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Madhya Pradesh High Court · body

2009 DIGILAW 1115 (MP)

Suresh v. Kamlesh Pandey

2009-09-10

D.C.MAHESHWARI

body2009
ORDER 1. This appeal is directed by the claimant under Section 173 of the Motor Vehicles Act, 1988 (in short 'the Act') for enhancement of the sum awarded by the Addl. Motor Accident Claims Tribunal, Betul in MVC No. 53/08 vide award dated 15.11.08 whereby his claim regarding the injuries sustained in a vehicular accident has been awarded for the sum of Rs.90377/- along with interest at the rate of 6% per annum from the date of filing the claim 2. The facts giving rise to this appeal in short are that on date 27.10.06 respondent No.1 while driving the Jeep bearing registration No. H.R. 010/ 2801 in rash and negligent manner, met an accident with the appellant resultantly he sustained the injuries on different parts of the body, on which he was taken to the Govt. hospital Padar. On medical examination and investigation various fractures were found on his person. As per available evidence, he sustained fractures in his back bone right clavicle bone and ribs along with some other minor fracture and injuries, for which, he remained in the hospital for treatment from 27.10.06 to 1.2.07 and also remained on rest for a long period. Due to such injuries, as per medical certificate (Ex. P/59), he sustained 50% permanent disability in his person. As per further averments of the claim petition, the respondent No.2 was the registered owner of the offending vehicle while the same was insured with respondent No.3. With these averments, the appellant has preferred his claim for compensation of Rs.11,92,000/- along with interest on it. 3. Respondent No. 1 and 2 remained ex-parte while in reply of respondent No.3 insurer, the averments with respect of the accident are denied. It is also denied that the accident was the cause and consequence of rash and negligent driving of respondent No.1. In fact, the accident took place because of own negligence of the appellant. The claim petition is filed for excessive sum only on imaginary ground. The appellant has not sustained any permanent disability due to injuries sustained in the alleged accident. It is also stated that insured vehicle was plied by respondent No.1 under violation of the terms and condition of the insurance policy hence it is not liable to indemnify the claim. The necessary parties are not impleaded in the claim petition. In such premises, prayer for dismissal of the claim was made. 4. It is also stated that insured vehicle was plied by respondent No.1 under violation of the terms and condition of the insurance policy hence it is not liable to indemnify the claim. The necessary parties are not impleaded in the claim petition. In such premises, prayer for dismissal of the claim was made. 4. After framing the issues and recording the evidence, on appreciation of the same, by holding that the appellant sustained 25% permanent disability on account of the injuries sustained in the alleged accident, the claim was awarded for the sum of Rs.90,377/- as mentioned above. Being dissatisfied with it, the appellant has come forward with this appeal for enhancement of the same. 5. Shri Mohit Namdeo, learned counsel of the appellant, by referring the averments of the claim petition, evidence and the exhibited documents said that the approach of the Tribunal holding 25% permanent disability, is apparently contrary to the record. As such, as per the available medical evidence and the certificate (Ex. P/59) appellant sustained 50% of permanent disability, hence the approach of the Tribunal in this regard is not sustainable and prayed to hold the case of 50% permanent disability. He further said that the assessment of the compensation has not been carried-out by taking the reasonable income of the appellant. The same was calculated on the basis of notional income which is not proper. According to his submission, in any case, the assessment should have been carried-out on the basis of the income @ Rs.100/- per day as the appellant was working as washerman in the town of Shahpur. In addition, it was also argued that the amount awarded with respect of the treatment and its ancillary expenses are also on lower side. In such premises, he prayed for reasonable enhancement in the awarded sum by allowing this appeal. 6. The aforesaid prayer was opposed by the counsel of insurer Shri Aditya Sharma Advocate saying that the sum awarded by the trial Court in the available set of evidence is just and proper. It does not require any further enhancement at this stage. In such premises, he prayed for reasonable enhancement in the awarded sum by allowing this appeal. 6. The aforesaid prayer was opposed by the counsel of insurer Shri Aditya Sharma Advocate saying that the sum awarded by the trial Court in the available set of evidence is just and proper. It does not require any further enhancement at this stage. He further said that this is not a case in which merely on the basis 0 f medical certificate issued by the doctor the permanent disability could be assessed up to 50% but taking into consideration the part of the person of the appellant in which the injuries were sustained, the Tribunal has rightly held the case of 25% permanent disability. The same does not require any further enhancement at this stage. In the town like Shahpur, the person working as Washerman could not earn more than Rs.60/- per day as assessed by the Tribunal, hence even on the question of quantum, this appeal does not require any interference and prayed for dismissal of the appeal. In addition, it was also argued that looking to the age of the appellant 35 years, the multiplier of 16 was applicable but the Tribunal has applied the multiplier of 17. Thus, the appellant has already got the enhanced sum and prayed for dismissal of this appeal. 