MANBHAVATI Vs. SURTE

JUDGEMENT

(1.) Manbhavti and Ors. have come up in appeal under Section 110-D of the Motor vehicle Act (hereinafter called the 'Act') against the award dated 27th October, 1980 passed by the Motor Accident Claims Tribunal, Delhi (hereinafter called the Tribunal) awarding a sum of Rs. 32,400.00 with costs and interest in favour of the appellants.

(2.) The award has been assailed, inter alia on the ground, that the Tribunal illegally and wrongly did not permit the appellants to amend their claim petition which amendment was sought in May, 1975. The claim petition was filed by the petitioner claiming a compensation of Rs. 60,000.00 but subse- quently in May, 1975 the appellants moved an application for amendment of the claim petition which amendment though allowed vide order dated 12th November, 1975 but with a rider that the claim amount would not be changed and that it will remain Rs. 60,000.00. Besides assailing this order, the award has also been assailed on the ground of inadequacy of compensation.

(3.) Admitted facts of the case are that the deceased Bishamber Dayal was urinating in a ditch on the kacha side of road when the bus No. D.L.P. 874. which was being driven by respondent No. 1-Shri Surete, in an extremely rash and negligent manner ran over the deceased, as a result of which he was crushed and killed at the spot. It is alleged that deceased Bishamber Dayal at the time of his death was 43 years old and having a monthly income of Rs. 1,000.00. He was practising as 'Vaid' and was also performing the functions of a Pandit. Respondents 2 and 3, i.e. M.C.D. and the General Manager, DTC, were the owners of the above said bus and that Shri Surete was in their service. The deceased left a widow and six children (three daughters and three sons). It is also an admitted fact on record that Shri Surte was proceeded ex parte. Written statement only on behalf of the DTC and M.C.D. was filed in which the only defence taken was that the driver had taken the bus to his village Darya Pur unauthorisedly, and therefore, DTC was not liable for his act. Evidence was led and it was proved that the respondents admitted the accident but took the plea that Shri Surete had taken away the bus unathorisedly and that too after the completion of his duty, and therefore, they were not liable. The question taken into consideration was whether this accident was caused by respondent No. 1 in the discharge of his duties or not? The Tribunal after evaluating and appreciating the evidence came to the conclusion that Shri Surete, respondent No. 1 was driving the bus in the discharge of his duties, and therefore, held respondent No. 2 liable for the act of respondent No. 1. I see no reason to disagree with the observation of the Tribunal in this regard nor the respondents have been able to point out any infirmity in this part of the discussion of the Tribunal on issue No. 4. Though the driver Shri Surete did not file the written statement but he appeared as a witness (RW 3) and denied that he was driving the offending bus at the time of accident. According to him he left the bus at the depot and went to his house which fact is belied from the photographs taken at the site as well as from the FIR lodged in which the number of the bus is mentioned. The photographs also show the offending bus to be present at the site of the accident, coupled with the testimony of the eye witnesses, the Tribunal rightly disbelieved the version given by respondent No. 1 and of the conductor of the bus. The Counsel for the respondent was not in a position to place anything on record by which the observation of the Tribunal could be held to be contrary to record. Therefore so far as issue Nos. 2 and 4 are concerned the respondent had not been able to assail the same.