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Madhya Pradesh High Court · body

2009 DIGILAW 100 (MP)

Vishal Singhq v. Shailendra Singh

2009-01-21

S.K.GANGELE

body2009
ORDER 1. The appellant has filed this appeal under section 173 of the Motor Vehicles Act, 1988 against the award dated 23rd December, 2003, passed by the First Additional Motor Accident Claims Tribunal, Gwalior, in Claim Case No.47/2002. 2. The appellant had been working as driver of a truck bearing registration No.MP09/KA-2751. On 15.11.2000, when he had been driving the truck and coming from Indore to Mungawali, another truck bearing registration No.HR38/E-5921, driven rashly and negligently, dashed the truck of the appellant. In the aforesaid accident, the appellant received serious injuries. The report of the accident was lodged at the Police Station Dharnawada and a criminal case vide Crime No.209/2000 was also registered. The appellant was treated various times at J.A. Hospital, Gwalior, ultimately his right leg above knee level, was amputated. The appellant filed a claim application claiming total compensation of Rs.11,00,000/-. 3. The learned Claims Tribunal has held that the accident occurred due to rash and negligent driving of the driver of the offending truck, hence, the respondents are liable for payment of compensation. The Claims Tribunal further fixed the income of the appellant Rs.3,000/- per month and awarded a total compensation of Rs.3,00,000/- on all the heads. 4. Shri Mahesh Haswani, learned counsel for the appellant has submitted that a less compensation has been awarded by the Claims Tribunal in favour of the appellant. The Tribunal has not considered the loss of income and disability of the appellant properly. Neither it has awarded compensation on other heads including pain and suffering. In support of his contentions, learned counsel relied on the following judgments: (i) 1976 ACJ 141 (SC) (PratapNarain Singh Deo v. Shrinivas Sabata and another); (ii) 2002(1) MPWN 114 = 2003 ACJ 1181 (MPDB) (Oriental Insurance Company v. Mani Ramand another). 5. Contrary to this, Shri B.N.Ma1hotra, learned counsel for the Insurance Company and Shri O.P. Mathur, learned counsel for the respondent No.2 have submitted that a proper compensation has been awarded to the appellant looking to the nature of the injuries. Hence, the appeal deserves to be dismissed. 5. Contrary to this, Shri B.N.Ma1hotra, learned counsel for the Insurance Company and Shri O.P. Mathur, learned counsel for the respondent No.2 have submitted that a proper compensation has been awarded to the appellant looking to the nature of the injuries. Hence, the appeal deserves to be dismissed. In support of his contention, learned counsel for the Insurance Company relied on a judgment of the Supreme Court in the case of Sunil Kumar v. Ram Singh Gaud and others, reported in 2008 ACJ 9 , and in the case of Ramprasad Balmiki v. Anil Kumar Jain and others, reported in 2009(1) JLJ 32= 2008 ACJ 2865 . 6. Undisputed facts of the case are that the appellant suffered injuries in an accident occurred due to rash and negligent driving of the driver of the offending vehicle bearing registration No.HR38/E-5921. The vehicle was insured at the relevant time by the respondent No.3 Insurance Company. In such circumstances, in my opinion, the finding of the Tribunal that the respondents are liable for payment of compensation is as per law. 7. The Tribunal has fixed the age of the appellant as 35 years, that is based on the pleadings and evidence on record. In such circumstances, in my opinion, there is no illegality in fixing the age of the appellant as 35 years. It is an admitted fact that the accident occurred when the appellant had been driving the truck. In such circumstances, the findings of the Tribunal that the appellant was driver by profession when the accident occurred are as per law. The Tribunal has also fixed the income of the appellant Rs.3,000/- per month that is in my opinion, just and proper. 8. With regard to loss of earning to the appellant and right of the appellant to receive compensation on different heads, as per the evidence of Dr. Sameer Gupta, who was working at the relevant time as Assistant Professor, Orthopedic, the appellant was admitted on 24.11.2000 at J.A. Hospital, Gwalior. He had received serious injuries on his right thigh which he sustained in the accident, occurred on 15.11.2000. On 7.12.2000 an operation of the appellant of the right thigh was performed and a rod was inserted. The operation was not successful and there was a gangrene in the right leg. Thereafter again another operation was performed on 21.12.2000. He had received serious injuries on his right thigh which he sustained in the accident, occurred on 15.11.2000. On 7.12.2000 an operation of the appellant of the right thigh was performed and a rod was inserted. The operation was not successful and there was a gangrene in the right leg. Thereafter again another operation was performed on 21.12.2000. On 26.12.2000 further operation was performed and his leg above knee level was amputed. Thereafter the appellant was discharged on 19.2.2001. He was again admitted in the Hospital on 20.6.2001 and another operation was performed. The rod was removed and he was discharged on 25.6.2001. 9. It has further been stated that near about five operations had been performed on the appellant and appellant incurred the expenses of medicines and other materials for the operations. Blood was also given to the appellant. Looking to the nature and duration of treatment of the appellant and the fact that five operations were performed, in my opinion, it would be just and proper to award an amount of Rs.50,000/- to the appellant for medical expenses. 