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2011 DIGILAW 270 (MP)

Maherajabi v. Latif Khan

2011-02-24

J.K.MAHESHWARI

body2011
JUDGMENT J.K. Maheshwari, J. 1. This appeal is filed by the Appellant under Section 173 of the Motor Vehicles Act against an award dated 24th January, 2005 passed by learned Member, II MACT, (Fast Track),. Kannod in Claim Case No. 72 of 2004. By the impugned award, the Claims Tribunal has awarded a total sum of Rs. 40,000/- with interest @ 6% per annum from the date of filing of the written statement for the injuries sustained, arising out of the accident occurred on 22nd April, 2002. 2. Appellant had preferred a claim petition under Section of the Motor Vehicles Act, seeking compensation to the tune of Rs. 2,00,000/-. 3. The Tribunal found that the injured has suffered permanent disability as per the certificate Ext. P-21 and the statement of Dr. Mahendra Chourey (AW-3) and the finding has been recorded in this regard. Perusal of the certificate indicates that disability as opined was to the extent of 63% with respect to a particular limb. It is seen from the record that the Tribunal has awarded Rs. 25,000/- in general damages, Rs. 10,000/-towards medical expenses and Rs. 5,000/- for pain and suffering. 4. Shri Neema, learned Counsel appearing on behalf of the Appellant contends that the injured was a labourer and sitting on a tractor loaded with boulders to get it unloaded to a crusher where it turned turtle and in the said accident injured has received injuries i.e., fracture of acetabulum, iliac bone and sternum 9th and 10th ribs. In view of the aforesaid and as per percentage of the disability it is said that the compensation as allowed by the Tribunal is inadequate. It is also argued that looking to the disability, compensation ought to have been awarded as per Second Schedule of the Motor Vehicles Act, 1988. It is also contended that earning of the injured ought to have been assessed at Rs. 100/- per day she being a labourer. Accordingly, the compensation may be calculated. In other heads, like transportation, special diet, attendant and loss of wages during treatment compensation has not been awarded, however, some amount may be awarded in those heads. 5. Shri Ashish Vyas, learned Counsel appearing on behalf of the Respondents No. 1 and 2 contends that the Tribunal has wrongly recorded the finding with respect to pay and recover. In other heads, like transportation, special diet, attendant and loss of wages during treatment compensation has not been awarded, however, some amount may be awarded in those heads. 5. Shri Ashish Vyas, learned Counsel appearing on behalf of the Respondents No. 1 and 2 contends that the Tribunal has wrongly recorded the finding with respect to pay and recover. In that view of the matter finding with respect to pay and recover may be set aside, therefore, enhancement may not be directed. 6. Shri Saxena, learned Counsel appearing on behalf of the Respondent No. 3 contends that the Tribunal has adequately awarded the compensation looking to the facts of the present case, however, no enhancement may be directed. The finding with respect to pay and recovery may be maintained looking to the facts of the case as the vehicle was being plied on the road in violation of the terms and conditions of the policy i.e., it was being used other than the agricultural purpose. 7. After having heard Counsel appearing on behalf of the parties and looking to the fact that the said tractor on which the injured was sitting as a labourer turned turtle. The said tractor was loaded with boulders to unload at crusher, however, it was being used for other than the agricultural purpose for which no premium was paid to the company. In that view of the matter finding with respect to pay and recover as recorded by the Tribunal deserves to be upheld. 8. Now coming to the assessment of the compensation it is seen that the injured has suffered disability as per the document to the extent of 63%. The Doctor has not opined what would be percentage of the said disablement with respect to the whole body. After perusal of the record, certificate of the disablement, statement of the doctor and the injuries received by the injured, the percentage of the said disability may be to the extent of 25% for the whole body. If we accept the same, injured may have suffered future loss of earning commensurate to the said disablement. At the relevant point of time i.e. in the year 2002 she was a labourer and, therefore, it cannot be said that her earning may be less than Rs. 2,500/- per month i.e. minimum wages. If we accept the same, injured may have suffered future loss of earning commensurate to the said disablement. At the relevant point of time i.e. in the year 2002 she was a labourer and, therefore, it cannot be said that her earning may be less than Rs. 2,500/- per month i.e. minimum wages. However, if we accept the same, commensurate to the percentage of the disability to the extent of 25%, future loss of earning comes to Rs. 7,500/- per annum. Looking to the age of the injured i.e. 33 years, if multiplier of 17 is made applicable, then Rs. 1,27,500/- comes in head to future loss and general damages. If we accept Rs. 25,000/- in other heads including the special diet, attendant, transportation, conveyance which is awarded by the Tribunal, then in addition to Rs. 40,000/- as awarded by Tribunal enhancement of Rs. 1,27,500/- is being directed. 9. Accordingly, this appeal is allowed in part. The compensation as allowed by the Tribunal is enhanced to the sum of Rs. 1,27,500/- in addition to the compensation already awarded by the Tribunal. It is seen from the record that the Tribunal has awarded interest from the date of filing of the written statement. Such analogy is neither known to law or even as per the material available on record. In that view of the matter the Appellant is entitled to get interest from the date of filing of the claim petition as per the rate specified therein. The enhanced amount shall carry interest @ 7.5% per annum from the date of filing of the claim petition till its realization. In the facts and circumstances of the case parties are directed to bear their own costs.