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Madhya Pradesh High Court · body

2007 DIGILAW 29 (MP)

Parvatibai v. Omprakash

2007-01-10

S.R.WAGHMARE

body2007
ORDER 1. This appeal has been filed by the claimant u/s 173 of the Motor Vehicle Act, 1988 being aggrieved by the dismissal of the Claim Case No. 47/2001 by the Motor Accidents Claims Tribunal, Indore by judgment dated 24.4.2002. 2. The brief facts of the case are that the appellant-claimant Parvatibai was walking towards her home at Nehru Nagar from Janjirwala Chouraha at 8 p.m. on 5.6.1999, when near bridge at Vikas Nagar, the non-applicant No.1, Omprakash driving the motorcycle bearing Registration No. MP-09-JK 9496 rashly and negligently dashed against her and injured her in the left hand resulting in a permanent disability. The FIR was lodged at Thana MIG and claimant was treated at M.Y. Hospital, Indore and due to the injury resulting into fracture of her left hand, she sustained a permanent disability and claimed a compensation of Rs.2.00 lakhs before the Claims Tribunal. 3. The non-applicant No.1 remained ex-parte, whereas the respondent-non-applicant No.2, Insurance Company filed written statement and denied the accident and also alleged that the driver of the motorcycle did not have a valid licence nor was the Insurance Company informed by the non-applicant No. 1 regarding the accident. The Insurance Company further denied that u/s 142 of Motor Vehicle Act, the injuries received by the claimant did not result in any permanent disability and, therefore, the claimant was not entitled to any compensation as claimed. 4. On consideration of the evidence on record, the Claims Tribunal came to a conclusion that althoguh the claimant had received a fracture on her left hand as claimed by her, it was not the result of any accident with the alleged motorcycle bearing Registration No. MP-09-JK-9496 and on the basis of the fact that the claimant was working as Tailor and as there was no evidence either regarding medical treatment taken by her nor was she able to prove that the accident had occurred due to the collision of the motorcycle and disbelieved the accident and did not fix any liability on the Insurance Company although it did hold that the driver of the motorcycle had valid driving licence and the motorcycle was insured with the respondent-Insurance Company at the time of accident and dismissed the claim. 5. 5. The claimant being aggrieved has filed the present appeal mainly on the ground that on the principles of res ipsa loquitur the Tribunal ought to have allowed the claim even if the MLC report which was relied on by the claimant was disbelieved by the learned Tribunal. 6. The next point strongly raised by the learned counsel for appellant was that the Tribunal had erred in not relying on the FIR registering the offence and relying on several judgments of this Court stated that the Tribunal had erred in dismissing the claim. The counsel for appellant relied on Daulatram and others v. Akhlesh Kumar and others [ 2006 (III) MPWN 39 ], whereby this Court has held that u/s 166 of the Motor Vehicle Act, 1988, if the accident was proved by the eye-witness and the Police has also registered a criminal case, then the application cannot be dismissed by the Tribunal. In the instant case, counsel for the appellant alleged that the FIR (Exh. P-2) has been completely ignored by the Claims Tribunal and although the FIR was delayed by 3 days and filed on 8.6.1999, that was no reason for discarding the same since it was corroborated by eyewitness (PW 2) Kamlabai and Smt. Prema (PW 3). In the instant case, counsel for the appellant alleged that the FIR (Exh. P-2) has been completely ignored by the Claims Tribunal and although the FIR was delayed by 3 days and filed on 8.6.1999, that was no reason for discarding the same since it was corroborated by eyewitness (PW 2) Kamlabai and Smt. Prema (PW 3). Learned counsel for appellant further relied on Laxmi Gontiya and another v. Nandlal Tahalramani and others [ 1999 ACJ 241 ] whereby this Court while considering the case on the principles of res ipsa loquitur, held thus: "Negligence-Res ipsa loquitur - Mini bus hit a cyclist and he succumbed to his injuries - Owner and driver denied the involvement of the vehicle stating that driver was sick and the vehicle did not go on the road on the relevant date and time but neither the owner nor the driver appeared in the witness-box and no evidence was produced in support of their defence eye witness deposed that the mini bus dashed the deceased from front side when the cyclist was on the left side of his road claimants produced FIR, spot map, seizure memo, report of technical examination of the vehicle and post-mortem report." The Court held that: "principle of res ipsa loquitur is applicable and the driver of the mini bus was rash and negligent." Learned