payment of compensation is concerned, this is an admitted fact that the Bus at the time of accident was being run in the control of the Transport Corporation under some agreement between the Corporation and the owner of the Bus. In the agreement executed between the Bus owner and the Corporation there is condition No.10 in which it has been noted that if the owner of the Bus makes agreement with the Corporation no objection certificate from the insurer should be obtained, but no such objection has been issued by the insurance company in the instant case. In the above circumstances of the case that the Bus was being plied under the direct control of the Corporation, therefore, the liability to pay the compensation is upon the Corporation itself. I do not find any infirmity in the conclusion drawn by the learned tribunal and the same needs no interference. 5 13- As regards the quantum of compensation, the claimant has suffered 60% permanent disability. Disability certificate paper No. 5-C/8 issued by C.M.O. Nainital has been filed on record and the same has not been challenged. Although the claimant has stated that he was getting Rs. 5000/- per month from doing job in Mejban Restaurant Niwajpur, Roja Shahjahanpur, but the certificate of income filed by him has not been proved by examining the Manager or some other official of the said Restaurant. Therefore, the learned tribunal has rightly assessed the financial loss suffered by the claimant due to permanent disability upto 60%, after taking into account the notional income of Rs. 36,000/- per annum. Under this head the tribunal has awarded Rs. 3,67,200/-. The tribunal also awarded a sum of Rs. 2,146/- for the medical expenses and Rs. 20,000/- towards physical pain. It has come in evidence that the claimant remained admitted in the hospital for about 15 days and his right hand had to be amputated. Hence, the compensation awarded to the claimant cannot be said to be unreasonable. 14- In view of above discussion the appeal lacks merit and is liable to be dismissed. 15- Accordingly the appeal is dismissed. 16- Let the statutory amount deposited with this court, be remitted to the tribunal concerned. (B.C. Kandpal, J.) ISB 6