Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 192 (MP)

Pooja v. Indore Municipal Corporation

2010-02-16

J.K.MAHESHWARI

body2010
Judgment ( 1. ) This appeal is filed by the appellants under section 173 of the Motor Vehicles Act against an award dated 29/1/2009 passed by learned XIII Member MACT, Indore in claim case No. 342/2003. By the impugned award the Claims Tribunal has awarded a total sum of Rs. 18,000.00 with interest to the appellant by way of compensation for the injuries sustained in the accident occurred on 6.6.2003. ( 2. ) Appellant has preferred a claim petition under section 166 of the Motor Vehicles Act, seeking compensation to the tune of Rs. 4,00,000.00. According to the appellant compensation awarded by the Tribunal is meager and deserves enhancement, however, by filing the appeal inadequacy of the compensation has been assailed. ( 3. ) It is a case in which the Tribunal has recorded a finding of grievous injury, and awarded Rs. 18,000/- in total, out of which Rs. 5,000/- towards medical expenses, Rs. 10,000/- towards mental and physical sufferings and Rs. 2,000/- towards attendent charges and Rs. 1,000/- towards special diet. The Tribunal found that the appellant was also negligent to the extent of 30% and the driver of the offending vehicle to the extent of 70% and recorded a finding of contributory negligence in this regard. ( 4. ) Shri Chouhan, learned counsel for the appellant submits that as per discharge summary specified in the discharge card Ex. P-1 16, the patient was admitted on 7.6.2002 and the diagnosis was of head injury. As per clinical findings myocardial infarction and B.M. (Patch) on left side of back was found. While discharging the patient it was advised to cousult with radio meddler and to evaluate any neurological problem. In his context certificate of permanent disablement as given by Dr. Ashish Mehrotra Ex. P-121 is required to be assessed. The Tribunal merely in reference to the certificate Ex. P-121 and the railway concession certificate recorded the finding of grievous injury and awarded the said amount. In view of the said it is urged that in fact the right side of the girl has been paralyzed. She has been produced before the Court also, whereby the clinical finding, paper finding in discharged card, other medical papers and the certificate of permanent disablement may found support. In view of the said it is urged that in fact the right side of the girl has been paralyzed. She has been produced before the Court also, whereby the clinical finding, paper finding in discharged card, other medical papers and the certificate of permanent disablement may found support. In view of the said context it is urged by Shri Chouhan, that there is no reason to disbelieve the certificate of permanent disablement, however, the Tribunal has committed an error in this regard in not awarding any amount in the head of permanent disablement. Finally it is urged by him that it is a case of total loss due to the said permanent disablement and being a small aged girl it may cause serious prejudice in her marriage prospects. However, looking to all these consideration the compensation ought to have been awarded in favour of the appellant. It is also said that in other heads the amount as allowed by the Tribunal is inadequate, therefore, by allowing this appeal the compensation may be enhanced. ( 5. ) On the other hand Shri V.P. Khare, counsel appearing for the respondents No. 3/Insurance Company has strenuously urged by referring the CT-Scan report, wherein no bony injury was found and which has been duly considered by the Tribunal that finding of grievous injury as recorded by the Tribunal is just and proper and no amount of compensation in the head of permanent disablement can be awarded. In view of the said it is urged that the appeal filed by the appellant may be ordered to be dismissed. ( 6. ) Shri Anand Agrawal, counsel appearing on behalf of Respondent No. 2 supports the arguments as advanced by Shri Khare. ( 7. ) After having heard learned counsel appearing on behalf of the parties, I have gone through the certificate discharge summary. The said discharge summary is of MGM Medical College/M.Y. Hospital, Indore. The clinical finding apparently indicates that a patch on the left side of back was found and it was a case of myocardial infraction and the effect there of comes in the right side of the body. After going through the certificate of permanent disablement and also on visualizing the girl such effect is on her body. The clinical finding apparently indicates that a patch on the left side of back was found and it was a case of myocardial infraction and the effect there of comes in the right side of the body. After going through the certificate of permanent disablement and also on visualizing the girl such