Dismissed

Durga Kunwar v. Kasnaram

Rajasthan HC2 Aug 2024CMA/1851/2024

Case brief

AI extract

What is this about?

The High Court of Rajasthan dismissed miscellaneous appeals filed by an insurance company against a Motor Accident Claims Tribunal award and by claimants seeking enhancement of compensation. The court held the liability rests with the insurer as per the charge sheet and found the awarded amounts adequate.

What did the court decide?

Miscellaneous appeals preferred by the insurance company and claimants were dismissed; stay applications dismissed; no costs awarded.

Durga Kunwar Vs Kasnaram — Motor Accident Claims | Rajasthan HC (2024)

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[2024:RJ-JD:32125]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN

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AT JODHPUR

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S.B. Civil Misc. Appeal No. 1699/2024

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Bajaj Allianz GIC Ltd., Second Ant Third Floor, Hathroi Fort, Gopal Bari, Ajmer Road, Jaipur, Through Its Legally Constituted Authority.

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----Appellant

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Versus

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Smt. Durga Kunwar W/o Sh. Bhupendra Singh, R/o Village Jhadoli, Tehsil Pindwara, Distt. Sirohi.

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Bhupendra Singh S/o Sh. Hameer Singh, R/o Village Jhadoli, Tehsil Pindwara, Distt. Sirohi.

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Kasana Ram S/o Hameera Ram Choudhary, R/o B/9-504, Model Town Residency, Near Patidar Samaj Bhawan, Saroli, Surat, Gujrat. (Owner)

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----Respondents

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Connected With

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S.B. Civil Misc. Appeal No. 1698/2024

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Bajaj Allianz GIC Ltd., Second And Third Floor, Hathroi Fort, Gopal Bari, Ajmer Road, Jaipur, Through Its Legally Constituted Authority.

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----Appellant

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Versus

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Rajendra Singh Chouhan S/o Sh. Hameer Singh, R/o Village Jhadoli, Tehsil Pindwara, Distt. Sirohi. Presently Residing At Lig-05, Riico Colony, Abu Road, Sirohi.

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Kasana Ram S/o Hameera Ram Choudhary, R/o B/9-504, Model Town Residency, Near Patidar Samaj Bhawan, Saroli, Surat, Gujrat. (Owner)

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----Respondents

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S.B. Civil Misc. Appeal No. 1851/2024

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Durga Kunwar W/o Bhupendra Singh, Aged About 37 Years, R/o Jhadoli, Tehsil Pindwara, Distt. Sirohi.

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Bhupendra Singh S/o Hameer Singh, Aged About 40 Years, R/o Jhadoli, Tehsil Pindwara, Distt. Sirohi.

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----Appellants

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(2 of 13) [CMA-1699/2024]

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[2024:RJ-JD:32125]

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Versus

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Kasnaram S/o Hameeraram, R/o B/9-504 Model Town Residency, Patidar Samaj Bhawan Ke Pas, Saroli, Surat, Gujrat. (Driver And Owner)

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Bajaj Allianz General Insurance Company Ltd., Through Its Divisional Manager, O-12A Second Floor, Ashok Marg, C-Scheme, Jaipur, Rajasthan. (Insurance Company)

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----Respondents

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S.B. Civil Misc. Appeal No. 1852/2024

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Rajendra Singh Chauhan S/o Hameer Singh, Aged About 51 Years, R/o Jhadoli, Tehsil Pindwara, Distt. Sirohi.

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----Appellant

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Versus

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Kasnaram S/o Hameeraram, R/o B/9-504 Model Town Residency, Patidar Samaj Bhawan Ke Pas, Saroli, Surat, Gujrat. (Driver And Owner)

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Bajaj Allianz General Insurance Company Ltd., Through Its Divisional Manager, O-12A Second Floor, Ashok Marg, C-Scheme, Jaipur, Rajasthan. (Insurance Company)

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----Respondents

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For Appellant(s)	: Mr.	Jagdish Vyas.
For Respondent(s)	: Mr.	Gaurav Kansara,for claimants.

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HON'BLE DR. JUSTICE NUPUR BHATI Judgment

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02/08/2024

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These misc. appeals have been filed by, both non-claimant and the claimants, under Section 173 of the M.V. Act, 1988 questioning the validity of the judgment and award dated 11.03.2024 passed by learned Judge, Motor Accident Claims Tribunal, Abu Road, District Sirohi (‘the Tribunal’) in MAC Cas No.97/2017 (CIS No.97/2017 : Rajendra Singh Chouhan vs.

