Partly allowed

Mahendra Kumar v. Pritam Singh and Ors.

Rajasthan HC3 Mar 2008CMA/821/1999

Case brief

AI extract

What is this about?

The High Court enhanced motor accident compensation awarded to an injured goldsmith from Rs.30,000 to Rs.94,800. The court held that medical certificates establishing 15-40% disability must inform the quantum of compensation under Section 166 of the MV Act, allowing loss of earnings calculation based on multipliers. Liability remains 50:50 between the truck and bus operators.

What did the court decide?

Compensation enhanced to Rs.94,800 inclusive of interest @ 7.5% p.a., to be paid jointly and severally by the truck and bus parties in 50% shares each.

Mahendra Kumar Vs Pritam Singh and Ors. — Motor Accident Claims | Rajasthan HC (2008)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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J U D G M E N T

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MAHENDRA KUMAR Vs. PRITAM SINGH & ORS.

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S.B. CIVIL MISC. APPEAL NO. 821/1999 against the judgment and Award dated 19.8.1999 passed by the learned Judge, Motor Accident Claims Tribunal, Sirohi in Claim Case No.152/93.

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DATE OF JUDGMENT :: 3r^d MARCH, 2008

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PRESENT

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HON'BLE MR.JUSTICE MANAK MOHTA

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Mr. Kailash Trivedi, for the appellant. Mr. B.S. Bhati ] for the respondents. Mr. Sunil Mehta ]

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BY THE COURT :

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The present appeal has been filed by the injuredclaimant against the judgment and Award dated 19.8.1999 passed by learned Judge, Motor Accident Claims Tribunal, Sirohi (in short 'the Tribunal') in MACT Claim Case No.152/93 whereby the learned Tribunal has awarded a total compensation of Rs.30,000/- plus interest in favour of

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claimant-appellant. Out of the said total award amount, a sum of Rs.15,000/- was ordered to be payable jointly and/or severally by non-claimants No.1 to 3 truck driver, owner and insurer of the truck and the remaining Rs.15,000/- was held to be payable jointly or severally by non-claimants No.4 and 5 driver of Gujarat Roadways bus and its owner alongwith interest @ 12% per annum on the said amounts from the date of filing of the claim petition i.e. 27.11.1993.

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Briefly stated the relevant facts for the disposal of the appeal are that on 15.6.1993 the applicant-Mahendra Kumar alongwith other passengers including the deceased Smt. Teeja were travelling in Gujarat Roadways bus bearing Regn. No.GJ-1Z-1614 and were going from Ambaji to Sandarai. In the noon at 2-2:30 p.m., on the way SirohiShivganj national highway, at about 12-13 Km ahead of Sirohi, near the field of Champa Lal Agarwal the said bus collided with Truck bearing No.HR-30-0540 which was coming at a high speed from opposite direction and due to rash and negligent driving by both the drivers of said vehicles accident took place. In the accident, one lady, namely, Smt. Teeja sitting in the bus

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received several injuries and subsequently she succumbed to the injuries and the appellant herein who was also sitting in the bus received several simple as well as grievous injuries and sustained fracture on right leg kneecap. It was further stated that at the time of accident, he was 21 years of age and was earning nearly Rs.3500/- per month by doing the job of goldsmith but due to the injuries sustained in the accident, he cannot easily sit and work in which he was previously engaged, thus, he suffered heavy monetary loss. The respondents No.1, 2 and 3 are the truck-driver, owner and insurance company of the truck No.HR-30-0540 and respondent No.4 Fakir Mohd. is the driver of Gujarat Roadways bus owned by respondent No.5. A total sum of Rs.5,01,000/- was claimed as compensation under various heads alleging that both the said vehicles were involved and responsible for causing the said accident, thus, they both were responsible for paying the compensation.

