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Himachal Pradesh High Court · body

2016 DIGILAW 2579 (HP)

SHYAM LAL v. RANJEET SINGH

2016-12-05

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. 1. The present appeal is maintained by the appellant/petitioner/claimant (hereinafter referred to as 'claimant') under Section 173 of the Motor Vehicles Act, 1988, for enhancement of the compensation awarded by learned Motor Accidents Claims Tribunal, Bilaspur, H.P., dated 10.08.2011, in MAC Petition No. 16 of 2010. 2. Briefly stating facts giving rise to the present appeal are that on 17.11.2007, at about 10 A.M. the claimant was standing on the left side of road, near State Bank of Patiala, Dagrahan. In the meanwhile, Scooter, being driven by respondent No. 1, in excessive and uncontrollable speed hit the claimant hard which resulted into multiple fractures to his left leg and his kidney was also damaged, as a result of which he became unconscious. After the said accident the claimant was immediately shifted to P.H.C. Swarghat, wherefrom on the same day, he was referred to P.G.I. Chandigarh. On 28/29.11.2008, the damaged kidney of the claimant was removed. The claimant remained admitted at P.G.I. w.e.f. 17.11.2007 to 15.12.2007. However, for follow-up check-ups he visited P.G.I. eight times. It is averred that claimant was running a cloth shop and tent house and earning Rs. 10,000/- per month, but after the said accident his shop remained closed for 13 months. It is further averred that he was accompanied to P.G.I. Chandigarh, by his father, brother and his two friends, who remained present there upto 15.12.2007 and they spent Rs. 15,000/- while attending him. The brother of the claimant, who was a photographer and running a Studio, suffered loss of Rs. 15,000/- as his shop remained closed upto 15.12.2007. The claimant kept one attendant continuously for 13 months and paid Rs. 5,000/- per month to him, thus he claimed Rs. 65,000/- as expenses for keeping attendant. It is further averred that the claimant had spent Rs. 89,031/- for medicines, Rs. 18,500/- as taxi charges. As per the claimant his family is having 30 bighas of cultivable land wherefrom he was also earning Rs. 50,000/- per annum. But, now, the claimant is unable to perform any hard work due to the removal of one kidney and due to this his life span has been shortened and his life is also subjected to permanent danger, terror and tension of kidney failure at any time. Therefore, the claimant has preferred the present appeal for enhancement of compensation to Rs. 20,00,000/-. 3. Therefore, the claimant has preferred the present appeal for enhancement of compensation to Rs. 20,00,000/-. 3. Respondents No. 1 & 2 contested the claim petition by filing reply. It is averred therein that the accident took place due to the negligent act of the claimant. It is further averred that on the said date respondent No.1 was on his way and the claimant came in the centre of the road to cross towards other side and the accident took place, respondent No. 1 also fell down on the hard surface and sustained multiple injuries. It is further averred that the accident took place due to the own negligence of the claimant, hence he is not entitled for compensation. 4. Respondent No.3 has also filed the reply and stated therein that the vehicle involved in the accident was being driven by a person, who was not having a valid and effective driving licence. The vehicle was being plied in violation of the terms and conditions of the Insurance Policy, hence respondent No. 3 is not liable to pay such highly excessive and exorbitant amount. 5. The learned Court below framed the following issues on 29.6.2010, as under: 1. Whether the accident in question was result of rash and negligent driving of respondent No.1 and the petitioner sustained injuries in the said accident? OPP. 2. If Issue No.1 is proved in affirmative, whether the petitioner is entitled to compensation, if so, from whom and to what extent? OPP. 3. Whether the petition is not maintainable ? OPR. 4. Whether the vehicle in question was being plied in contrary to the provisions of Motor Vehicles Act? OPR-3 5. Whether the driver of the vehicle was not having a valid and effective licence to drive the vehicle as alleged? OPR-3 6. Relief. 6. After deciding Issues No.1 & 2 in favour of the claimant, issues No 3 to 5 against the respondents, the learned Tribunal held that the claimant is entitled for an amount of Rs. 2,74,000/- along with interest at the rate of 7.5 % per annum from the date of filing the petition till its realization, which was to be paid by respondents. 7. I have heard the learned counsel for the parties and also gone through the record of the case carefully. 8. 2,74,000/- along with interest at the rate of 7.5 % per annum from the date of filing the petition till its realization, which was to be paid by respondents. 7. I have heard the learned counsel for the parties and also gone through the record of the case carefully. 