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2007 DIGILAW 199 (MP)

NATIONAL INSURANCE CO. LTD. v. RAJESH KUMAR GARG

2007-02-20

A.K.GOHIL, RAJENDRA MENON

body2007
ABHAY GOHIL, J. ( 1 ) THIS judgment shall govern the disposal of Misc. Appeals No. 680/2000 and 682/ 2000, as they arise out of the same accident. Misc. Appeal No. 680/2000 has been filed by national Insurance Company Limited, challenging the award dated 31st July, 2000 passed by Second Additional Motor Accident claims Tribunal, Morena in Claim Case no. 186/98 and Misc. Appeal No. 682/2000 has been filed on behalf of the claimants for enhancement of compensation against the same award. Both the appeals have been filed under Section. 173 of Motor Vehicles act, 1988. ( 2 ) BRIEF facts of the case are that on 9th february, 1998 appellant No. 1 Rajesh Kumar (in Misc. Appeal No. 682/2000) was travelling in a truck No. MP06-A-3399 along with some ballot boxes and was coming from Damon to Morena. Vishambhar Dayal (A. W. 1) has stated that he had deputed his brother to accompany along with the ballot boxes from Damon to Morena as they were being carried for repairs. In the way near the grassland of Jhansi one truck No. M. P.-06-3268 containing cemented railway sleepers therein was coming from the opposite side and was going from Jhansi to Lalitpur. As per the F. I. R. , the truck No. MP06-A/3399 was standing and another truck No. MP-06/ 3268 came and dashed another truck No. MP06-A/3399. As a result of this accident rajesh Kumar Garg, who was traveling in the truck, received severe injuries in the head and other parts of the body. There was fracture in the skull bone which damaged the brain part and he became unconscious on spot. He was taken to Jhansi Hospital and thereafter he was shifted to JA Group of hospitals, Gwalior where he was treated in the Neurosurgery Department and remained hospitalized for more than four months. Another driver who was traveling with rajesh Kumar Garg and sleeping in the said truck also died and his claim case has been settled by the Insurance Company. The matter was reported to Police Station Seepri bazar, Jhansi where crime was registered and the truck driver of the offending truck no. MP06-3268 Triloki Singh was prosecuted. Rajesh Kumar Garg (claimant) filed claim petition No. 186/98 claim and how M. A. 682/2000for claiming compensation of rs. 18,83,000/ -. The matter was reported to Police Station Seepri bazar, Jhansi where crime was registered and the truck driver of the offending truck no. MP06-3268 Triloki Singh was prosecuted. Rajesh Kumar Garg (claimant) filed claim petition No. 186/98 claim and how M. A. 682/2000for claiming compensation of rs. 18,83,000/ -. It is pleaded in the claim petition that because of the injuries sustained by Rajesh Kumar Garge he became totally disabled and his brain is damaged. He was engaged in sarafa business; because of his mental disturbances he had to close his business; he became dependent on the others and his life became miserable; he cannot walk without the help of others and he became totally disabled. Respondent No. 1 ramesh Chandra Bansal, who is the owner of truck No. MP06-3268, has stated that the insurance Company is liable for the damages as his truck was insured with the Insurance company. Respondent No. 2 who was the driver of the aforesaid truck, has not filed any reply. Respondent No. 3-National insurance Company, with whom that truck no. MP06-3268 was insured, contested the case and its contention was that the claim is on exorbitant side. The driver of truck no. MP06-3268 was driving the vehicle in contravention of the terms and policy of the insurance; he was not having valid licence and the contention was that the accident took place because of rash and negligent driving of the truck No. MP06-A/3399. . ( 3 ) BEFORE the Tribunal claimant examined vishambhar Dayal Garg, who is the brother of Rajesh Kumar Garg as A. W. 1, Mangilal as a. W. 2, who is his father, Dr. Yogendra pradhan as A. W. 3, who was working as a registrar and Asstt. Supdt. , Neurosurgery department, JA. Group of Hospitals, Gwalir and Mannu @ Subhash as A. W. 4, an eye witness, whohad lodged the F. I. R. In defence, national Insurance Company examined trilok Singh (D. W. 1), who was driver of truck No. MP-6-3268. The Tribunal found that the truck No. MP06-A/3399 was standing at the time of accident. The accident took place on 9th February, 1998 in the intervening night at about 2. 00 p. m. near grassland Jhansi. The Tribunal found that the truck No. MP06-A/3399 was standing at the time of accident. The accident took place on 9th February, 1998 in the intervening night at about 2. 