SINGH, J. - (1.) IN Claim No. MAC Case 73/94 filed by Surendra Singh, who is respondent in this appeal, the Judge, Motor Accident Claims Tribunal, Jalore, by judgment dated 7. 12. 1996 awarded compensation of Rs. 64,846/- with interest at the rate of 12% per annum from the date of filing of the claim petition. Being aggrieved by the award, the present appeal has been filed by the appellants.
(2.) THE facts of the case may be summarised as below: According to the averments made in the claim petition, on 20. 4. 1993, at about 8. 15 p. m. , the claimant Surendra Singh and his brother Virendra Singh were going on the right side of the road on the `kutcha' path towards the house of their uncle Bhanwar Singh. When both of them, reached near the house of Bhanwar Singh, one jeep No. RJ 14/1846 was coming from the front side. The jeep was driven at an excessive speed. The jeep hit Surendra Singh and, as a result, Surendra Singh received simple and grievous injuries and became unconscious. After the incident, Virendra Singh took Surendra Singh to Aahore Hospital but the case was referred to the General Hospital, Jalore. The statement of Virendra Singh was recorded and, on the basis of his statement, a criminal case was registered at the Police Station, Nausara and, after investigation, charge-sheet under Section 173 of the Criminal Procedure Code was filed against Kishan Lal, the driver of the jeep, under Sections 279, 337 and 338 of the Indian Penal Code. The jeep which was involved in the accident belonged to the Public Works Department of the State of Rajasthan. A sum of Rs. 1,90,000/- was claimed in the claim petition. Surendra Singh was a minor on the date of the accident and was a student of class III. It was alleged that he was earning Rs. 10/- per day, by distributing cow-milk at the hotels. It was also stated in the claim petition that for about 10 days, Surendra Singh suffered from loss of memory on account of the injuries received on his head and he suffered much pain on account of the injuries and he was also given treatment at Jodhpur at Kamala Nehru Hospital and a house had been taken on rent for three months. Following sums were claimed as compensation: 1. Loss of earning at the rate of Rs. 10/- per day 3,000/- 2. Pain and suffering 10,000/- 3. Amount spent on travelling 3,000/- 4. Rent of house which had been taken on rent at Jodhpur 3,000/- 5. Wages paid to the persons who were employed to lookafter the cows 1,000/- 6. Amount spent on treatment 20,000/- 7. Loss occasioned by absence in school 50,000/- 8. Future losses 50,000/- 9.Mental agony 50,000/- Total 1,90,000/- In reply filed by Kishan Lal, Driver, it was stated that on 20. 4. 1993 at about 8. 15 p. m. , when he was driving the jeep of the Public Works Department, a boy collided with the jeep no. RJ 14/1846. The jeep was being driven slowly and the boy, collided with the jeep emerging from the darkness all of a sudden. It was further stated in the reply filed by Kishan Lal that the boy was not earning anything and he did not spend any money on treatment nor he suffered any pain. In the written statement filed on behalf of the State Government and the Public Works Department, the allegations made in the claim petition were denied and it was alleged that the accident took place due to the fault of the boy and the driver was not at fault. Three issues were framed. The first issue was regarding the question whether the jeep was being driven rashly and negligently. The second issue was regarding the quantum of compensation and the third issue was about relief. Bheru Singh (A. W. 1), Surendra Singh (A. W. 2) and Virendra Singh (A. W. 3) were examined on behalf of the claimant. As many as 42 documents were produced in evidence on behalf of the claimant. Kishan Lal (N. A. W. 1) and Banshi Lal Gandhi (N. A. W. 2) were examined on behalf of the non-petitioners. No documentary evidence was produced by the non-petitioners.
(3.) THE learned Judge, Motor Accidents Claims Tribunal, after considering the evidence of both the parties, decided issue no. 1 in favour of the claimant and held that the jeep was being driven in rash and negligent manner. Issue no. 2 was also decided in favour of the claimant and it was held that the claimant was entitled to get a compensation to the tune of Rs. 64,846/- and interest at the rate of 12% per annum with effect from the date of filing of the claim petition. In view of the findings on issues no. 1 and 2, impugned award was given. The learned counsel for the appellants has submitted that the learned Judge, Motor Accident Claims Tribunal has committed a serious mistake in deciding issues no. 1 and 2 in favour of the claimant and, therefore, the award deserves to be set aside. It is further submitted by the learned counsel for the appellants that there is no evidence to prove that the driver was driving the jeep in rash and negligent manner; that the jeep had been slowed near the speed-braker and as soon as the speed-braker was crossed by the jeep, the claimant suddenly tried to cross the road and he collided with the jeep and this version has been given by the driver Kishan Lal as well as Banshi Lal who was sitting in the jeep at the time of the alleged accident. It is further submitted by him that the driver was not at fault and he promptly applied the brakes and since the child had emerged from the darkness all of a sudden, the responsibility of the accident was that of the child and not by the driver. Regarding quantum of compensation, the learned counsel for the appellants has submitted that the simple and grievous injuries received by the claimant, were fully cured and no certificate to show permanent disability was produced and the award of Rs. 50,000/- on account of pain and suffering, is not justified. The learned counsel for the respondent has supported the award given by the learned Judge, Motor Accident Claims Tribunal and has prayed for the dismissal of this appeal. ;