Allowed

Anil Kumar v. Jogesh Kumar

Uttarakhand HC11 Nov 2021AO/324/2011

Case brief

AI extract

What is this about?

The High Court allowed the appeal against a Motor Accident Claims Tribunal award of Rs. 15,000 for serious injuries. Observing that the inquiry procedure under the Motor Vehicles Act allows for summary appreciation of evidence, the Court enhanced compensation to Rs. 2,75,000 covering medical bills, loss of income, and pain and suffering, with interest awarded.

What did the court decide?

Award enhanced to Rs. 2,75,000 plus interest at 6% per annum from 08.08.2011, payable by the insurance company.

Anil Kumar Vs Jogesh Kumar — Motor Accident Claims | Uttarakhand HC (2021)

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AFR

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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AO No. 324 of 2011

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Anil Kumar

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..................Appellant

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-versus-

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Jogesh Kumar and others .............Respondents

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Advocates appeared in the case:-

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For Appellant : Mr. Ashutosh Posti, learned counsel holding brief of Mr. S.K.Shandilya, learned counsel for the appellant. For Respondents : Mr.M.K.Goyal, learned counsel for the respondent no.3/The New India Assurance Company Ltd.

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Date of hearing and Judgement : 11.11.2021

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Sri S.K.Mishra, J.

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1. Heard learned counsel for the parties.

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2. In this appeal under Section 173 of the Motor Vehicles Act, 1988, the claimant-injured assails the award passed by the learned Judge, Presiding, Motor Accident Claims Tribunal/ Additional District Judge, Haridwar in Motor Accident Claim No. 52 of 2007, dated 09.05.2011 allowing partially the claim petition of the appellant, awarding a meagre amount of Rs. 15,000/- as compensation.

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3. The claim application has been filed, inter alia , asserting that on 14.04.2006, in the evening at about 5:00, the appellant Anil Kumar was

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returning to his home after performing his work as an Electrician and Generator Operator, near Bhikkampur, a Motor Cycle bearing No. UA08 AF1756, which was being driven by one Jogesh Kumar S/o Balchand, resident of Durga Garh, PS Pathari, District Haridwar, dashed the appellant as it was driven in a rash and negligent manner and as a reason of the accident, the appellant received a serious injuries of fracture of his femur of right leg. He got admitted in the Government Hospital, Haridwar and later on in Loothra Nursing Home, Jwalapur, Haridwar. Because of the fracture, an iron rod was fixed to his leg. Because of this accident, he became physically disabled; he could not perform the duty as Electrician and Generator Operator. Hence, he claimed a sum of Rs. 20 lacs as compensation along with interest of 12% per annum. The opposite party no.1 denied the allegation of the accident.

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4. Opposite party no. 2 filed a written statement before the Tribunal, inter alia , averring that the motor vehicle bearing No. UA08 F-1756 was registered with him and it had a valid insurance on the fateful day and that without his knowledge and consent the opposite party no. 1 drove the vehicle and led to an accident. Opposite party no 3 has stated that the accident took place because of the negligence of the injured himself and that the appellant has not supported the claim of the spending Rs. 2 lacs by appropriate documents. On such pleadings, the Judge presiding the Tribunal framed 5 issues. All the issues were decided in favour of the claimant, however, the issue no. 5 was decided in a very parochial manner and only

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Rs. 15,000/- was granted to the appellant without giving a single rupee for the expenses incurred by the appellant towards his treatment. In paragraph 24 of the Judgment impugned, the learned Judge, Presiding has held that PW2 has asserted that in the treatment of his son, father of the petitioner/appellant has expended about Rs. 2,60,000/- to Rs. 2,70,000/- but he has filed bills of amounting of Rs. 2,06,400/-. However, the learned Court further held that such documents have not been proved by giving the evidence. The Doctor, who has treated, has not been examined in this case. Learned Trial Judge has further held that from the X-RAY report produced by the petitioner, it is apparent that in the accident there is a fracture in the leg of the injured but he disbelieved that for the purpose of the treatment of his fracture, such a heavy amount has been expended and no witnesses has been examined on that behalf. Learned Trial Court also held that such bills which have been produced before it were not proved by advice of a Doctor. For the reasons stated above, the Court came to the conclusion that the bills produced by the appellant did not inspire confidence.

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5. Though, notices were sufficient on opposite party nos. 1 & 2 i.e. driver and owner of the vehicle, respectively, but they did not choose to contest the appeal.

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6. Mr. Ashutosh Posti, learned counsel for the appellant submits that the procedure followed by and the Tribunal is erroneous and the appreciation of the Tribunal is erroneous and contrary to law.

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Learned counsel for the opposite party/respondent Mr. M.K.Goyal, on the other hand, submitted that in order to prove the medical bills, the Doctor has to be examined, otherwise it can not be held to be proved, accordance with law.

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7. Having considered the material on record and the provisions of the Motor Vehicles Act, we are of the opinion that the learned Presiding Judge of the Motor Accident Claim Tribunal has not adopted a proper procedure of appreciation, which will be demonstrated in this Judgement in the following paragraphs.