00 p. m. near grassland Jhansi. The Tribunal further found that the truck No. MP06-3268 was liable for the aforesaid accident and there is no evidence on record that the accident took place because of negligence of the driver of truck No. MP-6-3399 and held that the insurance Company of truck No. MP06-3268 is liable for the compensation and found that rajesh Kumar Garg became permanently disabled and awarded compensation of rs. 1,67,600/- Against which, National insurance Company has filed Misc. Appeal no. 680/2000 challenging the aforesaid finding and the claimants have also filed misc. Appeal No. 682/2000 for enhancement of compensation. ( 4 ) WE have heard the learned Counsel for the parties and perused the evidence and findings on record. Shri B. N. Malhotra, learned Counsel appearing for National insurance Company Limited in Misc. Appeal no. 680/2000, submitted that it is a case of either contributory negligence or composite negligence and the finding of the Tribunal that only Insurance Company of truck no. MP06-3268 was liable is contrary to the evidence on record. This argument is repelled by the other side and they have supported the findings recorded by the Tribunal. ( 5 ) WE have perused the evidence of mannu @ Subhash (A. W. 4), who was also travelling in truck No. MP06/a/3399 from damoh to Morena along with Rajesh Kumar garg. He has deposed that in the night his truck was stopped in the way and driver and he had gone to ease; in the meantime another truck came and dashed his truck. As a result of this accident Rajesh Kumar Garg received severe injuries. Respondent-National insurance Company has also examined Trilok singh, who was the driver of truck No. MP06-3268. He has stated that the offending truck no. MP06-A/3399 was coming from opposite side, which was being driven rashly and negligently and the driver did not apply any horn or give dipper and, therefore, the accident took place. He has stated that after the accident he ran away from the spot and the persons those who were present on spot set another truck on fire. In the cross-examination he has stated that he does not know whether the truck was mechanically examined or not. He has stated that after the accident he ran away from the spot and the persons those who were present on spot set another truck on fire. In the cross-examination he has stated that he does not know whether the truck was mechanically examined or not. He has admitted that cabin of his truck was broken but he was unable to say whether the sleepers had entered into the another vehicle or not. He was also not aware whether the tyres of his truck got burst as he had not seen that how many persons were killed in this accident. In the cross-examination he has further stated that there was one small village near the spot of accident but he had not informed the villagers nor as sought for any help from them and he has denied all the questions in the cross-examination. The Tribunal has not placed any reliance on his evidence. The Tribunal has found that looking to his admission that he ran away from the spot after the accident, he was involved in the accident and his evidence is not much reliable and, therefore, held that on the basis of the evidence of trilok Singh (D. W. I) it cannot be held that it is a case of contributory or composite negligence and found that the accident took place because of negligence of Trilok Singh. We have also perused the aforesaid evidence and we are also of the view that Tribunal has not committed any illegality in recording the aforesaid finding and after assessing the evidence it appears that Trilok Singh, driver of truck No. MP06-3268 was driving the truck rashly and negligently and dashed the another truck in which Rajesh Kumar Garg sustained injuries and subsequently he tried to givedistorted version of the accident which is not at all reliable. ( 6 ) IN view of this finding that the truck driver of truck No. MP06-3268 was responsible and liable for accident, we do not find that there is any substance in the appeal filed by the National Insurance company on the ground that it is a case of composite or contributory negligence. ( 6 ) IN view of this finding that the truck driver of truck No. MP06-3268 was responsible and liable for accident, we do not find that there is any substance in the appeal filed by the National Insurance company on the ground that it is a case of composite or contributory negligence. On the basis of the findings and the assessment of the evidence by us, we hold that the driver of truck No. 3268 alone is responsible for the accident as the another truck was standing and, thus, we affirm the findings recorded by the Tribunal. Accordingly we do not find any merit in the appeal filed by the Insurance company. Therefore, Misc. Appeal No. 680 of 2000 is dismissed. ( 7 ) SO far as Misc. Appeal No. 682/00 filed by claimant Rajesh Kumar Garg