1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- J U D G M E N T (1) CIVIL MISC. APPEAL No. 775 of 1997 KHERAJ RAM V/S HEMA RAM (2) CIVIL MISC. APPEAL No. 0269 of 1998 STATE OF RAJ V/S KHERAJ RAM Date of Judgment : 16.3.2009 HON'BLE SHRI N P GUPTA,J. Mr. ML KHATRI, for the appellant (Kheraj Ram) Mr. VINIT PANDYA for Mr. V.K. MATHUR, for the appellant (department) Mr. BN KALLA, for the respondent (Hema Ram). BY THE COURT : These two appeals have been filed, being cross appeals, against the same judgment of the learned Tribunal, Barmer dated 22.9.1997, passed in claim case No.80/96. By the judgment, the learned Tribunal has decided two claim petitions, other one being claim petition No.135/1996, “Shambhoo Ram Vs. Hema Ram” decreeing both the claims, however, these two appeals relate only to claim petition No.80/96, wherein learned Tribunal has made an award of 2 Rs.11,700/-, by way of compensation, along with interest. Since both the appeals are cross appeals, one by the claimant, other by the owner of the vehicle, being State, they are being decided by this common judgment. In appeal No.775 the claimant seeks enhancement of compensation, while in appeal No.0269 State claims its exoneration, and in the alternative, has prayed for fastening the liability only on the driver. The necessary facts are, that on 14.1.1996 at about 2.30 in the noon, the two injureds Kheraj Ram and Shambhoo Ram were going on the bicycle near weigh bridge on Barmer-Jaisalmer road. Kheraj Ram was driving the bicycle while Shambhoo Ram was sitting on the pillion, at that place, the State Government's jeep No. RNJ 422, being driven by Hema Ram, defendant No.1, came at a fast speed, and being driven negligently, hit the bicycle, which was moving on the correct side, as a result of which, both the injureds fell down. The claimant Kheraj Ram's collarbone got fractured, who was moved to hospital, and FIR No. 15/96 was registered, and challan was filed. Claim was filed claiming both the defendants to be responsible for payment of compensation. The defendants contested he claim by filing separate written-statements. The driver, defendant No.1 3 pleaded, that the accident was not caused by his negligence, then replying para 16 of the claim it was pleaded, that accident was not caused by vehicle No. RNJ 422. Quantum was also contested. The description of the accident was denied, and it was pleaded, that the alleged accident occurred on account of the claimant Kheraj Ram driving his bicycle negligently, therefore, claim cannot be entertained. The defendant No.2 in its written-statement adopted a stand of denial, and the entire claim was alleged to be imaginary. Then replying para 27, it was pleaded, that on 13.1.1996 it was second Saturday and 14.1.96 was Sunday, which were gazetted holidays, therefore, the driver was asked to park the jeep in the office only, but the driver, without permission, and without any government work, or without carrying any competent officer with him, of his own, took away the vehicle, and on 15.1.1996 when office was opened, it was learnt that accident has occurred. Then FIR was lodged against the driver for taking away the government property without permission, and he was suspended, thus, it was claimed, that the defendant No.2 is not liable. The learned Tribunal framed 3 issues. Issue No.1 related to negligence, while issue No.2 related to quantum, and as to which of the defendants is liable. Then issue No.3 is regarding relief. The learned Tribunal decided issue No.1 in favour of the claimants, by relying upon the 4 statements of Shambhoo Ram and Kheraj Ram, A.W.1 and 3, while Jugal Kishore has appeared as N.A.W.1, only to depose, that 14.1.96 was Sunday, and the driver had taken away the vehicle without any permission of the competent authority, therefore, report Ex.A1 was lodged. This, Jugal Kishore is Asstt. Commercial Taxes Officer, under whose subordination the defendant No.1 was the driver. Jugal Kishore had admitted, that 13 & 14 being gazetted holidays he had gone with permission to leave headquarter, and he had released the vehicle on 12th at Kalyanpur. The driver Hema Ram has also appeared in the witness-box, who has denied happening of any accident, however, at a later stage, he admitted, that Kheraj Ram was driving bicycle, and Shambhoo Ram was on pillion, and looking at the jeep, Kheraj Ram lost equilibrium, and fell on the road, on the stones, which were lying nearby, in that process, Shambhoo Ram also fell down, and received injuries. He admitted that he is being prosecuted. He has also stated, that though no government officer was travelling in the jeep, but he had taken away the jeep because it was to be got repaired. Appreciating this evidence, issue No.1 was decided