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2006 DIGILAW 584 (MP)

MOHD. MUKHATYAR v. MIRZA MUKTADEER

2006-04-24

S.K.KULSHRESTHA, W.A.SHAH

body2006
S. K. KULSHRESTHA, J. ( 1 ) THE appellant (claimant) has filed this appeal under section 173 of the Motor Vehicles Act against the award dated 20. 8. 2004 of the learned twentieth Member, M. A. C. T. , Indore, in claim Case No. 68 of 2003 on the ground that the amount awarded under section 166 of the said Act is inadequate compared to the harm suffered by the appellant in the accident. ( 2 ) IT is not disputed before us that on the date of the accident the vehicle Tata sumo bearing registration No. MP 09-SS 3838 was being driven by Mirza Muktadeer, respondent No. 1 and was of the ownership of Immitiaz Sheikh, respondent no. 2. The vehicle was insured with United india Insurance Co. Ltd. , respondent No. ( 3 ) LIKEWISE, the motor cycle bearing registration No. MP 13-JE 129 belonging to the appellant was also insured with respondent no. 4. The case of appellant is that while he was going to Indore on motor cycle on 1. 8. 2002 at about 10. 30 a. m. and he had with him Mohd. Saifi on the pillion, as they reached Sanjay Nagar, an on-coming tata Sumo bearing registration No. MP 09-SS 3838 driven by the respondent No, 1 approached at an alarming speed and collided with the motor cycle. On account of the collision the appellant sustained a fracture in his right leg with the result his leg had to be amputated from his thigh downwards. On account of the injuries the appellant started feeling sick (giddy) and the giddiness still continues. On account of the said mishap and the resultant injuries, appellant claimed a sum of Rs. 14,65,000. The Tribunal has, however, awarded only rs. 2,80,000. Aggrieved by the inadequacy of the compensation, the present appeal has been filed. 3. The parties before us have not disputed the extent of injury and further that the accident occurred on account of rashness and negligence of the driver of the vehicle, respondent No. 1. Though the owner and driver had filed written statement, they abandoned the proceedings, they were proceeded ex parte before the Tribunal. Since the insurance company did not have any permission from the Tribunal under section 170 of the Act, the insurance company cannot, even otherwise, assail the findings of the Tribunal on the question of negligence and quantum of compensation. Though the owner and driver had filed written statement, they abandoned the proceedings, they were proceeded ex parte before the Tribunal. Since the insurance company did not have any permission from the Tribunal under section 170 of the Act, the insurance company cannot, even otherwise, assail the findings of the Tribunal on the question of negligence and quantum of compensation. ( 4 ) LEARNED counsel for the appellant has submitted that although it was a serious case of amputation below thigh rendering the appellant 100 per cent unfit for any vocation or avocation, the Tribunal, instead of accepting the claim of the appellant that he was earning a sum of Rs. 5,000 per month from the business of hides, has held that he was having a meagre income of rs. 15,000 per annum and computed the compensation on that basis which has resulted in divesting the appellant of the just compensation. The learned counsel for the insurance company, per contra, has resisted the prayer of enhancement on the ground that no proof was tendered with regard to income of the appellant with the result the Tribunal had no choice but to fall back upon the provisions contained in the Second Schedule under section 163-A of the Motor Vehicles Act and to treat the minimum income provided therein as the income of the appellant and to compute the compensation accordingly. ( 5 ) THE short question that arises for our consideration, therefore, is as to whether the appellant has been awarded just and proper compensation for the harm suffered by him in the said accident. Before we advert to this question, we may briefly refer to the evidence brought on record by the parties. In his affidavit the appellant has stated as AW 1 that on 1. 8. 2002 while he was proceeding on his motor cycle bearing registration No. MP 13-JE 129 along with Mohd. Saifi towards Indore, the respondent No. 1 on account of his patent negligence, collided with the motor cycle and the collision resulted in injuries. He was taken to the Government Hospital, sanwer from where he was sent to Ujjain. From Ujjain he was referred to Indore where he was hospitalised in Life Line hospital and his hospitalisation continued for over a month. Since he had sustained the injury, his leg had to be amputated. He was taken to the Government Hospital, sanwer from where he was sent to Ujjain. From Ujjain he was referred to Indore where he was hospitalised in Life Line hospital and his hospitalisation continued for over a month. Since he had sustained the injury, his leg had to be amputated. He had also sustained an injury over his head with the result he was having a constant headache. He was also complaining of constant pain in his leg on account of some multiple pieces having been left behind in the remaining part of the bone. ( 6 ) IN his testimony he has stated that he was having net income of Rs. 5,000 from trading in cattle and hides. He also stated that he would require a sum of Rs. 2,00,000 for future treatment. ( 7 ) MUJIB Qureshi was also examined as aw 2, in support of the claim of the appellant about his income. Mohd. Saifi has corroborated him as regards the accident and his income. He has been duly cross-examined but nothing significant has been brought out to demolish his version. ( 8 ) DR. Javed Naqvi, AW 4, had examined the appellant in Life Line Hospital on 1. 