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2012 DIGILAW 73 (MP)

SANJAY SEN v. RAM SINGH PATEL

2012-01-16

J.K.MAHESHWARI

body2012
JUDGMENT : J.K. Maheshwari, J. Miscellaneous Appeal No. 720/2011 has been filed by the claimant seeking enhancement of compensation awarded by the Claims Tribunal while M.A. No. 1248/2011 has been filed by the Insurance Company assailing the finding of pay and recover challenging the award dated 5th January, 2011 by XVIII Additional Motor Accident Claims Tribunal, Jabalpur in M.V.C. No. 78/2010. Hence, both the appeals are heard analogously and decided by this common order. The claimant had filed the claim petition u/s 166 of the Motor Vehicles Act, 1988 seeking compensation to the tune of Rs. 5,20,000/ - for the injuries sustained by him in an accident took place on 22nd December, 2009. 2. In an accident took place on 22nd December, 1999 at about 7.30 p.m. wherein on Kareli road he was dashed by a vehicle Tata 407 bearing Registration No. M.P. 49 E-0129 by the driver, however, he has received injuries including the fracture of femur bone. The Tribunal found that the driver who was driving the offending vehicle was not having an endorsement to drive the transport vehicle, exonerated the Insurance Company and directed to pay and recover. The Tribunal accepting the permanent disability as per certificate Ext. P/24 to the extent of 40% awarded Rs. 50,000/- in lump sum in the said head and in addition thereto Rs. 28,000/- in head of medical expenses and Rs. 5000/- in the head of future treatment, Rs. 2,500/- in the head of special diet, attendant and conveyance has been awarded by the Tribunal making the total compensation Rs. 85,500/-. 3. Learned Counsel appearing on behalf of the appellant contends that looking to the certificate of permanent disability shortening of 1" of right leg was found as per the certificate given by the doctor, however the finding of permanent disability has rightly been recorded by the Tribunal but while granting compensation multiplier method has not been applied, therefore, the compensation so awarded by the Claims Tribunal is inadequate. The compensation awarded in other heads i.e. special diet, attendant, conveyance, loss of wages during treatment is inadequate, therefore, the compensation may be reasonably enhanced in the said head. The compensation awarded in other heads i.e. special diet, attendant, conveyance, loss of wages during treatment is inadequate, therefore, the compensation may be reasonably enhanced in the said head. It is also submitted that in the facts and circumstances of the case in which a person who was driving the vehicle was not having endorsement to drive transport vehicle, the finding so recorded by the Tribunal to pay and recover exercising discretion appears to be just which do not warrant any interference in the appeal filed by the Insurance Company. 4. Per contra Shri Shukla, learned Counsel represent the Insurance Company in M.A. No. 1248/2011 as well as M.A. No. 720/2011 filed by the claimants contends that once the endorsement of driving the transport vehicle was not there the driving licence was not valid. In such case there is violation of terms of policy and the liability cannot be fastened on the Insurance Company to pay the compensation first and thereafter recover. It is submitted by him that in the cases of pay and recovery, the amount is not being recovered, more so the issue is pending for consideration before Hon'ble the Apex Court, however, the finding of pay and recover cannot be directed by the Tribunal exercising the discretion, therefore, the appeal filed by the Insurance Company may be allowed on the said point. It is also submitted by him that the compensation so awarded in the facts and circumstances of the case appears to be just looking to the fact that the doctor who has given certificate the certificate of permanent disability has not treated the injured. Therefore, the compensation has rightly been awarded by the Claims Tribunal. 5. After having heard learned Counsel for the parties and on perusal of the record, first of all the issue regarding pay and recover is required to be dealt with. M.A. No. 1438/2008 has been decided by this Court on 24th November, 2011 observing the fact that principle of pay and recover has been enunciated in various judgments of the Supreme Court. The said issue is under consideration before the Apex Court. Merely having pendency on a reference, the cases pending before this Court cannot be kept idle or adjourned. Relying upon other judgments of the Apex Court, the cases are decided by this Court. The said issue is under consideration before the Apex Court. Merely having pendency on a reference, the cases pending before this Court cannot be kept idle or adjourned. Relying upon other judgments of the Apex Court, the cases are decided by this Court. However, in the facts and circumstances of the case, the discretion so exercised by the Tribunal recording the said finding do not appear to be unjust and is hereby uphled. In the present case also looking to the facts of the case, in the opinion of this Court the finding of pay and recover is not required to be interfered with and the argument so advanced by learned Counsel Shri Shukla is of no substance at this stage unless and until the principle so enunciated by the Supreme Court is not reversed by passing the judgment in reference or otherwise. In that view of the matter, the appeal filed by the Insurance Company on the point of pay and recover and the discretion so exercised by the Claims Tribunal is not required to be interfered with. 6. Now coming to the point of enhancement, it is seen from the record that the finding of permanent disability has been recorded by the Tribunal and on perusal of the certificate of permanent disability it is apparent that 1" shortening of right leg is there. In such a case, the functional disability for a profession of a barber which the injured was doing it may safely be accepted to the extent of 20% for whole body. If we accept the same and assume the earning of the injured as Rs. 3500/- per month then future loss of earning comes to Rs. 700/- per month which annually comes to Rs. 8,400/-. Looking to the age of the injured i.e., 23 years, if multiplier of 18 is made applicable then the loss of future income comes to Rs. 1,51,200/ -. In the said head the Tribunal has awarded Rs. 50,000/-. If we deduct the same then the enhancement comes to Rs. 1,01,200/-. In the head of transportation, conveyance and attendant and special diet Rs. 2,500/- is awarded by the Tribunal which is inadequate, however in the opinion of this Court Rs. 15,000/- is further added in the said head. In other heads, the Tribunal has rightly awarded the compensation which is not liable to be interfered with. Accordingly the enhancement of Rs. In the head of transportation, conveyance and attendant and special diet Rs. 2,500/- is awarded by the Tribunal which is inadequate, however in the opinion of this Court Rs. 15,000/- is further added in the said head. In other heads, the Tribunal has rightly awarded the compensation which is not liable to be interfered with. Accordingly the enhancement of Rs. 1,16,200/- is directed. Accordingly M.A. No. 720/2011 filed by the claimant is allowed in part directing enhancement of Rs. 1,16,200/-. The enhanced amount shall carry interest @ 7.5% per annum from the date of filing of the claim petition till its realization. M.A. No. 1248/2011 filed by the Insurance Company is dismissed. The finding of pay and recover shall remain unaltered. In the facts and circumstances of the case, the parties are directed to bear their own costs.