Prem Chand Dhedhiya and Others vs Sunder Lal and Others

J.K. Ranka, J.—These two civil misc. appeals have been filed by the different appellants under Section 173 of the Motor Vehicles Act against the impugned common award dated 3.9.2008 passed by the MACT and Addl. District Judge (F.T.) No. 1, Beawar in claim cases Nos. 386/2007 (591/2004) & 387/2007 (592/2004), whereby the Tribunal has awarded a sum of Rs. 74,800/- and Rs. 031,200/- as compensation holding liability of payment of compensation of the Insurance Company.

The brief facts as emerging on the face of record are that two separate claim petitions under Section 140/166 of the M.V. Act came to be filed by the claimants (husband & wife) in respect of the same incident/accident before the Tribunal, which were heard together and decided by a common order by the Tribunal. It is alleged in the claim petitions that on 8.5.2004 when the claimants were coming from Kankrauli to Beawar on National Highway No. 8 in their Santro Car bearing No. R.J.-22-C-3516 and when reached after Jassakhera at about 3:45 p.m. then non-petitioner No. 1 driver of Truck bearing No. R.J.-14-C-4749, who was driving the truck in a rash and negligent manner collided with the Santro Car from wrong side and caused the accident and as a result of which the claimants husband and wife sustained simple and grievous injuries on their persons. It was alleged in the claim petition that accident occurred due to the rash and negligent driving by the driver of the Truck in question. The incident of the accident was lodged at Police Station upon which FIR bearing No. 128/2004 was registered and after investigation police filed charge-sheet against driver non-petitioner No. 1 before the concerned court. It was claimed by the claimants that on account of this accident the non-petitioner No. 1 driver of the truck in question, non-petitioner No. 2 owner of the truck and non-petitioner No. 3 Insurance Company with whom the truck in question was insured are liable to be held responsible for paying the compensation to the claimants jointly and severally. It was further alleged due to the accident, the claimants suffered economically, mental and physical agony and also remained in hospital for treatment.

Ex parte proceedings were drawn against non-petitioners Nos. 1 & 2. However, the non-petitioner No. 3 Insurance Company filed their reply denying therein the averments/allegations made in the claim petition and stated that the insurer did not inform the insurance company about the accident and also violated the conditions of the insurance policy. It was pleaded that at the time of accident the vehicle was not being driven on the valid permit under the control or under employment of the vehicle owner/insurer. It was also alleged that claimant Sunder Lal was not having a valid driving licence at the time of the accident. It was further alleged in the reply that the driver of Santro Car bearing No. RJ-22-C3516, owner of the car and insurance company with whom the car was insured were necessary parties and, therefore, the claim petitions deserves to be dismissed on account of non-joinder of necessary parties. It was further pleaded that driver of Santro Car Iqbal was driving the vehicle without following the traffic rules and accident took place due to the fault on part of driver Iqbal and it was prayed while raising other legal objections to dismiss the claim petition.

The Tribunal on the basis of above submissions framed as many as 7 issues including the issue of relief.

The claimants in support of their claim, examined themselves as A.W. 1 Prem Chand and A.W. 2 Smt. Sushila and got exhibited 29 documents in their documentary evidence. On the other hand, the non-petitioner in their defence examined N.A.W. 1 Krishan Mohan and got exhibited 8 documents in their documentary evidence.

The Tribunal after considering the submissions of the parties and perusing the material available on record came to the conclusion with regard to issue No. 1 that on account of contributory negligence on the part of both the drivers of the vehicles in question the accident took place and for their contributory negligence the driver of the Santro Car was responsible for 60% negligence and 40% on part of the truck driver. While deciding Issue No. 3 it was held by the Tribunal that the Insurance Company has failed to prove by cogent evidence that the driver of the truck in question was not having permit at the time of the incident and decided this issue against the Insurance Company. Similarly Issues Nos. 4 & 5 were decided against the insurance company as the Insurance Company did not produce evidence in their support. On Issues Nos. 2 & 7 the Tribunal came to the conclusion that claimant Prem Chand''s age at the time of accident was between 45 to 50 years and age of claimant Smt. Sushila was between 40 to 45 years age. Income of the claimant was taken into consideration as Rs. 10,000/- per month and suffered 11% disability. The Tribunal passed the impugned award in favour of claimant Prem Chand granting a sum of Rs. 74,800/- on all heads keeping in view 60% contributory negligence on part of the driver of the Car in question. Whereas the Tribunal has taken the income of Smt. Sushila at Rs. 5000/- p.m., 7% disability and passed the impugned award granting a sum of 31,200/- as compensation keeping in view 60% contributory negligence on part of the driver of the Car. Hence this appeal.

