Jai Dayal vs Abdul Hafiz and Others

J.K. Ranka, J.—The instant civil misc. appeal has been filed by the appellant claimant under Section 173 of the Motor Vehicles Act for enhancement of the impugned order dated 10.2.2006 passed by the MACT, Khetri, District, Jhunjhunu, in claim case No. 67/2003, whereby the claim petition filed by the claimant has been partly allowed granting compensation of Rs. 1,30,955/- in favour of the claimant.

The brief facts as emerging on the face of record are that a claim petition came to be filed before the Tribunal with the averments that on 22.10.2002 in the morning at about 6 O'' Clock the claimant was going in his Truck bearing No. R.J.-14G-2846 after loading luggage from Jaipur to Sagli on Ahmedabad Road. When he reached near village Guha and in front of Saiganga Hotel then a vehicle Truck bearing No. M.P.-09KA-2937 which was being driven by non-petitioner No. 1 in a rash and negligent manner, came in front after wrongly overtaking a vehicle hit the truck of the claimant from driver side due to which the claimant and Khalasi sustained injuries. The report of the said incident was lodged by the Khalasi Ram Niwas at Police Station, Rahuri, upon which a FIR No. 213/2002 was registered against the non-petitioner No. 1 and after investigation a challan for offences under sections 279,337, 338 & 427 and under the provisions of the M.V. Act was submitted before the concerned court. It was averred that non-petitioner No. 1 was driver of the Truck bearing No. M.P.-09KA-2937, who drove the said truck rashly and negligently and caused the accident. The non-petitioner No. 2 is the owner of the Truck bearing No. M.P.-09KA-2937 and non-petitioner No. 3 is the Insurance Company with whom the truck was insured. Therefore, the claimant prayed to grant compensation to him from all the non-petitioners because they are responsible for the injuries caused to the claimant in the said accident.

The non-petitioners Nos. 1 & 2 did not appear before the Tribunal, therefore, ex parte proceedings against them were drawn. The non-petitioner Insurance Company filed their reply wherein it was pleaded that the accident took place on account of head on collision between the two vehicles Truck No. R.J.-14G-2846 and Truck bearing No. M.P.-09KA-2937, therefore, both the vehicles are jointly liable, but the claimant did not implead the owner of Truck No. R.J.-14G-2846 and its driver as also the Insurance Company as party to the claim petition. Ultimately, it was prayed to reject the claim petition.

After hearing the arguments advanced by the parties, the learned Tribunal framed as many as 5 issues including the issue of relief. In support of his claim, the claimant produced in oral evidence himself as A.D. 1 and A.D. 2 Bhagchand and A.D. 3 G.R. Meshram. The non-petitioner produced witness Mahavir Prasad Bohra in their defence. The Tribunal after considering the submissions of the counsel and perusing the material available on record passed the impugned award granting compensation of Rs. 1,30,955/- in favour of the claimant. Hence this appeal.

Mr. Ram Sharan Sharma, counsel for the appellant contended that the appellant was a driver and was aged about 42 years and on the faithful day of incident on 22/10/2002, suffered serious injuries and was also hospitalized for seven days and it is admitted that he suffered injuries to the extent of disability of 35% on account of the said incident/accident, now he is unable to drive the vehicle on account of the said serious injuries caused to him during the said accident. It is also admitted as per medical report and even the Doctor certified that he would be unable to drive the vehicle and will not be able to lead a normal life which other persons do have or before the incident took place he would be leading. He further contended that the Tribunal has only awarded a sum of Rs. 35,000/- towards future income, which is negligible and rather diminishing the claim. He further contended that the claim has been disproportionately allowed on the lower side and he further contended that the appellant working as a driver and driving a heavy vehicle namely; truck would certainly be receiving an income of at least Rs. 4,000/- per month rather more and contended that claim allowed by the Tribunal deserves to be substantially enhanced on the basis of overwhelming evidence on record. He further contended that small amount has been allowed on account of income at Rs. 1,800/- attendant Rs. 500/-, diet 3,000/-, transportation 10,000/- and small amount on another head which needs to be suitably enhanced.