[CMA-1699/2024]

[2024:RJ-JD:32125]

(3 of 13)

Kasnaram & Anr.) and MAC Case No.109/2017 (CIS No.109/2017 : Durga Kunwar & Anr. vs. Kasnaram & Anr.), whereby the learned Tribunal has awarded compensation in favour of claimant- Rajendra Singh Chouhan for the injuries suffered by him to the tune of Rs.1,28,000/- and Rs.3,50,000/- have been awarded in favour of claimants, Durga Kunwar and Bhupendra Singh for the death of Ms. Shivika along with interest @ 6% p.a. The liability to pay the compensation has been fastened upon the non-claimant No.2 insurance company. The claimants have filed misc. appeals for enhancement of the compensation awarded by the learned Tribunal.

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All these four appeals arise out of same accident as also judgment and award are being heard together and disposed of by this judgment. 3. Briefly stated, the facts of the case are that claimantRajendra Singh filed claim petition claiming compensation for the injuries suffered by him and claimants, namely, Durga Kunwar and Bhupendra Singh filed claim petition claiming compensation on account of death of their daughter, Ms. Shivika in the accident, which took place on 31.10.2016. It was inter-alia alleged in the claim petitions that on 31.10.2016 in the afternoon at about 01:30 pm, injured Rajendra Singh with his wife and niece was going from Jhadoli to Sirohi in car bearing registration number RJ-24CA-2708. When they reached in front of nursery, then the nonclaimant No.1, who was coming from Sirohi, while plying his car bearing registration number GJ-05-JP-7536 rashly and negligently, hit the car of Rajendra Singh, wherein occupants of the car sustained injuries and on account of injuries suffered, Ms. Shivika

[2024:RJ-JD:32125]

[CMA-1699/2024]

(4 of 13)

died. The accident occurred due to negligence on the part of driver of offending vehicle. In Claim Petition No.109/2017, claimants claimed that in the accident, they have lost their eight years old daughter, namely, Shivika, who at the time of accident was studying in Class I at Laxmi Singhania School, Banas. The claimants claimed that in the accident they had lost their daughter, who was a brilliant girl and if she would have alive, she would get Govt. job etc. The claimants thus claimed compensation of Rs..22,45,000/- for untimely death of Ms. Shivika.

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In Claim Petition No.97/2017, filed by claimant-Rajendra Singh, it was alleged that claimant was 44 years of age and he was Government employee and his monthly salary was Rs.35,000/-. He sustained fracture in left thigh and sustained injuries on left knee, head and ribs. The claimant claimed that he was admitted at Civil Hospital, Sirohi and thereafter for better treatment, the injured was taken Sagar Orthopedic Hospital, Palanpur and he undergone operations. The claimant/injured claimed compensation under various to the tune of Rs.22,45,000/-.

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The non-claimants were summoned by the learned Tribunal and after receipt of summons, non-claimant No.1 filed his consolidated reply to the claim petitions while denying the facts for want of knowledge. It was alleged in the reply that there was no fault of the non-claimant No.1 and the accident occurred due to negligence of the injured himself. It was alleged that in the FIR of the accident, which was lodged by one Gajendra Singh, the name of driver of vehicle number GJ-05-JP-7536 was mentioned Magaram Choudhary, to whom he (non-claimant No.1) was not

[2024:RJ-JD:32125]

[CMA-1699/2024]

(5 of 13)

knowing nor ever met him. It was alleged that on the date of accident, the vehicle was plied by non-claimant No.1. The nonclaimant No.1 thus prayed that the claim petitions be rejected.

¶56

The non-claimant No.2/appellant Bajaj Allianz GIC Ltd. filed reply to the claim petitions while refuting the claim laid by the claimants. It was stated in the reply that the driver of the offending vehicle was not having valid and effective licence to ply the vehicle and thus on account of violation of conditions of the policy, the insurance company was not liable to pay compensation. It was further alleged that no information of the accident was given by the owner of the vehicle. It was alleged that FIR was lodged with false averments with a view to claim compensation while wrongly involving the vehicle in question in the said accident. An objection with regard to mentioning of name of one Magaram Choudhary in the FIR as driver of the offending vehicle was raised, who was in drunken state and thus it was stated that the driver of offending vehicle was Magaram Choudhary and not non-claimant Kasnaram. Thus, a prayer was made for rejection of the claim petitions.