counsel for appellant further relied on Manoj v. Samundar Singh and others [ 2005 ACJ 520 ] where the FIR was lodged by the injured one year after the accident and a criminal case was filed against the driver. There were eye-witnesses to prove the accident and the Tribunal had dismissed the claim. This Court had reversed the finding in the appeal and held that jeep driver was rash and negligent and caused the accident. This Court had allowed the compensation of Rs.61,000/- for the fracture of the femur bone of left leg of the injured. Counsel for the appellant prayed for similar relief and compensation in the present case. 7. On the other hand, learned counsel Shri Pradeep Gupta for the respondent-Insurance Company has vehemently opposed the contentions of the counsel for the appellant stating that the judgment of the MACT was based on proper analysis of the evidence and the Court had considered the fact that the MLC report (Exh. 7. On the other hand, learned counsel Shri Pradeep Gupta for the respondent-Insurance Company has vehemently opposed the contentions of the counsel for the appellant stating that the judgment of the MACT was based on proper analysis of the evidence and the Court had considered the fact that the MLC report (Exh. P-l) mentioned the X-ray was taken on 4.6.1999, whereas the accident had occurred on 5.6.1999 at 3:50 p.m. and from the FIR as well as testimony of other witnesses including the claimant, it was proved that the accident had occurred at 8:00 p.m. on 5.6.1999, the the credibility of the testimony of the eye-witness as well as claimant was discarded by the learned Claims Tribunal also due to the fact that the FIR was filed on 8.6.1999 (Tribunal has wrongly mentioned the date as 18.6.1999) and the X-ray plate (Exh. P-8 & P-9) were taken on 4.6.1999, dismissed the claim rightly. Counsel for respondent prayed for dismissal of the appeal. 8. Considering the submissions and the judgments cited above, I find that the claim was filed u/s 166 of the Motor Vehicle Act and considering section 166 of the said Act and the principles of res ipsa loquitur, if the accident is proved, then the claim ought not to have dismissed on hyper technical grounds. Relying on the decision in the matter of Manoj (supra) where the FIR was lodged after one year of the accident and the Court had directed that the claimant was entitled to compensation and it was well proved from the evidence on record that the appellant had been injured in the vehicle accident on the principles of res ipsa loquitur. In the present case, the delay was of only 3 days. Moreover, there is a corroboration of number of alleged vehicle in the FIR and the testimony of the eye-witness Kamla and Smt. Prema. Hence, it is held that the claimant-Parvatibai w/o Mohanlal was injured in the accident caused by rash and negligent driving of the non-applicant No.1, Omprakash by the alleged motorcycle bearing Registration No. MP-09-JK-9496. 9. Now, considering the claim for compensation, the same has not been decided by the Tribunal. However, since the accident was of the year 1999, it would be just and equitable under the facts and circumstances, to consider the grant of compensation in this appeal instead of remanding the same. 9. Now, considering the claim for compensation, the same has not been decided by the Tribunal. However, since the accident was of the year 1999, it would be just and equitable under the facts and circumstances, to consider the grant of compensation in this appeal instead of remanding the same. Since the Claims Tribunal had already recorded the evidence and the claimant had deposed that she was working as Tailor, she was earning Rs.3,000/- a month, she was 27 years of age at the time of accident and incurred 10% permanent disability, lamed counsel for appellant alleged that the claimant was not allowed to work for 3 months and claimed medical expenses of Rs. 10,000/- and although the claim was for Rs.2.00 lakhs, excessive under the circusmtances, although the claimant had suffered fracture of Ulna of right hand and in the circumstances, the compenation claimed termed as excessive. 10. It is hereby held that the instead of awarding the compensation under various heads, looking to the nature of the injury, relying on Exh. P-10, the disability certificate, I find that Rs.20,000/- as lumpsum compensation, to be paid within a period of two months from the date of receipt of this order, would be adequate under the circumstances to cover all medical expenses including the head such as pain and suffering, etc. Regarding the interest, it is directed that the sum of Rs.20,000/- shall carry interest @ 6% per annum from the date of the application till its realisation. 11. With these observations, the appeal is allowed to the extent indicated hereinabove and that of the Tribunal is set aside. No order as to costs.