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Himachal Pradesh High Court · body

2016 DIGILAW 2314 (HP)

Balkar Singh v. Babar

2016-11-01

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, Judge. The present appeal under Section 173 of the Motor Vehicles Act, 1988, is maintained by the appellant/claimant/petitioner (hereinafter referred to as the =petitioner') for enhancing the amount awarded by learned Motor Accident Claims Tribunal, Una, H.P, in MAC Petition No.18 of 2008, vide award dated 10.9.2010. 2. Brief facts giving rise to the present appeal are that the petitioner maintained a petition under Section 166 of the Motor Vehicles Act, for compensation on account of the injuries he suffered due to rash and negligent driving by respondent No.2 of the vehicle owned by respondent No.1, in an accident on 26.2.2008. As per the petitioner, respondent No.2, who was driving the offending vehicle rashly and negligently and struck it against the front right side of the tanker being driven by the petitioner, as a result of which, he suffered multiple injuries on his left femur right knee, right ankle and multiple fractures. The petitioner had been taken to local hospital for medical aid, thereafter referred to PGI, Chandigarh on 27.2.2008 and discharged on 9.4.2008. The petitioner had again been admitted in PGI, Chandigarh, on 22.4.2008. The petitioner had been under continuous medical treatment and spent a sum of Rs. 1 lac. Even after medical treatment of months together, the petitioner had not been keeping fit. The petitioner had not been able to earn after the alleged accident. He stood crippled for the rest of his life and had turned dependent on others. Respondent No.1 was registered owner of the truck bearing No. UP11T0884. Respondent No.1 was vicariously liable for rash and negligent act of his driver. Respondents No.1 and 2 have resisted the petition. They have admitted the ownership and possession of respondent No.1 of vehicle bearing No. UP11T0884. As per them, on 26.2.2008 respondent No.2 driving the truck with due care and caution and the accident had not taken place on account of rash and negligent driving of respondent No.2. The petitioner had not suffered any injury due to the act of respondent No.2. Respondent No.3 also resisted and contested the petition. Respondent No.3 provided insurance cover to vehicle bearing No. UP11T0884 for the period from 24.8.2007 to 23.8.2008. It has been averred that respondent No.2 had not been in possession of a valid and effective driving licence at the time of accident. Respondent No.3 also resisted and contested the petition. Respondent No.3 provided insurance cover to vehicle bearing No. UP11T0884 for the period from 24.8.2007 to 23.8.2008. It has been averred that respondent No.2 had not been in possession of a valid and effective driving licence at the time of accident. Respondent No.1 plying his vehicle in contravention of the terms and conditions of the insurance policy. 3. The learned Tribunal below framed the following issues on 18.1.2010 : ?1. Whether Sh. Balkar Singh had suffered injuries on account of rash and negligent driving of vehicle bearing No.UP11T0884 by respondent No.2 ? OPP. 2. If Issue No.1 is proved to what amount and from whom is the petitioner entitled to ? OPP. 3. Whether the respondent No.2 had not been in possession of a valid and effective driving licence, if so with what effect? OPR-3. 4. Whether the respondent No.1 had contravened the conditions of the insurance policy and registration certificate, if so with what effect ? OPR-3. 5. Relief.? 4. After deciding Issue Nos.1 and 2 in favour of the petitioner, Issue Nos.3 and 4 against the respondents, the learned Tribunal below awarded compensation of Rs.5,60,000/- to the petitioner. 5. Learned counsel appearing on behalf of the petitioner has argued that the compensation as awarded by the learned Tribunal below is in on very lower side, as the learned Tribunal below has not taken the disability qua the petitioner correctly. He has further argued that the disability was 100% qua the petitioner. 6. On the other hand, learned counsel appearing on behalf of respondent No.3 has argued that the disability as per the Doctor in Ex.PW4/B was not permanent disability and the same was temporary disability of 25%. As per the Doctor, it would have reduced to 10% later on. He has further argued that the impugned award is on the higher side, but he has admitted that no appeal has been filed by the Insurance Company. 