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2005 DIGILAW 951 (MP)

PRAVEEN KUMAR SHRIVASTAVA v. BHAIYA KHAN

2005-09-07

SHANTANU KEMKAR

body2005
SHANTANU KEMKAR, J, J. ( 1 ) THIS appeal is directed against the award dated 24. 11. 1992 passed by Additional Motor Accidents claims Tribunal, Sihora in Claim Case no. 12 of 1989. As per the averments of the appellant-claimant made in the claim petition, appellant was going from Jabalpur to Katni on Suzuki motor cycle. The said motor cycle was being driven by Bhaiya khan, respondent No. 1 and the appellant was a pillion rider. Near Gosalpur Police chowki, respondent No. 2 who was driving tractor MIJ 8329 rashly and negligently dashed the said motor cycle. The appellant contends that as a result of this he sustained grievous injuries resulting in amputation of his right leg. Accordingly, the appellant filed a claim petition seeking compensation of Rs. 2,25,000. ( 2 ) THE driver, owner and insurer of the said tractor resisted the claim petition and contended that the accident occurred by rash and negligent driving of motor cycle by the respondent No. 1. The Claims tribunal framed issues and after recording the evidence partly allowed the claim petition and awarded compensation of Rs. 52,000 with interest at the rate of 12 per cent per annum from the date of claim petition till realisation. However, the Tribunal was of the view that the accident occurred due to rash and negligent driving of both the vehicles and accordingly apportioned the liability to the extent of Rs. 26,000 payable by respondent No. 1 and Rs. 26,000 to be paid by the insurer of tractor with interest at the rate of 12 per cent per annum from the date of claim petition. Feeling aggrieved the appellant has filed this appeal. ( 3 ) THE appellant, PW 1, in his evidence has deposed that on 1. 9. 1987 at 3 p. m. he was going on motor cycle from Jabalpur to Katni. The said motor cycle was being driven by Bhaiya Khan, respondent No. 1 and he was the pillion rider. When the motor cycle was on National Highway No. 7 he saw a tractor coming at the speed of 60 kmph. He stated that all of a sudden the driver of the tractor applied brakes as a result of which the said tractor turned towards right and the motor cycle dashed against the tractor. He stated that the driver of the tractor ran away from the spot. He stated that all of a sudden the driver of the tractor applied brakes as a result of which the said tractor turned towards right and the motor cycle dashed against the tractor. He stated that the driver of the tractor ran away from the spot. He further stated that he was seriously injured and was taken to Medical College Hospital, jabalpur. He further deposed that he was admitted in the hospital for 19 days. His right leg was amputated and he was discharged. After few days he was readmitted and again his leg was further amputated. He stated that he was earning Rs. 700 per month by doing the job of accountant. He stated that his age at the time of accident was 24 years. ( 4 ) AS against this the respondents have examined Jaikumar, NAW 1, driver of the tractor. Jaikumar has deposed contrary to the plea taken in the written statement. In the written statement he has stated that the accident occurred due to rash and negligent driving of motor cycle. In his evidence he has deposed that he did not witness the accident as he left the tractor on the roadside and went to his house to take meal. He stated that when he returned after taking meal he found one motor cycle lying near his tractor and there was nobody near the motor cycle. He further stated that thereafter the said tractor and motor cycle were seized by the police and taken to the police station. In first information report lodged by Gaya Prasad Soni the negligence of the driver of tractor was alleged. ( 5 ) HAVING regard to the clear evidence of the appellant supported by the first information report lodged by Gaya Prasad soni, the appellant's contention that the tractor was being driven rashly and negligently at the excessive speed by driver of the tractor, respondent No. 2, appears to be reliable. The evidence of Jaikumar, NAW 1, driver of the tractor, respondent No. 2, is not at all trustworthy. His statement is contrary to the stand taken in the written statement filed by him. In the written statement he has stated that accident occurred on account of negligence of Bhaiya Khan, respondent No. 1, who was driving the motor cycle rashly and negligently. His statement is contrary to the stand taken in the written statement filed by him. In the written statement he has stated that accident occurred on account of negligence of Bhaiya Khan, respondent No. 1, who was driving the motor cycle rashly and negligently. In the deposition he deposed that he did not witness the accident as he left the tractor on the roadside and went to his house to take meal. This story is clearly an afterthought and is developed to avoid liability of accident. In this view of the matter the finding of the Tribunal holding that the accident occurred due to the negligence of both the drivers is not sustainable and is set aside and it is held that the accident occurred due to sole negligence of the driver of the tractor, respondent No. 2. ( 6 ) COMING to the next question as to quantum of compensation. The appellant sustained grievous injuries resulting into amputation of his right leg below knee. At the time of accident he was aged 24 years and was working as accountant and earning rs. 700 per month. His disability is assessed at 60 per cent vide Exh. P11. Having regard to the age of the appellant, the just multiplier would be 18, the annual income of appellant can be assessed to Rs. 8,400. Taking multiplier of 18, loss of earnings comes to Rs. 1,51,200. The disability of the appellant having regard to the fact that his right leg is amputated below knee can be taken to be 50 per cent keeping in view the nature of job he was doing. Thus, total loss of future earnings would be Rs. 75,600. In addition appellant is entitled to Rs. 25,000 for pain and suffering, Rs. 25,000 towards medical expenses, special diet, expenses of attendant and expenses on transportation, rs. 4,000 for loss of earnings during the period of treatment. Thus the appellant is awarded compensation of Rs. 1,29,600 payable by the insurer of the tractor. The enhanced compensation shall carry interest at the rate of 6 per cent per annum from the date of claim petition till payment. No orders as to costs. Appeal allowed. .