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Rajasthan High Court · body

2015 DIGILAW 1528 (RAJ)

Sanjay Kumar v. Manoj Kumar

2015-08-14

J.K.RANKA

body2015
Hon'ble RANKA, J.—Instant appeal u/S. 173 of the Motor Vehicle Act, 1988 has been filed by the claimant-appellant seeking enhancement of the award dt. 17.9.2004 passed by the Motor Accident Claims Tribunal, Kotputli, District Jaipur (hereinafter referred to `Tribunal') in Claim Case No. 71/2003 by which a compensation to the tune of Rs. 66,000/- has been awarded to the claimant-appellant. 2. The brief facts, as emerging on the face of record and gathered after hearing counsel for the parties, are that on 28.11.2002 at about 6.30 in the evening, while the claimant-appellant, after taking biscuits, was coming to his father's cart (rehdi), at that moment, a Scooter, bearing No. RJ-32-M-0647, which was being driven by his driver in high speed, in a rash and negligent manner, hit the appellant on account of which the appellant sustained serious and grievous injuries on various parts of the body and also lost his left eye. FIR to this effect was lodged in the concerned police station and the police, after investigation, filed charge-sheet against driver of the offending vehicle. 3. It is claimed that the appellant was a healthy child, quite intelligent, handsome but on account of unfortunate accident, he lost his left eye due to which he is unable to see from the left eye and that apart, there were several other injuries also and he was initially admitted to BDM Hospital and as his condition became bad he was referred to SMS Hospital, Jaipur where he remained admitted for many days and even thereafter continued to take treatment and a claim petition to this effect was lodged before the Tribunal claiming compensation to the tune of Rs. 21,40,000/-. 4. The Tribunal, after considering the material available on record, awarded compensation to the extent of Rs. 66,000/- taking into consideration the disability certificate and other material which according to the appellant is on much lower side and as such, the instant appeal has been filed for enhancement of compensation. 5. It is contented by counsel for the appellant that despite there being sufficient evidence in the shape of medical report as also statement of the treating doctor to the effect that the appellant lost his left eye, the compen-sation awarded by the Tribunal is virtually denying the claim itself. 5. It is contented by counsel for the appellant that despite there being sufficient evidence in the shape of medical report as also statement of the treating doctor to the effect that the appellant lost his left eye, the compen-sation awarded by the Tribunal is virtually denying the claim itself. He further contended that the accident is admitted and severe injury in not only eyes but other injuries on various parts of the body are also admitted and the claim deserves to be enhanced suitably. In support of his submission, he relied upon the judgment of Hon'ble Apex Court in the case of Master Mallikarjun vs. Divisional Manager, The national Insurance Company Limited & Anr.: MACD 2012 (SC) 300 = 2013(4) RLW 3224 (SC); Michael (Kum.) vs. Regional Manager, Oriental Insurance Co. Ltd. & Anr. and judgment of Madhya Pradesh High Court in the case of Chintamani Sahu vs. Jagat Singh and others: 2003(3) TAC 69 (M.P.) so also judgment of this Court in the case of Bhanwar Lal vs. Kasim Khan & Ors.: SB Civil Misc. Appeal No. 1861/2006 decided on 21.1.2014. 6. Per-contra, counsel for the respondent-Insurance Company contended that there are several cuttings and overwriting in the impugned award (order of the Tribunal) without putting any initials which creates a doubt as material particulars have been erased by putting fluid. He further contended that though the doctor appeared but he stated that he has not come with record and therefore, the statement of the doctor cannot be relied upon. He further contended that the Tribunal has been gracious enough to allow compensation towards pains & sufferings and other heads taking into consideration the overall disability caused to the appellant which cannot be said to be low and thus, contended that the order of the Tribunal is not required to be interfered with. 7. I have considered the arguments advanced by counsel for the parties and have carefully gone through the material available on record. 8. In my view, admittedly the accident has taken place and the respondent-Insurance Company has not objected to the accident having taken place and rather simply objected to enhancement of the award. In my view, the objection of counsel for the respondent-Insurance Company that there are overwriting or material portion has been erased is uncalled for. I have gone through the original impugned order dt. In my view, the objection of counsel for the respondent-Insurance Company that there are overwriting or material portion has been erased is uncalled for. I have gone through the original impugned order dt. 17.9.2004 and I find that at some places though the fluid is used by the Presiding Officer but has been duly initialed wherever the cuttings are there or the fluid has been placed. The order in original was also perused by counsel for the respondents at the time of hearing. Therefore, in my view, the order passed by the Tribunal cannot be doubted and this argument of the counsel for the respondent-Insurance Company is rejected. 