Sadaram Sarthi and Others vs Chandrika Prashad and Others

Pritinker Diwaker, J.�As both these appeals arise out of the same award dated 18-4-2012 passed by the Motor Accidents Claims Tribunal, Sarguja (Ambikapur) (hereinafter referred to as ''Tribunal") in Claim Case No. 33/10, they are being disposed of by this common order. Brief facts of the case are that on 25-11-2009, when claimant Sadaram Sarthi was riding his motorcycle and one Bhuneshwar Sarthi was sitting as pillion rider, the said motorcycle was dashed by a jeep bearing registration No. C.G. 15 Z.D. 2031 (hereinafter referred to as "offending vehicle"), which at the relevant time being driven by non-applicant No. 1-Chandrika Prasad, owned by non-applicant No. 2-Mohd. Nasir and duly insured with non-applicant No. 3-United India Insurance Co. Ltd. In the said accident, the claimant suffered number of injuries, including fracture of his tibia and fibula bone.

A claim case was filed by the injured-claimant for compensation of Rs. 17.15 lacs, inter alia, pleading that by profession he was a trainer of Taekwondo, he remained in hospital for more than one month, has suffered grievous injuries resulting in permanent disability to the extent of 65% and, is therefore, entitled for compensation as claimed.

The respondents/driver, owner and insurer of the offending vehicle filed their written statements and denied the claim of the claimant on the ground that the accident did not occur due to negligent driving of the offending vehicle and in fact, the claimant himself was responsible for causing the accident.

However, by the impugned award, the Tribunal has assessed the total loss of dependency as Rs. 7,95,600/- and after deducting 50% from it towards contributory negligence of the claimant, has awarded a sum of Rs. 3,97,800/- in favour of the claimant. This apart, the Tribunal has further awarded compensation of Rs. 83,917/- under the following heads :--

M.A.C. No. 707/12 : This appeal has been preferred by the Insurance Co. challenging the quantum, as permission under Section 170 of the Motor Vehicles Act was duly obtained by it, mainly on the ground that the permanent disability certificate (Exh. P-19) has wrongly been relied upon by the Tribunal in assessing the compensation and as the said certificate was for a temporary period, the Tribunal was not justified in assessing compensation by adopting the multiplier method.

On the other hand, learned Counsel for the claimant submits that permanent disability certificates are issued initially for three years only and thereafter, in case of further requirement a fresh certificate is issued by the authority. He further submits that from the evidence of Dr. J.K. Bhutani (A.W. 3), it is apparent that even after surgery, the claimant could not improve and his wound could not be healed. He submits that the certificate (Exh. P-19) was issued by the Medical Board and has been duly proved by the claimant.

So far as the authenticity of medical certificate (Exh. P-19) is concerned, there is no reason for this Court to disbelieve the said certificate showing 65% permanent disability to the claimant. This certificate has been issued by the Competent Authority-District Medical Board, Ambikapur. Further, the said certificate has been proved by Dr. J.K. Bhutani (A.W. 3), who was one of the members constituting the said Board. This witness has specifically stated about the nature and extent of injuries sustained by the claimant as also about further requirement of treatment. Thus, the Tribunal was justified in assessing loss of future earning on the basis of permanent disability certificate (Exh. P-19) by adopting the multiplier method. The appeal preferred by the Insurance Co. has no force, the same is liable to be and is, accordingly, dismissed.

M.A.C. No. 697/12 : This appeal has been preferred by the injured-claimant for enhancement of the compensation on the following grounds :--

"(i) that the Tribunal was not justified in deducting 50% from the total loss of future earning assessed, on the ground of contributory negligence on the part of the claimant without there being any cogent and legally admissible evidence in this regard;

(ii) that under the conventional heads the Tribunal has awarded compensation very much on the lower side;

(iii) that no amount whatsoever has been awarded by the Tribunal towards attendant."

Opposing the above submission, it has been argued by learned Counsel for the respondents that the compensation awarded by the Tribunal is already on the higher side and is, therefore, does not require to be enhanced at all. They further submit that in the facts and circumstances of the case, the Tribunal was fully justified in deducting 50% amount on the ground of claimant being contributory negligent in causing the accident.

So far as contributory negligence is concerned, it is a settled principle of law that the onus of proof regarding contributory negligence is on the party who alleges the same. The Insurance Co. taking a plea of contributory negligence on the part of the victim/deceased must lead evidence with regard thereto and in absence thereof, such plea cannot be accepted. The insurer of the offending vehicle must state specifically that there was some casual connection of the deceased with the damage suffered by him to hold that the conduct of the deceased amounted to contributory negligence. Similarly, there had to be some evidence showing absence of reasonable care on the part of the deceased/victim for his own safety, which contributed to the damage. However, no such evidence has been led by the Insurance Co. to prove the factum of contributory negligence on the part of the claimant. The mere fact that the claimant was not having valid and effective licence on the date of accident to drive the vehicle in question will not ipso facto lead to a finding of contributory negligence on the part of the claimant. (See: Sudhir Kumar Rana Vs. Surinder Singh and Others, . It was for the Insurance Co. to prove by adducing evidence that the claimant was contributory negligent in causing the accident while riding the motorcycle. However, that has not been done. Thus, the finding of the Tribunal on the point of contributory negligence being erroneous is liable to be set aside. It is, accordingly, set aside. The claimant is held entitled for compensation of Rs. 7,95,600/- towards loss of future earning due to permanent disability to the extent of 65% caused to him in the said accident. In addition to this, looking to the period of hospitalisation, the nature and extent of injuries, the amount awarded towards pain and suffering and nutritional diet is required to be and is enhanced from Rs. 10,000/- and Rs. 10,000/- to Rs. 25,000/- and Rs. 15,000/- respectively. The Tribunal has not awarded any amount towards attendant, and therefore, the claimant is also entitled for Rs. 5,000/- towards attendant. As regards the amount awarded towards medical expenses ( Rs. 8,917/-), transportation ( Rs. 5,000/-) and future treatment ( Rs. 50,000/-), assessment of the same being just and proper required no interference and is hereby maintained.

In view of what has been discussed above, the appellant/claimant is held entitled for compensation of Rs. 9,04,517/- and since the Tribunal has already awarded Rs. 4,82,000/-, after deducting the same the appellant is entitled for enhancement of Rs. 4,22,517/- with interest @ 6% p.a. from the date of filing of claim petition till realisation. In the result, the appeal (M.A.C. No. 707/12) preferred by the Insurance Co. is dismissed whereas the appeal (M.A.C. No. 697/12) preferred by the claimant is allowed with modification in the impugned award to the extent indicated above.