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Madhya Pradesh High Court · body

2005 DIGILAW 1132 (MP)

Ansar Ahmad v. Qamar Khan

2005-11-09

A.K.MISHRA, S.S.DWIVEDI

body2005
JUDGMENT Mishra, J. -- This appeal has been preferred by the claimant for enhancement of compensation aggrieved by an award dated 14.8.1996 passed in MCC No. 172/92 by II Additional Motor Accidents Claims Tribunal, Seoni. Shri Ansar Ahmed, the claimant was driving a Maruti Van on 2.7.1991. It was averred in the claim petition that when he was going from Seoni to Katni at 10:30 p.m. along with 5 other persons. He tried to overtake truck No. MTL 1771, horn was sounded, light signal was also given, all of a sudden driver of the truck enhanced the speed and dashed the Maruti Van from left side while it was in the process of overtaking. Four persons died on the spot, other two including the driver were seriously injured. Claimant submitted that accident was caused due to rash and negligent driving of the driver of truck, Shri Qamar Khan. Truck was owned by Shri Rafik Khan, he died, his L.Rs. were substituted. Truck was insured with United India Insurance Co. Ltd. Police registered the case at Crime No. 79/91 under sections 304-A and 337 of the IPC. The claimant sustained compound fracture in the left hand, he sustained 60% of the pern1anent disability; his left eye was shortened, fracture in right hand finger was also sustained beside injury on the joint in the leg. The claimant was initially treated at Seoni, thereafter was referred to Nagpur. He was under treatment at the time of filing of claim petition. He was earning a sum of Rs. 1,500/- by way of driving. He was unable to earn any amount as he has been rendered unfit to work as driver. His age at the time of incident was 23 years. Compensation of Rs. 10,40,000/was claimed along with interest. The insurer in the reply contended that the truck was stationery at the time of accident. Driver was also not in the vehicle, he was watching condition of the road whether it was possible to take the vehicle ahead owing to the rains. Maruti Van came from behind and dashed the stationery truck, the driver of the Maruti Van i.e. the Claimant was badly drunk, he drove the vehicle in excessive speed; driver of the truck was not negligent in any manner. The owner and the insurer of the Maruti Van are necessary parties. Maruti Van came from behind and dashed the stationery truck, the driver of the Maruti Van i.e. the Claimant was badly drunk, he drove the vehicle in excessive speed; driver of the truck was not negligent in any manner. The owner and the insurer of the Maruti Van are necessary parties. The learned Claims Tribunal has found that driver of the Maruti van was negligent to the extent of 25%-75% was the negligence on the part of the driver of the truck. It was a case of contributory negligence to the aforesaid extent. Compensation of Rs. 52,000/- for 60% disability has been worked out. 25% amount has been deducted owing to the negligence of the claimant. Interest has been awarded at the rate of 12% per annum from the date of filing of claim petition except for the period 12.1.1995 to 14.3.1996 during which period the claim petition was dismissed owing to the want of prosecution thereafter it was restored. Dissatisfied with the award, this appeal has been preferred for enhancement of compensation. Shri Anil Lala with Shri Satish Singh Thakur, learned counsel for the appellant, has submitted that considering the noting made by the Claims Tribunal in para 5 of the deposition of the claimant, it is clear that claimant has been rendered unfit to perform the job of driver. Disability of 60% has to be treated to be the disability of 100% as job of driver can no more be performed by the claimant. Compensation awarded is inadequate, same be enhanced. Ms. Amrita Ruprah with Shri Ajay Gupta for respondent No.5, Insurer, has submitted that just compensation has been awarded. The claimant himself was negligent to the extent of 25% as found by the Claims Tribunal, as such no case for enhancement is made out. After hearing the learned counsel for the parties, in our opinion, the finding of contributory negligence recorded by the learned Claims Tribunal is proper; same has also not been assailed by the learned counsel for the parties. We affirm the finding with respect to the contributory negligence recorded by the Claims Tribunal in the facts and circumstances of the case; as in the process of overtaking the accident has taken place, the driver of the truck as well as the driver of Maruti Van have been rightly held responsible by the learned Claims Tribunal. We affirm the finding with respect to the contributory negligence recorded by the Claims Tribunal in the facts and circumstances of the case; as in the process of overtaking the accident has taken place, the driver of the truck as well as the driver of Maruti Van have been rightly held responsible by the learned Claims Tribunal. Coming to the question of quantum of compensation, the Court has categorically recorded the finding on seeing the condition of the claimant that his left hand has been totally incapacitated; there was no movement in the finger of the left hand and serious deformity has taken place; it is apparent from the noting made in para 5 of the deposition of the claimant by the Claims Tribunal; claimant has been rendered totally unfit to work as driver, thus, the disability has to be considered as 100% permanent disability for the job of driver which he was performing. Though the claimant has stated that he was earning Rs. 1,200/- per month by way of salary and Rs. 35/- per day used to be given towards the daily allowance, however, in claim petition it was mentioned that he was earning Rs. 1,500/per month, thus, we find in the facts and circumstance of the case that it could be proper to assess the monthly income of the claimant at Rs. 1,500/- per month. The annual income comes to Rs. 18,000/-.25% of the amount has to be deducted as claimant was negligent, thus, annual loss comes to Rs. 13,500/-. His age was 23 years. The multiplier of 17 is applicable. Thus, the compensation comes to (13,500x 17) Rs. 2,29,500/-. In addition, we grant a sum of Rs. 15,000/- for deformity caused in the eye and a sum of Rs. 10,000/- for treatment etc. Thus, the total compensation comes to Rs. 2,54,500/-. The compensation enhanced by us to carry interest at the rate of 6% per annum from the date of tiling of claim petition except for the period case was dismissed and restored. Resultantly, the appeal is allowed to the aforesaid extent. Parties to bear their own costs as incurred.