7. Having heard the counsel at length, after perusing the record and the impugned award, I am of the considered view that the sum awarded by the Tribunal is apparently on lower side. The same requires further enhancement at this stage. It is apparent fact on record that on account of the injuries sustained by the appellant in the alleged accident, he sustained fracture in the Vertebra L-5 of the back bone, fracture of clavicle bone and three ribs. He also sustained some other injuries on different parts of the body. The fracture of back bone is certainly not only a grievous injury but the same, creates permanent disability in the human body. As per the available evidence, the appellant remained in the hospital, with respect of his treatment, for more than one month and also spent huge amount on it besides the treatment provided by the hospital. The fracture of back bone is certainly not only a grievous injury but the same, creates permanent disability in the human body. As per the available evidence, the appellant remained in the hospital, with respect of his treatment, for more than one month and also spent huge amount on it besides the treatment provided by the hospital. Looking to the nature of the fracture of the back bone and other injuries, it could be assumed that certainly he could not work for his livelihood for round about six months. The same is reflected from the available evidence. I have not found any specific reason or the explanation in the award of the Tribunal showing that on what basis the permanent disability of the person of the appellant has been reduced upto 25% contrary to the certificate (Ex. P/59) issued by the doctor stating the same to be 50%. Such finding is not based on any admissible evidence, hence the same is not sustainable. In such premises, the same is set aside and taking into consideration the entire medical evidence and the deposition of the doctor available on the record, showing the fracture of back bone which created the permanent disablement to the applicant, it is held that the appellant sustained 50% permanent disability in the alleged accident. 8. So far the quantum of compensation is concerned, the same is assessed by the Tribunal taking into consideration the notional income of the appellant provided under the Act Rs. 15,000/- per year. The same is not proper. Now a days, the normal labour rate fixed by the State is in between Rs.90/- to 100/- per day, therefore, in any case, the income of the person like Washerman of a Tehsil Shahpur district Betul, could not be assumed to be only Rs.60/- per day as assessed by the Tribunal. In view of the available evidence and in the facts and circumstances of the case, taking into consideration that the appellant may not have got the work for some days, his income could be assessed @ Rs.2,000/- per month. Accordingly, the annual income comes to Rs.24,000/-. In view of fifty percent permanent disability, the annual loss of the appellant comes to Rs.12,000/-. As per schedule I-A enacted under the Act, multiplier of 17 is applicable to the age group of 30-35 years. Accordingly, the annual income comes to Rs.24,000/-. In view of fifty percent permanent disability, the annual loss of the appellant comes to Rs.12,000/-. As per schedule I-A enacted under the Act, multiplier of 17 is applicable to the age group of 30-35 years. On applying the same, the compensation with respect of the permanent disability comes to Rs.12000x17=2,04,000/-. Besides this, the appellant is also entitled for Rs.26,000/- with respect of his treatment and its ancillary expenses as awarded by the Tribunal. Accordingly, the total claim of the appellant comes to Rs.2,30,000/-. Till this extent, the claim awarded by the Tribunal is enhanced. Although adopting the method of multiplier for assessment of compensation is neither mandatory nor a condition precedent but I have not found any other reliable and authenticated method to assess the reasonable compensation, hence the multiplier method has been adopted by the Court. 9. So far argument of the respondent's counsel that multiplier of 17 was wrongly applied by the Tribunal in the present matter is concerned, it is suffice to say that such multiplier is applicable to the age group of 30-35 years as per the schedule enacted under the Act and, in any case, in the absence of any appeal by the respondent, such question does not require any consideration in the present appeal. 10. In view of the aforesaid discussion, this appeal is allowed in part and the sum of Rs. 90,377/- awarded by the Tribunal is enhanced upto Rs. 2,30,000/- as discussed above. Besides this, the appellant is also entitled to get the interest on the aforesaid awarded sum at the rate of 6% per annum from the date of filing the claim petition till realization of such sum. The liability to pay the aforesaid sum is saddled against respondents No. 1 to 3 jointly and severally. If the sum awarded by the Tribunal has already been paid, then the respondents have to pay the sum enhanced by this Court along with interest as mentioned above. The respondent shall also pay the cost of this appeal to the appellant. The same is quantified Rs.1,500/-. 11. The appeal is allowed in part as indicated above.