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2011 DIGILAW 47 (MP)

Manish v. Sanjay

2011-01-11

PRAKASH SHRIVASTAVA

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JUDGMENT Prakash Shrivastava, J. 1. This appeal under section of the Motor Vehicles Act, 1988 has been filed by the claimant against the award dated 23.10.2007, passed by the 15th Member, Motor Accidents Claims Tribunal, Indore, in Claim Case No. 278 of 2006. 2. The appellant had filed the claim petition stating that on 16.11.2005 he along with Rama was going on motor cycle No. MP 09-JC 9752 towards Indore, when a Maruti car No. MP 09-HE 1765 came from the opposite direction on the wrong side in a rash and negligent manner and had caused the accident. Appellant was driving the motor cycle and he had received injuries in the accident, therefore, he claimed compensation. The Tribunal disbelieved the evidence relating to the permanent disability and awarded following sum under the different heads :- (1) Actual medical expenses Rs. 34,587 (2) Physical and mental pain and suffering Rs. 20,000 (3) Special diet Rs. 10,000 (4) Non-pecuniary loss Rs. 5,000 (5) Loss of income during the treatment period Rs. 12,000 Total Rs. 81,587 The Tribunal found that the appellant at the time of accident was under the influence of liquor, therefore, Claims Tribunal held it to be a case of contributory negligence and awarded 50 per cent of the aforesaid amount, i.e. Rs. 40,794 along with interest at the rate of 7.5 per cent from the date of application till realization. 3. Learned counsel appearing for the appellant submitted that the Tribunal has committed an error in recording the finding of contributory negligence and further that the amount which has been awarded by the Tribunal under the different heads is on the lower side and the same deserves to be enhanced. 4. Learned counsel appearing for the respondents have supported the award and submitted that the Tribunal has not committed any error in passing the impugned award and there is no scope for interference by this court. 5. I have heard the learned counsel for the parties and perused the record. 6. The Tribunal has recorded a finding that the appellant Manish had contributed to the accident to the extent of 50 per cent since at the time of accident he was under the influence of liquor, but the said finding of the Tribunal is unsustainable. The Tribunal while recording the said finding has not considered the material evidence on record. 7. The Tribunal has recorded a finding that the appellant Manish had contributed to the accident to the extent of 50 per cent since at the time of accident he was under the influence of liquor, but the said finding of the Tribunal is unsustainable. The Tribunal while recording the said finding has not considered the material evidence on record. 7. Rama, AW 2, who was travelling as a pillion rider along with the appellant, has stated that the offending vehicle had come from the opposite direction in high speed and in a negligent manner, as a result of which the accident was caused. The appellant Manish, AW 1, has also stated that he was driving the motor cycle in slow speed on the left hand side of the road and the accident was caused since the offending vehicle had come on the wrong side in a rash and negligent manner. Sunil, AW 7, who is one of the eyewitnesses of the accident, has also stated that the accident was caused due to rash and negligent driving of the offending vehicle. The spot map, Exh. P5, also indicates that the appellant was going on the left hand side of the road and the offending vehicle had come from the wrong side and had caused the accident. 8. The Tribunal has taken a view that the appellant was under the influence of liquor at the time of accident. Respondents have not produced any oral or documentary evidence to establish the fact that the appellant was under the influence of liquor at the time of accident. Manish, AW 1, and Rama, AW 2, have specifically denied this fact that the appellant was under the influence of liquor at the time of accident. No evidence has come on record indicating that because of being under the influence of liquor, the appellant was not driving the motor cycle properly or the accident was caused since the appellant had committed any default on account of being under the influence of liquor. The Tribunal has relied upon the sole document, Exh. P10, which is the medico-legal injury report which mentions 'breath smell of alcohol' but there is no other material to substantiate this aspect. 9. The Tribunal has relied upon the sole document, Exh. P10, which is the medico-legal injury report which mentions 'breath smell of alcohol' but there is no other material to substantiate this aspect. 9. Learned counsel appearing for the appellant has also placed reliance upon the judgment of the Supreme Court in the matter of Bachu Bhai Hassanali Karyani vs. State of Maharashtra, 1971 ACJ 116 (SC) and the order of this court dated 3.4.2007 passed in the matter of Anoop v. Sheikh Ansar, M.A. No. 1754 of 2005 (MP), in support of his submission that mere mention of smell of alcohol in MLC is not sufficient to hold that the appellant had contributed to the accident, specially when no breath analyser test was done and there is no evidence of detection of quantity of alcohol exceeding the permissible limit. 10. Thus in view of the aforesaid analysis it is found that the finding of the Tribunal that the appellant had contributed to the accident, is unsustainable and is hereby set aside. 11. So far as the quantum of compensation is concerned, Dr. Ashish Jain, AW 5, has stated that the appellant had suffered the fracture of femur bone of right thigh, tibia-fibula bones of right leg and radius and ulna bones of right hand. Rod was inserted to cure the fracture of tibia-fibula of right leg and plate and screw were applied to cure the fracture of right radius bone. The appellant was operated on for that purpose. According to the doctor, on account of the injuries suffered in the accident the appellant had suffered 10 per cent permanent disability in the right upper limb and he had also suffered permanent disability in the lower limb. The doctor has stated that since the appellant is an agriculturist, he is unable to do heavy agricultural work because of the permanent disability. 12. The Claims Tribunal has disbelieved the evidence of the doctor in respect of permanent disability on the ground that permanent disability has not been assessed scientifically but looking to the evidence of the doctor it cannot be ruled out that the appellant had suffered some permanent disability, therefore, the appellant is entitled to a sum of Rs. 25,000 under the head of permanent disability. Since the finding of contributory negligence has been set aside, the appellant is entitled to a sum of Rs. 25,000 under the head of permanent disability. Since the finding of contributory negligence has been set aside, the appellant is entitled to a sum of Rs. 81,587 calculated by the Claims Tribunal under the different heads. Thus the appellant is entitled to total compensation of Rs. 1,06,587 which will bear interest at the rate of 7.5 per cent from the date of application till realization. 13. The appeal is allowed in part to the extent indicated above. No costs.