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Madhya Pradesh High Court · body

2010 DIGILAW 644 (MP)

Ghanshyam v. Manager, Mpsrtc Depot, Ujjain

2010-07-01

PRAKASH SHRIVASTAVA

body2010
JUDGMENT This appeal is filed by the appellant under section 173 of the Motor Vehicles Act, 1988 against an Award dated 14-9-2007 passed in Claim Case No. 56/2006 by Seventeenth Additional Motor Accident Claims Tribunal (Fast Track Court), Indore. 2. The appellant had suffered injury in an accident which had taken place on 2-5-2001, consequently he had filed the claim petition before the Claims Tribunal and the Tribunal by the impugned Award has awarded a sum of Rs. 1,60,000-00 along with the interest @ 7% p.a. from the date of 1-1-2007. 3. In the accident, the right hand of the appellant was amputated above the elbow. The Tribunal found that the age of the appellant was more than 40 years and had applied the multiplier of 15. The Tribunal assessed the loss of monthly income at Rs. 500-00 and the loss of future income on account of the injury at Rs. 90,000-00. The Tribunal awarded a sum of Rs. 2,00,000-00 towards actual medical expenses and Rs. 30,000-00 on the conventional heads, such as transportation, special diet and physical and mental pain. Thus, the Tribunal assessed the amount of Rs. 3,20,000-00. The Tribunal found that the appellant had kept his right hand outside of the window of the bus, therefore, it was a case of contributory negligence in which he was negligent to the extent of 50%. Therefore, after deducting 50% from the aforesaid amount, the tribunal awarded a sum of Rs. 1,60,000-00. 4. Learned counsel appearing for the appellant submitted that the tribunal has committed an error in recording the finding of contributory negligence without looking into the evidence. He further submitted that the medical bills have been produced by the appellant and in spite of noting the amount of actual medical expenses, the Tribunal awarded a lesser sum under this head. He further submitted that the amount awarded under the head of loss of future income is on the lower side. 5. Learned counsel appearing for the Respondent No. 1 - M.P.S.R.T.C. pressing his cross-objections submitted that the Tribunal has committed an error in proceeding ex parte against the Respondent No. 1. He submitted that in view of the cross-objections filed by the Respondent No. 1, the matter needs to be remitted back to the Tribunal for fresh adjudication. 6. I have heard learned counsel for the parties and perused the record. 7. He submitted that in view of the cross-objections filed by the Respondent No. 1, the matter needs to be remitted back to the Tribunal for fresh adjudication. 6. I have heard learned counsel for the parties and perused the record. 7. So far as the cross-objections preferred by the Respondent No. 1 is concerned, it is noticed that there is no material on record showing that in terms of section 173 of the Motor Vehicles Act, 1988, the Respondent No. 1 has deposited an amount of Rs. 25,000-00 or 50% of the amount awarded. In terms of a Division Bench judgment of this Court in the matter of Smt. Chandrakanta Bhandari w/o Nageen Lal Bhandari vs. Manohar Lal s/o Shankar Lal Soni and others, dated 28-4-2008 passed hi Misc. Appeal No. 2470 without complying with the provisions of section 173 of the. Motor Vehicles Act. 1988 the appeal or cross-objections is not maintainable. Even otherwise the Respondent No. 1 has raised the issue that the Tribunal has passed the Award without service of notice on Respondent No. 1; whereas the record of the Tribunal indicates that the notice was duly served upon the Respondent No. 1. Since in spite of service of notice, the Respondent No. 1 had not appeared before the Tribunal, therefore, the Tribunal had proceeded ex parte. In view of this, the cross-objections preferred by the Respondent No. 1 has no merit and the same is accordingly rejected. 8. So far as the appeal of the appellant for enhancement is concerned, it is found that the appellant had produced the bills of actual medical expenditures from Exs. P/20 to P/105 showing that the appellant had incurred the actual medical expenses amounting to Rs. 2,70,362-00. The Tribunal has noted this figure in paragraph 8 of the Award and has not doubted the same yet the Tribunal committed an error in awarding a lesser sum of Rs. 2,00,000-00 under this head. Consequently, it is held that the appellant is entitled to Rs. 2,70,362-00 on account of the actual medical expenses incurred by him. 9. So far as the age of the appellant is concerned, the appellant has placed on record a photo-copy of the mark-sheet of Higher Secondary School certificate as Ex.P/4-C which shows that the date of birth of the appellant is 25-4-1964. 