RAJENDRA KUMAR MODI Vs. BABULAL

JUDGEMENT

(1.) This appeal has been preferred by the appellants-claimants whose shop was damaged on account of negligence of the bus driver as the brake pipe got punctured and it was steep road and the bus moved in the reverse direction and hit two shops owned by the appellant which were in the tenancy of Mukesh Kumar. Two claim petitions were filed, one by tenant Mukesh Kumar and the other by the owner, i.e., father of the present appellant Mali Ram Modi who died and was substituted by the present appellants. Contention of the learned counsel for the appellants is that the claim petition filed by the tenant Mukesh Kumar was rejected by the learned Tribunal holding that he was not owner of the shop. The claim petition of owner was also rejected by misreading the statement of the appellants. The learned Tribunal has failed to correctly appreciate the evidence on record which clearly proved that as a result of the shop getting hit by the bus, it got badly damaged. The wooden pillars of the side, shutter, electricity fitting, eastern wall of the shop, tin shed were all got broken. The shop was being used for selling shoes, etc. Learned counsel submitted that even in the evidence of the tenant Mukesh Kumar who has appeared as AW 1 in the claim petition, it has come on record that the shop was substantially damaged. Learned counsel argued that the learned Tribunal has picked one isolated statement of Rajendra Kumar Modi in cross-examination where he stated that after the shop was damaged, they did not incur any expenditure, but that does not mean that no expenditure was incurred when the shop was got constructed. The fact that there was eviction suit pending, it does not justify non-grant of any compensation whatsoever. Learned counsel submitted that there were other witnesses who have proved the fact that actually expenses were incurred by claimants in getting the shop repaired. In this connection, he referred to the statement of AW 5 Hari Shankar, AW 6 Chauth Mal and AW 7 Prahlad, who have proved that the shop got damaged due to the accident as the brake pipe got punctured and it was steep road and the bus moved in the reverse direction. It is, therefore, prayed that the compensation in the sum of Rs. 18,000 ought to have been awarded to the claimants in terms of the prayer made in the claim petition with interest. The accident had taken place on 4.6.1994 and for last 17 years, the appellants have been deprived of their legitimate compensation and, therefore, they should also be awarded interest. It was argued that bills for expenditure of Rs. 31,170 were produced on record. Even if the expenditure was incurred by tenant that does not mean that the shop was not damaged or that nothing should be awarded on that head while the tenant has not been believed on the ground that he was not owner of the shop. Also the appellants-claimants cannot be denied a reasonable amount of compensation for the damages.

(2.) Ms. Manju Jain, learned counsel for the insurance company, argued that accident occurred due to mechanical defect and not because of any negligence of the driver because the brake pipe of the bus got punctured and that no actual loss was proved. While on the one hand the tenant states that it was he who spent money for getting the shop repaired, but on the other hand the landlord was claiming the same. In any event, learned counsel submitted that Rajendra Kumar Modi in his statement has stated that after accident, the expenditure was not incurred by the appellant in getting the shop repaired, therefore, nothing deserves to be awarded.

(3.) On hearing the learned counsel for the parties, I find that the bare statement by AW 4 Rajendra Kumar Modi in cross-examination that after accident money was not spent by them for getting the shop repaired, does not mean that there was no actual damage caused to the shop. The Claims Tribunal could not have ignored the examination-in-chief of this witness AW 4 Rajendra Kumar Modi wherein he has stated he rented out the said shop to Gordhan, for which a suit for eviction is pending and that the wall which was made of wooden log got damaged due to the accident. The statements of other witnesses could not have been altogether ignored. AW 1 Mukesh Kumar, who was tenant of the appellant, has also proved the substantial damage caused to the shop. AW 2 Gordhan Lal, who is father of Mukesh, also proved the damage to the shop. AW 3 Mohan Lal, owner of the adjoining shop has also proved the damage caused to the shop. AW 5 Hari Shankar, another son of Mali Ram Modi, has also proved the damage caused to the shop and stated that a loss between Rs. 18,000 and Rs. 20,000 was caused to the shop. This shop was rented to Gordhan Lal and it was situated towards the southern and western side of their house. He stated that shutter worth Rs. 2,000, wooden pillars worth Rs. 10,000 and window panels etc. of Rs. 5,000 were damaged. AW 6 Chauth Mal who is tenant in another shop of the appellant has also proved all these facts. AW 7 Prahlad, the mason who constructed the shop, has proved the fact that he had built the shop about 8 years ago by digging the foundation and raising the wall of the roof of the shop which was built by use of stones.