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2011 DIGILAW 590 (RAJ)

Vijay Singh v. R. S. R. T. C.

2011-03-17

MAHESH CHANDRA SHARMA

body2011
Hon'ble SHARMA, J.—This civil misc. appeal has been filed against the common award dated 29.6.2007 passed by the Judge, Motor Accident Claims Tribunal, Hindaun City (in short MACT) in Claim Case No. 71/2003 whereby the MACT awarded Rs. 50,000/- to the claimant for the injuries received by him in the accident. The MACT directed the RSRTC to pay only 70% of the amount i.e. Rs. 35,000/- to the claimant as the MACT held the contributory negligence in the ratio of 70:30 for the accident occurred between Bus No. RJ 34 0338 and motor cycle No. RJ 33 M 0909 on which the claimant was sitting along with two persons. 2. The facts have been set out in the impugned award and hence I am not repeating the same here except wherever necessary. 3. It may be mentioned that the claimant appellant has only prayed for enhancing the claim amount and so far as other issues decided by the MACT have not been challenged, the findings on other issues in this manner stand confirmed. 4. Briefly stated the facts of this case are that on 16.1.2003, when the appellant along with two other persons were going towards Truck Union Naka on a motor cycle No. RJ 33 M 0909. near Pura Power House of Pavtiyan from the side of Mahua, a Roadways Bus No. RJ 34 P 0338 being driven rashly and negligently by the respondent No.2, hit the motor cycle in which all the three persons including the appellant received injuries. An FIR to this effect was also lodged. The police fled charge-sheet. 5. The appellant filed a claim petition before the MACT upon which notices were issued. After service reply was filed on behalf of the R.S.R.T.C. After scrutinizing the evidence the MACT has passed the aforesaid award dated 29.6.2007 fixing liability of the Bus and Motor Cycle in the ratio of 70:30 and awarding Rs. 35,000/- to be payable by the R.S.R.T.C. to the claimant appellant. Against the award of compensation of Rs. 35,000/-, the appellant has filed this misc. appeal for enhancement of the award amount. 6. The learned counsel for the appellant has contended that the appellant sustained injuries on leg and neck and he was admitted in Hospital for a long time and he took treatment about 2 years and lot of expenditure was incurred in purchasing medicines etc. 35,000/-, the appellant has filed this misc. appeal for enhancement of the award amount. 6. The learned counsel for the appellant has contended that the appellant sustained injuries on leg and neck and he was admitted in Hospital for a long time and he took treatment about 2 years and lot of expenditure was incurred in purchasing medicines etc. therefore the claim amount deserves to be enhanced. The appellant was earning Rs. 5000/- per month and he was 40 years of age at the time of accident and due to leg fracture he could not do work smoothly and this fact has not been controverted by the respondents and hence, the compensation amount should be enhanced. The learned counsel further stated that he has done expenditure about Rs. 80,000 in purchasing medicines, check up, nutrition food and one attendant who remained in Jaipur during treatment. In these circumstances it was prayed that the compensation amount should be enhanced. 