Babu Singh vs Mohd. Irfan Khan and Others

A.K. Gohil, J.—Claimant, being aggrieved of the award dated 26-7-1995 passed by Second Additional Motor Accident Claims Tribunal, Morena in Claim Case No. 111/94, has filed this appeal u/s 173 of the Motor Vehicle Act for enhancement of compensation.

The brief facts leading to the appeal are that on 10-5-1993, the appellant Babu Singh was travelling on his motorcycle bearing registration No. M.P. 06/7592 and was going towards his Village Kot (Parosa). He was sitting alongwith deceased Rajesh and Tej Singh on the motorcycle. Rajesh was driving the motorcycle and Babu Singh was sitting as a Pillion rider. When the motorcycle reached near Budhara Pul, one jeep bearing No. M.B.W. 1676, which was coming from Gormi side being driven rashly and negligently, dashed the motorcycle, as a result of which, Babu Singh sustained severe injuries and fracture in his left leg. The matter was reported to the Police Station Porsa, where Crime No. 68/93 was registered and Babu Singh was referred to hospital for treatment. Thereafter, the claimant had filed petition for compensation.

In the claim petition, the submission of the claimant was that because of the accident, he sustained severe injuries. He was aged 22 years at the time of accident. He remained hospitalised in Morena Hospital for about 46 days and thereafter he was treated at Shri Ram Hospital, Agra. Four operations were performed. Grafting of bone was also done and his left leg became short by one inch. There were fracture in Femur bone and tibia and fibula bone. It is stated that he was working as a Tube-well Operator and was earning Rs. 20,000/-per annum and was also doing the work of motor-winding and out of that he was earning Rs. 15,000/- per annum. The Tribunal after considering the evidence, awarded a total compensation of Rs. 30,000/- in all the heads. Aggrieved thereof, the claimant has filed the present appeal for enhancement of the compensation amount.

We have heard the learned Counsel for the parties on the question of quantum and perused the evidence on record. We are of the view that the Tribunal was not justified in awarding the compensation. The Tribunal has not properly assessed the evidence on record and has also not assessed the medical evidence meticulously and even basic principles of granting compensation were ignored. Claimant has examined Dr. R.C. Bandil (P.W. 5), who is a government doctor at Morena and has issued the certificate (Exh. P-8) regarding fracture, nailing and shortening of leg. True it is, the doctor has not specifically mentioned about the percentage of disability and since there is no mention of percentage of disability, therefore, the same has to be assessed from the medical evidence available on record. In the certificate (Exh. P-8) doctor has stated that there was fracture of femur bone for which nailing was done and also a fracture of left tibia and fibula bone for which the treatment was being going on. It has further been mentioned in the certificate that there is a loss of part of tibia, due to which there is shortening of left leg and because of shortening of left lower limb, it was the case of permanent disability. This is also clear from the fact that four operations were performed and the claimant was treated for a long time. From the treatment papers it can be assessed that it is a case of shortening of leg and looking to the nature of injuries that he had suffered two fractures in femur and tibia & fibula bones, some documents of further treatment have also been introduced at the appellate stage, which reveals that from the date of accident, i.e., from the year 1993 up to the year 1998, he was regularly visiting one hospital to another for treatment. Appellant is a young man and looking to the shortening of leg, it can be held that permanent disability is upto 25%.

It was argued by the respondent''s counsel that being pillion rider, it is a case of contributory negligence. In this regard recently in the case of Devi Singh Vs. Vikram Singh and Others, , Hon''ble the Chief Justice Shri A.K. Patnaik, J., speaking for Full Bench has held as under:

(1) Violation of Section 128 of Act, per se, by a motor cyclist does not raise a presumption of contributory negligence on his part.

(2) Similarly, violation of Section 128 of the Act per se does not amount to contributory negligence on the part of the pillion riders.

(3) A pillion rider cannot put up a plea of composite negligence by the driver of the motorcycle, if the driver only violates Section 128 of the Act.

In view of the aforesaid law laid down by the Full Bench, we are of the view that it is not a case of contributory negligence.

So far as the income of deceased is concerned, no documentary evidence has been produced on record. Even if it is assumed that he was working as Mechanic and was engaged in Tube- well Operation and motor-winding work, then his income can be assessed at Rs. 2,500/- per month and Rs. 30,000/- per annum. In such a case, if permanent disability is assessed upto to 25%, then there would be loss of income of Rs. 7,500/- per annum. The Tribunal has not properly considered the evidence while not awarding a sum in the head of permanent disability. Thus, considering the medical papers and the evidence on record including the medical evidence and considering the loss of Rs. 7,500/- per annum and looking to the age of the injured as 22 years at the time accident to which multiplier of 17 would be applicable, we award a sum Rs. 1,27,500/- in the head of permanent disability. Looking to the fact that injured remained admitted in various hospitals, he was treated for long period and even after the disposal of the claim case from the Claims Tribunal, he was also receiving treatment though only bills amounting to Rs. 10,500/- were produced before the Tribunal and some bills have been produced at the appellate stage for the amount around Rs. 2,500-3,000/- but looking to the fact that he suffered pain for a long period and he remained hospitalised, therefore, in all the heads including treatment, special diet, pain & suffering and misc. expenses, we award a sum of Rs. 50,000/-. We further award a sum of Rs. 50,000/- for future treatment to the claimant. Thus, the total compensation is enhanced from Rs. 30,000/- to Rs. 2,27,500/- (Rupees two lac twenty seven thousand and five hundred). The enhanced amount shall carry interest @9% per annum. At this juncture, Shri B.N. Malhotra, learned Counsel submitted that this appeal remained pending because of the fault of the appellant. Initially the appellant did not bother for payment of process fee and service was not affected on respondent Nos. 1 and 2. Therefore, he submitted that the interest for the period during which the appeal remained pending because of the fault of the appellant be not awarded in favour of the appellant. We have perused the previous order-sheets and found that on 28-10-96 and again on 1-12-2004 direction was given to serve the notice on respondent Nos. 1 and 2 through publication but no steps were taken and ultimately the appeal was dismissed on 1-12-04 and thereafter it was restored on 23-4-07 in the interest of justice. Therefore, during the pendency of the appeal from 28-10-96 to 11-10-07, the appellant is certainly not entitled to interest on the enhanced amount of compensation.

Thus, we direct that the appellant would be entitled for interest from the date of filing of claim petition, i.e., 17-9-1993 to 26-7-95 and from the date of passing of this judgment onwards. The Compensation amount so awarded, except the sum of Rs. 50,000/- awarded under the head of future treatment, shall be deposited with the Nationlised Bank for a fixed period of seven years so that the appellant shall regularly get interest either monthly or quarterly for his livelihood in future.

Accordingly, the appeal stands allowed and disposed of to the extent indicated hereinabove with cost of Rs. 1,000/- to Counsel for appellant.