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Madhya Pradesh High Court · body

2013 DIGILAW 818 (MP)

Kewal Chand Jain v. Pratap

2013-07-17

G.D.SAXENA

body2013
JUDGMENT G.D. Saxena, J. 1. This appeal under Section 173 of the Motor Vehicle Act 1988 by the claimant has been preferred being dissatisfied with an Award dated 25th August 2005 in claim case No. 34/2004 passed by the Third Additional Member of the Motor Accident Claims Tribunal, Guna (M.P.). The facts of the case are that on 30th April 2003, in night, the appellant/injured alongwith others was travelling from Guna to Indore in Tempo Trex (jeep) owned by the respondent No. 2, driven by respondent No. 1 and insured with respondent No. 3-Insurance Company. In mid-way, it is alleged that the driver of the vehicle drove the vehicle rashly which resulted in collision with a truck from front side. Co-passenger, Devendra Kumar Jain succumbed to injuries on the spot while the claimants and others were seriously injured. An F.I.R. was lodged at police station, Chachoda district Guna on which Crime No. 154/03 for offence punishable under Section 304-A, 279, 337 and 338 of I.P.C. was registered against the driver. After investigation, the charge-sheet was filed before the criminal court. It is stated that in the accident, the applicant's left leg, left hand, back, chest and head were seriously injured and for treatment and impairment of injured parts he was to spend long period in Suyash Hospital, Indore and Greater Kailash Nursing Home at Indore and huge amount was spent in medicine and surgical operations. After treatment, his left part of body was paralyzed. At the time of accident, he was 70 years old retired civil court employee and was getting regular pension and due to his fit mental and physical condition of body and his pre-service experience he was earning Rs. 2,000/- from out-side job prior to accident. After accident, he suffered economic loss. After considering the evidence on record, the learned tribunal awarded Rs. 1,43,977/- under all heads, payable jointly or severally, against the respondents. Being aggrieved by the award, he has preferred this appeal. 2. Learned counsel for the appellant contended that the award passed by the tribunal is on very lower side which looking to the injuries and expenses is liable to be enhanced. It is submitted that the injured, due to accident, sustained 25%-75% permanent disability which was fatal to his remaining life looking to his advanced age. 2. Learned counsel for the appellant contended that the award passed by the tribunal is on very lower side which looking to the injuries and expenses is liable to be enhanced. It is submitted that the injured, due to accident, sustained 25%-75% permanent disability which was fatal to his remaining life looking to his advanced age. It is submitted that due to injuries, he became totally dependent on his family members and life became curse for him. For pain and sufferings which he received from accident were severe and no compensation was awarded to him in this regard. Therefore, it is prayed that the impugned award may be modified with appropriate bank interest on the enhanced compensation which this court deems fit and proper. 3. The respondent No. 3-Insurance Company, by submitting the cross-objections under Order 41 Rule 22 of C.P.C. contended that the injured/appellant was suffering from T.B., Asthma and allergy prior to accident for which he was receiving treatments by the time of accident. It is submitted that he added medical expenses incurred for treatment of these diseases in the treatment of injuries received in accident. So, according to the learned counsel, the claimant is not entitled to receive the medical expenses of these diseases with medical expenses of the injuries received in the present accident. It is further argued that the injured was suffering with the aforesaid diseases from before, therefore, he was not physically or medically capable to earn something other than pension. It is, therefore, prayed that the award passed by the learned tribunal may be modified by reducing the amount of award. 4. Heard the learned counsel for the parties. Also perused the record of the case and the relevant law applicable to the case for just decision. 5. The question which crops us for consideration is whether keeping in view the nature of injuries and the evidence on record, the award passed by the tribunal can be treated to be on lower side or is liable to be enhanced or reduced in the light of the available circumstances and materials on record? 6. It is not disputed that at the time of accident, the injured was travelling with others in a Tempo Trax (passenger vehicle) from Guna to Indore. 6. It is not disputed that at the time of accident, the injured was travelling with others in a Tempo Trax (passenger vehicle) from Guna to Indore. It is also not disputed that the vehicle in which the injured-appellant and others were travelling had collided with stationary truck at the National Highway and in the accident the appellant was seriously injured. On perusal of the X-ray report (Ex. P/3) dated 1st May 2003 it shows communicated fracture in shaft of radius and ulna of left forearm, fracture of femur end of humerus of left elbow joint. For better treatment, the appellant was admitted from time to time in various hospitals at Indore and had to undergo treatment of Specialist Surgeons and Physicians. Therefore the injured is entitled for entire medical expenses except advance payments reimbursed in final payments. Looking to the nature of injuries sustained in accident, treatment for future betterment in order to avoid complication, if any, will be needed. So some compensation in this regard has to be paid. It is true that the injured at the time of accident was a retired court-employee and was getting his regular pensionary benefits and he might have earned some additional income from other sources, though not proved by cogent evidence but in this manner he can be