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2012 DIGILAW 428 (MP)

RAJENDRA BHARTI v. SANTOSH KUMAR SHARMA

2012-04-19

M.A.SIDDIQUI

body2012
JUDGMENT : M.A. Siddiqui, J. This appeal u/s 173 of Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') against the award dated 12.3.2007 passed by Sixth Additional Motor Accidents Claims Tribunal, Gwalior, in Claim Case No. 105 of 2005, in which compensation of Rs. 1,16,500 with 6 per cent interest by apportioning the amount between two vehicles has been passed, is filed on the ground that less compensation has been awarded and on the ground of apportionment. Undisputedly, the appellant filed the claim petition u/s 163-A of the Act before the Tribunal claiming income of Rs. 40,000 per year and claimed compensation of Rs. 13,78,000. It is undisputed fact that respondent No. 4 is the owner of the motor cycle No. MP 06-H 9232. Respondent No. 3 was driving the motor cycle on which appellant was sitting as pillion rider and it was insured with respondent No. 5. Respondent No. 1 is the driver of tractor No. MP 06-JA 8231 and respondent No. 2 is the owner of the tractor. This is undisputed fact that the tractor was not insured. 2. In nutshell, the facts of claim petition before the Tribunal were that the appellant was a healthy person of 35 years of age and he was skilled mason and was earning Rs. 40,000 per year. On 22.4.2005 he was coming back to Gwalior from village Khaneta, district Morena on the motor cycle owned by co-brother Rajagiri and driven by his son Rakesh Giri, respondent No. 3. At Khaneta Road near the field of Shahjad, Santosh Kumar Sharma, respondent No. 1, who was driving the tractor with trolley, in a rash and negligent manner came from wrong side and it dashed the motor cycle from the front side which caused fall of appellant and thereby his right leg was badly injured. Respondent No. 3 was also seriously injured. Santosh Kumar Sharma after dashing the motor cycle ran away from the spot. The persons who had gathered on the spot brought the appellant and respondent No. 3 to the District Hospital, Morena where appellant was admitted from 22.4.2005 to 28.4.2005 and was treated but as there was no improvement, he was referred to JA Hospital, Gwalior where he was admitted from 28.4.2005 to 9.6.2005. On 20.5.2005 he was operated and bones were also shifted in the leg and blood was also given. On 20.5.2005 he was operated and bones were also shifted in the leg and blood was also given. Again he was admitted in hospital from 3.10.2005 to 23.11.2005 and he was again operated and his leg became too short. He incurred Rs. 1,50,000 on his treatment and incurred Rs. 25,000 towards special diet and Rs. 25,000 incurred for coming and going to doctors. 3. Report was lodged and crime No. 182 of 2005 was registered. The claim petition was filed before the Tribunal, which was registered as Claim Case No. 105 of 2006. In the trial, the evidence of appellant Rajendra Bharti, AW 1; Bharat Singh, AW 2; Subhash Chandra Gupta, AW 3; Dr. S.N. Tripathi. AW 4; Narayan Giri, AW 5; Phool Singh, AW 6; and Pradip Sharma, AW 7, were recorded. Respondent Santosh Kumar Sharma examined himself as DW 1. Insurance company, respondent No. 5, examined its Divisional Manager Banwari Lai Gupta. Several documents were submitted and exhibited including disability certificates, Exhs. P62 and P63, in which 50 per cent permanent disability was assessed as his leg became not only shortened but also became thin and movements were restricted and there was also total loss of movement. Though the claim of appellant was that he was a skilled mason but his income was assessed only at Rs. 2,000 per month and no permanent disability was assessed, only for a year he was awarded Rs. 50,000 as partial temporary disability and Rs. 24,000 towards loss of income of one year at the rate of Rs. 2,000 per month, Rs. 9,500 towards expenditures on treatment, Rs. 3,000 for special diet, Rs. 5,000 for transportation and Rs. 25,000 for pain and suffering. Thus, the total amount of Rs. 1,16,500 was awarded and it was also adjudicated that the drivers of both the vehicles, motor cycle and tractor, were responsible for the accident, therefore, due to composite negligence apportionment of 50 per cent was allowed against the respondents. 3,000 for special diet, Rs. 5,000 for transportation and Rs. 25,000 for pain and suffering. Thus, the total amount of Rs. 1,16,500 was awarded and it was also adjudicated that the drivers of both the vehicles, motor cycle and tractor, were responsible for the accident, therefore, due to composite negligence apportionment of 50 per cent was allowed against the respondents. Being dissatisfied with this award, this appeal has been filed on the ground that the impugned award is against the settled principles of law and facts of the case; the learned Tribunal erred in not coming to the conclusion that the injury received by the appellant in his leg was permanent and only income of one year was assessed while calculating the compensation whereas in this case the learned Tribunal ought to have applied multiplier. Appellant further asserted that in case of composite negligence apportionment cannot be done and appellant was entitled for compensation either from respondent Nos. 1 and 2 or from respondent Nos. 3 to 5. So, the appellant claimed compensation to the tune of Rs. 5,00,000. 4. I have heard both the sides and perused the original record together with the impugned award. 