Mr. Ram Sharan Sharma, Counsel for the appellant also relied upon the judgments rendered in the case of Sri Laxman @ Laxman Mourya Vs. Divisional Manager, Oritl. Ins. Company Ltd. and Another, ; Yadava Kumar v. The Divisional Manager, National Insurance Company Ltd. reported in MACD 2010 (SC) 217.

Per contra Ms. Sharda Pathak, counsel for the insurance company submitted that the Tribunal after considering each and every aspect of the matter has correctly allowed the claim to the extent of Rs. 1,30,955/- and after analyzing the evidence on record, she further contented that entire amount towards medical expenses amounting to Rs. 60,655/- was allowed on the basis of medical bills submitted and similarly entire claim has been allowed after appreciating evidence on record. She further contended that merely because the Doctor has certified disability to the extent of 35%, it does not mean that the appellant cannot do anything and also that the said disability was only temporary in nature and finally contended that reasonable claim has already been allowed, considering the fact that the incident is of the year 2002, the appeal deserves to be dismissed.

I have considered the arguments advanced by the counsel for the parties and have also perused the material available on record including the impugned order. It is an admitted fact that on account of the said accident which took place on 22/10/2002 when appellant was driving a truck bearing No. RJ-14G-2846 met with an accident with a truck bearing No. MP-09-KA-2937 at village Guha and on account of the said incident, he was seriously injured it is also admitted fact that FIR was lodged and even challan was filed u/S 279, 337, 338 & 427 IPC. It is also an admitted fact that the appellant was hospitalized initially at Nasik which was the nearest place after the incident and he was admitted in the hospital for almost about 8/9 days and as per the hospital report, it was opined by the treating Doctor that the appellant has to avoid putting weight on the injured leg for about three months, subsequent to that when he was treated at the local hospital, the Medical Board of Govt. B.D.K. Hospital Jhunjhunu certified that he had sustained disability to the extent of 35%.

It is true that the Tribunal has allowed claim to the extent of 1,30,955/-, in my view, it is on the lower side, the Tribunal though has observed in detail but has awarded only Rs. 35,000/- on account of disability to the extent of 35% but has ignored the loss of income which the appellant was certainly entitled to receive in the light of the injuries and even he was advised not to take full load on his injured leg for three months. Certainly on account of the said disability, the appellant may not be in a position to function in proper manner as he was functioning prior to the accident/incident and will have to suffer throughout his entire life. In my view, the amount directed by the Tribunal on account of loss of income Rs. 1,800/-, attendant Rs. 500/-, diet Rs. 3000/-, transportation Rs. 10,000/- and mental agony allowed at Rs. 10,000/- appears to be on the lower side and in my view, considering the judgments cited by the counsel for the appellant. In my view, it would be proper to enhance the claim by Rs. 1,50,000/-.

Accordingly, without specifying anything under various heads I deem it appropriate to enhance the claim by Rs. 1,50,000/- so as to make a total claim of Rs. 2,80,955/- out of which 1,30,955/- has already been allowed by the Tribunal. The balance amount or Rs. 1,50,000/- with interest @ 6% shall be allowed to the claimant from the date of award. The Tribunal is directed to deposit 85% of the enhanced amount alongwith interest rounded off to the nearest thousands in the name of the claimant in the Monthly Income Scheme (MIS) with the nearest Post Office of the residence of the claimant for a period of five years. The 5% of the enhanced amount with interest will be deposited in the name of the claimant in the saving account with the same post office with the direction to permit withdrawal of monthly interest/quarterly interest on the said Monthly Income Scheme to his account. The balance of the enhanced amount would be disbursed to the claimant by Bank Draft/Bankers Cheque. The above shall be done within a period of two months from the date of receipt of a certified copy of this order. It is made clear that the appellant will be allowed interest only as aforesaid and full amount on its maturity and will not be allowed to take a loan or pledge the same with the Post Office or raise a loan on the said MIS.

Consequently, the appeal stands disposed of, as indicated above.