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After issuance of notices, all the respondents contested the claim petition and filed their respective replies. Non-petitioners No.1 and 2 driver and owner of the said truck admitted the ownership of truck of non appellant No.2 rest of

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the averments were denied by them and made a prayer to dismiss the claim petition. A reply to the claim petition was also filed by non-applicant No.3 (Insurance Company of the truck) and mostly denied the facts for want of knowledge and stated that the said truck was insured with them but further submitted that at the time of accident the driver of the truck was not having a valid and effective licence, that was a breach of terms of policy, therefore, the Insurance Company cannot be held responsible for the payment of compensation.

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A joint reply was filed by the non-applicants No.4 and 5. In reply, the driver of Gujarat Roadways denied the factum of causing accident due to rash and negligent driving of its bus and also denied the other averments made in the claim petition.

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It is also revealed that an another claim petition No.127/03 was filed for awarding compensation by the father and sister of deceased-Smt. Teeja who also died in the same accident. The learned Tribunal decided both the claim petitions by a common order but the issues were framed separately.

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On the basis of pleadings of the parties the learned

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Tribunal framed eight issues in this case Claim Case No.152/93 filed by the present claimant, which are as follows :

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“ 1- आय� अप�र� स�. 2 क� टक एच.आर. 30-0504 क� अप�र� स�. 1 द�र� व अप�र� स�. 5 क� बस ज�.ज�. 1 ज�ड 1614 क� अप�र� स�. 4 द�र� द�न��क 15.6.1993 क� ससर�ह� स वग�ज ह�ईव� पर प�लड� ग��व क� सनकट चमप�ल�ल अगव�ल क� ख�त क� प�स �पहर कर�ब 2,2,1/2 बज� अतयस,क त�ज गसत, ल�परव�ह� व उप�क�प/र� ढ�ग स� चल�त� हए टककर कर �*र�टन� क�ररत क�।

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2- आय� इस �र�टन� म7 प�र� क� र�र पर ग�भ�र व स�,�रर च�ट पह�च� और सर�य� सन कत�: ह*य�?

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3- आय� प�र� र. 50,1000/- म*आवज� प�प त करन� क� अस,क�र� ह> ?

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4-आय� �र�टन� बस च�लक द�र� त�ज, रफत�र, ल�परव�ह� व ब�एसतह�सत स� चल�न� स� रदटत हय� ह>?

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5- ववकलप म7 आय� ��नB व�हनB क� च�लकB क� गफलत व उप�क� क� क�रर यह �र�टन� हय� ह> और अप�र�गर म�त अ� ��य� जजमम � �र ह> ?

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6- आय� �*र�टन� टक च�लक द�र� त�ज रफत�र,

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ल�परव�ह� व बऐसतय�त� स� चल�न� स� रदटत ह*य� ह> ?

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7-आय� वक �र�टन� व�हन ट�क सव�म� क� सन�G न व सनय�जन दहत�र� नह�� चल�य� ज� रह� र� व अनज�,�र� वयवक द�र� नह�� चल�य� ज� रह� र� ?

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8-अन*त�ष।"

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During the course of trial, claimant AW-1 Mahendra Kumar himself appeared as a witness and his statement was recorded. He submitted a number of documents in support of his claim and got them exhibited, however, no evidence was led on behalf of either of the respondents.

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The learned Tribunal after hearing both the sides held that the accident occurred due to rash and negligent driving of both the drivers of truck as well as bus and held them responsible for causing accident in which Smt. Teeja lost her life and the appellant suffered severe injuries. The learned Tribunal vide its judgment and Award dated 19.8.1999 awarded a total compensation of Rs.30,000/- plus interest thereon @ 12% per annum and held them responsible for the payment

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of compensation to insurer of truck and Gujarat Roadways in fifty-fifty, as stated above.

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The claimant being felt aggrieved and dissatisfied with the amount of compensation as awarded by the learned Tribunal, challanged the judgment and award and preferred this appeal for enhancement of the compensation amount. The notices of appeal were given to the respondents. Record of the case was called and the parties were heard.

