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Madhya Pradesh High Court · body

2007 DIGILAW 30 (MP)

Madan Singh v. Hamid

2007-01-10

S.R.WAGHMARE

body2007
ORDER 1. This appeal has been filed against the judgment date 11.4.2002 passed by the Additional Motor Accident Claims Tribunal, Barwaha in Claim Case No. 34/2001, whereby the claim of the appellant was dismissed. 2. The brief facts of the case are that on the alleged dated of incident i.e. 20.9.1999, the applicant was travelling by the alleged bus bearing Registration No. MPN-7333 from Barwaha to Dhamnod, when near Village Barlai and Piplia, the vehicle had stopped for the alighting of the passengers and for the fresh passengers to come in. When suddenly, the driver non-applicant No. 2 negligently and rashly started the bus, as a result of which, conductor closed the door in a hurry. Since the applicant/ appellant was sitting near the door, his hand was in between the door, his fingers were crushed as a result of sudden closure of door. As a result of the grievous injury his hand started bleeding. On hearing shouts, other passengers helped him and stopped the bus and the applicant/appellant was taken to Dr. Kotwal at Dhar for treatment. Thereafter, the applicant/ appellant received treatment from Dr. Jayesh Jain at Sanawad and filed a claim before the Claims Tribunal for compensation of Rs. 80,000/- for the injuries received by him in the said accident. 3. The non-applicants No.1 and 2 remained ex parte, whereas the non-applicant, Insurance Company filed written statement denying the accident and denying that the applicant received any injuries by the use of the alleged motor-vehicle the bus bearing Registration No. MPN-7333. The Insurance Company alleged that the injuries were received by the claimant elsewhere and the Insurance Company was falsely fastened with the liability. 4. On consideration of the evidence on record, the Claims Tribunal came to a conclusion that the accident did not occur due to negligence of the bus-driver, however, assessed the compensation as a result of injury at Rs. 2,300/- and dismissed the claim and being aggrieved, the applicant/ appellant filed the present appeal. 5. Counsel for the applicant/appellant stated at the outset that the claimant had gone to the initial Doctor Kotwal as directed by the bus-driver who had categorically stated that he would keep the bus waiting, but on receiving treatment from the Doctor and coming back, he found that the bus had vanished. The injury being his prime concern, the claimant had taken consequent treatment from the Doctor as referred. The injury being his prime concern, the claimant had taken consequent treatment from the Doctor as referred. The final Doctor, Dr. Yajesh Jain who treated the claimant, was examined as PW 4 by the Claims Tribunal and has categorically stated that he had treated the claimant and wiring was done under treatment for his fingers of right hand and thereby, there can be no denial that the claimant has suffered grievous crush-injury in the said accident. 6. Counsel for the applicant/appellant also pointed out that the FIR was lodged with the police which is Exhibit P-12 and the number of the alleged bus-vehicle is mentioned in the FIR and, therefore, the trial Court had erred in not considering that the accident had occurred due to the alleged vehicle. 7. Placing reliance on decision in the matter of [1988 ACJ 460] Manglal Kale v. M.P. State Road Transport Corporation and others, answering the query that the accident would be termed as an 'accident' u/s. 165 of the Motor Vehicle Act, 1988. Counsel for the appellant/ applicant stated that the Court had under the Old Act while defining the term of 'motor vehicle' held that: "8. The provision of section 95 (1) (b) proviso (ii) of the Act requiring the insurance policy to cover liability of the owner of the passenger bus in respect of the death of or bodily injury to persons being carried in or upon or entering or mounting or alighting from the vehicle at the time of occurrence of the event out of which the claim arises, contemplates that the insured owner in respect of the bus will be liable for the claim in respect of the death of or bodily injury arising out of the use of the vehicle in a public place in a stationary condition when a passenger is entering or mounting or alighting from the vehicle." Counsel for the appellant/applicant further stated that since the damage was assessed at Rs. 2,300/- only by the Claims Tribunal despite the fact that claimant has taken treatment under as many as three Doctors and still suffers pains in his right hand and is unable to carry on his normal duty. Learned counsel for the appellant/claimant submitted that general damages have not been awarded by the Claims Tribunal. 2,300/- only by the Claims Tribunal despite the fact that claimant has taken treatment under as many as three Doctors and still suffers pains in his right hand and is unable to carry on his normal duty. Learned counsel for the appellant/claimant submitted that general damages have not been awarded by the Claims Tribunal. Placing reliance on a decision in the matter of [ 2006 ACJ 1817 ] Raj Kumar Goyal v. Prayag Narain Shanna and others, learned counsel for the appellant/applicant prayed that under the similar circumstances where the claimant had suffered leg, shoulder, head and hand injuries and fracture was allowed Rs. 20,000/- as medical expenses although there was no permanent disablement. Learned counsel for the appellant/applicant prayed for similar enhancement under the circumstances. 8. Learned counsel for the respondent, Insurance Company has vehemently opposed the contentions of the counsel for the appellant stating that the Tribunal has correctly arrived at the conclusion that the negligence of the bus-driver could not be proved under the circumstances and the incident had not occurred during the course of journey by the alleged vehicle. Drawing my attention to para 8 of the impugned judgment, learned counsel for the respondent, Insurance Company, stated that the fact of accident has not been believed on the basis of cogent evidence considered by the Claims Tribunal. Since the Exhibit P-18 to P-24 were neither certified and primarily, the claimant had stated that the accident occurred on 20.1.1999, whereas the FIR was lodged on 22.1.1999 and hence, no interference was called for in the judgment of the Claims Tribunal. 9. On considering the above submissions of counsel for the parties, I find that merely because the FIR was delayed, it cannot be said that it should not be relied on. It is obvious from the statements of facts as evidenced by the Claims Tribunal that the claimant was busy in taking the treatment of his injuries and that may be a reason for the delay in filing the FIR. Looking to the compensation that has been assessed by the Claims Tribunal, it is quite meagre and needs to be enhanced suitably. Since there was a crush-injury as stated by the Doctor (PW 4) and wiring was done for his fingers, the impugned judgment passed by the Claims Tribunal is not appropriate. 10. Looking to the compensation that has been assessed by the Claims Tribunal, it is quite meagre and needs to be enhanced suitably. Since there was a crush-injury as stated by the Doctor (PW 4) and wiring was done for his fingers, the impugned judgment passed by the Claims Tribunal is not appropriate. 10. Thus, the award of the Claims Tribunal is set-aside to the extent that it is enhanced to Rs. 20,000/- along with interest @ 6% per annum on the sum from the date of the application, considering the anvil of judgments cited above in [1988 ACJ 460] Mangilal Kale and [ 2006 ACJ 1817 ] Raj Kumar Goyal (supra). 11. The appeal is allowed in part with no order as to costs.