Jamnalal vs R.J. Foujdar

R.K. Verma, J.—This is an appeal filed by the claimant-injured against the award dated 17.2.1987 passed in Claim Case No. 158/81 by the 1st Motor Accident Claims Tribunal, Indore, whereby the learned Tribunal has awarded an amount of Rs. 9,580/-as compensation together with interest @12% per annum from 20.7.81, the date of claim petition till realisation.

The facts giving rise to this appeal, briefly stated, are as follows:

On 3.5.81, the appellant-claimant, a hawker, while he was going with his Thela past Rani Saray Hostel, was hit by the offending bus bearing registration No. CPC-7424, owned by respondent No. 1 and driven by the respondent No. 2 and in respect of which the owner - respondent No. i stood insured by the Insurance Co - respondent No. 3 at the time of the accident. As a result of the accident, the appellant-claimant received serious injuries involving fracture in the right arm and his thela was also damaged.

On a claim petition having been filed by the appellant-claimant, the learned Tribunal, on appreciation of evidence adduced in the case, found that the appellant-claimant sustained serious injuries and his Thela was also damaged in the accident which occurred due to rash and negligent driving of the offending bus. The learned Tribunal found that the daily earning of the appellant amount to Rs. 25/- and that due to injuries suffered in the accident, the applicant could not carry on business for three months and as such, was deprived of income of Rs. 2.250/- .

As regards the quantum of compensation, the learned Tribunal assessed compensation in respect of the damage done to the thela and the articles thereon as Rs. 1,080/-, expenditure incurred by the claimant on medicines as Rs. 250/-, loss of earnings as Rs. 2,250/-, general damages for pain and suffering as Rs. 6,000/-. Accordingly, a total amount of Rs. 9,580/- has been awarded as compensation as aforesaid.

Being aggrieved by the inadequacy of the amount of compensation awarded by the learned Tribunal, the appellant-claimant has filed this appeal against the award.

The respondent No. 1, bus owner has, on the other hand, filed a cross-objection challenging the finding of rash and negligent driving as also the quantum of compensation alleging that it was excessive and unreasonable.

The learned Counsel for the appellant-claimant has submitted that the amount of Rs. 6,000/- awarded by way of general damages to the appellant-claimant is too inadequate in view of the fact that the injuries resulting in fracture in the claimant''s right arm has left a permanent disability to the extent of 50%, as established by medical evidence, which fact has not been considered by the learned Tribunal, while awarding general damages. The learned Counsel has in this connection referred to the evidence of Dr. S.K. Ohri (AW-5), professor in the Department of Orthopaedics, M. Y. Hospital, Indore, who has stated that on the claimant being admitted in the Orthopaedics Department of the Hospital, he found that the radius bone of the claimant''s right hand was fractured and he had performed operation for plating. He has further deposed that after six months he had again examined the claimant and found that the claimant had acquired a permanent disability of the right hand which reduced his efficiency to the extent of 50%.

Learned Counsel for the appellant has cited a decision in Jagan Nath Vs. State of Himachal Pradesh and Others, wherein for a permanent disability of 80% resulting from the fracture of left arm, the injured claimant was awarded Rs. 25,000/-Learned Counsel has submitted that the amount of general damages payable to the claimant should be raised from 6,000/- as awarded by the learned Tribunal to at least Rs. 15,000/- on the basis of the authority cited since the extent of disability in the instant case is only 50% and not 80%.

It is true that the learned Tribunal has not considered the important factor of permanent disability suffered by the appellant-claimant. Considering the extent of disability of the claimant''s right hand, pain and suffering and loss of amenities of life as a result of permanent disability. I deem it reasonable to accept the submission of the learned Counsel for the appellant that the amount of general damages awarded, should be enhanced from Rs. 6,000/- to Rs. 15,000/- for just and proper compensation.

As regards cross-objection filed on behalf of the bus-owner- respondent No. 1, the finding of the learned Tribunal on the question of rash and negligent driving of the bus has been challenged, but the learned Counsel for the respondent No. 1 has not been able to point out as to how the finding of the learned Tribunal on that question is unreasonable. The finding is based on a proper appreciation of evidence on record and there is no valid reason to interfere with the same. The cross-objection, is therefore, rejected.

In the result, this appeal is partly allowed. The amount of compensation is enhanced on the score of general damages from Rs. 6,000/- to Rs. 15,000/- and accordingly the total compensation of Rs. 9,580/- as awarded by the learned Tribunal, is modified by raising it to Rs. 18,580/- with interest @12% from the date of claim petition till the date of realisation. There shall, however, be no order as to costs which shall be borne by the parties as incurred.