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Madhya Pradesh High Court · body

2011 DIGILAW 1137 (MP)

Mukesh Kumar v. Rahul

2011-09-28

N.K.MODY

body2011
ORDER 1. Being aggrieved by the award dated 6.4.04 passed by MACT, Neemuch in MACC No. 120/02 whereby claim petition filed by the appellant was allowed and compensation of Rs. 25,000/- was awarded on account of injuries sustained in a motor accident which took place in the intervening night of 10-11/112/2000, present appeal has been filed. 2. Short facts of the case are that the appellant filed a claim petition alleging that in the intervening night of 10-11.12.2000 at about 12.30 a.m. appellant was travelling in a Maruti Van bearing registration No. RJ/09-C/3776, which was being owned and driven by the respondent No. 1 and insured with respondent No.2. It was alleged that Apurv Kulshrestha and Bharat Prajapati were the co-passengers with the appellant. It was alleged that because of rash and negligent driving of respondent No.1 accident occurred, in which appellant sustained grievous injuries. It was prayed that the claim petition be allowed and compensation be awarded. 3. The claim petition was contested by respondent No.1 wherein it was denied that the accident occurred because of rash and negligent driving of respondent No. 1. It was alleged that the accident occurred because of negligence of unknown truck. It was prayed that the claim petition be dismissed. Respondent No.2 also contested the claim petition alleging that since the respondent No. 1 was not at fault, therefore, respondent No.2 cannot be held liable for payment of compensation. It was prayed that the claim petition be dismissed. After framing of issues and recording of evidence, learned tribunal allowed the claim petition and awarded compensation @ Rs. 25,000/- on account of no fault liability, against which present appeal has been filed. 4. Learned counsel for the appellant argued at length and submits that since the accident occurred because of rash and negligent driving of respondent No.1, therefore, learned tribunal committed error in awarding only a sum of Rs. 25,000/- on account of no fault liability. It is submitted that the appellant sustained fracture of tibia and fibula bone. It is submitted that the appellant was hospitalized at M.G. Cloth Market Hospital w.e.£. 12.12.2000 to 18.12.2000. It is submitted that there was permanent disability of 27% of the limb and 15% of the body, which has wrongly been disbelieved by the learned tribunal. It is submitted that the appellant spent a sum of Rs. 11.253/- in his treatment. It is submitted that the appellant was hospitalized at M.G. Cloth Market Hospital w.e.£. 12.12.2000 to 18.12.2000. It is submitted that there was permanent disability of 27% of the limb and 15% of the body, which has wrongly been disbelieved by the learned tribunal. It is submitted that the appellant spent a sum of Rs. 11.253/- in his treatment. It is submitted that looking to the injuries sustained by the appellant, amount awarded by the learned tribunal is grossly inadequate. It is submitted that the appeal be allowed and amount of compensation be enhanced. 5. Learned counsel for respondent No.2 submits that respondent No.1 contested the case on the ground that no accident occurred on account of 272 rash and negligent driving of respondent No.1. It is submitted that in the FIR which was lodged by the appellant it is no where stated that the accident occurred because of negligence on the part of respondent No.1. It is submitted that in the facts and circumstances of the case, learned tribunal committed no error in awarding compensation of Rs. 25,000/- that too on account of no fault liability. It is submitted that the appeal be dismissed. 6. In the matter of Nanhu Singh v. Jaheer, 2005 (1) MPWN 91 Hon'ble Divisional Bench observed that the finding recorded by the Tribunal on the basis of FIR is incorrect, unsound and in a way paves the path of vitiation. The Tribunal had erred by relying on the FIR as if it was the gospel truth or to put it differently, as if it was comparable to Einsteinean theory. 7. In the matter of Sushila Bhadoriya v. MPSRTC 2005 (I) JLJ 15 = 2005 ACJ 831 Full Bench of this Court has held that in a case where injury caused as a result of negligence of joint tortfeasors, it is not necessary to sue the owner, driver and insurance company of both the vehicles or anyone of them. It was further held that it is not necessary to apportion inter se liability of joint tortfeasors. 8. Since undisputedly accident took place in which appellant sustained injury and at the most as per FIR driver of unknown truck was at fault and lateron .It was found that respondent No. 1 was at fault. It will make no differnece because the appellant was the passenger who sustained the injury and appellant was not at fault. 9. 8. Since undisputedly accident took place in which appellant sustained injury and at the most as per FIR driver of unknown truck was at fault and lateron .It was found that respondent No. 1 was at fault. It will make no differnece because the appellant was the passenger who sustained the injury and appellant was not at fault. 9. In the circumstances findings of learned Tribunal cannot be allowed to sustain. Since the learned Tribunal has not ascertained the amount of compensation, therefore, the appeal filed by the appellant is allowed and the findings whereby claim petition was dismissed is set aside holding that respondents are liable to pay the compensation. Case is remanded to the learned Tribunal to ascertain the amount of compensation. Parties are directed to remain present before the learned Tribunal on 12.12.2011. 10. With the aforesaid observations, appeal stands disposed of. 11. No order as to costs. Tarun Kushwaha for appellant; Anil Goyal for respondent No.2.