¶57

On the basis of pleadings of the parties, the learned Tribunal framed six consolidated issues for its determination. The issues framed by the learned Tribunal reads as infra:

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“1. vk;k fnukad 31-10-2016 dks nksigj djhc 1-30 cts fi.MokM+k ls fljksgh tkus okys ekxZ ij ckgjh ?kkVs ds uhps ulZjh ds lkeus fljksgh dh vksj ls vizkFkhZ la[;k 01 dlukjke us vius okgu dkj la[;k thts&05 ts ih&7536 dks rstxfr o ykijokgh iwoZd pykdj jksM+ ds jksax lkbZM esa vkdj dkj ds Vddj ekjh ftlls izkFkhZ o vU; ds pksV vk;h rFkk nq?kZVuk esa vk;h pksVks ds dkj.k izkFkhZ jktsUnz flag ds xaHkhj pksVs vk;h rFkk erdk f’kfodk dh ?kVukLFky ij gh eR;q gks x;h\

(6 of 13)

[2024:RJ-JD:32125]

[CMA-1699/2024]

vk;k mDr nq?kZVuk esa Dyse la[;k 97@2017 esa izkFkhZ jktsUnz flag ds ?kk;y gksus dk eqvkotk izkFkhZx.k :i;s 22]45]000@& vizkFkhZx.k ls l;aqDrr ,oa iFkd iFkd :i ls izkIr djus ds vf/kdkjh gS\

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vk;k mDr nq?kZVuk esa Dyse la[;k 109@2017 esa erdk f’kfodk dh eR;q dk eqvkotk izkFkhZx.k :i;s 22]45]000@& vizkFkhZx.k ls l;aqDrr ,oa iFkd iFkd :i ls izkIr djus ds vf/kdkjh gS\

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vk;k vizkFkhZ la[;k&nks ds tokc izkFkZuk i= o fo’ks”k dFku esa fy;s x;s ,rjkt vuqlkj vizkFkhZ la[;k& nks eqvkotk vnk;xh gsrq ftEesnkj ugha gS\

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vurks”k\”

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In support of their claim petitions, the claimants examined AW.1 Bhupendra Singh, AW.2 Rajendra Singh and AW.3 Gajendra Singh and in documentary evidence 101 documents were exhibited. No evidence was led by the non-claimants and thereafter their evidence was closed.

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The learned Tribunal after hearing the parties and after considering the material place before it vide judgment and award dated 11.03.2024 proceeded to partly allow the claim petitions filed by the claimants and awarded compensation in favour of claimants while fastening the liability of paying compensation upon the insurance company. The learned Tribunal awarded compensation of Rs.1,28,000/- in favour of claimant- Rajendra Singh Chouhan and Rs.3,50,000/- in favour of claimants respectively.

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Aggrieved of the judgment and award impugned, the nonclaimant No.2 and claimants have preferred these misc. appeals. 10. Learned counsel appearing for the appellant/non-claimant No.2 Insurance Company submits that the compensation awarded

[2024:RJ-JD:32125]

[CMA-1699/2024]

(7 of 13)

in favour of claimants to the tune of Rs.3,50,000/- while holding the insurance company liable deserves to be quashed and set aside as the learned Tribunal has not considered the evidence in its correct perspective. Learned counsel for the appellant/nonclaimant No.2 submits that as per the version set out in the FIR, the offending car was being plied by one Magaram Choudhary, who at the time of accident plying the car in intoxicated state. However, later on a fictional version was created with the connivance of the police and other interested persons and ultimately Challan was filed against Kasnaram, who himself is the registered owner of the vehicle. Learned counsel for the appellant thus submits that the story cooked up by the claimants hovers in a serious cloud of suspicion and, therefore, the learned Tribunal has erred in fastening the liability to pay compensation upon the appellant insurance company.

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Learned counsel appearing for the appellant while relying upon a decision of Hon’ble Apex Court in the case of OIC vs. Premlata Shukla : 2007 (13) SSC – 476 submits that once a part of contents of the document is admitted in evidence, the party bringing the same cannot be permitted to turn around and contend that other contents contained in the rest part thereof had not been proved by the opposite party. Learned counsel for the appellant further submits that the learned Tribunal has relied upon the testimony of AW.3 Gajendra Singh, who lodged the FIR. Learned counsel for the appellant submits that the explanation furnished by said witness for changing the name of driver is not at all reliable. Learned counsel for the appellant submits that driver of the offending car, who was in drunken state and sustained

[2024:RJ-JD:32125]

[CMA-1699/2024]

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injuries and in the FIR, there is not a whisper to the effect that two persons were sitting in the car and AW.3 at a later stage, changed his earlier version and stated that the car was being plied by non-claimant No.1 Kasnaram and Magaram Choudhary was sitting on rear side. Thus, on account of such discrepancy, testimony of witness AW.3 could not have been relied upon.