10. It is an admitted fact that the right leg of the appellant above knee level was amputed. Appellant was a driver. There is a total disability to the appellant. As per the second schedule of the Motor Vehicles Act, under section 163A of the Motor Vehicles Act, disability in non-fatal accidents as per clause 5 shall be in accordance with the percentage of loss of earning capacity as per Schedule I of Workmen's Compensation Act, 1923. Section 4 of the Workmen's Compensation Act, 1923 provides amount of compensation and section 4(b) prescribes that where there is permanent disability results from the total injuries, the amount equal to sixty per cent of the monthly wages of the injured workman should be counted for compensation. The relevant portion is as under: "4. Amount of compensation. -- (l)(a) .... (b) Where permanent disablement results the injury -- an amount total equal to (sixty per cent) of the monthly wages of the injured workman multiplied by the relevant factor; or an amount of (ninety thousand rupees) whichever is more." The income of the appellant has been fixed as Rs.3,000/- per month, hence, the total income comes to Rs.36,000/- per year. 11. 11. Hon'ble Supreme Court in the case of Sunil Kumar v. Ram Singh Gaud and others, reported in the 2008 ACJ 9 , has fixed the compensation after calculating the loss of income in the case of Motor Vehicles Act and held as under : "9. Taking into consideration the present income of the appellant as Rs.4,000/- per month and the permanent disability of 45 per cent suffered by him, we are of the view that the capacity of appellant to earn in future would be reduced by Rs.l,800/- per month approximately. If 1/3rd is deducted towards miscellaneous expenses, the loss of income comes to Rs.l,200/- per month which, in turn, comes to Rs.14,400/- per annum. Appellant was 29 years of age at the time of accident. Taking the multiplier to be 18 (as per second schedule to section 163A of the Act), the total loss of income comes to Rs.2,59,200/-." 12. Applying the above principle of law as applied by Hon 'ble Supreme Court, in my opinion, it would be just and proper to deduct 1/3rd towards miscellaneous expenses of the income. Hence, in that circumstances, the loss of income comes to Rs.24,000/- per annum. The age of the appellant has been fixed as 35 years of age. Hence, as per the second schedule of the Motor Vehicles Act, the multiplier of 16 will be applicable, then the total loss of income comes to Rs.3,84,000/-. As held earlier, the appellant is entitled to Rs.50,000/- for medical expenses. Looking to the nature of the injuries and the fact that the appellant was under treatment for near about one year and he has undergone near about five operations, in my opinion, it would be just and proper to award another Rs.50,000/- to the appellant for pain and suffering. The appellant could not work for a period of one year completely when he was under treatment, hence, there was a loss of real income to the appellant for a period of one year which comes to Rs.36,000/-. After calculating all the heads, in my opinion, the appellant is entitled to total compensation of Rs.5,20,000/-. 13. This Court has taken into consideration of the applicability of the judgment of the Hon 'ble Supreme Court passed in the case of Sunil Kumar (supra). After calculating all the heads, in my opinion, the appellant is entitled to total compensation of Rs.5,20,000/-. 13. This Court has taken into consideration of the applicability of the judgment of the Hon 'ble Supreme Court passed in the case of Sunil Kumar (supra). As per the principle of law laid down by the Hon'ble Supreme Court in the case of Punjab National Bank v. R.L. Vaid and others, reported in AIR 2004 SC 4269 , where the Hon'ble Supreme Court, has held as under with regard to applicability of the law laid down by the law Courts. The relevant portion is as under: "5. We find that the High Court has merely referred to the decision in R.K. Jain's case (supra) without even indicating as to applicability of the said decision and as to how it has any relevance to the facts of the case. It would have been proper for the High Court to indicate the reasons and also to spell out clearly as to the applicability of the decision to the facts of the case. There is always peril in treating the words of judgment as though they are words in a Legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of particular case. Circumstantial flexibility, one additional or different fact may make a difference between conclusions in two cases. Disposal of cases by merely placing reliance on a decision is not proper. Precedent should be followed only so far as it marks the path of justice, but you must cut out the dead wood and trim off the side branches else you will find yourself lost in thickets and branches, said Lord Denning, while speaking in the matter of applying prcedents. The impugned order is certainly vague." 14. Consequently, the appeal of the appellant is allowed to the extent that the appellant will get a total compensation of Rs.5,20,000/- (Rupees Five lacs twenty thousands only). The Tribunal has granted Rs.3,00,000/-. Hence; the appellant will get the enhanced compensation of Rs.5,20,000 - 3,00,000 = Rs.2,20,000/- (Rupees Two lacs twenty thousand only). The enhanced amount shall carry an interest @ 8% per annum from the date of filing of the claim application before the Claims Tribunal upto its realization. Rest of the terms and conditions will be same as fixed by the Claims Tribunal. 15. The enhanced amount shall carry an interest @ 8% per annum from the date of filing of the claim application before the Claims Tribunal upto its realization. Rest of the terms and conditions will be same as fixed by the Claims Tribunal. 15. Appeal is allowed to the extent as indicated above. No order as to cost.