Mandori vs Shiv Lal and Others

J.K. Ranka, J—Instant civil misc. appeal has been filed by the claimant-appellant under Section 173 of the Motor Vehicles Act, 1988 for enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Dausa vide award dt. 22/01/2003 in Claim Case No. 243/1999, whereby, the claimant-appellant has been awarded compensation of Rs. 76,000/- only.

The undisputed facts are that the claimant-appellant, who was hail and healthy young man of 30 years, on 08/08/1998 at about 4 - 5 am in the morning, while going in a tractor from Bandikui to Rajgarh and when the tractor reached near Kolana, a bus of the respondent-Corporation, bearing No. RJ-02-P-920, which was being driven by its driver in a rash and negligent manner, hit the tractor in which the appellant was sitting resulting in causing multiple fractures in his both hands and also sustaining injuries on various parts of the body and was admitted in SMS Hospital, Jaipur. An FIR to this effect came to be lodged in the concerned police station against driver of the respondent-corporation and the police, after investigation, filed charge-sheet in the competent court of jurisdiction. Claim petition came to be filed by the claimant-appellant before the Tribunal and the Tribunal, after considering all the facts and circumstances, awarded compensation to the tune of Rs. 76,000/- which according to the claimant-appellant is on lower side and hence, instant appeal has been preferred for enhancement of compensation.

Counsel for the claimant-appellant submits that the amount allowed at Rs. 76,000/- is virtually no amount as while the Tribunal accepts that the claimant-appellant, being vegetable vendor, had been earning income of Rs. 5,000/- per month but it has ignored the multiplier factor and other factors when admittedly the disability certificate of the Govt. Hospital mentions the disability to the extent of 51.25%. Counsel submits that the amount is required to be enhanced in the light of the judgment of this Court as well as Hon''ble Apex Court rendered in the case of Rajesh and Others Vs. Rajbir Singh and Others, (2013) 2 ACC 841 : (2013) ACJ 1403 : (2013) 3 CTC 883 : (2013) 8 JT 288 : (2014) 173 PLR 779 : (2013) 3 RCR(Civil) 170 : (2013) 6 SCALE 563 : (2013) 9 SCC 54 : (2014) 1 SCC(L&S) 149 ; Santosh Devi Vs. National Insurance Company Ltd. and Others, (2012) ACJ 1428 : AIR 2012 SC 2185 : (2012) 4 SCALE 559 : (2012) 6 SCC 421 : (2012) AIRSCW 2892 : (2012) 3 Supreme 197 : Syed Sadiq etc. Vs. Divisional Manager, United India Ins. Company, (2014) 1 ACC 206 : AIR 2014 SC 1052 : (2014) AIRSCW 724 : (2014) 1 JT 569 : (2014) 1 RCR(Civil) 766 : (2014) 1 SCALE 377 : (2014) 2 SCC 735 ; Sanjay Verma Vs. Haryana Roadways, (2014) 1 ACC 473 : (2014) ACJ 692 : AIR 2014 SC 995 : (2014) AIRSCW 856 : (2014) 2 JT 384 : (2014) 1 RCR(Civil) 914 : (2014) 1 SCALE 682 : (2014) 3 SCC 210 and G. Dhanasekar v. M.D. Metropolitan Transpor Corporation Ltd., SLP No. 35565-35566, decided on 12/02/2014.. Counsel further submits that on account of serious disability caused to the claimant-appellant on account of negligence of the respondents, his entire life has been disturbed and he is unable to do anything from his hands and even is dependent upon others for his normal day-to-day routine works. He contended that the amount on mental agony, pains & sufferings, medical expenses, hospitalization etc. has been totally ignored by the Tribunal and a just and fair compensation is required to be allowed which has not been done and the order of the Tribunal deserves to be modified accordingly.