is concerned, we have examined medical evidence of dr. Yogendra Pradhan (A. W. 3 ). He has stated that there was fracture in the skull and because of the aforesaid fracture the injured was operated and his brain got damaged. He is unable to perform his routine work and is also not in a position to walk properly. He can not walk without the help others. The disability certificate Ext. P/84 has been produced. In the cross-examination he has admitted that the permanent disability certificate can only be issued by the Medical board. ( 8 ) DURING pendency of this appeal learned counsel for the appellants has filed some documents on record. He has also filed the permanent disability certificate issued on the recommendation of the Medical Board in which percentage of disability has been mentioned as 60% to 70%. The Tribunal has awarded lumpsum amount of Rs. 1. 00 lakh in the head of permanent disability and rs. 67,000/- have been awarded in various other heads, Shri B. D. Verma, learned counsel for the appellants submitted that the amount is on lower side. The Tribunal has recorded a finding that on the basis of the assessment Orders for the year 1996-97 (Annexure P/55) and 1997-98 (Annexure p/56) the Tribunal has assessed the loss of income approximately @ Rs. 50,000/- per year. We have perused the aforesaid documents, they are not the Assessment orders but are the acknowledgement of filing of return. As per this acknowledgement for the year 1996-97 the gross income of rs. 50,000/- per year. We have perused the aforesaid documents, they are not the Assessment orders but are the acknowledgement of filing of return. As per this acknowledgement for the year 1996-97 the gross income of rs. 41,500/- has been shown in the acknowledgement and for the year 1997-98 gross income of Rs. 42,600/- has been shown. No other document has been produced for proving the income but admittedly he was engaged in Sarafa business and a young boy, therefore, the finding on the basis of Exts. P/55 and P/56 that he suffered loss of income of about Rs. 50,000/- per year does not appear to be correct. There is also overwriting in the ext. P/55 therefore, these documents are not much helpful in assessing the correct income of the injured/appellant No. 1 Mangilal (A. W. 2), father of injured Rajesh Kumar garg, has stated that Rajesh Kumar Garg is unmarried and he was engaged in Sarafa business and was earning Rs. 3,000-4,000/-per month. Therefore, on the basis of the aforesaid evidence we hold that the loss to the appellant should be considered as rs. 30,000/- per year and if we asses the permanent disability as 60% to him, the yearly loss is calculated as Rs. 18000/- per year. There is no dispute about his age, which was 25 years on the date of accident, therefore, the multiplier of 18 would be applicable. On application of this multiplier on the loss of annual income of Rs. 18,000/-, the amount of dependency is assessed as Rs. 18,000 x 18 = rs. 3,24,000/ -. There is ample evidence on record that he remained hospitalized for four months and he was getting regular treatment. Some bills have also been produced along with the memo of appeal as per contention of the learned Counsel for the appellants, until now they have spent around rs. 60,000/ -. Therefore, we allow Rs. 60,000/-in the head of treatment. He suffered pain and suffering for long time and in future also, therefore, we award a sum of Rs. 20,000/-in the head of pain and suffering and we further award a sum of Rs. 20,000/- for loss of pleasure of life. We further award a sum of rs. 50,000/- in the head of future treatment we well as for engaging the service of attendant as and when required. Therefore, we award total compensation of Rs. 20,000/-in the head of pain and suffering and we further award a sum of Rs. 20,000/- for loss of pleasure of life. We further award a sum of rs. 50,000/- in the head of future treatment we well as for engaging the service of attendant as and when required. Therefore, we award total compensation of Rs. 4,74,000/- (Rupees four lacs Seventy Four thousand)and enhance the amount from Rs. 1,67,600/-to the claimants. The claimants shall also be entitled for interest on the enhanced amount @ 8% per annum from the date of filing the appeal. The entire enhanced amount along with interest be deposited in a Nationalised bank for maximum period so that the appellants may fetch maximum interest. The appellants shall be entitled to receive monthly interest from the Bank. Accordingly, Misc. Appeal No. 682/2000 filed by the claimants is allowed as indicated above with Counsel's fee Rs. 2000/ -. ( 9 ) CONSEQUENTLY, Misc. Appeal No. 680/ 2000 filed by National Insurance Company is dismissed and Misc. Appeal No. 682/2000 filed by the claimants is allowed as indicated above. .