Research › Search › Judgment

Uttarakhand High Court · body

2005 DIGILAW 14 (UTT)

Mohd. Shan Khan v. Jahanat Khan

2005-02-08

J.C.S.RAWAT, P.C.VERMA

body2005
Judgment 1. This appeal has been preferred under section 173 of the Motor Vehicles Act, 1988, (in short the Act) against the Judgement and award dated 16-122003 passed in MACT case no. 94 of 2000 Mohd. Shan Khan Vs. Jahanat Khan & another by the Motor Accident Claims Tribunal/Addl. District Judge/Ist F.T.C. Haldwani District Nainital (in short the 'Tribunal') whereby the learned Tribunal has allowed the claim petition and has awarded Rs. 17,836/- as compensation In favour of the appellant against respondent no.2 In case the amount is not deposited by respondent no. 2 with in one month then the respondent no. 2 will pay 7% per annum interest from the date of claim petition till it is realized. 2. The brief facts of the case are that on 23-05-1999 truck no. UTI 6315 in which the appellant was traveling as cleaner was coming from Bareilly towards Haldwani. When the truck reached near Devrania the truck driver to save one cyclist and due to the failure of steering the truck collided with a tree. The appellant and the driver of the truck sustained serious injuries. The appellant was taken to the Government Hospital, Baheri in serious condition where he was given first aid looking to the seriousness of the injuries the appellant was referred to Srivastava Fracture Clinic & Orthopaedic Centre, Bareilly where the appellant was given treatment for a long period and the appellant has spent Rs. 30,000/- towards treatment. The appellant at the time of accident was cleaner of the truck and was earning Rs. 2,000/- per month. Due to the injuries sustained by the appellant he could not work for long time and the appellant claimed a compensation of Rs. 3 Lacs. 3. The respondent no.1 in his written statement admitted that he is the registered owner of truck no. UTI 6315 and the appellant was the cleaner of the truck. On the date of accident the truck was being driven with legal documents and driving license. The truck was insured with respondent no. 2 M/s National Insurance Company ltd., which is liable to pay the compensation to be awarded. 4. The respondent no. 2 M/s National Insurance Company Ltd. in its written statement denied the allegations made in the claim petition. The truck was insured with respondent no. 2 M/s National Insurance Company ltd., which is liable to pay the compensation to be awarded. 4. The respondent no. 2 M/s National Insurance Company Ltd. in its written statement denied the allegations made in the claim petition. It has been alleged by the insurance company that the driver of the vehicle Involved in the accident was not holding a valid driving license and the owner was not possessing valid documents in respect of the vehicle in question, therefore the insurance company was not liable to pay any compensation. 5. Thereafter the Tribunal framed necessary issues. 6. The appellant has examined himself as PW-1 in support of his case and has also filed documents of the hospital and the cash memos and bills regarding treatment. 7. The learned Tribunal after considering the evidence on record came to the conclusion that the appellant has proved that on the date of the accident the appellant was traveling In the truck as a cleaner and the truck collided with the tree and sustained serious injuries. The learned Tribunal awarded a sum of Rs. 17,836/- as compensation as mentioned above. Feeling aggrieved by the impugned judgement and order the appellant has filed the present appeal for enhancement of the compensation. 8. We have heard Sri Lalit Sharma learned counsel for the appellant and Sri D.S. Patni learned counsel for respondent no. 2 and have carefully gone through the entire material on record including the impugned judgement and award. 9. The learned Tribunal accepted the evidence of Mohd. Shah Khan PW-1 who had stated in his evidence that when the said truck reached near Devrania the truck driver tried to save one cyclist and on saving the said cyclist the truck struck with a tree and the cleaner of the said vehicle Mohd. Shah Khan sustained serious injuries. The respondents have tried to develop a case that the accident took place due to the mechanical defect in the vehicle. The respondents had not produced before the Tribunal the technical report of the vehicle, which could have proved this fact. The non-production of such report belies the evidence of the respondents that the accident took place due to the mechanical defect. The respondents had not produced before the Tribunal the technical report of the vehicle, which could have proved this fact. The non-production of such report belies the evidence of the respondents that the accident took place due to the mechanical defect. In this connection we may also point out that in order to succeed a defence that the accident was due to the mechanical defect the owner will have to take all precautions and keep the vehicle fit in road worthy condition. It is established by the evidence that the driver of the offending vehicle was rash and negligent while driving the said truck. Due to the rash and negligent driving of the driver of the offending truck the injured Mohd. Shah Khan PW1 sustained serious injuries. 10. The learned counsel for the appellant contended that the learned Tribunal has committed serious error in assessing the compensation. The appellant claimant suffered serious injuries and he was treated in the hospital and had incurred huge expenses on the treatment. The learned counsel for the respondent no.2 submitted that looking to the nature of injuries and the evidence produced by the parties proper compensation has been awarded by the learned Tribunal. 11. We have considered the matter in the context of the evidence on record and the submissions advanced by the learned counsel for the parties. The findings of the learned Tribunal has not been challenged to the effect that the injured Mohd. Shah Khan sustained injuries in the said accident and he had fracture in his leg and he remained admitted for two months in Orthopaedic Centre Bareilly. We have also considered the findings by which the learned Tribunal has awarded a sum of Rs. 11,686.00 on the basis of the medical bills and the prescriptions filed by the appellant before the Tribunal. The appellant also submitted the bills before the Tribunal amounting to about Rs. 36,000/- except the bills in the name of D.K. Vol but the learned Tribunal has held that the appellant has not submitted any prescription pertaining to these bills. A perusal of the bills reveal that these bills pertain to the period when he was admitted in the hospital. It is always not possible that the prescriptions are made available to the appellant in the hospital. Some times the doctor writes the prescription on a small. A perusal of the bills reveal that these bills pertain to the period when he was admitted in the hospital. It is always not possible that the prescriptions are made available to the appellant in the hospital. Some times the doctor writes the prescription on a small. slip of paper and sends to the attendant of the patient to purchase the medicines and as such it is not possible to keep such small piece of paper by the attendant or the patient. At that stage the attendant and the patient remain worried about the treatment and not about the claim. These bills are in the name of the injured and pertain to the period of his treatment. There is one bill amounting to Rs. 378.00, which cannot be accepted, as it did not pertain to the appellant. It is in the name of D.K. Vol. The learned Tribunal has erred in not accepting these bills. The Tribunal has awarded the compensation as under : Rs. 11,680.00 as per the bills, Rs. 5000.00 additional compensation for serious injuries, Rs. 1150.00 for loss of income for 23 days for which he remained in the hospital. 12. It is also in the evidence of PW1 Mohd. Shah Khan that a plate has been inserted in his leg and thereafter it was removed. As such the appellant must have spent on treatment, transport, special diet and attendant also. In view of the foregoing discussion, the compensation of Rs. 17,836.00 is inadequate. The compensation Is enhanced as under:- As per bills Rs. 36,000.00 Pain and suffering Rs. 10,000.00 Transport Rs. 4000.00 Attendant expenses Rs. 2000.00 Special diet Rs. 5000.00 Total Rs. 57,000.00 13. The appeal is allowed and the impugned order of the learned Tribunal is accordingly modified. Thus the appellant is entitled to get a compensation of Rs. 57,000/- (fifty seven thousands only) from respondent no. 2 subject to adjustment of compensation if already paid. The enhanced compensation shall carry interest at the rate of 6% per annum from the date of claim petition till the date of payment by the respondent no. 2.