9. After having gone through the other material on record, particularly the medical certificate (Ex. 11) it goes to show that this certificate is issued by a medical board duly constituted of three doctors of Govt. R.D.B.P. Jaipuria Hospital, Jaipur. Though the medical board has taken into consideration the issue about loss of left eye as per the report and Eye Specialist but nevertheless it is noted that "Permanent Disability is 34% (thirty four percent) 30% is due to loss of one eye and 40% is due to Permanent Disfigurement of face" It may be appropriate to refer to the statement of doctor-Tara Babu Soni (AD-3) who was Assistant Professor, Eye Department in SMS Hospital, Jaipur who appeared before the Tribunal on 2.6.2004 and he has clearly stated that he had treated the appellant and in particular his left eye and he could recognize the patient (appellant) by seeing his photograph placed on medical certificate. He had clearly expressed that he had treated the appellant from 9.12.2002 to 8.4.2003 i.e. almost four months. He accepted the signatures and finally stated that the appellant was not in a position to see from his left eye because of the internal injury caused in the eye of the appellant, the necessary elements have come out. Therefore, he would be unable to see from his left eye even in future and that there is no treatment of looking this eye. Even in the cross-examination, he simply mentioned that he has not brought record of the hospital but he again expressed that at the time when the patient has come to him, it was clear that he would not be able to see at all from his left eye. Even in the cross-examination, he simply mentioned that he has not brought record of the hospital but he again expressed that at the time when the patient has come to him, it was clear that he would not be able to see at all from his left eye. In my view, there is no doubt to disbelieve the version of the medical board as also the statement of the treating doctor who also come to the conclusion that the appellant has lost his left eye and would not be in a position to see from the left eye and there is no treatment of the same coupled with the fact that there is permanent disfigurement of the face as well not only because of the eye but also on account of the other injuries sustained by him at the time of accident. In my view, the Tribunal ought not to have totally brushed aside the medical report as also the statement of the doctor. 10. Now, in the light of above observations, this leads to the fact as to under present circumstances what reasonable amount can be allowed to the appellant like this who is of a tender age of 7 years which can be said to be just and proper as the judgments of the Hon'ble Apex Court opine that just and fair compensation is required to be allowed. 11. In the case of Master Mallikarjun vs. Divisional Manager, The National Insurance Company Limited & Anr. (supra), which was also a case of a boy aged 2 years who sustained severe disability of shortening of right limb by 1.5 cms and surgeon assessed the disability to the extent of 34% of right lower limb and 18% of the whole body and the Hon'ble Apex Court assessed total compensation of Rs. 3,75,000/-. 12. In the case of Michael (Kum.) vs. Regional Manager, Oriental Insurance Co. Ltd. & Anr. (supra) which was also a case of an 8 years age of child where also right leg of the child was fractured and on account of unfortunate accident, the leg was shortened by 1 cm and there was 16% permanent disability of whole body and the Hon'ble Apex Court allowed compensation at Rs. 4 lac. 13. Ltd. & Anr. (supra) which was also a case of an 8 years age of child where also right leg of the child was fractured and on account of unfortunate accident, the leg was shortened by 1 cm and there was 16% permanent disability of whole body and the Hon'ble Apex Court allowed compensation at Rs. 4 lac. 13. In the case of Chintamani Sahu vs. Jagat Singh and others (supra), Madhya Pradesh High Court was considering a case where there was permanent injury sustained in left eye and medical certificate and deposition showed total loss of vision from left eye and the Court awarded compensation to the tune of Rs. 2,40,000/-. 14. This Court in the case of Bhanwar Lal vs. Kasim Khan & Ors. (supra) had an occasion to consider the same facts where permanent disability was 31.33% and loss of vision of one eye for an accident which took place on 24.10.2002 and allowed a total compensation of Rs. 2,06,184/-. 15. After perusing the above judgment, in my view, though it is difficult for one to arrive at a just and fair compensation as this is a case of a minor child of tender age of 7 years who has entire life ahead of him but on account of the unfortunate accident got injured and his face has been disfigured and has lost an eye. He would suffer mental and physical agony for the entire life and because he lost his one eye, he may not come up in the life, it is claimed that he was a bright student. These are the considerations which cannot be computed in terms of money. However, keeping in view the broad parameters expressed by the Hon'ble Apex Court and this Court in the cases, referred to supra, in my view, it would be appropriate to enhance the compensation by Rs. 3,50,000/- i.e. from Rs. 66,000/- to Rs. 4,16,000/- in lump-sum under all heads including the future medical expenses. 16. Thus, the appeal is partly allowed. The impugned order/award dt. 17.9.2004 is modified to the extent that the enhanced amount of compensation of Rs. 3,50,000/- with interest @ 6% will be paid by the non-petitioners. The interest will be allowed from the date of the application to the Tribunal. 16. Thus, the appeal is partly allowed. The impugned order/award dt. 17.9.2004 is modified to the extent that the enhanced amount of compensation of Rs. 3,50,000/- with interest @ 6% will be paid by the non-petitioners. The interest will be allowed from the date of the application to the Tribunal. The Tribunal is directed to deposit 3,25,000/- with interest so computed rounded off to the nearest thousands in the name of the claimant-appellant in the Monthly Income Scheme (MIS) in the nearest post office for a period of five years. The interest accruing on month to month basis will be deposited in the saving account with the same post office with permission to withdraw the monthly interest/quarterly interest as per the scheme of the post office. The balance amount of Rs. 25,000/- with interest would be disbursed to the claimant-appellant by the Tribunal by bank draft/bankers cheque. It is made clear that the appellant will be allowed interest only as aforesaid of Rs. 3,25,000/- of the enhanced amount so deposited in MIS and will not be allowed to take a loan on the same from the post office or raise loan on the said MIS. The above exercise to be done within two months. No costs.