compensated. Since the injured almost time was got treated by the Specialist Surgeons and Physicians in the specialised hospitals at Indore, he is entitled for compensation for transport and nursing during period of treatment. Thus, looking to the age and dietary habits of injured, he is also entitled for some compensation amount spent on nourishing and healthy diet. So, by allowing the appeal filed by the appellant/injured, the compensation for medical expenses Rs. 1,00,000/-, compensation for future treatment Rs. 10,000/-, compensation for pain, suffering and trauma as a consequence of the injuries Rs. 20,000/-, compensation for healthy and nourishing food  Rs. 5,000/-, compensation for loss of future income Rs. 20,000/-, compensation for transportation from Guna to Indore and back Rs. 10,000/- and compensation towards nursing charges at Indore borne by his family members 10,000/-. In this manner, the appellant is entitled to receive total amount of compensation of Rs. 1,75,000/- (Rs. 20,000/-, compensation for healthy and nourishing food  Rs. 5,000/-, compensation for loss of future income Rs. 20,000/-, compensation for transportation from Guna to Indore and back Rs. 10,000/- and compensation towards nursing charges at Indore borne by his family members 10,000/-. In this manner, the appellant is entitled to receive total amount of compensation of Rs. 1,75,000/- (Rs. One lac seventy five thousand only) after deducting the amount deposited before the tribunal alongwith interest 6% per annum on rest amount from the date of petition till payment is made to the claimant. The amount of compensation shall be paid by the Insurance Company within a period of three months from the date of the order of this court and if the Insurance Company is ultimately succeeded to prove violation of provisions of Sections 147 and 149(2) of the Act, by cogent evidence then after depositing the compensation amount so awarded, it may proceed in execution proceeding to recover the deposited compensation amount from the owner of the offending vehicle. 7. Before parting, it is mentioned that the record of the tribunal does not contain relevant papers, viz. seizure memo of the vehicle, arrest memo of the accused, mechanical report of the vehicle involved in accident or certified copy from criminal court where the criminal case was either pending or decided or from the police authorities, who investigated the crime. No such documents were produced/proved to show the involvement of the vehicle, name of driver, description of the driving licence and the insurance policy issued for insurance of the vehicle involved in accident by the claimant or contested Insurance Company before the tribunal. No insurance policy issued by the Insurance company in favour of owner insuring the vehicle involved in accident and the driving licence of the driver responsible for causing the accident are submitted either from the claimant side or the Insurance Company. There is no denial by the Insurance Company about the accident or involvement of the vehicle or insurance of the vehicle with it. Consequently, the facts of accident, involvement of vehicle owned and insured with Insurance Company are not disputed. There is no denial by the Insurance Company about the accident or involvement of the vehicle or insurance of the vehicle with it. Consequently, the facts of accident, involvement of vehicle owned and insured with Insurance Company are not disputed. The Insurance Company only submitted the written statement/reply to the petition and raised the objection under Section 147 and 149(2) of the Act but, it did not bother to prove the defence available under Section 147 and Section 149(2) of the Act as raised in written statement, by cogent evidence or by filing the document or by deposition of the officer/employee. It is further admitted that owner and driver of the vehicle did not appear during trial before tribunal and the case was proceeded ex-parte against them. Despite of the aforesaid, the Insurance Company did not care to proceed with all available defences under Section 170 of the Act. It is also relevant to mention here that the reply/written statement submitted on behalf of the Insurance Company was neither signed nor verified by the responsible officer of the company. Considering these sorry state of affairs, this court is constrained to observe that the present case was not contested as per law by the Insurance Company or its responsible officer which ultimately may result in loss to the public exchequer. Under the circumstances, this court deems it fit to issue directions to examine the matter by the panel of officers headed by the Regional Manager which would also include two officers posted in the Regional Office, but excluding the officials dealing with the present case so as to find out the negligence on the part of the concerned officer. It is further directed that after holding inquiry, appropriate disciplinary action shall be taken against the concerned erring official. If the person is retired then proper action as per rules of the Insurance company shall be taken against him within six month from the date of this order. This exercise would be completed within a year from the date of its initiation. A compliance report intimating the action taken against the erring officials shall be forwarded to the Principal Registrar of the Registry. This exercise would be completed within a year from the date of its initiation. A compliance report intimating the action taken against the erring officials shall be forwarded to the Principal Registrar of the Registry. It is also observed that the Head Office of the Company henceforth shall issue appropriate directions and guidelines for conduction of the cases under Motor Vehicles Act before the Court of Law, copy of which shall be sent to this court. Let a copy of this order be sent to the Head Office of the United India Insurance Company Ltd., for necessary compliance and appropriate directions, as mentioned above.