7. In rebuttal, learned counsel appearing on behalf of the petitioner has argued that no interest on the awarded amount has been granted by the learned Tribunal below. 8. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record of the case carefully. 9. 7. In rebuttal, learned counsel appearing on behalf of the petitioner has argued that no interest on the awarded amount has been granted by the learned Tribunal below. 8. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record of the case carefully. 9. The only question which requires determination is that whether the disability for the purpose of calculating the compensation has been rightly taken by the learned Tribunal below or not. The income of the driver is proved to be Rs.4,000/- per month. Now, coming to the disability, PW-4, Dr. N.S. Dogra, Orthopedic Surgeon, had medically examined the petitioner on 20.6.2009 and 21.8.2010. He has issued disability certificates Ex.PW4/A and Ex.PW4/B. He has stated that the left leg of the petitioner had turned short by 1 ½ inch. The petitioner had suffered muscular injury to left leg, right patella and right ankle. The petitioner shall not be able to commute long distance and carry weight. In his cross-examination, he has stated as follows : ?It is correct that disability assessed by me on 21.8.2010 is temporary in character. Voluntarily stated that even after second operation disability of left femur would persist in any case upto 10%. Now the petitioner is on crutches and had been so observed by me on 21.8.2010 and today. After the rod implanted to the left femur had broken the petitioner is on crutches. It is wrong that the petitioner would be completely cured of the injury after second operation. Voluntarily stated that reduction of disability after second operation would depend upon the nature and successful character of the operation. In case the second operation fails the disability would persist or may increase as well. It is wrong that disability is of left femur alone. Voluntarily stated that disability of both lower limbs.? 10. Learned counsel appearing on behalf of the petitioner has relied upon the judgment in Raj Kumar vs. Ajay Kumar and another (2011) 1 Supreme Court Cases, 343, wherein it has been held that in case the right hand was amputated and vision was affected of a person, who is a Engineering student is permanent disablement to be assessed as 70%. Learned counsel appearing on behalf of the petitioner has relied upon the judgment in Raj Kumar vs. Ajay Kumar and another (2011) 1 Supreme Court Cases, 343, wherein it has been held that in case the right hand was amputated and vision was affected of a person, who is a Engineering student is permanent disablement to be assessed as 70%. Considering the above judgment to the facts of the present case, this Court finds that even if, the disability is not permanent and is likely to be reduced in future, but taking into consideration the nature of job performed by the petitioner, no interference is required with a view of learned Tribunal below taking the disability of 35%. 11. From the above, it is clear that the disability can be reduced with a passage of time. The learned Tribunal below has taken disability from 25% to 35% and awarded an amount of Rs.2,75,000/-, on account of the loss of future income, loss of amenities of life and loss of expectation of life. Even if, the income of the petitioner is Rs.4,000/- per month, as claimed by him and is permanently disabled to the extent of 35%, the multiplier of 15 is applied. The amount of compensation for loss of income comes to Rs.2,52,000/-, but the learned Tribunal below has awarded an amount of Rs.2,75,000/-, so this Court finds that the impugned award is reasonable and requires no interference. At the same point of time, this Court finds that the learned Tribunal below has not granted any interest on the impugned award. The petitioner is definitely entitled for the interest, which is required to be granted to the petitioner. No other points argued so, needs no consideration. 12. Accordingly, the petition is partly allowed. Since, the vehicle was admittedly insured by respondent No.3, as such, respondent No.3 is directed to deposit the amount of interest at the rate of 7.5% per annum on the awarded amount from the date of filing the petition, till the deposit of the award amount to the petitioner. The appeal is accordingly disposed of. In the peculiar facts and circumstances of the case, parties are left to bear their own costs. Pending application (s), if any, shall also stands disposed of.