Decided on June 22,1979



N.H.BHATT - (1.) This is an appeal by the Insurance Company the opponent No. 3 in the Motor Accident Claim Application No. 118 of 1974 before the Motor Accident Claims Tribunal Vadodara that was pleased to award to the respondent No. 1 the original claimant the sum of Rs. 23 0 with 6% running interest from the date of the application and with costs. The respondent No. 2 herein is the driver of the vehicle and the respondent No. 3 is its owner. The vehicle involved was rickshaw No. GYB 8042 driven at about 4-30 P.M. on 19-11-1973 on a public road near Kareli Baug Vadodara by the opponent No. 1 Ganibhai in the course of his employment with the owner the opponent No. 2 who was the insured of the insurance company which is the appellant before us. The driver the owner and the Insurance company were made liable for the amount awarded though initially the claim put forward by the claimant in the petition was Rs. 30,000.00.
(2.) The case of the claimant was that on that day he had boarded that rickshaw a public conveyance from refinery and was going towards Panigate that the rickshaw was being driven rashly and negligently by the driver and its speed was abnormal that when the rickshaw was passing by the public road near Kareli Baugh the driver was required to negotiate curve and that as he was driving the rickshaw at an excessive speed the rickshaw had turned turtle and the claimant who was travelling by that rickshaw came to fall beneath the rickshaw with the violent impact and the result was that he was seriously injured and on being taken to the Government Hospital at Vadodara he was treated for the compound fracture lower 3rd shaft left femur. The wound was swelling deformity had developed and bleeding was present. The initial treatment did not save the leg of the victim and on the 4th day his leg above the knee was required to be amputated. He had thereafter filed the above mentioned claim application. The injuries and the subsequent operation are deposed to by Dr. Modi Ex. 33. Though the accident had taken place at about 630 P.M . the injured had gone to the hospital at about 9-30 P.M.
(3.) As far as the incident is concerned the only evidence thereon the record is that of the injured at Ex. 37 and that of the opponent No. I driver Ganibhai Ex. 39. The injured categorically staled that the rickshaw had turned turtle while the opponent No. 1 was negotiating the turn despite the excessive speed of the vehicle. He denied the suggestion put to him that a cyclist had suddenly come up and in order to avoid collision with him the opponent No. 1 had applied the brakes and at that time he had jumped out of the rickshaw and so he was injured. The evidence of the driver Ganibhai however did not contain any statement to the effect that the applicant had jumped out and had come to sustain the injuries afterwards. Only thing that was spoken to him was that the applicant who was sitting on the left-hand side of the rear side of the rickshaw had tried to jump out of the rickshaw and was crushed beneath the vehicle. Had the vehicle been in motion and had the injured left the vehicle as was sought to be suggested to him he would not have been under the vehicle which was admittedly in motion. It is because of this that the driver had to say that the victim had simply tried to jump out of the rickshaw but he avoided saying that he had successfully jumped out. The drivers evidence further established that that being the time of 4 P.M. the road was humming with traffic and the incident had taken place at the inter section of four roads. These circumstances show that Ganibhai the driver was expected to lower down his speed because of the inter Section of four roads and because of the heavy traffic on the road. Had he done so the arrival of the cyclist assuming it was there would not have made him apply his brakes so suddenly to as overturn the vehicle. The defence version therefore was absolutely difficult to be accepted and so the only version that is left before us is that of the injured person who had turned unconscious only after he was having the vehicle on his body. He could have noted how the vehicle had turned turtle and how it bad come to be on his body. It was therefore rightly held by the learned Tribunal that there was negligence on the part of the driver of the rickshaw. Regarding the amount awarded also there cannot be any quarrel. A young man lost his leg and even the amount of Rs. 23 000/awarded to him is not an adequate compensation for it.;

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