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2008 DIGILAW 1391 (MP)

Kakaji alias Shankarlal Yadav v. Dashrath Patil

2008-12-01

J.K.MAHESHWARI

body2008
ORDER 1. This appeal is filed under section 173 of Motor Vehicle Act being aggrieved by the award dated 3.11.2007 passed by the 13th MACT, Indore in Claim Case No. 100/05 awarding the compensation of Rs. 59,598/by rounding of the same Rs. 59,600/- along with 6% interest. 2. Facts in brief are that on 24.1.2005 the injured has come through Auto Riksha bearing registration No. MP-09 KB 6162 along with mechanic Palvinder and Suresh for doing some work at Sanwer. At about 10:55 a.m. when they were returning back after taking food to garage a TATA 407 Swaraj Mazda bearing registration No. MP20-A-9008 was driven rashly and negligent from Indore side dashed the Auto Rickshaw, whereby the Author Rickshaw was damaged and Kakji @ ShankarYadav has become injured, however he was hospitalized in Arvindo Hospital and a criminal case was registered at Crime No. 39/04. The appellant injured has received various injuries on head, hand and feet whereby suffered with a paralysis, however, claim petition was filed seeking compensation to the tune of Rs. 5,00,000/-. 3. The Insurance Company by filing the written statements denied the accident and all the allegations. It is stated that the driver has not produced any driving licence, therefore, the insurance company is not liable to pay compensation. It is further averred that because of the owner, driver and the insurance company of Auto Rickshaw has not joined as party to the proceedings, however, there is a defect of non-joinder of the parties. It is also said that because incident took place in front, however, the principle of contributory negligent having its application to the facts of the case, therefore, owner, driver and the insurance company of TAT A 407 cannot be held responsible jointly and severally for payment of compensation. After framing various ·issues the Tribunal has found the' accident proved and also recorded the finding of contributory negligent of 30% to appellant and the 70% to the' offending vehicle with a view that the appellant was a driver of the Auto Rickshaw was not having the valid driving licence. The Tribunal has also recorded a finding that because breach of policy is on record due to not having valid driving licence, therefore, the Insurance Company is exonerated from the liability and the owner and the driver of the TAT A 407 were directed to pay compensation to the tune of Rs. 59,598/-. The Tribunal has also recorded a finding that because breach of policy is on record due to not having valid driving licence, therefore, the Insurance Company is exonerated from the liability and the owner and the driver of the TAT A 407 were directed to pay compensation to the tune of Rs. 59,598/-. The Tribunal has also recorded the finding with respect to permanent disability to the extent of 40% relying on the certificate of Doctor as well as certificate of Medical Board. 4. During the course of hearing of appeal, the learned counsel has pointed out that the driver of TATA 407 bearing registration No. MP20A-9008 has possessed the valide driving licence and the original thereof was produced before the Court on that basis direction was issued to verify the said driving licence through insurance company. The learned counsel appearing on behalf of Insurance Company after verification of the said driving licence conceded before the Court that the driving licence, which was possessed by the driver of TATA 407 i.e. respondent No.2 Kailash Jain is a valid licence. In furtherance to the said verification, it is to be examined whether exoneration of the Insurance Company to pay compensation on account of not having valid driving licence is justified or not? 5. The driving licence, which was before the Claims Tribunal has been verified and ithas come on record that the said licence is valid and genuine on the date of accident, therefore, exoneration of the respondent No.3 on the point pf driving licence as directed by the Tribunal is not justified, therefore, such finding is liable to be set aside. 6. Now issue with respect to contributory negligent requires consideration. Because as per the narration of the claim petition and Naksha Mauka Ex. P-5, which is available on record, it is apparent that place of accident is out side from the main road, where the damaged Auto Rickshaw was found. Thus it is true that TATA 407, which was going from Indore to Ujjain is infact the offending vehicle and driven rashly and negligently and dashed the Auto Rickshaw, although the driver of the Auto Rickshaw i.e. appellant was not having valid licence, but it cannot be a ground to record a finding of contributory negligent because hardly it may be an offence punishable under the provisions of Motor Vehicle Act. Guidance may be taken from the recent judgment of apex Court in the case of Sudhir Kumar Rana v. Surinder Singh and others, reported in 2000 (III) DMP 177 (SC), wherein the apex Court has held that if a person drives wit:h6ut'1icence, he commits an offence but merely for this reason no inference about negligence may be drawn. In that view of the matter the finding of contributory negligent recorded by the Claims Tribunal on account of not having valid driving licence not sustainable in the eyes of law particularly when TATA 407 was found to be offending vehicle and was driven rashly and negligently, in view of the facts available on record. However it is to be held that the driver of TATA 407 found negligent in driving the vehicle, who was having a valid driving licence. 7. Now the question remains for consideration whether the compensation as allowed by the Tribunal is just and proper or reasonable? 8. It is seen from the record that the injured was a driver on the date of accident, which took place on 24.1.2005. It was pleaded that his earning was Rs. 150/- per day, but the said fact has not been proved by cogent evidence. Thus in absence of cogent evidence on the point of earning in a case of driver, his earning may safely be accepted as skilled person and as per minimum wages prevalent on the date of accident may be accepted, which was Rs. 2,400/- per month. In view of the findings of the Tribunal the injured was having permanent disablement to the extent of 40%, if we calculate the loss of earning accordingly, it comes to Rs. 960/- per month and Rs. 11,520/- per annum. Looking to the age of appellant multiplier of 11 is made applicable thereby total loss of future earning comes to Rs. 1,26,720/-. The Tribunal has allowed compensation of Rs. 9,598/- in medical expenses which is available on record, however the same is liable to be allowed in the head of medical expenses. For the loss of earning during the treatment I allow Rs. 10,000/- and I also allow Rs. 20,000/- in the head of pain and suffering, attendant, conveyance and special diet. Accordingly, total compensation of Rs. 1,66,278/- is being enhanced. The Tribunal has allowed the compensation of Rs. 59,598/-, if we deduct the same then remaining amount comes to Rs. For the loss of earning during the treatment I allow Rs. 10,000/- and I also allow Rs. 20,000/- in the head of pain and suffering, attendant, conveyance and special diet. Accordingly, total compensation of Rs. 1,66,278/- is being enhanced. The Tribunal has allowed the compensation of Rs. 59,598/-, if we deduct the same then remaining amount comes to Rs. 1,06,718/-, which is liable to be enhanced in addition to the compensation already granted by the Tribunal. 9. In view of the forgoing discussion this appeal is allowed in part. The finding of contributory negligent and the exoneration of the Insurance Company are set aside and the enhancement of Rs. 1,06,718/- is directed in addition to the compensation already awarded by the Claims Tribunal. The enhanced amount shall carry interest @ 7.5% per annum from the date of application till its realization. In the facts and circumstances of the case parties are directed to bear their own costs.