Dayal Singh vs Ram Singh and Another

G.D. Saxena, J.—This appeal preferred u/s 173 of the Motor Vehicles Act 1988 is directed against an Award dated 22nd July 2004 in Claim Case No. 18/2003 passed by the Additional Member of the Motor Accident Claims Tribunal, Vidisha (M.P.), seeking enhancement of the amount of compensation. The facts in short are that on 18th May 2002 at about 6 p.m., when the appellant was going as pedestrian to his village Khiriya Kasai then on the public way he was dashed by Ram Singh (Respondent No. 1) with motorbike owned by Dayaram (Respondent No. 2) Suzuki bearing Registration No. MP40/B-1243, causing grievous injuries. The injured lodged the F.I.R. on the same day at the concerned police station on which crime was registered against the driver of the offending vehicle. After investigation, the charge-sheet was filed against the driver before the criminal court. In such circumstances, the injured/applicant filed a petition u/s 166 of the Act before the claims Tribunal seeking compensation for a sum of Rs. 1,50,000/- in all heads against the owner and driver of the vehicle. The learned tribunal after considering the evidence of the parties issued an Award for Rs. 6,000/- alongwith interest @ 9% against the respondents. Being aggrieved, the appellant/claimant submitted this appeal for enhancement of the award amount up to Rs. 90,000/- alongwith interest against the respondents, i.e., owner and driver.

Learned counsel for the appellant contended that the award assailed in the appeal was against the oral and documentary evidence produced on record, hence, same is liable to be enhanced up to the limit of Rs. 90,000/- with interest. It is submitted that the learned tribunal did not scrutinise the statement of treating Physician and the disability of knee joint suffered by the injured which restricted from moving the leg up to 62%. It is submitted that the disability certificate in that respect is issued in favour of the claimant by the competent authority but the same was ignored. On the basis of the aforesaid submissions, it is prayed that by allowing the appeal, the award amount may be enhanced keeping in view the nature of the injuries and the disability sustained by the injured in an accident.

The submissions put forth on behalf of the respondents are that the learned tribunal after considering and evaluating the evidence on record passed the award which does not require to be enhanced. It is therefore requested that by confirming the impugned Award, the appeal may be dismissed. In support of the submissions, reliance is placed on the decisions in the cases of Kamal Kumar Jain Vs. Tazuddin and Others, and Jai Prakash Sharma Vs. Balkrishna @ another 2007 (5) MPHT (MP) 80.

Heard the learned appearing for the parties. Also perused the record of the case.

Now, what compensation should be awarded to a claimant on account of injuries received in an accident is a question for consideration before this court.

On perusal of the entire evidence oral and documentary on record, it seems that due to rash and negligent driving by Ram Singh, the accident with motorbike happened in which appellant Dayal Singh sustained injuries. It is also admitted that after accident injured Dayal Singh lodged the F.I.R. against Ram Singh, the driver of the vehicle. It also appears that after accident, the injured Dayal Singh (AW-1) was examined by Dr. Nirmal Singh Jatav (AW-4) who found six injuries. All injuries except No. 4 a bruise mark with tenderness and inflammation on left knee were simple in nature. The doctor advised X-ray of left knee but no X-ray plate or report regarding fracture or bony injury in left knee was filed or proved by the claimant. The certificate (Ex. P/8) issued by Dr. Nirmal Singh Jatav (AW-4) shows damage towards left knee joint capsule about 65% but the same doctor in his cross-examination admitted that he is not an Orthopaedic Surgeon nor he is treating physician of the claimant. It also appears that the claimant had not filed any prescription of the treating physician, surgeon, nor any cash memos of purchasing medicines. The doctor''s statement determining the loss of disability should be based upon scientific tests. Mere fracture of bone and its re-union will not amount to permanent disablement. Hence, in the opinion of this court, the learned tribunal has rightly examined the case of the claimant. Without performing scientific tests mere certificate given by the doctor who is neither expert nor treating physician is not sufficient for determining the percentage of disability of the claimant. Injured Dayal Singh in his evidence deposed that he got treatment in Government Hospital Kurwai, District Hospital Vidisha and Hamidia Hospital Bhopal. Dr. Naval Singh Yadav was his treating physician. But, as noticed above, no document with regard to medical expenses, certificate of permanent disability issued by the competent surgeon or orthopaedic physician are submitted on record, therefore, in the absence of such material, the appellant can be held entitled to claim at least heads under which normally compensation is awarded in personal injury cases. In that view of the matter, Rs. 5,000/- is awarded towards the damages for pain, suffering and trauma as a consequence of the injuries, Rs. 10,000/- towards medical expenses though not supported by bills/vouchers, Rs. 2,000/for nourishing food and Rs. 10,000/- towards loss of earning during the period of treatment. So, the appellant is to receive compensation in lump sum of Rs. 27,000/- (Rs. Twenty Seven Thousand Only) in all above heads. As a result, the appeal of claimant/appellant is hereby allowed and the award passed by the learned tribunal is hereby enhanced to Rs. 27,000/- (Rs. Twenty Seven Thousand Only) with interest @. 7% per annum from the date of filing appeal which shall be paid jointly or severally by the owner and driver of the vehicle involved in accident. The cost of appeal of claimant shall be borne by respondents. Counsel fee Rs. 1000/-, (Rs. One thousand Only) if certified.