8. 2002. He examined the skiagram of the femur, he found that a piece about 10 cm long was missing and there was no movement in the limb. He was in a state of shock. Steps were taken to save his limb but eventually it had to be amputated. He has also stated that insofar as the disability is concerned, it was 90 per cent of the limb in question. ( 9 ) FROM the above evidence it is clear that it was on account of the rashness of the driver of Tata Sumo that the accident occurred in which injuries were caused to the appellant and the appellant suffered amputation of his leg and consequently 90 per cent disablement of the said limb. The claims Tribunal has considered the extent of disablement vis-a-vis the body, to the extent of 50 per cent. ( 10 ) THE Tribunal has awarded a sum of rs. 10,000 towards special diet and for commuting. The fact that the appellant had to be treated at Sanwer, Ujjain and Indore and treatment continued for over a month, we find that the amount is reasonable and does not require any further enhancement. ( 10 ) THE Tribunal has awarded a sum of rs. 10,000 towards special diet and for commuting. The fact that the appellant had to be treated at Sanwer, Ujjain and Indore and treatment continued for over a month, we find that the amount is reasonable and does not require any further enhancement. ( 11 ) THE Tribunal has considered the vouchers Exh. P13 to Exh. P132 and the testimony of Dr. Javed, AW 4 and awarded a sum of Rs. 1,30,000 towards medical expenses. We have been taken through the vouchers which have been rejected by the tribunal merely on the ground that the supporting prescriptions have not been given. We find that these vouchers relate to the period when the appellant was under treatment and the medicines purchased relate to the ailment of the appellant and the total comes to Rs. 24,660, excluding therefrom the vouchers which have not been strictly vouched for, we make an addition of Rs. 20,000 and award a sum of rs. 1,50,000 to the appellant for medical expenses. ( 12 ) THE Tribunal has taken into account the agony suffered by the appellant on account of the injuries and the prolonged treatment that the pain and suffering they entailed. Claims Tribunal has awarded a sum of Rs. 10,000 but we are of the view that under this head, a sum of Rs. 20,000 should be awarded to the appellant. ( 13 ) THE crucial question that falls for our determination now is the compensation with regard to the future loss of income and compensation for permanent disability. As observed by us above, though the disability has been assessed as 90 per cent of the limb in question, the disability has rightly been assessed at 50 per cent vis-a-vis the body of the appellant. We may also record that a greater problem of the appellant shall stand mitigated after he gets an artificial limb fixed at the appropriate stage. Under these circumstances, we are not satisfied with the view of the learned counsel that disability should have been taken at 90 per cent or in any case near about 75 per cent. As pointed out by the learned counsel, the tribunal has not believed the plea of the appellant that he was having an income of rs. 5,000 per month from trading in the cattle and hides. As pointed out by the learned counsel, the tribunal has not believed the plea of the appellant that he was having an income of rs. 5,000 per month from trading in the cattle and hides. Though the appellant has examined himself and other witnesses to show that his income was about Rs. 5,000 per month from his business, yet no concrete evidence has been brought on record in proof of the said claim. However, at the same time, it cannot be said that the appellant was a non-earning member in whose case income should be taken as Rs. 15,000 per annum as per Second Schedule under section 163-A of Motor Vehicles Act. We may also record that appellant has stated that he was going on his own motor cycle. This also shows that he was not a non-earning member and was possessing motor cycle, which indicates his status. We are, therefore, of the view that his income should be taken as Rs. 2,000 per month and if his loss is to be counted at the rate of 50 per cent, the component of loss can thus be arrived at in the sum of Rs. 1,000 per month. With this sum multiplied by 12, the annual loss comes to Rs. 12,000. The tribunal has applied the multiplier of 17 in view of his age and rightly so. Multiplied by 17, the total comes to Rs. 2,04,000 as compensation for disability and future loss of the income to appellant. Thus, appellant is entitled to a sum of Rs. 3,84,000 from the respondents which the respondents are liable to pay collectively and severally to the appellant. ( 14 ) THIS appeal partly succeeds. The amount of compensation is enhanced to rs. 3,84,000. The enhanced amount shall bear interest at the rate of 6 per cent per annum from the date of the application. The other conditions of the award passed by the Tribunal shall remain unaltereb. .