Shantilal vs Man Singh and Others

The appellant-claimant has filed this appeal u/s 173 of the Motor Vehicles Act, against the award dated 30.7.1997, passed by IIIrd Additional Member, Motor Accident Claims Tribunal, Dewas, in Claim Case No. 46/1997, by which it awarded a sum of Rs. 16,000/- together with 12% interest from the date of application (18.6.1990) till realisation and costs. The appellant is dissatisfied with the amount, which has been awarded by the Tribunal.

For the proper disposal of this appeal few relevant facts are necessary to be considered. The appellant, who was working as Chief Municipal Officer in Municipality, Sehore and was drawing salary of Rs. 3,200/- p.m., on 19.12.1989 at about 8.30 in the morning came on Dewas bus stand to catch a bus for Sehore. He was standing on the bus stand, then a bus bearing No. CHI-7864, belonging to respondent No. 2 Corporation and being driven by respondent No. 1 Mansingh, came on the bus stand. As soon as the bus stopped, the passengers started boarding on it. When the appellant was boarding the bus along with his luggage the respondent No. 1 driver, without any intimation, alarm or blowing horn, started the bus on reverse side. The appellant claimant, who was standing on the door fell down and his right leg came under the wheel of the bus and the same was raptured. Thereafter, the claimant was taken to Prabhu Prasad Hospital of Dr. D.P. Shrivastava, where he was admitted for treatment. Report of the incident was also lodged in Kotwali, Dewas on the same day.

After investigation, respondent driver was charge-sheeted before the Criminal Court. As per statement of P.W. 1 Shantilal, due to the injuries he could not work for 4 months. He had to take medical leave. He was treated in the Nursing Home and his right leg became permanently disabled. The percentage of disablement is around 30%. His submission is that he cannot stand or walk properly. In support of his claim petition, P.W. 2 Suresh Kumar (son of the claimant) was also examined on the point of disablement and treatment. P.W. 3 Javerilal was examined as eye-witness, who was present at the time of accident. P.W. 4 Dr. D.P. Shrivastava, the treating doctor, was also examined. According to him the appellant received two injuries. He was admitted in his Nursing Home from 19.12.1989 to 3.1.1990. The disablement certificate was not exhibited. P.W. 5 Vijay Kumar (son-in-law of the claimant) was also examined as an eye-witness, because he was present on the spot, at the time of incident.

After appreciating the evidence on record, the learned Tribunal found that on 19.12.1989 accident in question had taken place from the aforesaid bus and it was also found that the accident occurred due to rash and negligent driving of the bus by its driver and it was also found proved that the appellant fell down from the bus and sustained various injuries. The Tribunal awarded a sum of Rs. 16,000/-, towards compensation, on the ground that the petitioner had failed to prove the disablement. Hence, this appeal has been preferred for enhancement of the amount of compensation.

We have heard the learned Counsels for the parties and perused the record.

It is true that the respondents have not produced any evidence in the case, in rebuttal. Neither the driver nor any other employee on behalf of the Corporation was examined in the case. After appreciating the evidence on record the Tribunal has rightly found that 19.12.1989 the accident in question had occurred from the aforesaid bus. It was also rightly held that the accident occurred due to rash and negligent driving of the bus by respondent No. 1. It is also not disputed before us that respondent No. 1 is an employee of respondent No. 2 and for his negligent acts the respondent No. 2 is responsible for payment of compensation. It is also not in dispute that appellant was injured in the said accident. The only question for consideration, before us, is as to what should be the proper compensation to the claimant for the injuries sustained by him in the accident?

Ex. P/53 is the certificate of Dr. O.P. Gupta, which has been filed on record, but the claimant had not examined Dr. Gupta. Though, P.W. 4 Dr. D.P. Shrivastava has been examined, but his treatment papers were not exhibited. He has not produced any disablement certificate. Only bills from Exs. P1 and P3 to P47 were produced. Ex. P2 is the rent receipt for Rs. 2,800/- for payment of rent paid to the landlord for staying at Dewas for a period of 4 months, during treatment. The bills which have been produced are for a total sum of Rs. 8,834''/- and Ex. P48 to P/58 are the bills for a total sum of Rs. 980/- for purchasing milk. Thus, the total amount of these bills comes to Rs. 12,614/-. Since neither the treating doctor was examined nor any of his treatment paper or certificate was produced, the Tribunal has awarded Rs. 6,000/- towards loss in capacity. Since other papers of loss of 4 months'' pay were not filed the Tribunal has not awarded any amount.

The certificate Ex. P/53, which was issued by the doctor O.P. Gupta of Ratlam is on record, but he was not examined, therefore, only on this ground it cannot be said that the claimant did not prove disablement. From the evidence of P.W. 4 Dr. D.P. Shrivastava it is clear that the claimant was aged about 56 years on the date of accident and he had received compound fracture of right tibia fabula and calcuneum bone. Thus, looking to the compound fracture suffered by the claimant, in our opinion, the Tribunal has not awarded adequate compensation.

From Ex. P/1 it is clear that operation was performed and for that operation charges, O.T. charges, etc. were charged by the Nursing Home. The claimant has stated about fracture in his right leg and ankle, which is unrebutted, therefore, on the basis of the aforesaid evidence it is clear that the Tribunal has not awarded any amount towards damages for fracture, pain and suffering. The amount which has been award by the Tribunal is not just and proper as the same is on the lower side. Thus, looking to the injuries as also fractures atleast a lumpsum amount of Rs. 40,000/- would be the proper compensation to the claimant towards pain, suffering and loss of working capacity and special diet, which would be fair and square. Thus, an additional sum of Rs. 40,000/-, being the compensation, is awarded to the appellant claimant in addition to what has already been awarded by the Tribunal, with interest thereon @ 9% from the date of application till realisation with costs Rs. 500/-.

In the result, this appeal is allowed to the extent indicated above. The appellant-claimant shall be entitled to an additional compensation of Rs. 40,000/- along with interest thereon @ 9% from the date of application till realisation with costs Rs. 500/-. The respondents are directed to pay or deposit the aforesaid amount within 3 months from today after adjusting the amount already paid.