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2004 DIGILAW 1699 (RAJ)

Usha v. Hari Ram Raigar

2004-11-30

DALIP SINGH

body2004
JUDGMENT 1. - This appeal arises out of the award dated 29.10.194 passed by the Motor Accident Claims Tribunal, Jaipur City, Jaipur (hereinafter referred to as 'the Tribunal') in Claim Petition No. 566/1990 by which a sum of Rs. 25,000/- has been awarded along with interest @ 12% per annum to the appellant on account of injuries suffered by her. 2. Brief facts giving rise to this appeal are that on'9.11.1989 the appellant, was going in an auto-rickshaw bearing registration No. RNP 1655 at about 1.00 p.m. and on reaching Sisodia Garden, a jeep bearing registration No. RJL 6708 came from the opposite direction which was being driven rashly and negligently by its driver Hari Ram, the respondent No. 1, struck the auto-rickshaw in which the appellant was travelling as a result of the accident, the appellant received multiple injuries including a fracture of the left elbow, which had resulted in 39% disability as assessed by the Medical Board, constituted at SMS Medical College and Hospital, Jaipur. For the injuries, the learned Tribunal awarded a sum of Rs. 25,000/- as compensation in lumpsum. Being aggrieved by the aforesaid award, the appellant has challenged the same and prayed for enhancement of the amount awarded by the Tribunal. 3. Heard learned Counsel for the parties. The submission of the learned Counsel for the appellant is that the present case may be adjudged on the basis of the provisions contained in II Schedule of the Motor Vehicles Act, 1988 for the assessment and quantification of the damages which is not disputed by the learned Counsel appearing on behalf of the respondents. 4. The submission of the learned Counsel for the appellant is that it has come in the evidence of Dr. M.K. Matur, who was the Member of the Medical Board, who examined the appellant and issued the Certificate (Ex. P.5) that the appellant suffered 39% disability on the left elbow and her ability and capacity to the work with the said arm consequently was impaired. In view of the aforesaid, learned Counsel for the appellant submits that as per Item No. 6 of the II Schedule of M.V. Act, 1988, since the appellant was a housewife i.e., a non-earning woman, the provisions of Clause (a) of Item No. 6 of the II Schedule would be applicable and the notional annual income of the appellant would be assessed as Rs. 15,000/- per annum. 15,000/- per annum. The parties are in agreement that the aforesaid notional income of Rs. 15,000/- when multiplied by multiplier 17, which is applicable in the case of persons who are in the age group of 30 to 35 years, as the age of the appellant at the time of accident was 34 years as given out in the certificate (Ex. P.5) the amount of Rs. 2,55,000/- is arrived at. Since, the disability is only 39% the compensation to be paid on account of loss of income and capacity to earn would be only 39% of the aforesaid amount which as per the learned Counsel for the appellant comes to Rs. 99,450/-. In view of the aforesaid the appellant would be entitled to a sum of Rs. 99,450/- (Rs. ninety-nine thousand four hundred fifty only) by way of compensation under the head of loss of earning and the amount already assessed and awarded by the Tribunal i.e. Rs. 25,000/-is liable to be reduced and deducted from the aforesaid amount which as per the learned Counsel for the appellant comes to Rs. 74,450/- (Rs. seventy-four thousand four hundred fifty only). In view of the aforesaid, the appellant would be entitled to an enhanced sum of Rs. 74,450/- (Rs. seventy thousand four hundred fifty only) by way of compensation under the head of loss of earning. 5. Learned Counsel for the appellant has also submitted that the learned Tribunal has not awarded any amount under the head of pain and suffering and has submitted that on the basis of the provisions contained in Item No. 4 of II Schedule of the M.V. Act, 1988 for the injury No. 1 which is a fracture of the left elbow. Being a grievous injury an amount of Rs. 5,000/- as per the provisions of II Schedule is liable to be awarded. For the injury Nos. 2 and 3 which are non-grievous in nature, an amount of Rs. 2,000/- as per the provisions of II Schedule of the M.V. Act, 1988 is liable to be awarded. Consequently the amount of Rs. 7,000/- is hereby awarded under the head of pain and suffering. 6. In the result, this appeal is partly allowed to the extent that the appellant would be entitled to get the enhanced amount of compensation i.e., Rs. 74,450/- (Rs. Consequently the amount of Rs. 7,000/- is hereby awarded under the head of pain and suffering. 6. In the result, this appeal is partly allowed to the extent that the appellant would be entitled to get the enhanced amount of compensation i.e., Rs. 74,450/- (Rs. seventy-four thousand four hundred fifty) under the head of loss of earning capacity on account of disability suffered by the appellant and additional amount of Rs. 7,000/- under the head of pain and suffering. In all Rs. 81,450/- (Rs. eighty-one thousand four hundred fifty). The aforesaid amount of Rs. 81,450/- is liable to be paid by the respondents to the appellant by way of demand draft/crossed cheque or deposited with the Tribunal within a period of three months from today. In case, the aforementioned amount is paid within the stipulated period, the said amount shall carry interest to be paid to the appellant @ 6% per annum from the date of filing of the appeal i.e., 25.1.1995. However, in case, the respondents fail to pay or deposit the said amount within the stipulated period, the respondents would be liable to pay the interest to the appellant @ 9% per annum w.e.f. the date of filing of the claim petition i.e., 2.4.1990.There shall be no order as to costs.Appeal partly allowed *******