Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 543 (MP)

Lalita v. Vidhya Sagar

2011-05-05

U.C.MAHESHWARI

body2011
ORDER U.C. Maheshwari, J. 1. This appeal is directed on behalf of the appellant-claimant under Section 173 of Motor Vehicle Act 1988, in short 'The Act" for enhancement of sum awarded by the First Additional Motor Accidents Claims Tribunal Ambah, to the Court of 5th Additional Motor Accidents Claims Tribunal (fast track) Morena in claim case No. 11/2007, vide award dated 05.01.2008, where by her claim regarding injuries sustained by her in the alleged vehicular accident has been awarded for the sum of Rs. 100,000/-along with the interest at the rate of 6% per annum from the date of filing claim petition. 2. The facts giving rise to this appeal in short are that the appellant herein filed her claim contending that on dated 08.01.2004 at about 5.00 pm, when she was going to answer the call of nature, on the way she was dashed by the motor cycle bearing registration No. MP 2006 C/ 2898 driven by respondent No. 1 in rash and negligent manner, resultantly she sustained injuries on her hand, leg, head, ears and also on some different parts of her person. She was taken to hospital, where her MLC report was prepared. On lodging the report with the Police an offence was registered against the respondent No. 1 After holding the investigation, he was charge sheeted. As per further averments, due to the aforesaid injuries sustained in the accident she has lost the capacity of hearing of both the ears. In spite of taking the long treatment, the same has not been cured. It is also stated that due to such injuries, she has also lost the power of speaking and she has became deaf and dumb. Now she is bound to live with such disease in her entire remaining life. With these averments the claim was filed for the sum of Rs. 17,30,500/-along with interest at the rate of 18% per annum. 3. The respondent No. 1 was proceeded ex-parte in the tribunal, hence no reply of the claim petition was filed on his behalf. 4. Now she is bound to live with such disease in her entire remaining life. With these averments the claim was filed for the sum of Rs. 17,30,500/-along with interest at the rate of 18% per annum. 3. The respondent No. 1 was proceeded ex-parte in the tribunal, hence no reply of the claim petition was filed on his behalf. 4. In reply of respondent No. 2 by denying the averments of the claim petition and the facts sustaining the permanent disability by the appellant clue to injury sustained in the alleged accident, it is stated that in the absence of any admissible medical certificate, the alleged injury could not be treated to be sufficient causing the permanent disablement to the appellant As per further averments, the offending vehicle was insured in the name of some Bhika Ram and not in the name of the registered owner-respondent No. 1. The same was plied by respondent No. 1 contrary to the terms of the policy without permission of the said insured Bhika Ram. In any case without imp leading Bhika Ram as party in the claim, the same is not maintainable. It is also stated that such motor cycle was driven by respondent no. 1, contrary to the terms of the policy without having duly and effective 'driving licence, therefore, no liability of the impugned claim could be settled against it. The claim is preferred by appellant under collusion with respondent No. 1, with these averments, the prayer for dismissing of the claim is made. 5. In view of the pleadings of the parties, the issues were framed and after recording the evidence, on appreciation of the same by holding the appellant has sustained alleged injuries, in the alleged incident caused by respondent No. 1 while driving the offending vehicle in rash and negligent manner, the claim of the appellant was awarded for the sum as stated above. Being dissatisfied with the awarded sum, the appellant has come to this Court for further enhancement of the same. 6. Being dissatisfied with the awarded sum, the appellant has come to this Court for further enhancement of the same. 6. Shri Gupta Learned Counsel for the appellant by referring pleadings, evidence lead by the parties and exhibited papers from the record of the tribunal said that while deciding the impugned claim, the material circumstance, that due to the alleged permanent disability the appellant has to face difficulty in her remaining life up to her age 60 to 70 years, was not taken in to consideration. The appellant's claim has been awarded at lower side only for Rs. 100,000/-. He further said that due to alleged injury the appellant has lost her capacity of hearing and speaking both and thereby, she became deaf and dumb and due to such reason injury and disability, her entire future has come in the dark. In future according to her choice, she could neither get education not life partner to get marry. Due to aforesaid she would not be in a position to manage the affairs of the family all alone even after getting the maturity. With these submissions by placing reliance on the case law in the matter of Sarla Verma and others Vs. Delhi Transport Corporation and another reported in 2009 ACJ 1298 and of Sri Nagrajappa Vs. The Division Manager. The Oriental Insurance Co. Ltd reported in 2011 (3) Supreme 256 he craved for further enhancement in the sum awarded by the tribunal by allowing this appeal is made. 7. On the other hand, responding the aforesaid argument Shri Rajesh Gupta learned counsel for the respondent No. 2/ insurer by justifying the impugned award said that the approach of the tribunal in passing the impugned award is based on proper appreciation of the evidence and is also in conformity with law. In the available circumstances, the impugned award is just and proper, the same does not require any further enhancement of the sum at this stage and prayed for dismissal of this appeal. 