Per-contra, counsel for the respondent-corporation submits that the amount allowed at Rs. 76,000/- is fair and reasonable. Even no evidence was led about earning of income but still the Tribunal has taken the income at Rs. 5,000/- per month. He contended that the doctor was not produced and therefore, placing reliance on the medical certificate is wholly unjustified. He contends that even on perusal of the medical certificate, it simply mentions that the appellant would have some difficulty in movement of hands, raising hands and wearing clothes on some occasions and therefore, the disability though may be 51.25% but actually the disability is nothing. He contended that nothing is required to be enhanced in addition to what has been allowed by the Tribunal.

I have considered the arguments advanced by counsel for the parties and have gone through the material available on record.

In my view, the amount allowed by the Tribunal is certainly on lower side and admittedly since the respondents have not assailed the award of the Tribunal, all facts noticed by the Tribunal have been accepted by them and even driving of the bus by the driver of the respondent-corporation in rash and negligent manner, has been proved and such finding has attained finality. The Tribunal has also taken note of the income of Rs. 5,000/- and it is required to be taken in this regard. This Court in the case of Harminder Singh Vs. Gopal Singh and Others, (2006) ACJ 2497 has considered the same aspect. When in the aforesaid case, the injured was 23 years of age and even income was the same as Rs. 5,000/- and when disability was to the extent of 40%, in such circumstances, this Court in the said case, taking into consideration the income and multiplier factor, allowed an amount of Rs. 4,98,000/-. The said order in the case of Harminder Singh (supra) came to be assailed in appeal and the Division Bench of this Court vide its judgment reported in 2005 R.A.R. 429 (Raj.) , upheld the judgment passed by the coordinate Bench in the case of Harminder Singh (supra). The Hon''ble Apex Court also in the case of Syed Sadiq etc. Vs. Divisional Manager, United India Ins. Company, (2014) 1 ACC 206 : AIR 2014 SC 1052 : (2014) AIRSCW 724 : (2014) 1 JT 569 : (2014) 1 RCR(Civil) 766 : (2014) 1 SCALE 377 : (2014) 2 SCC 735 has enunciated the same proposition.

In my view, when there is certificate of medical board constituted by SMS Hospital Jaipur which is a Govt. Hospital, to say that the doctor needs to be examined, is not correct on the part of the respondents and merely because the doctor has not appeared in the witness box, the medical certificate cannot be ignored. However, certainly keeping in view the fact that "he will have difficulty in activities of daily living eg. Eating, drinking, combing, dressing etc.", in my view, though the disability certificate certainly states the disability to be as 51.25% and keeping in view the ultimate opinion given by the medical board, the amount is to be allowed on the basis of the fact that the income is to be adopted as 5,000/- P.M. as already held by the Tribunal and in my view, taking into consideration the above facts, it would be appropriate to take overall disability to the extent of 30% and his earning capacity would be diminished by 30% and loss of Rs. 1,500/- at the rate of 30%. Accordingly, in my view, the amount allowed taking into consideration the multiplier factor looking to the age of the appellant within the age group of 30 years, the multiplier would be 17 and accordingly, the total income would be arrived at Rs. 3,06,000/-(1500x12x17) and it would be fair and reasonable to allow the said amount under the head of loss of income.

After taking into consideration the other factors, the amount allowed by the Tribunal towards pains & sufferings, is required to be enhanced to Rs. 30,000/- and the amount allowed on hospitalization, attendant, nutrition and diet, medical expenses, travelling etc. is allowed at Rs. 25,000/-.

Accordingly, the compensation is recomputed here under:--

Accordingly, the total amount of Rs. 2,85,000/-, as aforesaid, is additionally computed/allowable/enhanced in the present appeal.

Thus, the appeal is partly allowed. The impugned order/award dt. 22/01/2003 is modified to the extent that the enhanced amount of compensation of Rs. 2,85,000/- with interest @ 6% will be paid by the non-petitioners from the date of filing of the claim petition. The respondent-Insurance Company shall comply with the order within a period of two months and the Tribunal is directed to disburse the enhanced amount with interest to the claimant-respondent by bank draft. The above exercise to be done within two months. No costs.