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2012 DIGILAW 690 (JK)

Jeewan Lal alias Tarsem lal v. Isher Dass & ors.

2012-10-31

MANSOOR AHMAD MIR

body2012
1. This appeal is directed against the award dated 19.05.2011 passed by the Motor Accidents Claims Tribunal, Jammu, in File No.270/Claim, titled as Tarsem Lal vs Ishar Dass & others, whereby an award of Rs.10,21,250/- along with interest @ 7.5% came to be awarded in favour of appellant-claimant and against the insurer, respondent no.3 herein, from the date of filing of the claim petition till its realization (for short, impugned award), on the grounds taken in the memo of appeals. 2. In order to return a finding, it is necessary to give brief resume of the case, the womb of which has given birth to the present appeal. 3. Brief Facts It is averred in the claim petition that on 10.03.2008 the claimant was travelling in a Mini Bus, bearing registration No.JK08-8862, which was heading towards Bhaddu from Nagrota Gujru. When it reached near Thada Gadwal Khud near Sutar, the driver of the said vehicle lost control over it, as a result of which it turned turtle on the main road. In the said accident appellant-claimant suffered multiple grievous injuries and compound fractures. He was taken to Billawar Hospital, then to Government Medical College Jammu in view of the injuries suffered by him, where he remained admitted for about 17 days. The claimant suffered fracture shaft, femur right, femur neck, fracture patella, injury and fracture of right thigh, left knee and pelvic fracture. Skin grafting was also done for the wounds. Petitioner had to attend the Hospital for the catheter removal/change. For all this period, the claimant had to engage an attendant. 4. Insurer, respondent no.3 herein, filed objections before the learned Tribunal and contested the claim petition. Despite service, driver as well as owner did not appear and they were set exparte. The following issues came to be framed: “1. Whether an accident occurred on 10.03.2008 near Thada Gadwal Khud near Sutar by the rash and negligent driving of offending vehicle No.JK08-8862 in the hands of erring driver as a result of which petitioner suffered grievous injuries? OPP 2. If issue No.1 is proved in affirmative, whether petitioner is entitled to the compensation, if so, to what amount and from whom? OPP 3. Whether driver of the offending vehicle at the time of accident was not holding valid and effective driving license, if so that is its effect? OPR-3 4. Relief. OP Parties” 5. OPP 2. If issue No.1 is proved in affirmative, whether petitioner is entitled to the compensation, if so, to what amount and from whom? OPP 3. Whether driver of the offending vehicle at the time of accident was not holding valid and effective driving license, if so that is its effect? OPR-3 4. Relief. OP Parties” 5. Claimant was directed to lead evidence. The witnesses examined were PWs Puran Chand, father of claimant, Hari Krishan, Dr. I. K. Wangnoo and Vinod Kumar. 6. PWs Puran Chand and Hari Krishan deposed that both the legs of the claimant got fractured in the said accident. Firstly he was admitted in the Hospital at Billawar and then was shifted to Government Medical College, Jammu, where he remained admitted for about two and a half weeks. They further deposed that the appellant-claimant was not able to attend natural call or go to bathroom, for which a pipe had to be inserted for removal of the same. At the time of accident, he was 15 years old and was studying in 7th class. About 60/70 thousand was spent on transportation and Rs.50,000/- on special diet. 7. Dr. I. K. Wangoo deposed that the claimant sustained fracture shaft of right femur with bladder injury with left foot-drop and chronic retention of urine. He was unable to stand. High right pellectomy was done, with stiffness of both knees. Claimant would not have proper control over urine. It would be difficult for the claimant to stand independently without the support, crutches for rest of his life. Claimant would require nursing and physiotherapy more than often. He would require assistance of a helper throughout his life for going toilets, using public transport, staircase etc. He further deposed that the cumulative disability sustained by the claimant is 75%. 8. Appellant-insurer has not led any evidence in rebuttal, thus the evidence led by the claimant has remained un-rebutted. 9. The Tribunal, while allowing the petition, awarded a sum of Rs.10,21,250/- under different heads in favour of appellant-claimant and against the insurer, respondent no.3 herein. 10. Claimant feeling aggrieved has filed the instant appeal questioning the adequacy of compensation and has prayed for enhancement of the same. 11. Admittedly, neither the driver/owner nor the insurer has questioned the award on any count. Therefore, the only question to be determined in this appeal is: whether the compensation awarded is just and adequate. 12. 10. Claimant feeling aggrieved has filed the instant appeal questioning the adequacy of compensation and has prayed for enhancement of the same. 11. Admittedly, neither the driver/owner nor the insurer has questioned the award on any count. Therefore, the only question to be determined in this appeal is: whether the compensation awarded is just and adequate. 12. The Tribunal after examining the entire record held that the claimant was minor at the time of accident. Being a non-earning person, the Tribunal fixed the notional income of claimant at Rs.15,000/- per month keeping in view the Schedule appended with the Motor Vehicles Act read with the judgments of Supreme Court. The Tribunal while taking 75% permanent disability of the claimant, held that he has lost the earning capacity to the tune of Rs.1,125/- per month. Thus, the Tribunal while applying multiplier 13 awarded Rs.1,46,250/- under the head loss of future income, Rs.2,00,000/- under the head pain and suffering, Rs.1,00,000/- under the head loss of amenities in life, Rs.1,00,000/- under the head past and future medical expenses, Rs.1,10,000/- under the head attendant charges, Rs.60,000/- under the head transport charges, Rs.1,00,000/- under the head past and future physiotherapy, Rs.30,000/- under the head flower bed, Rs.1,25,000/- under the head wheel chair and Rs.50,000/- under the head catherization. Thus, in total, the learned Tribunal has awarded a sum of Rs.10,21,250/- along with 7.5% interest in favour of claimant from the date of filing of the claim petition till its realization. 13. I have gone through the evidence recorded by the Tribunal and the documents on the file. 14. The claimant has to suffer pain throughout his life and has to spend a good amount for medical expenses. It would be difficult for the petitioner to stand independently without the support and would not be able to bend his lower limbs. He has to take the assistance of a helper throughout his life. The Tribunal after taking all these things in view awarded a sum of Rs.10,21,250/-. 15. No doubt appellant-claimant had not claimed compensation under the head Flower Bed and Catherization, but respondents have not questioned the same and the same has attained finality. 16. He has to take the assistance of a helper throughout his life. The Tribunal after taking all these things in view awarded a sum of Rs.10,21,250/-. 15. No doubt appellant-claimant had not claimed compensation under the head Flower Bed and Catherization, but respondents have not questioned the same and the same has attained finality. 16. Taking all these things in view, I am of the considered view that there is sufficient evidence on the file to hold that the amount awarded heads by the learned Tribunal under different is just and appropriate, cannot be said to be excessive or meager in any way, thus needs no interference. 17. Having glance of the above discussion, the impugned award merits to be upheld and appeal merit to be dismissed. Accordingly, the impugned award is upheld and the appeal is dismissed.