Dinesh Kumar Singhal v. Jaswant Singh — 1995 DIGILAW 1021 (RAJ)

Honble SAXENA, J. – These appeals have been preferred against the Award dated 27/5/89 passed by the learned Motor Accident Claims Tribunal, Jaipur (for brevity the MACT) whereby it awarded the compensation for an amount of Rs. 90,000/- for the grievious injuries sustained by the claimant with interest @ 10% p.a. with effect from 28.4.83 i.e. date of filing claim petition. It was further directed that in case the amount of Award was not paid within two months then the claimant shall be entitled for interest @ 12% p.a. (2). Since both the appeals arise out of the same Award, those are being disposed of by this common Judgment. (3). Briefly the relevant facts are that on 30.10.82 claimant Dinesh Kumar Sin- ghal, who was in the employment of M/S Devkinandan Om Prakash, Alwar (respondent No. 2) was going in truck No. RSA 107 from Alwar to Jodhpur for delivery of goods of the said Firm, Jaswant Singh respondent No. 1 whose name has now been deleted from the array of the respondents during pendency of these appeals, was also in the employment of the said firm and was driving the truck, which was owned by the Firm. It is alleged that when the said truck reached near Peer Ki Dungari, Chandvaji at about 4 Am,it collided with truck No. HRS 5825, which was parked almost on the certre of the road by its driver Krishna Kumar (respondent No. 4) and the said truck was owned by Tareef Singh (respondent No. 5). Due to the accident, claimant Dinesh Kumar sustained injuries on both of his legs. He was rushed to SMS Hospital Jaipur, where he remained as an indoor patient from 30.10.82 to 24.11.82. His the Radiological examination revealed fractures of 4th,5th meta dorsal bones of left leg, fingers of his both the legs, were amputed. He was also subjected to skin grafting in General Hospital, Alwar, where he remained as an indoor patient from 25.11.82 to 18.1.83. In respect of the said accident, crime No. 106/82 was registered at Police Station Chandvazi wherein after investigation,the Police filed a challan. (4). Dinesh Kumar Singhal submitted claim petition for an amount of Rs. 3.65 lacs before the MACT. In respect of the said accident, crime No. 106/82 was registered at Police Station Chandvazi wherein after investigation,the Police filed a challan. (4). Dinesh Kumar Singhal submitted claim petition for an amount of Rs. 3.65 lacs before the MACT. United India Insurance Company Ltd- Insurer of truck No. RSA 107 in its reply resisted claim on the ground that Dinesh Kumar Singhal was travelling in the said truck as a gratuitous passenger and that he was not travelling during the course of the employment of the owner of the said truck and as such, it had no liability to pay any compensation. (5).The New India Assurance Company Ltd. Insurer of truck No HRS 5825 in its reply asserted that there was no negligence on the part of the driver of truck No. HRS 5825, that the said truck was parked on its proper side and that its lights were also switched on and the signals were properly displayed. (6). Krishna Kumar and Tareef Singh non claimant Nos. 4 & 5 did not file any separate reply but adopted the reply filed by the non-claimant No. 6 ( insurance company of truck No. HRS 5825) .The driver and the owner of truck No. RSA 107 did not file any reply. (7). The MACT framed as many as five issues. In support of the claim, Dinesh Kumar Singhal examined himself as AW1 and produced his brother AW2 Radhey Shyam, AW3 Dr. Hariram Gupta, AW4 Madho Singh and AW5 Rambabu. (8). The MACT after discussing, analysing and evaluating the evidence recorded in this case, held that the said accident had taken place due to negligence of drivers of both trucks, wherein Dinesh Kumar Singhal sustained grievous injuries. The MACT,however, held that the negligence on the part of the driver of truck No. RSA 107 was 75%, whereas negligence of truck No. HRS 5825 was 25% and allowed Rs. 15,000/- as compensation for medical expenses, loss of income and nutrition diet expenses etc. Rs. 15,000/- for mental agony and body pain and a lump sum of Rs. 60,000/- under the head loss of income due to the permanent disablement of the appellant and after adjusting an amount of Rs. 7,500/- paid under Section 92-A of the MV Act, 1939, passed an Award for Rs. 82,500/- with interest in the manner enumerated above. Rs. 15,000/- for mental agony and body pain and a lump sum of Rs. 60,000/- under the head loss of income due to the permanent disablement of the appellant and after adjusting an amount of Rs. 7,500/- paid under Section 92-A of the MV