Bhanu Namdev vs Chhotelal and Others

G.D. Saxena, J.—This appeal u/s 173 of the Motor Vehicles Act 1988 is preferred against an Award dated 18th August 2005 dismissing his entire claim vide Case No. 9/2004 by the Second Additional Motor Accident Claims Tribunal Ashoknagar, district Guna with a prayer that looking to 25% permanent disability suffered by the appellant in an accident, the compensation amount up to the extent of Rs. 5,00,000/- may be ordered and directed to be paid by the owner, driver as well as insurer in a joint or several manner. The admitted facts of the case are that on 20th March 2004 at about 12 p.m., while claimant was going to attend School situated at Bazaria Mohalla Ashoknagar, the driver (respondent No. 2) by driving the tractor bearing registration No. MP08 S/5674 in a high speed dashed him from front side resulting he sustained grievous injuries. On lodging F.I.R., the crime for offence u/s 279 and 337 of I.P.C. was registered and after investigation, the charge sheet was filed. The criminal case registered against respondent No. 2 is under progress. By moving the petition before the learned tribunal, the claimant prayed for compensation amount of Rs. 6,20,000/- in all heads against the owner, driver and the insurer. The learned tribunal after considering the evidence and the documents on record, by holding that the petitioner failed to prove the accident and the injuries caused on account of its consequence, dismissed the entire claim. Being aggrieved, the claimant filed the present appeal.

The submission put forth on behalf of the injured/appellant is that the finding recorded by the learned tribunal that the claimant could not prove the accident by evidence which entailed dismissal of his claim is against the facts as came out from the evidence and the law. It is admitted that on the report of the treating doctor, the report of vehicular accident was lodged and thereafter during inquiry from the eyewitnesses of the local vicinity, it was confirmed that the tractor driven by the respondent No. 2 was involved in the accident. Accordingly, the F.I.R. was lodged against respondent No. 2-driver by the Inquiry Officer. The charge-sheet after investigation against the respondent No. 2 was filed and criminal case in regard to the accident was in progress. It is submitted that these facts clearly indicate the involvement of the vehicle and driver in the alleged accident. The contention of the appellant is that after accident, the appellant who is 15 years old boy was seriously injured and due to bony injuries in clavicle and hip bone, he was 25% permanently disabled. A huge amount was spent in his treatment and due to permanent disablement his bright future life is spoiled. It is thus prayed that by allowing the appeal the impugned findings of the tribunal may be set aside and appropriate award of compensation may be passed in favour of the appellant/injured.

The respondent No. 3/Insurance company, on the other hand, contended that the learned tribunal after assessment of the evidence rightly concluded that the claimant-appellant could not prove by cogent evidence the involvement of the vehicle in an accident and he further failed to prove that the accident was result of rash and negligent driving on the part of the driver respondent No. 2. Therefore it is prayed that by confirming the findings of the tribunal, the appeal may be dismissed.

Heard the learned counsel for the parties. Also perused the record of the case and the evidence with the assistance of the learned counsel for the parties.

To prove the accident caused by the tractor, driven by the respondent No. 2, the claimant examined his mother-cum-guardian Smt. Guddibai @ Narmadibai (AW-1), though she was not present on the spot. The injured Bhanu (AW-2) in his statement before the tribunal confirmed the accident by offending tractor but he did not name the respondent No. 2 as driver of the vehicle involved. Ashok Kumar (AW-3), who is a resident of the same vicinity and Kanhaiyalal Namdev (AW-5), uncle of the claimant and chance witness deposed that they saw that driver Chhotelal of the offending tractor caused the accident by his rash and negligent driving as a result, the claimant sustained grievous injuries. These witnesses shifted the injured to the hospital for immediate medical treatment. The treating doctor sent the report of accident to the Police Station Ashoknagar. After primary medical aid, the injured was referred for further treatment by the specialists to the District Hospital Guna. Dr. D.K. Jain (AW-4) being posted in the District Hospital Ashoknagar at first treated the injured and gave him primary medical aid. He confirmed that he sent the report to the police Station Ashoknagar at about 1-55 p.m. for necessary action. Mewaram Udwanshi (AW-5) deposed that during his posting in the Police Station Ashoknagar, he conducted the inquiry on the report of accident received from the treating doctor of the Government Hospital Ashoknagar. He recorded statements of Kanhaiyalal, Kabul Gwal and Harpal Bagdi, the eyewitnesses of the accident with respect to confirmation of the accident caused by the driver of the offending vehicle. The FIR (Ex. P/59) was written by him. He also prepared spot map (Ex. P/60) in the presence of Ashok and Golu Soni and seized the tractor from possession of Chhotelal, driver.