8. Having heard the counsel, keeping in view their arguments, after perusing the record and the impugned award, I am of the considered view that looking to the age of the appellant and the nature of injury sustained by her and also its consequences which is to be faced by the appellant in her entire remaining life, the sum awarded by the tribunal is very lower side. The same requires further enhancement at this stage. 9. True it is, the appellant being daughter of a labourer was eight years of the age on the date of incident. But due to the aforesaid unfortunate accident, she has lost the capacity of hearing and speaking both. In such premises she also lost her future dreams and the expectations. It is a normal nature of the society whenever a healthy person sustains any disability due to any reason then he could not get everything in the society according to his/her choice, although at the age of 8 years, the appellant is not in a position to understand all such situations and his father and mother being labourer could not provide everything for her life in her entire future. So while deciding this claim petition, court has to consider such aspect that in future there should not be any situation in her life which may compel her for begging for fulfillment of her demands. Now-a-days, it is a truth of society that whenever a girl is deaf and dumb even from the well to do family, her marriage with a healthy and educated person of her choice is a difficult task. So while deciding this claim appeal the Court has to keep paramount future welfare of the appellant with all aspects. 10. In the matter of Sarla Verma (Supra) to consider the future prospects for the purpose of awarding the claim it is directed that if the deceased was below 30 years of the age and was in permanent job then for assessing the compensation 50% of the existing salary in addition to the salary should be taken into consideration for assessing the compensation, although the appellant being minor of 8 years is not in a job or service, but in the lack of-any other sufficient provision in this regard keeping in view the aforesaid principle, this appeal is being decided. 11. The appellant being minor and non-earning member of the family, to asses the compensation the Court has no option but to consider her income at the rate of notional income provided under the II Schedule enacted under Section 163-A of the Act. On taking into consideration such notional income Rs. 11. The appellant being minor and non-earning member of the family, to asses the compensation the Court has no option but to consider her income at the rate of notional income provided under the II Schedule enacted under Section 163-A of the Act. On taking into consideration such notional income Rs. 15,000/-per annum in view of the principle of Sarla Verma's case (supra) to consider the future prospect of the appellant, the Court has to take 50% sum of existing notional income in addition to Rs. 15,000/-on taking the same the sum to decide the claim comes to Rs. 22,500/- 12. In view of the findings of the trial Court based on the medical evidence, the appellant in her age of 8 years sustained 50% permanent disability for her entire remaining life as stated above. Thus keeping in view the future prospect of the appellant taking into consideration the deemed existing notional income of the appellant Rs. 22.500/-as discussed above, in view of the 50% permanent disability of the appellant, to assess the annual compensation out of Rs. 22.500/-, 50% is taken the same comes to Rs. 11, 250/-. 13. Now in order to assess the total compensation, I deem fit to adopt the multiplier method provided under the II Schedule enacted under Section 163-A of the Act. Accordingly the multiplier of 15 is applicable. On adopting the same, total compensation with respect to 50% permanent disability of appellant comes to Rs. 11250 x 15 = Rs. 1,68,750/-, the same is awarded. 14. Although entire papers regarding treatment of appellant and its expanses were not produced by the appellant in the tribunal, but looking to the nature of injuries sustained by the appellant in the alleged accident and as per opinion of Dr. Mahesh Chandra PW/2 who by proving the report Ex. P/9 has categorically stated that due to above mentioned injury the appellant sustained 50% permanent disability in her ear and vocal cord and thereby she became deaf and dumb. In such premises, I deem fit to award Rs. 20.000/-on the head of treatment provided to the appellant at the initial stage after sustaining the injuries by her. In such sum, the sum of transportation charges, attendant charges, for special diet and all other incidental expanses have also been included. 15. In such premises, I deem fit to award Rs. 20.000/-on the head of treatment provided to the appellant at the initial stage after sustaining the injuries by her. In such sum, the sum of transportation charges, attendant charges, for special diet and all other incidental expanses have also been included. 15. Besides the above in the available circumstances keeping in view the future aspects, necessity of further treatment also for purchasing the equipment for hearing and for other welfare of the appellant, I deem it fit to award further Rs. 50,000/-on such head. Accordingly, the sum awarded by the tribunal deserves to be enhanced up to the sum of Rs. 2,38,750/- 16. In view of the aforesaid by allowing this appeal in part, the sum of Rs. 100.000/-awarded by the tribunal is enhanced from such sum up to Rs. 2,38,750/-, The enhanced sum shall also follow the interest at the rate of 6% per annum from the date of filing the claim petition The liability to indemnify the enhanced sum is saddled jointly and severally against the respondents No. 1 and 2 as held by the tribunal. Till this extent, the findings of the impugned award is hereby modified, while the remaining findings of the same are hereby upheld. 17. In the facts and circumstances of the case, there shall be no order at to the costs. 18. The appeal is allowed in part as indicated above.