Act, 1939, passed an Award for Rs. 82,500/- with interest in the manner enumerated above. The MACT also held that both the Insurers and other non- claimants were jointly and severally liable to pay the amount of Award. Aggrieved by the said Award, appellant Dinesh Kumar Singhal has filed this appeal for enhancement of the compensation amount, while United India Insurance Company has filed the appeal challenging its liability to pay the compensation. (9). None appears on behalf of other respondents despite service. (10).I have heard Shri Sandeep Mathur, learned counsel for the claimant and Shri G.K. Bharatia, learned counsel for the Insurance Company and carefully perused the record of the MACT in extenso. (11). Shri Sandeep Mathur has vigorously canvassed that the amount of com- pensation awarded by the MACT is not just and adequate, but on the lawer side, which needs to be reasonable enhanced. According to him, the fingers of both legs of Dinesh Kumar Singhal were amputed and he was hospitalised amounts for a period of three months and as such, the compensation amounts of Rs. 15,000/- under the head Medical Expenses and Nutrition Diet and of Rs. 15,000/- against mental agony and bodily pain sufferred by the appellant are meagre and contrary to the principles of socio-beneficial legislation. Dinesh Kumar has sufferred permanent disability, therefore, lump sum amount for loss of income should also be en- hanced. (12). On the other hand, Shri G.K. Bhartia has contended that from the evidence recorded in this case it stands amply proved that claimant Dinesh Kumar Singhal was not travelling in truck No. RSA 107 as an employee of non-claimant No.4, but was travelling as a gratuitous passenger, for which the United India Insu- rance Company is not at all liable to pay any compensation for the injuries sustained by him. In the alternative he has asserted that the quantum of compensation awarded to the appellant is just appropriate and adequate. (13). I have given my thoughtful consideration to the rival contentions made before me. In the alternative he has asserted that the quantum of compensation awarded to the appellant is just appropriate and adequate. (13). I have given my thoughtful consideration to the rival contentions made before me. Firstly let us find out as to in what capacity, appellant Dinesh Kumar was travelling in truck No. RSA 107? (14). Aw1 Dinesh Kumar deposed that he was in the employment of M/S Devki Nandan Om Prakash, Alwar, and that on the ill-fated day he was going in truck No. RSA 107 from Alwar to Jodhpur with the said Firms consignment of Guwar for making delivery thereof at Jodhpur. In his cross examination, he admitted that he has not filed his appointment letter. No other question has been put on behalf of the appellant Insurance Company to this witness. Even no suggestion has been put to him that he was travelling in the said truck as gratuitous passenger. In rebuttal NAW1` Ram Babu has been examined on behalf of the appellant Insurance Company. This witness is a retired Police Inspector. He has stated that he was working as Investigator and was deputed by the United India Insurance Company to investigate in respect of the accident in question, that he had interrogated Om Prakash, Prop. of M/S Devki Nandan Om Prakash and recorded his statement Ex. A.1, wherein he had informed him that Dinesh Kumar was not in the employment of the said Firm at the time of the accident. But the said Om Prakash who is Prop. and partner as also Registered owner of the truck No. RSA 107 of M/S Devki Nandan Om Prakash, Alwar, has not been examined before the MACT by the Insurance Company. The said firm has also not cared to file any reply to the claim petition. In such circumstances statement of NAW1 Ram Babu and his report Ex.A1 are based on mere hear-say evidence, which are not admissible in evidence. Keeping in view preponderance of the evidence, it stands fairly established that claimant Dinesh Kumar was in the employment of the said Firm and that at the time of the accident, he was travelling in the truck No. RSA 107 as its employee. Keeping in view preponderance of the evidence, it stands fairly established that claimant Dinesh Kumar was in the employment of the said Firm and that at the time of the accident, he was travelling in the truck No. RSA 107 as its employee. Therefore, in my considered opinion, claimant Dinesh Kumar Singhal at the time of the accident was not a gratuitous passenger and was travelling in the said truck in the employment of the said Firm and, therefore,the appellant United Insurance Company is liable