2,70,362-00 on account of the actual medical expenses incurred by him. 9. So far as the age of the appellant is concerned, the appellant has placed on record a photo-copy of the mark-sheet of Higher Secondary School certificate as Ex.P/4-C which shows that the date of birth of the appellant is 25-4-1964. The accident had taken place on 2-5-2001, therefore, on the date of the accident the appellant was aged about 37 years. Thus, the applicable multiplier will be 16. The Tribunal committed an error in applying the multiplier of 15. 10. So far as the issue of loss of income is concerned, the appellant has brought on record the evidence to the effect that he was doing the work of making of Gold and Silver jewelleries prior to the accident. PW-3 Dr. S. K. Yadav has opined that though the right hand of the appellant which was completely severed from above the elbow has been implanted but there is no sensation on the wrist and the hand and there is no movement. The doctor has opined that there is 100% permanent disability in the right hand below the elbow. Thus, the evidence on record indicates that the appellant will not be able to do the work which he was performing prior to the accident. 11. The Tribunal has assessed the loss of earning of the appellant as at Rs. 500-00 per month which is much on the lower side. Even if there is no evidence of income on record after taking into account the possibility of his getting some alternate employment, it can be safely be presumed that the appellant has suffered a loss of income to the extent of Rs. 2,000-00 per month. Therefore, the annual loss of income is calculated as Rs. 24,000-00 and applying the multiplier of 16, the amount comes to Rs. 3,84,000-00. 12. So far as the issue of contributory negligence is concerned, the Tribunal has committed an error in recording a finding that the appellant was himself negligent to the extent of 50% whereas there is no such evidence on record. The observations of the Tribunal that the appellant had kept his right hand outside the window of the bus is also not supported by any evidence on record. 13. PW-1 Ghanshyam Soni (appellant) has stated that the driver of the bus was driving the vehicle negligently. The observations of the Tribunal that the appellant had kept his right hand outside the window of the bus is also not supported by any evidence on record. 13. PW-1 Ghanshyam Soni (appellant) has stated that the driver of the bus was driving the vehicle negligently. He has stated that the Matador was coming from the opposite direction and the driver had applied the brake as a result of which the appellant had suffered injury in the right hand and his right hand was amputated. He is clearly deposed that the accident had taken place due to the negligence of the driver of the bus. In the cross-examination he has stated that the Matador coming from the opposite direction had collided with the bus from the back side and in the accident his right hand was amputated. PW-2 Vijay Kumar has also supported the statement of PW-1 by stating that the accident was caused due to the negligent driving of the bus. As against this, no evidence was brought on record by the Respondents to show that the driver of the bus was not negligent or the appellant in any manner had contributed to the accident. 14. The Division Bench of this Court also in the matter of Sushma Mitra vs. M. P. State Road Transport Corporation and others, reported in 1974 MPLJ 16 = 1974 ACJ 87 , in the similar circumstances when the passenger travelling in a bus was resting his elbow on the window after discussing the legal position in detail has found that in such a case the passenger cannot said to have contributed to the negligence. Same is the view expressed by the Division Bench of this Court in the matter of Prabhakar vs. Bharat Co-operative Transport Society Ltd. and others, reported in 1976 MPLJ Note 11 = 1977 ACJ 313. 15. Thus, it is found that finding of the Tribunal about the contributory negligence of the appellant is not sustainable and is hereby set-aside. 16. So far as the amount awarded by the Tribunal under the conventional heads is concerned, that appears to be Just and proper, therefore, the same remain unaltered. 17. Thus, the appellant is entitled to a total compensation of Rs. 6,84,362-00 [Rs. 2,70,362-00 + 3,84,000-00 + 30.000-00]. The amount awarded by the Tribunal is enhanced by a sum of Rs. 5.24.362-00. So far as the amount awarded by the Tribunal under the conventional heads is concerned, that appears to be Just and proper, therefore, the same remain unaltered. 17. Thus, the appellant is entitled to a total compensation of Rs. 6,84,362-00 [Rs. 2,70,362-00 + 3,84,000-00 + 30.000-00]. The amount awarded by the Tribunal is enhanced by a sum of Rs. 5.24.362-00. The appellant will be entitled to the interest at the rate of 7% p.a. as awarded by the Tribunal from the date of the application. 18. The appeal is accordingly allowed to the extent indicated above. No order as to costs.