7. Mr. Virendra Agrawal, learned counsel for the appellant on the other hand opposed the submissions of the appellant and prayed that the award passed by the MACT is just and proper and the appellant is not entitled for any enhancement in the compensation awarded by the MACT. It is an admitted fact that the RSRTC has not filed any appeal or cross objection challenging the award of Rs. 50,000/- by the MACT, out of which Rs. 35,000/- was payable by the R.S.R.T.C. to the claimant. 8. It is an admitted fact that the RSRTC has not filed any appeal or cross objection challenging the award of Rs. 50,000/- by the MACT, out of which Rs. 35,000/- was payable by the R.S.R.T.C. to the claimant. 8. The MACT in relation to appellant Vijay Singh on issue No.2 gave the following findings : 21- bl fcUnq ij izkFkhZ fot;flag crkSj ,-MCY;w-2 ijhf{kr gqvk gS] ftlds }kjk of.kZr ?kVuk esa Lo;a dk iSj VwV tkuk crk;k gS] pksVksa ds dkj.k igys fg.MkSu vLirky esa ckn esa t;iqj vLirky esa HkrhZ gksuk tkfgj fd;k gS] nkSjkus lk{; xokg }kjk viuh pksV n'kkZ;s tkus ij mldh pksV dk iqjkuk Hkjk gqvk ?kko ekStwn ik;k x;k tks 3x3 bap djhc dk ekStwn gksuk ik;k x;kA izkFkhZ dk ;g Hkh dFku gS fd go t;iqj esa nks ckj HkrhZ jgk] nksuksa ckj mldk vkWijs'ku gqvk] pksVksa ds dkj.k og Bhd ls [kM+k ugha gks ldrk gSA] pksVksa ds dkj.k mls ukSdjh ls gVk;k x;k] t;iqj 12-15 ckj bykt ds fy;s x;k] izR;sd ckj <+kbZ rhu gtkj :i;s fdjk;k xkMh dk yx tkrk Fkk] nok vkWijs'ku vkfn esa 40-50 gtkj :i;s [kpZ gksuk tkfgj dj ikSf"Vd vkgkj ij 10-12 gtkj :i;s [kpZ gksuk tkfgj dj pkj vknfe;ksa ds jgus vkfn ij Hkh [kpZ gksuk tkfgj djrk gSA nkSjkus lk{; ,e-,y-vkj- izn'kZ 13] ,Dljs fjiksVZ izn'kZ 14] HkrhZ o fMLpktZ fVfdV izn'kZ 17] izn'kZ 18] vks-ih-Mh- fVfdV izn'kZ 19] izn'kZ 20 ,l-,e-,l- dh bykt iphZ izn'kZ 21 yxk;r izn'kZ 102 lk{; esa izn'kZ djk;h gSA ftjg lk{; esa xokg dk dFku gS fd mldh fu;qfä ;wfu;u esa 85-86 esa gqbZ Fkh fdUrq mldk dksbZ fu;qfä i=] osru jftLvj vkfn is'k uk djuk Lohdkj fd;k gS] vksojVkbZe dk;Z djus dk lcwr is'k ugha fd;kA Lo;a dh pksVksa dk LFkk;h fu;ksZX;rk izek.k i= is'k uk djuk Lohdkj fd;k gSA izkFkhZ }kjk tks U;w fdlku Vªd ;wfu;u dk osru izek.k i= izLrqr fd;k gS] bldk dksbZ vk/kkj izLrqr uk fd;s tkus rFkk bl izek.k i= dks tfj;s izkFkfed lk{; izekf.kr uk fd;s tkus ds vk/kkj ij bls ;Fkkor :i ls lk{; esa xzká ;ksX; ekus tkus dk dksbZ dkj.k ugha gSA 22- pksV izfrosnu et:c izn'kZ 13 ds vk/kkj ij et:c ds 'kjhj ij dqy 2 ¼nks½ pksVsa vLirky fM.MkSu esa HkrhZ jgrs ekStwn ik;h x;h] ckn ,Dljs izn'kZ 14 pksV Øe 1 tks fd nkfgus iSj ij ?kqVus dh gìh rFkk fVfc;k gìh dk vfLFkHkax gksuk ik;kA ,l-,e-,l- vLirky dk ,Mfe'ku fMLpktZ fVfdV izn'kZ 17 ds vk/kkj ij fnukad 27-1-2003 dks HkrhZ gksuk fnukad 29-1-2003 dks vkWijs'ku gksuk] 4-1-2003 dks mldk fMLpktZ gksuk crkdj dEikm.M ÝsDpj iVsyk rFkk Qheksjy gìh dk ÝsDpj gksuk crk;k gSA ,d vU; ,Mfe'ku fMLpktZ fVfdV izn'kZ 18 ds vk/kkj ij fnukad 18-9-2003 dks HkrhZ gksuk 24-9-2003 dks vkWijs'ku gksuk rFkk 25-9-2003 dks mldk fMLpktZ gksuk crk;k gSA izkFkhZ }kjk izLrqr vU; bykt dh iphZ;ksa ds lkFk tks nok ds fcy izn'kZ 37 yxk;r 91 is'k fd;s gSa rFkk lkxjey eksnh psfjVscy VªLV /keZ'kkyk dh jlhnsa dejk fdjk;s ckcr~ izn'kZ 93 yxk;r izn'kZ 102 is'k fd;s gSA bl izdkj dqy fcy o jlhnkr 15794@& :i;s ds djhc ds gksuk crk;s gSA 23- of.kZr pksVksa ds ifj.kkeLo:i izkFkhZ ds dksbZ LFkk;h fu;ksZX;rk dkfjr gqbZ gks] bl ckcr~ dksbZ fpfdRldh; izek.k i= is'k ugha fd;k gS fdUrq of.kZr pksVksa ds QyLo:i izkFkhZ ds 'kkjhfjd ekufld {kfr gksuk] yEcs le; rd mldk tsj bykt jguk] djhc 18 fnu vLirky esa HkrhZ jguk] bl