Suresh vs Iqbal Khan and another

J.K. Maheshwari, J.—This appeal is filed by the appellant u/s 173 of the Motor Vehicles Act against an award dated 9.4.2008 passed by learned Fifteenth Additional Member, M.A.C.T., Indore, in Claim Case No. 241 of 2007. By the impugned award the learned Claims Tribunal has awarded a total sum of Rs. 40,730 by recording the finding of contributory negligence with interest to the appellant by way of compensation towards the injuries sustained in the accident which occurred on 19.2.2007.

Appellant had preferred a claim petition u/s 166 of Motor Vehicles Act, seeking compensation to the tune of Rs. 7,75,000. According to the appellant compensation awarded by the Tribunal is meagre and deserves enhancement. Therefore, by filing the appeal inadequacy of the compensation has been assailed.

Brief facts of the case are that when the appellant was driving his Maruti van going from Tarana to Indore a jeep bearing registration No. MP 09-S 2348 came from other side, which was driven rashly and negligently, dashed against appellant''s car from front side. On account of said accident the appellant has received fracture of tibia and fibula of left leg, thus a rod was inserted by way of operation. It is alleged by the appellant that due to said accident permanent disablement to the extent of 8 per cent was found by the treating doctor. The Tribunal, after going through the evidence and the material available on record, recorded the finding of contributory negligence of appellant as well as jeep. The Tribunal has granted total compensation of Rs. 40,730 bifurcating into various heads like Rs. 19,730 towards medical expenses, Rs. 10,000 for pain and suffering, Rs. 3,000 for special diet, Rs. 5,000 for loss of wages and Rs. 3,000 for non-pecuniary damages. But because of the finding of contributory negligence total compensation of Rs. 20,365 has been allowed in favour of appellant.

Learned counsel for the appellant has strenuously urged that finding of contributory negligence is recorded merely due to imposition of a fine in a criminal case registered against the appellant, which is not sustainable in the facts and circumstances of the case. In the claim case, finding of contributory on account of fault of appellant must be recorded independently as per evidence available on record. It is said that the appellant in his statement deposed that when he was going from Tarana to Indore by his own side by Maruti van, a jeep bearing registration No. MP 09-S 2348 came from front side and dashed his vehicle. No effective cross-examination has been made on such testimony, however it remains in ocular. In such circumstances, finding of contributory negligence as recorded by the Tribunal on account of imposition of a fine in the criminal case registered against him cannot be sustained. He further submits that the amount of compensation granted by the Tribunal is inadequate, therefore, same is liable to be enhanced. In the head of injury nothing has been awarded, though as per certificate of treating doctor, he has found permanent disability to the extent of 8 per cent. Thus looking to the earning of appellant calculation of loss of earnings ought to have been made and compensation may be made accordingly.

On the other hand, Mr. C.P. Singh, counsel appearing for respondent insurance company, supports the finding of Tribunal and urged that the Tribunal has not committed any error in recording the finding of contributory negligence as well as awarding compensation, therefore, such finding is not liable to be interfered. Compensation as awarded by the Tribunal is just and proper, because no permanent disablement was received by the injured, therefore, appeal may be dismissed and the impugned award passed by the Tribunal may be upheld.

After having heard learned counsel for the parties and looking to the pleadings of claim case, it is apparent that when the appellant was driving his Maruti van going from Tarana to Indore slowly a jeep came from front side driven rashly and negligently and dashed his car, which was going on its own side, such averments find support from the naksh mauka, which is available on record. More so, driver of jeep has not been called in witness-box to depose in the court. In that view of the matter merely imposition of a fine in a criminal case for an accident which took place would not constitute any negligence on the part of appellant. Thus, the finding of contributory negligence recorded by Claims Tribunal is erroneous and is liable to be set aside. Accordingly the finding of contributory negligence is set aside.

Now coming to the question for grant of compensation, I have gone through the certificate of permanent disability, Exh. P58, as well as the statement of doctor. I am satisfied that the appellant is not having permanent disability, but he has received grievous injury in the said accident. In that view of the matter appellant is not entitled to get any amount in the head of permanent disability but simultaneously, no amount has been awarded in the head of grievous injury, therefore, Rs. 15,000 is granted in the said head in addition to the compensation already granted by the Tribunal. Accordingly, this appeal is allowed in part and the finding of contributory negligence recorded by the Claims Tribunal is set aside. Therefore, the appellant is entitled to get total compensation of Rs. 40,730 as allowed by the Tribunal. Simultaneously, Rs. 15,000 is further being awarded in the head of grievous injury. Accordingly, total compensation comes to Rs. 55,730, which is liable to be paid by the appellant.

In view of the aforesaid, this appeal is allowed in part and the appellant is held entitled to receive total sum of Rs. 55,730. The enhanced amount of Rs. 15,000 shall carry interest at the rate of 7.5 per cent per annum from the date of claim petition till its realization. In the facts and circumstances of the case parties are directed to bear their own costs.