effect is on her body. However, there is no reason to disbelieve the summary of discharge ticket as well as clinical findings as given by the doctor in the discharge ticket. Merely not having any bony injury in the CT Scan report, it would not be sufficient in the cases of paralysis. It is opined that there is myocardial infarction on the left side of the back of the head, which effects right side and vice versa situation is prevalent. Thus certificate of permanent disablement as given by the doctor has wrongly been disbelieved by the Tribunal and accordingly the finding of the Tribunal in this regard is liable to be set aside. Consequently the certificate of the permenent disablement is hereby accepted and in the opinion of this Court the girl is having 70% of permanent disablement. ( 8. ) Now the calculation of compensation ought to have been made accordingly. Because of the girl is of 8 years of age, however, the calculation may be made on the basis of notional earning, thereby the future loss of earning due to permanent disablement comes to Rs. 10,500/- per annum and looking to the age if multiplier of 15 is made applicable then the amount in the said head comes to Rs. 1,57,500/- which is liable to be granted. Looking to the physical position of the girl in the opinion of this Court towards marriage and future prospects at least Rs. 2,50,000/- in lump sum further deserve to be granted. The Tribunal has allowed Rs. 10,000/- in the mental pain and suffering, which is in lower side, however, I further allow Rs. 50,000/- in the said head. In other heads the compensation as allowed by the Tribunal is also inadequate, therefore, Rs. 20,000/- is further added in the said heads, i.e. conveyance, attendant, and special diet in addition to the compensation of Rs. 18,000/- as allowed by the Tribunal, the enhancement of Rs. 4,77,500/- is directed. ( 9. ) It is to be noted here that the accident has taken place on 6.6.2003. 20,000/- is further added in the said heads, i.e. conveyance, attendant, and special diet in addition to the compensation of Rs. 18,000/- as allowed by the Tribunal, the enhancement of Rs. 4,77,500/- is directed. ( 9. ) It is to be noted here that the accident has taken place on 6.6.2003. One Subhash was driving the vehicle and present appellant (Pooja) was sitting as pillion rider. In such circumstances finding of contributory negligence as recorded in the present case to the extent of 30% and 70% cannot be allowed to upheld. If there is a fault, then it is of Subhash in which case the finding of contributory negligence has been upheld today by a separate order passed in M. A No. 1009/2009. Being a case of pillion rider the said finding of contributory negligence is hereby set aside. ( 10. ) At this stage Shri V.P. Khare counsel for respondent/Insurance Company has urged that the valuation of this appeal is only of Rs. 4,00,000/ however, the compensation more than Rs. 4,00,000/- cannot be allowed by this Court. But I am not impressed by such submission, in view of the judgment of apex Court in the case of Nagappa v. Gurudayal Singh and others - AIR 2003 SC 674 , it is suffice to observe that after due consideration of the material available on record and the evidence, if this Court is of the opinion that the amount of Rs. 4,77,500/- is just and reasonable compensation in addition, in view of the provisions of Section 167 of Motor Vehicles Act, then less valuation of appeal cannot come in the way, as per the guidance of the apex Court in the case of Nagappa (supra). ( 11. ) In view of the aforesaid, this appeal is allowed in part and the appellant is held entitled to receive total sum of Rs. 4,77,500.00 in addition to the amount of compensation already awarded by the Tribunal. The enhanced amount shall carry interest @ 7.5% per annum from the date of application till its realization. Looking to the facts and circumstances of the case in my opinion it is also desirable to direct that out of the amount awarded Rs. 4,00,000.00 ought to have been deposited in the fixed deposit in the name of minor girl (Pooja) till her attaining the age of majority. Looking to the facts and circumstances of the case in my opinion it is also desirable to direct that out of the amount awarded Rs. 4,00,000.00 ought to have been deposited in the fixed deposit in the name of minor girl (Pooja) till her attaining the age of majority. It is also open that for her maintenance and for her welfare if the amount is needed, then guardian would be at liberty to apply to the bank to get regular monthly interest. In this regard guardian shall be at liberty to apply to competent Court also and as per order of this Court interest may be released to them on year to year basis. ( 12. ) In the facts and circumstances of the case parties are directed to bear their own costs.