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During the course of arguments learned counsel for the claimant-appellant submitted that the learned Tribunal has not properly considered and appreciated the material while determining the compensation and has not awarded adequate compensation, therefore, the judgment and award is required to be modified to this extent. It was contended by the learned counsel for the appellant that due to the accident, the appellant remained under long treatment and could not work for about 1 ½ years and still he has to visit doctors for checking and advise. It was stated that in treatment he incurred heavy expenses in approaching time and again to doctors and taking medicine, but the learned Tribunal has awarded only in all

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Rs.30,000/-, a very meager amount of compensation. It was further contended by the learned counsel for the appellant that on the basis of the injury sustained by the appellant the doctor of General Hospital, Bhuj-Kuch has certified the disability upto 40% vide Exh.56 and the government doctor deputed at Sirohi Hospital after checking, on the basis of the injury sustained by the injured, has certified the disability upto 15% vide Exh.55, therefore, it was stated that contention of the appellant stands fortified by the certificates issued by doctors that he is unable to work, particularly, when he was engaged in the work of goldsmith and due to the injury, he could not perform his job as earlier but the learned Tribunal has not given due consideration to these certificates (Exh.55 & 56). It was urged that the appellant has become physically handicapped and while consideration the application under Section 166 of the M.V. Act, the Tribunal should have given due weightage to these certificates, but it has failed to consider the same. On these submissions, it was contended that the compensation awarded by the Tribunal of Rs. 30,000/- may be reasonable enhanced and the appeal may be allowed.

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On the contrary, learned counsel for the respondent refuted the contention and supported the judgment given by the Tribunal. It was contended that the appellant has not been able to prove permanent disability sustained by him on his person and the certificates produced by him does not contain any sort of endorsement regarding permanent disability, therefore, the learned Tribunal has rightly considered as they were. The appellant was not entitled to get any compensation on the basis of permanent disability. Learned counsel for the Gujarat Roadways relied upon the decision rendered in the case of Kumari Anjana Vs. Mangal Singh & Ors (1996 DNJ (Raj.) 63) and reiterated that no interference is required in the appeal and the appeal may be disallowed.

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I have considered the rival submissions and perused the record. The question which arises for consideration in the appeal is 'whether the compensation awarded to the appellant is just and adequate or whether it requires any modification/enhancement ?'

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First of all, I have seen the finding with regard to

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issue No.1 (though that is not under dispute). The learned Tribunal on the basis of the material available on record, after considering the statement of the appellant who himself was injured in the said accident, has considered his statement alongwith the police papers prepared by the police during the investigation of the said accident has rightly concluded the issue No.1 that the accident occurred due to rash and negligent driving by the both the drivers of concerned vehicles, therefore, the finding on issue No.1 is hereby maintained.

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Considering the main contention raised with regard to the quantum of compensation, I have also perused the statement of AW-1 Mahendra Kumar in this regard. He has stated that in the accident his leg, hand, neck and spinal cord were severely injured. He was admitted to Sirohi Hospital and thereafter he was shifted to Ahmedabad for further treatment. He further stated that during treatment, for the first time the plaster was made for three months but again plaster was made for a period of six months. He has further stated that due to the injuries he could not walk, move, sit and work as earlier. He has stated that he was engaged in the work of goldsmith and

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was making an earning of Rs.3500/- per month from that job and due to the these injuries, he could not work for nearly 1 ½ years. Thus, he suffered huge monetary loss. He has further submitted that now he is doing service with another goldsmith and is drawing Rs.2000/- per month as salary. He has also stated that due to accident, his one leg became shortened. AW-1 has also produced and proved the papers relating to treatment and taking of medicines through prescription slips. He has also stated that on the basis of the injuries sustained by him, the doctors had given certificates with regard to his disability vide Exhibits-55 & 56. Exhibit-56 pertains to certificate issued by doctors of Kutch-Bhuj where the appellant remained under treatment for long time and a group of doctors have certified the disability upto 40%. On the basis of examination of his injuries and the related paper, vide Exh.55 the government doctor at Sirohi Hospital has also certified the disability upto 15%. A lengthy cross-examination has been conducted but nothing has been found adversely affecting the statement of appellant in his chief. It is pertinent to note that no witness from the either side has been produced in rebuttal.

