Shivlal v. Oriental Insurance Company Ltd. , Bhilwara
2006-07-20
MOHAMMAD RAFIQ, S.N.JHA
body2006
DigiLaw.ai
Judgment S.N. Jha, CJ.-This special appeal by the claimant is directed against the order of the learned Single Judge dismissing his cross objection. The Motor Accident Claims Tribunal, Bhilwara awarded him compensation of Rs. 80,000/-against which he filed cross objection for enhancement. The main appeal was by the insurance company namely Oriental Fire and General Insurance Company, Bhilwara on the plea that under Section 95(2) of the Motor Vehicles Act, 1939 its liability was limited to Rs. 50,000/-only. The plea was upheld by the learned Single Judge and the appeal of the insurance company was allowed. Cross objection of the appellant was dismissed on the ground that he had failed to produce necessary evidence. 2. On 20.10.1976, when the appellant - then a four years old boy - was standing near the shop of his father at Gulmandi, Bhilwara, at about 5:30 pm, he was hit by a tractor bearing No. RJE 2404 belonging to the Municipal Council, Bhilwara. The appellant suffered various injuries including rupture of urethral bladder. A claim petition was filed and on 21.09.1979, the Claim Tribunal, Udaipur awarded compensation of Rs. 8,000/-. The award was set aside by this Court in S.B. Civil Misc. Appeal No. 29/80 and the appeal was allowed alongwith application under Order 6 Rule 17 of the Code of Civil Procedure seeking amendment of the claim petition, and the matter was remitted back to the Tribunal for fresh decision with liberty to the parties to adduce further evidence. On remand, the appellant and the driver adduced further evidence, but no evidence was led by Municipal Council. As a matter of fact, Municipal Council did not even file written statement, either before remand or afterwards, and thus did not contest the claim. On evidence led by the appellant and the driver, under fresh award dated 25.05.1988 the Claims Tribunal enhanced the compensation to Rs. 80,000/-. The award was challenged by both the insurance company and the appellant, while insurance company filed regular appeal being S.B. Civil Misc. Appeal No. 139/88, the appellant filed cross objection therein and as mentioned above. The appeal of the insurance company was allowed and it was held that the liability of the insurance company was limited only to Rs. 50,000/-, cross objection of the appellant was dismissed. 3.
Appeal No. 139/88, the appellant filed cross objection therein and as mentioned above. The appeal of the insurance company was allowed and it was held that the liability of the insurance company was limited only to Rs. 50,000/-, cross objection of the appellant was dismissed. 3. The learned Single Judge noticed the order of the Claims Tribunal dated 18.05.1994 by which one weeks time had been allowed to the appellant to file documents such as medical prescriptions, cash memos etc. and affidavit to substantiate his case that he was still undergoing treatment and, therefore, the amount of compensation needed to be enhanced. The learned Judge noticed the relevant paragraph of the affidavit but took the view that the necessary particulars relating to purchase of medicines, travelling, consultation, gift etc. had not been furnished therefore, no reliance can be placed on the affidavit. The learned Judge observed that such type of affidavit can be manufactured at any time by any person for any purpose. The learned Single Judge further observed that the appellant had produced more than 200 cash memos and prescriptions relating to his treatment earlier, and if he had purchased medicines etc. after passing of the award dated 25.05.1988, he should have preserved the cash memos and produced them in Court. 4. In the relevant part of the affidavit - referred to by the learned Single Judge - the appellant had stated that during the intervening period of six years after passing of the award, his father got him treated by different hakims, vaidyas, saints etc. apart from allopathic doctors, and taken him to various devsthanas, and he had spent huge amount on travels, consultations, offerings etc. The treatment provided by saints after the ayurvedic treatment from herbs etc. had given some relief to the extent that dripping of urine from the urethra had reduced, but the treatment was still continuing. 5. After going through the records, we are satisfied that the appellant gave an honest and truthful account of his treatment and there was no attempt to exaggerate. As a matter of fact, the appellant had originally claimed Rs. 60,000/-only as compensation which by any account was modest. There is no dispute that the appellant had suffered injuries in urethral bladder and other injuries causing permanent disability in the urinary system. We were informed at the bar that on account of disability, the appellant has not married.
As a matter of fact, the appellant had originally claimed Rs. 60,000/-only as compensation which by any account was modest. There is no dispute that the appellant had suffered injuries in urethral bladder and other injuries causing permanent disability in the urinary system. We were informed at the bar that on account of disability, the appellant has not married. At the time of accident, he was a child of four years, he is now 34 years old. His younger brother got married in the meantime. The appellant, we are satisfied, has suffered both in body and mind. In the circumstances, we called upon the Counsel for the Municipal Council to take a fair stand about the amount of compensation. At the resumed hearing, Counsel, Shri Yashwant Mehta, stated on instructions that the Court may pass any appropriate order. 6. It may be true, as found by the learned Single Judge, that the appellant did not produce medical prescriptions, cash memos etc., showing ongoing treatment and expenses incurred thereon after passing of the award, but as seen above, the appellant has been incurring expenses in somewhat unusual manner. After the usual treatment failed to provide relief , he took to unconventional treatment, and as luck would have it, it provided some relief . If the appellant had indeed spent money on travels, consultations with hakims, vaidyas, saints and offerings at various devsthanas considering the unfortunate and helpless situation in which he had been placed, - it cannot be said to be unnatural. In such situation, we are inclined to think, a liberal view should be taken and the Court may not insist on strict compliance of rules of proof and evidence. 7. Considering the circumstances of the case, and materials on record, we are satisfied that the appellant has come with a true account of his sufferings. He initially claimed Rs. 60,000/-as compensation. Even after amendment, he claimed only Rs. 1,20,000/-against which he was awarded Rs. 80,000/-. We are of the view that in the facts and circumstances of the case, the lump sum payment of Rs. 1,30,000/-to the appellant including amount of Rs. 80,000/-already awarded -taking into account the medical expenses incurred by him, permanent disability depriving the appellant of pleasures of a complete life - would serve the ends of justice. The liability of the Insurance Company having been restricted to Rs.
1,30,000/-to the appellant including amount of Rs. 80,000/-already awarded -taking into account the medical expenses incurred by him, permanent disability depriving the appellant of pleasures of a complete life - would serve the ends of justice. The liability of the Insurance Company having been restricted to Rs. 50,000/-under order of the learned Single Judge, it would follow, the Municipal Council will now pay further Rs. 40,000/-in addition to its liability of Rs. 30,000/-i.e. 70,000/-in all. The Municipal Council will also pay interest @ 6% per annum on the amount of Rs. 40,000 /-. 8. The award of the Claims Tribunal and the order of the learned Single Judge are modified to this extent and the appeal is accordingly disposed of . There will be no order as to costs.