nkSjku Lo;a rFkk lgk;d ij [kpZ gksuk] bykt ds nkSjku nok ikSf"Vd vkgkj] ifjogu vkfn ij [kpZ gksuk rFkk of.kZr pksVksa ds ckn et:c ds lkeku voLFkk esa igqapus rd mldk viuh vkthfodk ls Hkh oafpr jguk LokHkkfod ekurs gq, izkFkhZ dks of.kZr ifjfLFkfr;ksa esa of.kZr pksVksa gsrq ,deq'r dqy jkf'k 50]000@& :i;s crkSj izfrdj fnyk;k tkuk U;k;ksfpr izrhr gksrk gSA 9. I have gone through the findings arrived at by the MACT. The MACT in lump sum looking to the evidence and the documents produced by the claimant assessed the compensation in the amount of Rs. 50,000/-. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence is entirety. It is an admitted fact that the claimant remained in Hospital for 18 days. During the period he remained in Hospital he must have kept some assistant during these days. he must have incurred some amount on medicines. For the purposes of treatment he must have incurred some amount on special diet etc. for the purposes of admission in Hospital he must have come through hired transportation. During this period he must have suffered mental agony also. After discharge from Hospital he must have remained at his residence for recovery about one or two year. During this period, there is bound to be a loss of income to him. The MACT has not given any breakup of the amount awarded to the claimant. In my opinion the compensation should have been enhanced, looking to the following principles enunciated by the Apex Court in the case of Raj Kumar vs. Ajay Kumar (2011) 1 SCC 343 : (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity. (ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. to put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability). (iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. 10. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety. (iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors. 10. As per the findings arrived at by the MACT the claimant produced vouchers regarding medicines etc. of Rs. 15,794/-. For 18 days he remained in Hospital for that atleast Rs. 1,000/- per day Rs. 18,000/- should have been incurred by him. For transportation etc. from his village to Jaipur approximately Rs. 15,000/- must have been incurred by the claimant. For loss of earning during the period he remained in Hospital or during the period he has undergone medical treatment at his residence at least Rs. 20,000/- should have been granted. For keeping assistance in the Hospital he must have incurred atleast Rs. 10,000/-. For two operations he must have incurred more than Rs. 20,000/-. In all Rs. 1,00,000/- compensation should have been awarded. Out of this amount only 70% can be paid by the R.S.R.T.C. Thus for meeting ends of justice Rs. 70,000/- may be awarded to the claimants to be payable by the respondent R.S.R.T.C. and since the M.A.C.T. granted only Rs. 35,000/- a further sum of Rs. 35,000/- should be awarded to the claimant. In all Rs. 70,000/- is determined as a compensation payable by the R.S.R.T.C. Since the claimant has not impleaded as a party to the claim petition to the owner of the motor cycle and the insurer of the motor cycle, and hence, he is not entitled to claim any enhanced amount of compensation from them. For these reasons this misc. appeal is allowed to the extent mentioned above and the award dated 29.6.2007 in Claim Case No. 71/2003 may be modified accordingly. The parties are directed to bear their own costs.