Pappu @ Jeevan Singh Rajpur vs Satyendra Singh Chouhan and Others

Hon''ble Shri N.K. Mody, J.—Being aggrieved by the award dated 27/11/09 passed by AMACT, Narsinghgarh in Claim Case No. 60/08, whereby claim petition filed by appellant was allowed and compensation of Rs. 1, 10, 000/-was awarded and respondent Nos. 1 & 2 and respondent Nos.3 & 4 were held liable to pay the compensation equally, present appeal has been filed. Short facts of the case are that the appellant filed a claim petition alleging that on 27/03/04 at about 6.00 PM appellant was going on a motor bike bearing registration No. MP/04-NK/3292. It was alleged that at that time respondent No. 3 was coming from opposite direction on a motor bike bearing registration No. MP/04-NC/ 2961 rashly and negligently. It was alleged that because of rash and negligent driving of respondent No. 3 accident occurred, with the result appellant sustained grievous injuries. It was alleged that appellant was hospitalized at Primary Health Center and thereafter referred to Bhopal. It was alleged that the motor bike which was being driven by appellant was owned by respondent No. 1 and insured with respondent No. 2 and the motor bike which was being driven by respondent No. 3 was owned by respondent No.4. It was prayed that the claim petition be allowed and compensation be awarded. The claim petition was contested by respondent No. 2 on various grounds including on the ground that since the appellant himself was liable for accident, therefore, respondent No. 2 is not liable for payment of compensation. In alternate it was alleged that since the accident occurred because of negligence on the part of respondent No. 3, therefore, also respondent No. 2 is not liable. It was also prayed that no permanent disability has caused to the appellant. It was prayed that the claim petition be dismissed so far as it relates to respondent No. 2. After framing of issues and recording of evidence learned Tribunal allowed the claim petition and awarded compensation of Rs. 1, 10, 000/-, breakup of which is as under:

Rs. 41,200/-

Towards hospital expenses

Rs. 39,700/-

Towards medical expenses.

Rs. 25,000/-

Towards pain and sufferings.

Rs. 2,000/-

Towards special diet

Rs. 2,000/-

Towards transport expenses.

After awarding the compensation learned Tribunal held that respondent Nos. 1 & 2 and respondent Nos. 3 & 4 shall be liable to pay compensation equally, against which present appeal has been filed.

Learned counsel for the appellant argued at length and submits that the learned Tribunal committed error in apportioning the liability. It is submitted that since the appellant was hospitalized for a period of more than one month and permanent disability was of 30%, therefore, amount awarded by the learned Tribunal is grossly inadequate. It is submitted that the appeal filed by the appellant be allowed and amount of compensation be enhanced and the findings of the learned Tribunal regarding apportionment of liability be set aside.

Learned counsel for respondent No. 2 submits that the amount awarded by the learned Tribunal is just and proper and the findings regarding apportionment of amount of compensation is also based on due appreciation of evidence, which requires no interference. It is submitted that the appeal filed by the appellant has no merits and the same be dismissed.

From perusal of the record it is evident that the medical certificate was filed by the appellant to demonstrate that the appellant has sustained permanent disability to the extent of 30%. But in the certificate itself it is mentioned that the certificate shall be valid for a period of three years. This certificate was issued on 28/04/06, while the Doctor was examined on 09/09/09, who was neither the treating Doctor, nor issued certificate on 28/04/06. No fresh certificate was obtained by the appellant. In the facts and circumstances of the case learned Tribunal committed no error in holding that the appellant failed to prove the permanent disability. However, looking to the injuries sustained by the appellant it appears that the amount awarded by the learned Tribunal is on lower side. Thus, the appellant is entitled for the following amount:

Rs. 50,000/-

Towards hospital expenses.

Rs. 40,000/-

Towards medical expenses.

Rs. 25,000/-

Towards pain and sufferings.

Rs. 10,000/-

Towards special diet.

Rs. 10,000/-

Towards transport expenses.

Rs. 10,000/-

Towards expenses incurred on attenders.

Rs. 10,000/-

Towards loss of income.

Rs. 25,000/-

Towards grievous injuries.

Rs. 1,80,000/-

Total

Thus, appellant shall be entitled for total sum of Rs. 1, 80, 000/-instead of Rs. 1, 10, 000/-. So far as apportionment of liability is concerned, right from beginning case of appellant is that the accident occurred because of rash and negligent driving of respondent No. 3 and criminal case was registered against the appellant and respondent No. 3 Offending vehicle which was being driven by the appellant was owned by respondent No. 1 and insured with respondent No. 2 According to appellant he was not at fault. Since the claim petition was filed u/s 163A of Motor Vehicles Act, therefore, learned Tribunal was not required to examine the fact that who was at fault. In the facts and circumstances of the case this Court is of the view that the learned Tribunal committed no error in apportioning the liability. In view of this appeal filed by the appellant is allowed in part. Appellant shall be further entitled for a sum of Rs. 1, 80, 000/-instead of Rs. 1, 10, 000/-. Enhanced amount of Rs. 70, 000/-shall carry interest @ 8% P.A. from the date of application. So far as liability of respondent Nos. 1 & 2 and respondent Nos.3 & 4 is concerned, findings of the learned Tribunal shall remain intact.

This order shall be executable upon payment of proportionate Court fees on the enhanced amount. The Court fees be paid within 3 months from the date of this order. Registry to prepare memo of costs. The appellants'' counsel shall provide certified copy of memo of costs to the counsel for Insurance Company. The Insurance Company thereafter shall deposit the enhanced amount with costs with the Tribunal within one month from the date of receipt of memo of Cost. Failure to comply with the aforesaid direction no interest would be payable on the enhanced amount from the date of order till the Court fees is actually paid and memo of costs is supplied to counsel for Insurance Company. With the aforesaid observations, appeal stands disposed of.