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8. First of all, Section 168 of the Motor Vehicles Act provides for an inquiry not for a trial. For the purpose of proper appreciation Section 168 of the Motor Vehicles Act is quoted herein under:

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168. Award of the Claims Tribunal.— On receipt of an application for compensation made under section 166, the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of [section 163] may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be: [****]

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(2) The Claims Tribunal shall arrange to deliver copies of the award to the parties concerned expeditiously and in any case within a period of fifteen days from the date of the award.

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(3) When an award is made under this section, the person who is required to pay any amount in terms of such award shall, within thirty days of the date of announcing the award by the Claims Tribunal, deposit

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the entire amount awarded in such manner as the Claims Tribunal may direct.

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9. Section 169 of the Motor Vehicles Act provides procedure and powers of the Claim Tribunal. It reads as follows:

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“169. Procedure and powers of Claims Tribunals.—

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(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit.

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(2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production of documents and material objects and for such other purposes as may be prescribed; and the Claims Tribunal shall be deemed to be a Civil Court for all the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

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(3) Subject to any rules that may be made in this behalf, the Claims Tribunal may, for the purpose of adjudicating upon any claim for compensation, choose one or more persons possessing special knowledge of and matter relevant to the inquiry to assist it in holding the inquiry.

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[(4) For the purpose of enforcement of its award, the Claims Tribunal shall also have all the powers of a Civil Court in the execution of a decree under the Code of Civil Procedure, 1908 (5 of 1908), as if the award were a decree for the payment of money by such court in a civil suit]”

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10. Thus, a joint reading of Section 168 and 169 of the Act of the Motor Vehicles Act, leaves no doubt in the mind of this Court that a Motor Accident Claim Tribunal is not a regular Civil Court, wherein the strict rules of evidence as enunciated in the Indian Evidence Act, 1872, should strictly be followed. In fact, the procedure undertaken by the Tribunal is an inquiry and it is not a trial. Even, the Indian Parliament in its wisdom has granted the liberty to the Tribunal holding any inquiry under Section 168 to follow such procedure as it thinks fit.

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Strictly, speaking an inquiry under the Motor Accident Claims Act, specially, with regard to an accident claim is not an adversarial proceedings rather it can be said that the Judge Presiding the Tribunal should have a proactive role and inquire into the matter to determine the truthfulness of the claim and the defences put fourth. In that view the matter, this Court is of the opinion that the order passed by the learned Presiding Officer of the Tribunal requires interference. Moreover, wherever, there is a motor accident, as a result of which a death has occurred or the claimant has suffered serious injures then a compensation should be paid, which should be just, fair and reasonable. What is just, fair and reasonable is always a question of fact, depending on the peculiar facts and circumstances of that particular case. Judging the case from the aforesaid angle, this Court is of the opinion that the compensation of Rs. 15,000/awarded to the claimant i.e. two months of loss of income and 5000/- for the loss of pain and suffering of pain and facture of femur bone of his leg, which was later on treated by fixing a metal rod is grossly inadequate. Hence this Court is inclined to enhance the same.

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11. This Court is inclined to grant Rs. 2,06,400/towards the medical expenses, for which medical bills has been produced by the claimant before the Tribunal. The appellant climes that he was earning Rs. 8,000/- per month as he was working as Electric and Generator mechanic. There is no rebuttal evidence to that assertion. Hence, this Court if of the opinion that Rs. 16,000/- should be granted to the appellant for loss of his income.

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12. As far as, pain and suffering is concerned, it cannot be decided in a mathematical formula. A person, who was 21 years old at the time of accident and suffers a serious injury like fracture of Femur bone, cannot be said to be properly compensated by giving a meagre amount of Rs. 5,000/- for the pain and sufferings, he suffered. It is not disputed that he remained confined to bed for two months and even after he was cured of that fracture and the related complications, he was suffering from the serious injuries of his Femur bone. In this situation, this Court is of the opinion that a sum of Rs. 50,000/should be granted to the claimant for the suffering and pain, he underwent because of the accident.

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13. Thus, in total a sum of Rs. 2,72,400/-, rounded up to Rs. 2,75,000/-is calculated as compensation to be paid to the appellant. The appellant is also entitled to simple interest at the rate of 6 % per annum from the date of filing of this appeal i.e. on 08.08.2011. As the vehicle was duly insured, the insurance company i.e. respondent no.3 herein, shall indemnify the appellant of the compensation mentioned above. However, the vehicle was being driven un-authorisedly by the opposite party no.1, who had no driving license, hence the insurance company has liberty to recover the money, so paid (compensation and interest) from the owner and offender of the vehicle i.e. opposite party no. 1 & 2 in the claim petition. Both, the opposite party no.1 and 2 are jointly and severally liable to the insurance company. The appeal is disposed of accordingly.

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14. There shall be no order as to costs.

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15. Urgent certified copy of this order be granted on proper application.

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(S.K.Mishra)

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Judge

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KKS

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Anil Kumar v. Jogesh Kumar

Case brief

What is this about?

What did the court decide?

Anil Kumar v. Jogesh Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

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