Devesh Sharma and Another vs Karan Singh

G.D. Saxena, J.—This appeal u/s 173 of the Motor Vehicles Act 1988 is preferred by the appellants, who are owner and driver of the offending vehicle against an Award dated 6th February 2006 in Claim Case No. 134/2005 passed by the First Additional Motor Accident Claims Tribunal, Shivpuri (M.P.), challenging the findings on the point of contributory negligence on their part and praying to absolve them from the liability of satisfying the awarded amount. The facts, in brief, are that on 20th March 2005 at about 8.45 a.m., the claimant-injured was returning after filling the patrol, back to his village Barad on his motor Cycle bearing Registration No. MP 33B/6772 with a pillion-rider Radha Mohan. In mid-way, the appellants who were on their Motorcycle bearing No. MP 33BA 1933, alleged to have come rashly and negligently from opposite side and dashed the vehicle of injured from front side resulting grievous injuries were sustained on his person by the claimant/injured. An F.I.R. was lodged on which a crime for offence under sections 279 and 337 of I.P.C. was registered and after investigation the charge-sheet was filed before the criminal court. The claimant filed the petition u/s 166 of the Act against the wrong-doer/appellants. After considering the evidence on record, the learned tribunal passed an award for Rs. 60,000/- and being the case of contributory negligence, the liability of 50% was determined for paying compensation amount of Rs. 30,000/- to the claimant by the appellants. The counter report of the incident was also lodged by the appellants against the claimant being the driver of the motorcycle involved in accident on which a crime was registered u/s 279 /337 of I.P.C. against the claimant/injured. After investigation the charge-sheet was also filed against the claimant/respondent before the court.

The contentions put forth on behalf of the appellants are that the award under appeal is not in consonance with the evidence as adduced before the tribunal. It is submitted that tribunal without properly assessing the evidence granted compensation on the basis of permanent disability caused to the claimant whereas no such proof was placed by him. It is further submitted that the learned tribunal failed to appreciate that the claimant himself was responsible for accident and therefore he cannot be rewarded for his wrong. On the basis of the said submissions, it is prayed that by allowing the appeal, the award passed in favour of the claimant/injured may be set aside.

On the other hand, the respondent-injured submitted that the learned tribunal passed the award on lower side. It is submitted that in vehicular accident, the claimant sustained fracture of scapular and tibia bones which were not united completely for three months and therefore during this period, claimant could not do his routine work. It is submitted that after getting treatment he got 10% permanent disablement. Hence, it is prayed that the award amount may be enhanced to that extent.

Heard the learned counsel for the parties. Also perused the evidence on record.

The question which arises for consideration in this appeal is whether the learned tribunal, on considering the evidence as adduced by the parties, rightly awarded the compensation for the injuries caused in an accident to the claimant holding the case to be covered by the principles of contributory negligence?

Injured Karan Singh (AW-1) deposed that on 20th March 2005 at about 8-45 a.m., he was returning, after filling fuel, back to village Berad on his motorcycle No. MP 33 B/6772. At that moment, by driving motorcycle No. 33 BA/1933 Devesh Sharma caused head on collision to his motorcycle. Resultantly, he was seriously injured and was taken to the Primary Health Centre at Berad and after giving first aid he was referred and shifted to the District Hospital Shivpuri. The FIR was lodged at Police Station Berad. He got fracture in left leg knee, left hand and shoulder. He was under treatment for forty days. After treatment at present he is unable to walk and drive bicycle/motorcycle.

Dr. S.K. Bansal (AW-2) deposed that being member of District Medical Board, on examining Karan Singh, he found that the left knee was in stiffness up to degree of 10% and was unable for movement. Therefore, according to him, there was permanent disability of that part. On x-ray of injured Karan Singh it reveals fracture of lower upper tibia and scapula bone.

Appellant Devesh Verma (NAW-1) deposed that on 20th March 2005 he was going to fill in petrol in his motorcycle No. No. 33 BA/1933 to Berad Petrol Pump. In mid-way, the claimant Karan Singh by driving rashly and negligently his motorcycle dashed against his motorcycle from front side. Resultantly, he fell down and got injuries on shoulder, chest, elbow joint of hand and knee. In the accident, his motorcycle was also damaged. He lodged F.I.R. against the claimant Karan Singh on which a crime for offence u/s 279 and 337 of I.P.C. was registered against the claimant Karan Singh and after investigation the charge sheet was filed before the Criminal Court. However, on perusal of the x-ray report (Ex. D/5), the injuries caused to him appear to be simple in nature.

On considering the aforesaid evidence, the learned trial court awarded compensation to the extent of Rs. 60,000/- in all heads to the claimant. It is submitted by the learned counsel for the claimant that looking to his age of 50 years, expenses under the heads of treatment, hospitalisation, medicines, nourishing food including damages for pain, suffering and trauma as a consequence of the injuries, compensation awarded by the learned tribunal appears to be inadequate. As per the learned counsel, considering the aforesaid aspects, compensation should be Rs. 10,000/- for medical expenses, Rs. 25,000/- for pain and suffering, Rs. 50,000/- for loss of income during treatment, Rs. 5,000/- for nourishing food, Rs. 5,000/- for transportation to and fro and Rs. 10,000/- for nursing services during period of ailment and sufferings. After hearing the counsel for the parties and considering the evidence, this court finds that the claimant was not properly compensated under the heads mentioned above. As discussed above, the appellant remained in hospital for his treatment. He suffered 10% permanent disability even after coming out of the hospital and is unable to walk and drive the motorcycle/bicycle. Therefore, a sum of Rs. 60,000/- under all the heads appears to be wholly inadequate. In the facts and circumstances of the case, this court thus feels that an additional sum of Rs. 40,000/- must be paid to the claimant/respondent to adequately and properly compensate him under the heads mentioned above. Accordingly, the claimant/injured is held entitled to receive Rs. 40,000/- in addition to the award amount of Rs. 60,000/- which will carry 7 % interest on enhanced amount from the date of appeal till date of realization. On the basis of the evidence, the learned tribunal has clearly indicated that both motor-cyclists were wrong doers and both were responsible for causing accident. So, in the present case, on contributory negligence, both the owners of the opposite vehicles are responsible up to their role of negligence. Consequently, the claimant/respondent shall be entitled to receive Rs. 50,000/- on the part of other wrong doer which shall be paid by the appellants within a period of sixty days from the order of this court and rest 50% of the claim amount shall be borne by himself. The appeal for dismissal of award by the appellants is hereby dismissed. The cross-objection filed under Order 41 Rule 22 of C.P.C. is hereby party allowed up to the extent mentioned above.