to pay compensation for the injuries sustained by the claimant. (15). Now as regards the quantum of compensation awarded to Dinesh Kumar Singhal, he sustained grievous injuries on his both legs. These injuries stand proved by medico-legal injury report Ex.1 and X-ray report Ex.2. He also sustained fracture of 4th and 5th meta dorsal bones of his right leg and fractures of 3rd,4th and 5th meta dorsal bones of his left leg. He deposed that he remained in SMS Hospital Jaipur, for about a month, where fingers of his left foot were amputed, his four fingers of right foot were amputed and that about 3"-4" portion of his toe near little finger of the right foot was also amputed. He further deposed that due to amputa- tion of fingers of his feet he can neither run nor undertake any work handling heavy articles. He further stated that he was also admitted in General Hospital, Alwar, where he had to undergo skin grafting twice and that he had to incur about Rs. 15,000/- in his treatment. AW 3 Dr. Hariram Gupta stated that Dinesh Kumar Singhal was under his treatment from 25.11.82 to 13.1.83 in General Hospital, Alwar. He proved the discharge ticket Ex.3. He deposed that the fingers of both the feet of Dinesh Kumar Singhal were amputed due to ulcer and that his skin was also grafted on his legs. He testified that due to injuries sustained by Dinesh Kumar, he can nei- neither run nor walk speedily. However, in his cross examination, he admitted that ulcer can be caused due to infection or also due to the injuries and that he could not say about exact cause for the growth of ulcer of the claimant. (16). As per the statement of Dinesh Kumar Singhal, the total expenditure, which he had incurred in midical expenses was Rs. However, in his cross examination, he admitted that ulcer can be caused due to infection or also due to the injuries and that he could not say about exact cause for the growth of ulcer of the claimant. (16). As per the statement of Dinesh Kumar Singhal, the total expenditure, which he had incurred in midical expenses was Rs. 15,000/- and the MACT has awa- rded the same amount of Rs. 15,000/- under this head. Therefore, the compensation awarded under this head, is just and proper. (17). The learned Tribunal has also not committed any error in allowing an amount of Rs. 15,000/- as compensation to for mental agony and bodily pain sufferred by the appellant, which is quite just and reasonable. (18). However, the lump sum amount of Rs. 60,000/- as compensation for the loss of his income, earning capacity and permanent disability to my mind is on the lower side. On the day of the accident, age of Dinesh Kumar was about 19 years. He was a young man whose thumb and all the fingers of right and left foot have been amputed for the injuries caused to him in the accident. Thus, he has been permanently disabled. As per the certificate issued by Dr.C.S. Sharma, Reader and Head of Orthopaedic SMS Hospital, Jaipur, amputation of his feet has resulted in permanent disability of both the feet. This permanent disability has resulted in perpetual loss of his income and he will have to suffer for whole of his life physically, mentally and financially. Therefore, keeping in view all relevant factors and totality of the facts and circumstances of the case, I feel it will be just and proper to grant him a lump-sum compensation of Rs. 80,000/- under this head. (19). It may be mentioned that the learned Tribunal has allowed interest @ 10% p.a. which is on the lower side. In view of the law propounded in Chameli Wati vs. Delhi Municipal Corporation (1), the claimant appellant is entitled to get interest @@ 12% p.a. from the date of filing of the claim petition. (20). In the premises of the above discussion, S.B. Civil Misc. Appeal No. 316/1989 filed by Dinesh Kumar Singhal is partly allowed, the impugned award is modified and the lump sum amount of compensation under the head of loss of income and earning capacity etc. is enhanced from Rs. 60,000/- to Rs. 80,000/-. (20). In the premises of the above discussion, S.B. Civil Misc. Appeal No. 316/1989 filed by Dinesh Kumar Singhal is partly allowed, the impugned award is modified and the lump sum amount of compensation under the head of loss of income and earning capacity etc. is enhanced from Rs. 60,000/- to Rs. 80,000/-. The rate of interest on the award amount is also enhanced from 10% to 12% p.a. from the date of filing the claim petition till the realisation. (21). S.B. Civil Misc. Appeal No. 492/89 filed by the United India Insurance Company is dismissed. The costs are made easy in both the appeals.