Ld. Counsel for the claimants-appellants submitted that one Iqbal was driving the vehicle when the car collided with a truck. He contended that the driver of the truck, by driving the truck in rash and negligent manner, came on the wrong side and caused the accident on account of which both the claimants-appellants (husband and wife) sustained severe injuries. The FIR was lodged and after investigation, the police also filed charge-sheet against the driver of the vehicle before the concerned court. He further contended that both the claimants-appellants remained in hospital for a sufficient long time but the ld. Tribunal has not allowed appropriate compensation and has restricted the claim to a very nominal figure. He further contended that it is an admitted fact that the claimants-appellant remained admitted in hospital at Beawar and thereafter had to go to Ahmadabad for further treatment and also remained admitted there. He further contended that the compensation awarded under the head of loss of income, physical pain & mental agony, hospitalization charges and medical bills etc. has been allowed by the ld. Tribunal much on lower side.

In so far as the claim of claimant-appellant (Smt. Sushila) i.e. wife is concerned, it is an admitted fact that her hand stood fractured and not only in head but on body also, several injuries were caused to her. He further contended that the claimant-appellant (Smt. Sushila) is unable to perform her day-to-day work at home and is suffering from head injury and in that case total amount of Rs. 78,000/- only has been allowed as compensation which also is at lower side. So, it has been prayed that the compensation awarded to the claimants-appellant in this case needs to be enhanced. In support of the submission made, counsel for the claimants-appellant relied upon judgment in the case of T.O. Anthony Vs. Karvarnan and Others, & A.P.S.R.T.C. v. K. Hemalatha and others: 2008(4) T.A.C. 769 (SC).

Per-contra, ld. counsel for the respondent-Insurance Company, submitted that contributory negligence has been proved and even driver of the Car has not been made as party-respondent. He further contended that the judgments, relied upon by counsel for the claimants-appellants are distinguishable and that the ld. Tribunal has allowed appropriate compensation after considering all the facts & circumstances of the case on the basis of medical bills and other evidence led before it passed award which is not liable to be interfered with.

I have considered the arguments advanced by counsel for the parties and perused the impugned award.

In my view, in so far as the claim of the claimant-appellant (Prem Chand) is concerned, it is an admitted fact that the disability was to the extent of 11% and such a disability will continue to remain in future and will not be fully recovered, therefore, in so far as the amount of compensation awarded under the head of loss of income and diet to the extent of Rs. 1,71,600/- and Rs. 3000/- is concerned, it appears to be proper and reasonable. As regards the physical pain & mental agony; hospitalization charges and medical bills etc., since he remained in hospital for at least five days and certainly could not have been there without any attendant and that apart expenses must have been incurred on account of going to Ahmedabad where also he remained admitted for almost three days, the compensation awarded under the said heads of physical pain and mental agony; hospitalization charges and medical bills etc. by the ld. Tribunal appears to be much on lower side and the same deserves to be appropriately enhanced and accordingly, as regards the claimant-appellant (Prem Chand), it would to be appropriate to enhance the amount of compensation under the heads of physical pain & mental agony; hospitalization charges and medical bills etc from Rs. 8,000/-; 15,00/- & 2,900/- to Rs. 35,000/-; 15,500/- and 12,500/- respectively. Thus, the claim is enhanced by Rs. 50,600/- and it is made at Rs. 2,37,600/- as against allowed at Rs. 1,87,000/-.

In so far as the claimant-appellant (Smt. Sushila) is concerned, since she suffered permanent disability of 7% coupled with fracture in wrist and various injuries on head out of the said accident and also remained hospitalized at Beawar and then Ahmedabad, the compensation awarded under permanent disability at Rs. 63,000/- and diet at Rs. 2,500/- is approved but under the said heads of physical pain and mental agony; hospitalization charges and medical bills etc. by the ld. Tribunal appears to be much on lower side and the same deserves to be appropriately enhanced and accordingly it would be appropriate to enhance the amount of compensation under the heads of physical pain & mental agony; hospitalization charges and medical bills etc from Rs. 8,000/-; 1,500/- & 3,000/- to Rs. 30,000/-; 15,000/- and 10,000/- respectively. Thus the claim is enhanced by Rs. 42,500/- and it is made at Rs. 1,20,500/- as against allowed at Rs. 78,000/-.

Consequently, both the appeals are partly allowed. The compensation awarded by the ld. Tribunal to the claimant-appellant (Prem Chand) in the present matter, is enhanced by Rs. 50,600/- and accordingly total compensation would be enhanced from Rs. 1,87,000/- to Rs. 2,37,600/- and the compensation awarded by the ld. Tribunal to the claimant-appellant (Smt. Sushila) in the present matter, is enhanced by Rs. 42,500/- and accordingly total compensation would be from Rs. 78,000/- to Rs. 1,20,500/-. The award passed by the ld. Tribunal in the present matter is accordingly modified. The enhanced amount will be paid to the claimants-appellants within a period of two months and it shall also carry interest at the rate of 6% but from the date of award. Both the appeals are disposed in the above manner.