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Learned counsel for the appellant further submits that as per the report of the MTO, there was head on collision between two vehicles at the middle of the road and there was contributory negligence on the part of the victim himself, however, the learned Tribunal has seriously erred in considering the documentary evidence available on record and merely on the basis of investigation made by the police, which resulting in filing of charge sheet against non-claimant No.1, the entire liability and fault has been fastened upon the owner and insurer of the offending car. Learned counsel for the appellant thus submits that the impugned judgment and award deserves to be quashed and set aside.

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On the other hand, learned counsel appearing for the claimants, submits that the misc. appeals preferred by the claimants for enhancement of the compensation deserve to be allowed and the misc. appeal preferred by the insurance company deserve dismissal. Learned counsel for the claimants submits that the claimants, in Claim Petition No.109/2017, have lost their eight years’ daughter in the accident, who was studying in first standard and was a brilliant student. Learned counsel for the claimants relied upon the judgment passed by Hon’ble Apex Court in the case of Meena Devi v. Nunu Chand Mahto @ Nemchand Mahta & Ors. : Civil Appeal arising out of Special Leave Petition (Civil)

[2024:RJ-JD:32125]

[CMA-1699/2024]

(9 of 13)

No.5345/2019 decided on 13.10.2022 wherein, for the death of non-earning child, the Hon’ble Apex Court awarded compensation of Rs.5,00,000/- while relying upon its earlier decision in the case of Kishan Gopal & Anr. v. Lala & Ors. : (2014) 1 SCC 244. Learned counsel for the claimant thus submits that the compensation awarded by the learned Tribunal is inadequate and, therefore, the same be enhanced accordingly.

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Learned counsel for claimants further submits that claimant, Rajendra Singh Chouhan was working as a teacher in Govt. School and on account of injuries suffered by him, loss has been caused to future income, inasmuch as on account of disability occurred due to accident, the claimant would not be able to get timely promotion on account of low progression and has to suffer financial loss, however, this aspect has not been properly appreciated by the learned Tribunal. Learned counsel for the claimant further submits that the amount awarded for the attendant charges is also meager, which also deserves to be suitably enhanced. Learned counsel for the claimant further submits that under the heads of future medical expenses, transportation charges etc. the amount of compensation awarded by the learned Tribunal is too meager, which also deserves enhancement. Learned counsel for the claimant submits that claimant has suffered 24% permanent disability and on account of such disability he has been deprived of joy of life, however, the learned Tribunal has not awarded adequate compensation for the same. Learned counsel for the claimant further submits that the claimant was 44 years of age at the time of accident and he was earning Rs.35,000/- per month while working as teacher in a

[2024:RJ-JD:32125]

[CMA-1699/2024]

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Govt. School, however, on account of receiving permanent disability to the extent of 24%, the claimant has not been awarded compensation towards future prospects. Learned counsel for the claimant further submits that the interest awarded by the learned Tribunal @ 6% p.a. is also low and the same should be enhanced to 12% p.a.

¶89

Learned counsel for the claimants thus prayed for enhancement of the compensation and prayed for dismissal of the misc. appeals preferred by the insurance company. 16. I have considered the submissions made by counsel for the parties at length and have perused the material available on record and the judgment cited at bar. 17. This Court finds that while deciding issue No.1, the learned Tribunal has considered the charge sheet (Ex.1), which was filed against Kasnaram, who was the driver and owner of the offending vehicle (GJ-05-JP-7536). The learned Tribunal while deciding the preliminary objection raised by insurance company (non-claimant No.2) has considered that in the FIR name of Magaram Choudhary was inadvertently mentioned merely on account of his presence in the car, whereas as per the statements of the persons who were present at the time of accident, all have said that the vehicle in question was being plied by non-claimant No.1 i.e. Kasnaram. Learned Tribunal has also considered the fact that identical issue was raised by the insurance company before the District Consumer Forum, however, the same was rejected by the Consumer Forum. In view of this Court, the learned Tribunal has rightly observed that the evidence led by witness AW.1 Rajendra Singh with regard to driver of offending vehicle being Kasnaram,

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remained unrebutted by the non-claimants and thus the objection raised by the non-claimant No.2/insurance company has rightly been brushed aside by the learned Tribunal. The learned Tribunal also observed that the independent surveyor was not examined by the non-claimant No.2 insurance company, therefore, the learned Tribunal has rightly concluded that the explanation given by AW.3 with regard to mentioning the name of Magaram was inadvertent and the plea raised by the non-claimant No.2 in this regard has rightly been discarded.