against the defendants, and in favour of the claimants. Then deciding issue No.2, it was found, that claimant Kheraj Ram could not work for two months, and his income was assessed at Rs.3000/- per month, and therefore, he was awarded compensation of Rs.6,000/- on that count. Then Rs.5000/- was awarded for one fracture, and Rs.700 were awarded for 5 medical expenditure, of which he had produced the bills. Thus the above claim was decreed. Then on the question of liability of the State, it was found, that admittedly the vehicle belongs to the State, and was under direct supervision of the CTO, and defendant No.1 was appointed as driver on that vehicle, under the direct control of defendant No.2, and therefore, defendant No.2 cannot escape from its vicarious liability. It was also considered, that Jugal Kishore had gone to Jodhpur with permission to leave headquarter, and had sent the vehicle to Barmer, from Kalyanpur with Hema Ram, but then it cannot be definitely concluded, as to what directions were given by Jugal Kishore while releasing the vehicle, as to where Jugal Kishore is to go, where the vehicle is to be kept etc., therefore, vicariously the defendant No.2 was held liable. Arguing the appeal No.775, the learned counsel for the claimant submitted, that the learned Tribunal has erred in awarding Rs.6000/- only for loss of income, as the claimant was earning Rs.4000/- per month, and has also deposed, that on account of injury he has not remained capable of doing any other work in future, and therefore, the amount of compensation awarded is required to be substantially enhanced. It was also submitted, that the claimant had remained hospitalised for a week, therefore also, compensation should have been awarded on that count. 6 I have considered the submission, and have gone through the statement of the claimant A.W.3. According to his evidence, he does the work of dying and printing of cloths, and earns Rs.100 to 125/- per day, after being discharged from hospital, he remained under bed rest for two months, and could not work for 7-8 months. During this period, he had suffered loss of Rs.1000/- per month, and he was earning Rs.4800/- per month. Then he has deposed that he cannot undertake the printing work, like hitherto fore. In cross-examination, he had denied the suggestion, about the dyeing work being done for 15-20 days in a month only. Then he has admitted, that his bones of hands and legs are alright. In my view, from this evidence, it cannot be said, that the learned Tribunal was in error in assessing the income of the claimant at Rs.3000/- per month. Admittedly, he remained under bed rest for 2 months. It is well-nigh possible that Rs.750/- could have been awarded by the learned Tribunal for the period of one week more, but then for not adding such a small amount, it cannot be said, that the amount of compensation awarded is shockingly low, as to require interference in appeal. All said and done, calculation of compensation is not to be made on the basis of mathematical precision. Thus, I do not find any force in the appeal no. 775, and the same is, therefore, dismissed. 7 So far the appeal No.0269 is concerned, this appeal is barred by 499 days. Of course, an application under Section 5 Limitation Act has been filed, submitting that cross appeal has already been instituted by claimant, which has been admitted in December 1997. The appeal however was filed on 3.1.1998. If taken from the date of the impugned award, the appeal was in time, however, the difficulty has arisen, because the application filed by the appellant, for dispensing with production of certified copy of the impugned award, was dismissed by the Court, vide order dated 8.4.99. Thereafter, certified copy was filed, and from that date, the appeal is barred by time. However, vide order dated 5.3.2000, it was directed, that the application under Section 5 shall be considered at the time of hearing of CMA No.775, and this appeal was ordered to be listed along with the said appeal. Today both the learned counsel argued both the appeals, without raising any objection about limitation, as such, even though no sufficient cause is made out, however, I am inclined to consider the appeal on merits. Coming to the merits, from a combined reading of the statements of Jugal Kishore Tak, the A.C.T.O., and the driver Hema Ram, together, it cannot be said, that the act of the driver Hema Ram was such, as not to attract the vicarious liability of the employer, defendant No.2. 8 In that view of the matter, I do not find any force in this appeal No.0269 also on merits. The net result of the aforesaid discussion is that both the appeals are dismissed. The parties shall bear their own costs of these appeals. ( N P GUPTA ),J. /tarun/