Avinash vs Nimmalal Nageshwarrao and Others

A.S. Chandurkar, J.—This appeal filed under Section 173 of the Motor Vehicles Act, 1988 (in short, "the said Act") seeks enhancement in the amount of compensation awarded by the Motor Accident Claims Tribunal, Yavatmal. According to the appellant, he was travelling in a Tempo-Trax that was involved in an accident on 1.7.1994 resulting in various injuries. According to the appellant, said vehicle driven by him was dashed by a truck coming from opposite side. The appellant suffered various injuries and his vehicle was also damaged. According to the appellant, he was aged about 22 years when the accident took place and he was earning an amount of Rs. 2,500/- per month by working as a idol-maker. According to him, he was entitled for compensation of Rs. 3,00,000/- on account of said accident. He, therefore, filed the proceedings under Section 166 of the said Act.

The proceedings were contested by the respondent No. 2-Insurance Company. Though the policy was admitted to cover the vehicle in question, a stand was taken that the claim as made was excessive and that no terms and conditions of the policy were breached by the driver of the truck. On aforesaid counts the claim for compensation came to be opposed.

The claimant examined himself vide Exh.-36 and placed on record copy of the F.I.R., spot panchanama, discharge card and a certificate issued by the doctor regarding his injuries. Some other documents relating to expenses on spectacles and medicines were also placed on record. Said witness was cross-examined by the counsel for the Insurance Company. It was suggested that his driving licence was not produced on record. He denied the suggestion that the accident occurred due to his negligent driving.

Learned Member of the Claims Tribunal after considering the evidence on record came to the conclusion that there was contributory negligence of the drivers of both vehicles resulting in the accident. Learned Member, therefore, awarded compensation of Rs. 25,000/- including the amount of no fault liability. Hence, this appeal by the claimant seeking further enhancement in the amount of compensation.

Shri A.V. Bhide, learned counsel for the appellant submitted that considering the evidence available on record the claimant was entitled for higher compensation. It was submitted that as a result of said accident the appellant had suffered disability to the extent of 15% along with disfigurement of his face. The appellant was working as a idol-maker and was earning Rs. 2,500/- per month. He submitted that considering the documents placed on record along with nature of cross-examination of the appellant, he was entitled for higher compensation.

Mrs. Mrunal Naik, learned counsel for the respondent No. 2 opposed the aforesaid submissions. It was submitted that the amount of compensation as granted was sufficient considering the evidence on record. It was submitted that the age of the appellant was 30 years as mentioned by him in F.I.R. Similarly, there was no evidence as regards actual income of the appellant. Though the certificate issued by the Medical Officer was placed on record, the Medical Officer, who had issued said certificate, had not been examined. Relying upon the judgment of the Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and Another, it was submitted that in absence of evidence of Medical Practitioner said certificate could not be taken into consideration. It was then submitted that though the accident had occurred on 1.7.1994 the proceedings were pending till about 2003 and, therefore, in case the amount of compensation is enhanced the appellant should not be granted interest considering the facts of the case.

Following points arise for consideration in the appeal :

i) Whether the judgment of the Claims Tribunal deserves to be interfered with ?

ii) What order ?

With the assistance of learned counsel for the parties, I have perused the records of the case. I have also gone through the material placed on record. The finding recorded by the Claims Tribunal in para 11 of the judgment as regards contributory negligence of the drivers of both vehicles is not under challenge. The only aspect is the prayer for enhancement in the amount of compensation.

The appellant in his deposition at Exh.-36 stated that he was working as an idol-maker and was earning Rs. 2,500/- per month. There are, however, no documents placed on record to indicate the actual income earned by the appellant. At the same time it is to be noted that there is no specific cross-examination on the statement of the appellant that he was earning Rs. 2,500/- per month. Learned Member of the Claims Tribunal in the impugned judgment has not recorded any finding that the amount of Rs. 2,500/- per month as stated by the appellant is found to be false.

Though the appellant in his claim application had stated that he was aged about 22 years, considering the F.I.R. at Exh.-37 in which the appellant has stated that he was aged 30 years, same will have to be taken as his age. The claimant has further stated that he was unmarried when the accident took place. As regards injuries suffered by the appellant he has relied upon a certificate at Exh.-40 issued by the Medical Officer stating disability to the extent of 15% with disfigurement of his face. He has also relied upon the discharge card at Exh.-39 as well as prescription given for medicines and spectacle at Exh.-35. Though the learned counsel for the respondent has relied upon the judgment of the Supreme Court in Raj Kumar (supra), it is to be noted that in the present proceedings the Claims Tribunal decided the claim application on 3.4.2003 while the judgment of the Supreme Court in Raj Kumar (supra) is dated 18.10.2010. In aforesaid decision, it has been observed that the Tribunal should require evidence of the Doctor who has examined the injured or who has assessed the disability. Certain further observations in aforesaid decision indicate the steps to be taken by the Tribunal while determining the amount of just compensation in injury cases.

In the facts of the present case when the appellant had placed on record certificate at Exh.-40 issued by the Medical Officer, Civil Hospital, Yavatmal and there was no cross-examination as regards said certificate coupled with the fact that the proceedings were decided much prior to the decision of the Supreme Court in the case of Raj Kumar (supra), in the present facts, cognizance of the said medical certificate can be taken into consideration for the purposes of considering the injuries suffered by the appellant. Said certificate, therefore, cannot be wholly discarded.

Thus, considering the injuries suffered by the appellant along with medical treatment taken by him as is clear from the documents i.e. Exhs.-39 to 42 and considering the age of the appellant, an amount of Rs. 50,000/- appears to be just and reasonable compensation to be awarded to the appellant.

As regards rate of interest at which the amount of compensation is to be paid, learned counsel for the respondent No. 2 by relying upon the case of New India Assurance Co. Vs. Kamla Devi and Others, has submitted that the period of pendency of the proceedings deserves to be taken into consideration. In aforesaid case, the real owner was impleaded by claimant therein after a long period of time before the Claims Tribunal. On that ground the claimant was denied interest. In the facts of the present case there is nothing on record to indicate any deliberate delay caused by the appellant. The record, however, indicates that the proceedings were permitted to be amended in terms of order passed by the Tribunal on 3.9.2002. The Tribunal has awarded interest at the rate 9% p.a. from the date of petition till realization. Considering the facts of the case and as the accident took place on 1.7.1994, interest at the rate of 6% p.a. would serve the interests of justice. The points as framed are answered accordingly and it is held that the appellant is entitled for compensation of Rs. 50,000/- with 6% interest from 23.12.1994 till realization. Needless to state that the amounts already received by the appellant shall be duly accounted for.

First Appeal is allowed in aforesaid terms. No costs.