¶94

This Court finds that the learned Tribunal has considered the Ex.2, ‘Naksha-Mauka’, which was prepared by the investigating officer during the course of its investigation, wherein it was specifically mentioned that the vehicle number GJ-05-JP-7536 was plied by its driver in wrong side and it hit the vehicle of Rajendra Singh and there was no negligence on the part of driver of the other vehicle. Thus, in the considered opinion of this Court, the learned Tribunal has not erred in deciding issue No.1 against the insurance company.

¶95

This Court finds that while deciding the issue No.4, the learned Tribunal has observed that despite granting opportunity to prove the contents of the reply filed by the insurance company, no evidence was led by the insurance company/non-claimant No.2. The learned Tribunal also observed that the non-claimant No.1/driver of the offending vehicle was having valid and effective licence to ply the car, which is admittedly a LMV. Thus, the objection raised by the insurance company has rightly been rejected and the insurance company has been held liable to satisfy the award.

[2024:RJ-JD:32125]

[CMA-1699/2024]

(12 of 13)

Insofar as the contentions raised by the counsel for the claimants for enhancement of the compensation are concerned, this Court has minutely considered the findings and conclusion arrived at by the learned Tribunal. While deciding Claim Petition No.109/2017, the learned Triubnal has considered Ex.49, according to which the date of birth of deceased (Shivika) was 13.11.2010 and thus on the date of accident, the deceased was 5 years and 11 months old. The learned Tribunal while following the judgments passed in the case of Dayaram v. Hardutt : SBCMA No.1371/2012 decided on 10.11.2021 and Bawdaram v. Suresh Kumar : SBCMA No.1539/2017 decided on 16.04.2021, and considering the age of the deceased to be 5 years and 11 months, has awarded compensation of Rs.3,50,000/- on account of death of Ms. Shivika, which in the opinion of this Court is just and adequate and calls for no interference.

¶100

This Court also finds that while deciding Claim Petition No.97/2017, the learned Tribunal while awarding compensation of Rs.1,28,000/- under various heads has considered the nature of the injuries being suffered by injured Rajendra Singh. The claimant/injured Rajendra Singh suffered 24% permanent disability on account of injuries suffered by him, which was proved by the claimant by producing Ex.52. Claimant Rajendra Singh at the time of accident was 44 years of age and was employed as a Teacher in Govt. School. On account of injuries suffered by claimant, Rajendra Singh, he remained on 42 days’ privilege leave, which leave were paid leave, therefore, no loss as such was caused to him. The learned Tribunal has considered the documents placed before it, according to which 60 days’

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sanctioned leave was granted to the claimant and, therefore, considering the monthly income of claimant at Rs.35,000/-, the learned Tribunal has rightly awarded compensation of Rs.70,000/towards the loss of monetary loss, which in the opinion of this Court is just and proper and calls for no enhancement.

¶105

This Court also finds that the learned Tribunal has awarded a sum of Rs.20,049/- towards medical expenses in favour of claimant while consdiering the bills (Ex.60 to 76). The learned Tribunal has awarded a sum of Rs.2000/- for the period, the claimant remained hospitalized i.e. for a period of four days and Rs.2000/- have been awarded towards attendant charges, which in the opinion of this Court is just. Further, towards physical and mental agony the claimant has been awarded Rs.15,000/- and for the loss of joy, the claimant has been awarded Rs.15,000/-, which in the facts and circumstances and in view of various pronouncement of Hon’ble Apex Court is adequate. The learned Tribunal has awarded Rs.3900/- for transportation charges after considering Ex.63, 70 and 72 produced by the claimant, which is also just.

¶106

In view of above discussion, this Court finds no force in these misc. appeals preferred by the insurance company and the claimants, therefore, the same are hereby dismissed. Stay Applications also stand dismissed. No costs.

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(DR. NUPUR BHATI),J

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7 to 10-DJ/-

Durga Kunwar v. Kasnaram

Case brief

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Durga Kunwar v. Kasnaram

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