Kishori vs R.K. Agarwal And Others

Sudhanshu Dhulia, J

This appeal from order arises out of Award dated 06.01.2015 passed by the Motor Accident Claims Tribunal, Nainital in M.A.C.P. No. 148 of 2012, whereby the learned Tribunal has awarded a compensation of Rs. 1,30,000/- (Rupees One Lakh Thirty Thousand only) along with an interest at the rate of eight per cent per annum from the date of filing of the claim petition, to the injured/claimant.

Brief facts of the case are that a claim petition was filed by the claimant stating that on 18.12.2011 at about 02:30 P.M., while he was returning on his three-wheeler "Vikram", from Gora Parao to Haldwani, and had reached Subhash Nagar Barrier, Lalkuan, a dumper bearing registration no. UA 06E-8929, which was being driven by its driver rashly and negligently dashed on to the Vikram. As a result of this accident, the claimant sustained grievous injuries on his head, eyes and right leg. The injured was taken to Soban Singh Jeena Base Hospital, Haldwani, where his right leg which had fractured had to be operated and a rod was placed in that leg. It was alleged in the claim petition that he has spent a sum of Rs. 50,000/- (Rupees Fifty Thousand only) on his treatment and he has to bear expenses for treatment in future as well. The claimant was doing the work of vegetable supply and was earning a sum of Rs. 10,000/- (Rupees Ten Thousand only) per month. A compensation of Rs. 10,00,000/- (Rupees Ten Lakh only) was claimed by the claimant as compensation on account of motor accident.

Written statements were filed by the insurance company, the owner and the driver of the offending vehicle.

On the basis of the pleadings of the rival parties, the learned Tribunal framed the following issues:

"1. Whether on 18.12.2011 at about 02:30 P.M. near Subhash Nagar Barrier, Lalkuan at Bareily-Nainital Road, when the claimant was returning from Kichha to Gora Parao on his three wheeler, the dumper bearing no. UA 06E-8929, driven rashly and negligently by its driver hit the three wheeler of the claimant, as a result of which the claimant sustained grievous injuries?

Whether the accident in question has occurred due to negligence of the claimant himself?

Whether the claim petition is not maintainable due to the non-joinder of driver and registered owner of the three wheeler?

Whether on the date of accident, dumper no. UA 06E-8929 was being driven by a driver having valid driving licence, and as per the conditions of the insurance policy?

Whether the claimant is entitled for any compensation, if yes then to what extent and from which of the parties?"

While deciding issue nos. 1 & 2, the learned Tribunal recorded a finding that the accident in question occurred due to rash and negligent driving by the driver of the offending dumper and due to the said accident, the claimant suffered grievous injuries. This finding of the learned Tribunal was based on the statement of claimant himself, who sustained injuries in the said accident.

As far as issue no. 3 is concerned, the learned Tribunal recorded a finding that since the Tribunal has already come to the conclusion that the accident has occurred due to rash and negligent driving by the driver of the offending dumper, the claim petition is not bad due to non-joinder of driver and the owner of the three wheeler.

So far as issue no. 4 is concerned, the learned Tribunal recorded a finding that on the date of accident the driver of the offending vehicle was having a valid driving licence and the offending vehicle i.e. dumper was being driven as per the terms and conditions of the insurance policy, and was duly insured.

As regarding quantum of compensation, the Claims Tribunal determined the notional income of the claimant as Rs. 3,000/- (Rupees Three Thousand only) per month, which was further enhanced by 30 % towards future prospect. Thus the learned Tribunal calculated the monthly income of the claimant as Rs. 3,900/- (Rupees Three Thousand Nine Hundred only) per month. Learned Tribunal thereafter keeping in view that the claimant had bed-ridden for fifteen months, awarded an amount of Rs. 58,500/- (Rupees Fifty Thousand Five Hundred only) towards loss of income. Apart from this, a compensation of Rs. 41,318/- (Rupees Forty One Thousand Three Hundred Eighteen only) towards medical expenses, Rs. 10,000/- (Rupees Ten Thousand only) towards diet and expenses for visiting to hospital, Rs. 10,000/- (Rupees Ten Thousand only) towards mental suffering and Rs. 10,000/- (Rupees Ten Thousand only) towards expenses on care were also awarded by the Tribunal. Thus, a total compensation of Rs. 1,29,818/- (Rupees One Lakh Twenty Nine Thousand Eight Hundred Eighteen only) was calculated which was rounded off to Rs. 1,30,000/- (Rupees One Lakh Thirty Thousand only).

Aggrieved, the claimant has filed the present appeal for enhancement. There is no appeal on behalf of the insurance company.

There are two aspects of this matter. One is whether the injured is a vegetable vendor. This fact has been established as no question was put to him by the insurance company about his claim as a vegetable vendor, though the claim of the insurance company is correct that the claimant could not prove his earning of Rs. 10,000/- (Rupees Ten Thousand) per month.

In any case, fixing of Rs. 3,000/- as monthly notional income of the claimant, appears to be on a lower side. Even the fifteen days' wages in MGNREGA is Rs. 4,500/- (Rupees Four Thousand Five Hundred). Reasonably the claimant would have been earning a sum of Rs. 6,000/- (Rupees Six Thousand) per month and if 30 % is added to this income towards future prospect, the amount comes to Rs. 7,800/- (Rupees Seven Thousand Eight Hundred). Therefore, this Court directs that the claimant shall be given a sum of Rs. 1,17,000/- (Rupees One Lakh Seventeen Thousand only) towards loss of income instead of Rs. 58,500/-(Rupees Fifty Thousand Five Hundred only) as awarded by the Tribunal. Apart from this, the compensation of Rs. 10,000/- (Rupees Ten Thousand only) awarded by the Tribunal towards pain and suffering also seems to be on lower side, which is enhanced to Rs. 50,000/-(Rupees Fifty Thousand only).

As far as remaining compensation awarded by the Tribunal is concerned, the same appears to be correct.

In view of the above, the claimants shall be entitled for compensation as under:

Loss of income for 15 months at the rate of Rs. 7,800/- per month

-Rs. 1,17,000/-

Expenses on medical treatment-

-Rs. 41,318/-

Expenses towards diet and visit to hospital

- Rs. 10,000/-

Pain and suffering

- Rs. 50,000/-

Expenses for care

- Rs. 10,000/-

Total

-Rs. 2,28.318/-

Consequently, the appeal is partly allowed. Let the entire amount as calculated above along with eight per cent interest per annum from the date of filing of the claim petition be deposited by the insurance company with the concerned Tribunal within a period of three weeks from the date of production of a certified copy of this order, after adjusting the amount already deposited by the insurance company. After the amount is deposited by the insurance company, let the same be released in favour of the claimant forthwith

Let a copy of this judgment along with lower court record be sent to the concerned Tribunal for onward compliance.