8. Learned counsel appearing on behalf of the claimant has argued that the learned Tribunal below has granted compensation, which is very much on the lower side. 9. On the other hand, learned counsel appearing on behalf of respondents has argued that the compensation awarded is just, reasoned and the claimant has been properly compensated. 10. To appreciate the arguments of learned counsel for the parties, I have gone through the record of the case carefully. 11. Coming to the disability of the claimant, the learned Tribunal below has granted compensation of Rs. 1,00,000/- for loss of amenities of life, future discomforts and disability. It has come on record that in the said accident the claimant has suffered multiple fractures on his leg and one kidney, being damaged, was also removed. As far as the disability is concerned, PW-4, Dr. Sunanda Bag, Senior Resident, Department of Transplant Surgery, P.G.I. Chandigarh, has specifically stated that the patient was semi-conscious and was having injury on his head, fracture of both bones of left leg and blunt trauma to abdomen leading to severe injury to left kidney and initially he was managed conservatively with absolute rest, I/V fluid, blood transfusion and pigtail drainage, but while in the hospital he has torrential bleeding from the left kidney leading to shock for which angio-embulisation and subsequently urgent exploration was done. He further stated that in spite of their best efforts the kidney could not be salvaged and was removed to save the life of the patient. He also stated that the injuries to the leg bones was initially immobilized with plaster cast and later on was operated and the claimant was remained admitted till 15th December, 2007. He deposed that due to loss of one kidney, the work capacity of the claimant has decreased more than 50%. 12. The learned Tribunal below has awarded compensation on account of loss of amenities of life, future of discomforts and disability to the tune of Rs. 1,00,000/-, attendant charges for the period he remained admitted in hospital to the tune of Rs. 12. The learned Tribunal below has awarded compensation on account of loss of amenities of life, future of discomforts and disability to the tune of Rs. 1,00,000/-, attendant charges for the period he remained admitted in hospital to the tune of Rs. 10,000/-, Medical expenses to the tune of Rs. 89,000/-, conveyance charges to the tune of Rs. 10,000/-, Pain and sufferings to the tune of Rs. 50,000/-, actual loss of income to the tune of Rs. 15,000/- total compensation amount awarded to the claimant is Rs. 2,74,000/-. 13. As far as the monthly income of the claimant is concerned, according to his own statement, he specifically deposed that he was running a cloth shop and tent house from where he was earning Rs. 10,000/- per month, despite that he was also doing some agricultural work, wherefrom the earning of the claimant is stated to be Rs. 5,000/- per month. Though, there is no other evidence to prove it. In view of the above facts, income of the claimant can be taken as Rs. 6,000/- per month from shop and Rs. 2,000/- per month from agricultural work. So, the monthly income of the claimant can be taken as Rs. 8,000/-. As per the Doctor, the work capacity of the claimant to do physical work has decreased to 50%, due to loss of one kidney. As the claimant was working in a shop, so, loss of earning capacity can be taken as 25% which comes to Rs. 2,000/- per month, so the annual loss of income comes to Rs. 24,000/- per annum. The age of the claimant at the time of accident being 32 years, the multiplier of 14 is applied, thus the loss of dependency comes to Rs. 3,36,000/. Taking into consideration the nature of injury/disability suffered by the claimant, he is held entitled for Rs. 3,36,000/- on account of loss of dependency, amenities of life, future discomforts and disability in place of Rs. 1,00,000/-. As far as rest of the amount is concerned, the learned Court below has rightly awarded the same. Accordingly, the amount is enhanced/modified. No other point has been argued by learned counsel for the parties, hence needs no consideration. 14. Accordingly, the present appeal is allowed and the compensation amount, on account of dependency, loss of amenities of life, future discomforts and disability, is enhanced from Rs. 1,00,000/- to Rs. 3,36,000/-. Accordingly, the amount is enhanced/modified. No other point has been argued by learned counsel for the parties, hence needs no consideration. 14. Accordingly, the present appeal is allowed and the compensation amount, on account of dependency, loss of amenities of life, future discomforts and disability, is enhanced from Rs. 1,00,000/- to Rs. 3,36,000/-. As the vehicle was duly insured with respondent No. 3, therefore, respondent No. 3 is directed to deposit the enhanced amount along with interest at the rate of 7.5% per annum from the date of petition till its realization. 15. The appeal is accordingly disposed of. In the peculiar facts and circumstances of the case, parties are left to bear their own cost(s).