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Looking to the papers exhibited with the injury report and the treatment given from time to time and the statement of injured wherein he has specifically been stated that his one leg became shortened and two times plasters were made. His statement is corroborated by the medical evidence and the certificates issues by the doctors, vide which the disability has been certified. The learned Tribunal while considering the quantum of compensation has not given due weightage to these documents, more particularly, the disability certificates which have not been properly considered, but to my mind while considering the point of determination of quantum of compensation under Section 166 of the M.V. Act, even temporary disability certificate can be looked into but in the instant case looking to the statement of the injured and the other material available on record, both the doctors have certified his disability and thus, it can easily be inferred that the claimant was suffering from permanent disability which he has to carry for the whole of the life. The doctors have mentioned the disability in their certificates and that should have been taken into consideration.

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On the basis of these material, it can easily be inferred that due to these injuries he remained hospitalized for about 1 ½ years and could not work and had to incur heavy expenses during treatment and he is unable to work, sit, walk. He is said to have engaged in the job of goldsmith in which long sitting and hard labour are required. Certainly he felt inconvenience, therefore, the permanent loss on the basis of these injuries can be determined.

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In the light of the aforesaid discussion, I have considered the contention of the respondent's side but they are not sustainable. The judgment given in the case of Kumari Anjana Vs. Mangal Singh (supra) cited by the learned counsel for Gujarat Roadways is related to interim compensation awarded under Section 140 of the M.V. Act and in that respect before awarding compensation permanent disability is required to be seen as per Section 142 of the M.V. Act while awarding interim compensation but that is not required at the time of consideration of final award of compensation. Thus, the judgment cited by the learned counsel does not help their contention. Thus, considering the disability shown in the

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concerned certificates, the loss of working is determined @ Rs.300/- per month and on that basis considering the age 21 years taking the multiplier of 18, the loss is determined, that comes to Rs.300x12x18 = Rs.64,800/-, that is found just and reasonable to award in addition to the amount awarded by the Tribunal. Thus, the total comes out to be Rs.30,000+Rs.64,800 = Rs.94,800/-. The claimant will be entitled to interest @ 7.5% per annum on the enhanced amount of compensation from the date of filing of the claim petition. It is further made clear that as per the finding on issue No.1, both the drivers of the concerned vehicle were found responsible for causing accident and the learned Tribunal has further awarded 50% of the claim amount against the driver, owner and insurer of the truck and 50% of the driver of Gujarat Roadways bus. Likewise the enhanced amount of compensation alongwith interest is equally held payable by 50 :50 as awarded by the learned Tribunal alongwith interest.

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In the result, the appeal is partly allowed, the compensation awarded by the learned Tribunal is modified and enhanced by Rs.64,800/-. Thus, the total comes to Rs.94,800/-

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(inclusive of the amount, if any, paid under the head of no fault liability). It is further made clear that as per the proportion determined by the Tribunal while passing the award on the same line the enhanced amount of compensation Rs.64,800/is payable. The non-claimants No.1 to 3 truck driver, owner and insurer of truck are held jointly and severally responsible to pay 50% of the enhanced award amount with interest @ 7.5% per annum from the date of filing of claim petition and the remaining 50% of the enhanced amount will be payable jointly and severally by non-claimants No.4 and 5 driver and owner of Gujarat Roadways bus with interest @ 7.5% per annum from the date of filing of the claim petition till the amount is paid. The respondents insurer of truck and the Gujarat Roadways are directed to make payment within two months from the date of judgment, failing which, the claimants will be entitled to recover the same as per law. Rest of the judgment and Award is confirmed. No order as to costs.

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( MANAK MOHTA ), J.

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Sanjay/-

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Mahendra Kumar v. Pritam Singh and Ors.

Case brief

What is this about?

What did the court decide?

Mahendra Kumar v. Pritam Singh and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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