5. Learned counsel for the appellant has submitted that as per the evidence of claimant Rajendra Bharti, AW 1, supported by Bharat Singh, AW 2, and Phool Singh, AW 6, the earning of appellant at the time of accident was Rs. 150 per day. But, calculating this amount his yearly income shall exceed Rs. 40,000, which is not permissible u/s 163-A of the Act. The accident is of 2005 and at that time income of a skilled labour can be said to be Rs. 3,000 per month. Learned counsel for the appellant placed reliance on Smt. Kaushnuma Begum and Others Vs. The New India Assurance Co. Ltd. and Others, (2001) 2 SCC 9 , Mamta v. National insurance Co. Ltd., MACD 2009 (SC) 443; Nirmala v. Fazal Khan, 2007 (1) MPWN 23 ; Syed Mehaboob Vs. The New India Assurance Co. Ltd., (2011) 11 SCC 625 . 6. As far as permanent disability is concerned, Dr. S.N. Tripathi, AW 4, has proved that there was 50 per cent permanent disability as per certificate, Exh. P62, which has been issued by the Board consisting of three doctors and movements were totally restricted. The injured cannot sit properly and he cannot walk without support. 6. As far as permanent disability is concerned, Dr. S.N. Tripathi, AW 4, has proved that there was 50 per cent permanent disability as per certificate, Exh. P62, which has been issued by the Board consisting of three doctors and movements were totally restricted. The injured cannot sit properly and he cannot walk without support. As per the documents presented by appellant including the certificate, Exh. P63, and the fact that he was operated twice and he was given treatment for months together as indoor patient, the disability seems to be 50 per cent and it is not temporary but it is permanent in nature. Thus, it is very much clear that the appellant has suffered 50 per cent permanent disability. In Syed Mehaboob Vs. The New India Assurance Co. Ltd., (2011) 11 SCC 625 , the Apex Court held that the compensation should be just and fair. 7. As far as no fault liability is concerned, reliance has been placed by learned counsel for the appellant on New India Assurance Co. Ltd. Vs. Vappu, (2007) ACJ 1511, ; Deepal Girishbhai Soni and Others Vs. United India Insurance Co. Ltd., Baroda, (2004) 5 SCC 385 , ; Rai Singh Vs. Anil and Another, (2009) ACJ 73, in which it has been held that question of negligence is not to be considered in a claim application u/s 163-A of the Act and question of negligence of joint tortfeasors and apportionment is also not to be decided and as per dictum of Smt. Sushila Bhadoriya and Others Vs. M.P. State Road Transport Corporation and Another, (2005) ACJ 831, it has been decided that for composite negligence and joint tortfeasors thereby apportionment of liability--claimant can sue and realize the claim from owner, driver and insurance company of both the vehicles or any one of them and apportionment is not necessary. As per the dictum of Munni Bai and Others Vs. Surendra Singh and Others, (2011) ACJ 669, it is held that when premium is taken then insurance company cannot deny the liability for pillion rider. Same is the verdict of Satyanarayan Vs. Rameshwar and Another, (2009) ACJ 1467, and United India Insurance Company Ltd. Vs. Smt. Pramila Devi and Others, (2009) 2 CGLJ 76 . 8. Learned counsel for the insurance company has placed reliance on Dilkhush and Others Vs. Same is the verdict of Satyanarayan Vs. Rameshwar and Another, (2009) ACJ 1467, and United India Insurance Company Ltd. Vs. Smt. Pramila Devi and Others, (2009) 2 CGLJ 76 . 8. Learned counsel for the insurance company has placed reliance on Dilkhush and Others Vs. Bherulal and Others, (2006) ACJ 2341, wherein it has been held that u/s 147(1) of the Act for the death of a labourer travelling on tractor-trolley the insurance company is not liable for enhanced compensation, but this authority is applicable to the gratuitous passenger not on pillion rider. 9. As far as the interest part is concerned, learned Tribunal has awarded 6 per cent interest. Learned counsel for the appellant placed reliance on Amresh Kumari v. Niranjan Lal Jagdish Prashad Jain, 2010 ACJ 551 (SC), where it has been held that in the facts and circumstances of the case 9 per cent interest is inadequate. But, in my opinion, 6 per cent interest as awarded by learned Tribunal appears to be adequate for the reason that the accident occurred in 2005 and at that time 6 per cent interest prevailed and was adequate. So, the prayer for enhancing the rate of interest is not accepted. 10. From the above analysis, it is inferred that learned Tribunal not only erred in assessing the nature of injuries but also erred in apportioning the amount of compensation. Learned Tribunal has also erred in not adopting the method of multiplier and in view of the law laid down in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , where the age was between the group 36 to 40, multiplier of 15 would be applicable. The income of the appellant is assessed at Rs. 3,000 per month and as per 50 per cent liability, the amount of income comes to Rs. 1,500 per month and yearly income of the appellant would come to Rs. 18,000. Thus, by applying the multiplier of 15, the appellant is entitled for total compensation of Rs. 2,70,000. 11. Thus, total compensation to the tune of Rs. 2,70,000 is awarded in favour of the appellant. The learned Tribunal has awarded Rs. 1,16,500 considering all the heads. Therefore, this amount of Rs. 1,16,500 shall be adjusted in the amount of Rs. 18,000. Thus, by applying the multiplier of 15, the appellant is entitled for total compensation of Rs. 2,70,000. 11. Thus, total compensation to the tune of Rs. 2,70,000 is awarded in favour of the appellant. The learned Tribunal has awarded Rs. 1,16,500 considering all the heads. Therefore, this amount of Rs. 1,16,500 shall be adjusted in the amount of Rs. 2,70,000 and remaining amount shall be paid to the appellant within a period of three months, failing which it will carry interest at the rate of 6 per cent on the enhanced amount. Appeal stands allowed partly to the extent indicated above with no orders as to costs.