The driver Chhotelal (NAW-1) appeared before the tribunal for contradicting that the accident was caused by his rash and negligent driving of the tractor involved in accident. He deposed that no accident from his tractor happened with claimant on that date and time. He stated that a false case on the basis of fabricated evidence was lodged against him. His driving licence is (Ex. D/1) which was issued after three months from the accident. He further deposed that at the time of accident, the tractor was kept in front of his house and the injured was playing on the tractor and fell down on the ground and received injuries. Insurance Policy (Ex. D/3) of the vehicle pertaining to the period from 10th December 2004 to 9th December 2005 is on record.

From perusal of the whole evidence on record, the incident is found to be proved by the statements of the eye-witnesses and the Investigating Officer which in turn shows that the accident was direct result of rash and negligent driving by the driver in an residential and commercial vicinity near the area of Educational Institutions where more caution and skill is required for the drivers of the vehicles, which being not followed in the present case, resulted in accident and injuries to the school-going boy.

Dr. D.K. Jain (AW-4) who attended the injured after accident in a Government Hospital at Ashoknagar and also informed the police about the accident with the injured child stated that on examination he found one contusion with abrasion of size 16 x 5 cm on right side of chest and suspected a fracture in right ribs and right clavicle bone due to said vehicular accident. He advised and referred the injured for X-ray examination to the District Hospital Guna. Injury report is Ex. P/70. X-ray report (Ex. P/62) reveals fracture in 5th metacarpal bone of left leg. The Discharge ticket (Ex. P/67) of the District Hospital Guna reveals that the injured child was admitted in Male Surgical Ward from 20th March 2004 to 5th April 2004.

Dr. M.S. Dubey (wrongly typed as AW-5) who examined the claimant on 20th July 2005 at his clinic deposed that on examination and by X-ray of the injured, he found an old healed fracture in right clavicle bone and pubic symphysis in pelvic hip. He, in cross-examination admitted that ordinary the clavicle bone is united within four months and defect in pelvic bone is also cured and united within six weeks.

The claimant in this case has filed the Disability Certificate dated 16th June 2004 (Ex. P/68) issued by the District Medical Board Guna which clearly mentions fractures of clavicle and pelvic bone while assessing 25% permanent disability of injured Bhanu Namdev. As mentioned above, Dr. M.S. Dubey (AW-6) stated in his cross-examination that ordinarily clavicle bone of injured is united within four months and pelvic bone is cured and united within six months so, on the basis of this medical opinion, it can be said that no disability of permanent nature was caused to the claimant/injured.

Hence, looking to the period that may require for curing the injuries and complete rest from the date of accident as four months, the injured can be held entitled to receive Rs. 5,000/- for medical reimbursement of medicines, Rs. 5,000/- for pains and sufferings, Rs. 10,000/- for nursing and care of injured during treatment period, Rs. 3,000/- for nourishing and supplementary food required, and Rs. 2,000/- towards transportation charges from Ashoknagar to Guna and back for further and better treatment. In this manner, the claimant is entitled to receive total sum of Rs. 25,000/-(Rs. Twenty Five Thousand Only) alongwith an interest @ 7%, per annum on the award amount from the date of petition filed before the tribunal till full and final payment of the award amount payable either severally or jointly by the respondents. The cost of the claimant shall be borne by the respondents. Counsel Fee Rs. 500/-, if certified. Accordingly, the finding of the learned tribunal holding that for want of proving the accident, the claim petition is dismissed'' is hereby set aside. The appeal stands allowed in part as indicated above.