Sanjay Kumar vs Subodh Mandvikar and Another

Bhawani Singh, C.J.—This appeal is directed against the award of 9th Additional Motor Accident Claims Tribunal, Jabalpur, in M.C.C. No. 88 of 1995, dated 18.10.1996.

On 18.7.1991, the claimant was coming from Shashtri Bridge Road, Napier Town, Jabalpur, towards Home Science College, at 7.30 p.m., on his scooter No. MPK 9549. When he reached in front of the office of Mr. Keshwarwani, Advocate, Subodh Mandvikar, the respondent No. 1, coming from opposite direction, namely, Madan Mahal Police Station, riding his scooter No. CIK 180, dashed against the claimant. This happened because Subodh was driving the scooter rashly and negligently. The result was that the claimant suffered several injuries including compound fracture in his left leg, fracture of tibia and fibula. He was admitted in the Medical College, Jabalpur. Since proper arrangement for treatment was not available to him there, he shifted to a private hospital of Dr. Jitendra Jamdar in the city of Jabalpur. Accordingly, he was operated and plastered in the left leg for 6 weeks up to 14.11.1991. Claimant was working with his father, a tax practitioner. Compensation of Rs. 2,45,000/- is claimed, but award is for Rs. 25,000/-.

The defence of respondent No. 1 in this case has been that the accident happened since the claimant failed to give side indication and turned to his side, therefore, Subodh was not driving the scooter rashly and negligently. According to the Insurance Company, both the vehicles were responsible for this accident, therefore, jointly responsible for compensation. It is submitted that the Insurance Company with which scooter was insured, ought to have been impleaded party to this case and the claimant did not possess a valid driving licence to drive the scooter.

On the pleadings of the parties, the Claims Tribunal framed nine issues. The parties led evidence and the Claims Tribunal held that the accident took place due to rash and negligent driving of scooter by Subodh Mandvikar and the claimant was not responsible. As a result of this accident, permanent injuries are suffered by the claimant, but he is not entitled to the extent compensation prayed for.

The scooter was insured with United India Insurance Co. Ltd. and the scooter did not suffer damage of Rs. 2,000/- and it was not necessary to implead the Insurance Company with which the scooter of the claimant was insured. Ultimately, compensation of Rs. 25,000/- has been awarded with interest at the rate of 12 percent per annum.

There is no dispute with regard to taking place of the accident. From the evidence, it is clearly established that the accident was caused by Subodh Mandvikar due to rash and negligent driving of scooter. In this accident, the claimant suffered serious injuries including fracture of tibia and fibula. He has been subjected to operation two times. Therefore, he must have underwent great pain and suffering. He must have spent on treatment, transport, attendant, special diet and so on. Mr. J.P. Agrawal places before us decision in Prem Narayan Sharma Vs. Sunil Gupta and Others, , and submits that this being a similar case, compensation be enhanced to the extent stated in Prem Narayan''s case (supra).

Mr. Devang Trivedi, learned Counsel for the respondent No. 1 and Mr. Suresh Raj, learned Counsel for the respondent No. 2, submit that it may be true that the claimant suffered fracture of tibia and fibula, but according to doctor disability is four percent and that the claimant has been operated two times instead of five times in Prem Narayan''s case (supra). Therefore, the compensation has been justly awarded, looking to the facts of the case.

It is found that in this accident, the claimant suffered fracture of tibia and fibula. He was treated in Victoria Hospital, Medical College and then Dr. Jitendra Jamdar''s Hospital. He has been operated two times. Naturally, he must have undergone great pain and suffering after the accident, during treatment and thereafter. Frame cannot be set right and used as before. The claimant completed LL.B. course and started helping the father in tax matters, but now is not able to move freely on account of disability. Dr. Jitendra Jamdar, A.W. 1, examined on commission, has not specifically stated as to the extent of disability. He states that overall body disability is 4 percent and permanent disability of foot cannot be specifically stated in percentage, while for the same injuries, permanent disability has been stated 26.2 percent by the doctor in Prem Narayan''s case (supra). Even in this case, we find certificate issued by Dr. N.K. Vashudeo on 27.11.1992 specifying 20 percent permanent disability. Though this document has not been exhibited due to death of the doctor, however, it is placed on record of the case and is not disputed by the parties. Moreover, it is not necessary that the document to be taken in evidence should always be exhibited. However, assistance can be taken from the certificate to confirm the view that Dr. Jitendra Jamdar should have clearly pointed out the extent of permanent disability instead of giving indefinite statement. Accordingly, it would be just and proper to assess the disability at 25 percent less than Prem Narayan''s case (supra) and above what has been said by Dr. Vashudeo in his certificate. Therefore, we are of the considered opinion that compensation deserves to be enhanced as under:

(1) Permanent disability Rs. 60,000/- (2) Pain and suffering Rs. 50,000/- (3) Treatment-present and future Rs. 15,000/- (4) Attendant Rs. 2,000/- (5) Special diet Rs. 3,000/- (6) Transport Rs. 2,400/- (7) Loss of income Rs. 15,000/- ------------- Total Rs. 1,47,400/- (Rupees one lakh forty-seven thousand four hundred)

Accordingly, the appeal is allowed, award is modified. The claimant is awarded compensation of Rs. 1,47,400/-. The enhanced compensation will carry interest at the rate of 9 per cent per annum from the date of application till payment.

Costs on parties.