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2016 DIGILAW 746 (HP)

Jeewan Ram v. Surender Kumar

2016-05-11

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, Judge (Oral) The present appeal is directed against the award dated 26.4.2010, passed by Motor Accident Claims Tribunal, Nahan, District Sirmour, H.P. in MAC Case No. 128-N/2 of 2008 for modifying the award and increasing the amount of compensation in favour of the petitioner-appellant. 2. Briefly stating the facts giving rise to the present appeal are that the petitioner-appellant (hereinafter referred to as ‘the petitioner’) was having two donkeys and he was doing small work/contract of transportation of the building material etc. in Nahan town. On 17th September, 2008 at about 1.15 P.M., when he was doing his usual work at Nahan near Carmel Convent School, a truck bearing No.HP-18B-4905, owned by respondent No.1 and being driving by respondent No.2, hit the petitioner and his donkey, resultantly, his donkey died on the spot and petitioner received multiple injuries, including fracture of left leg. As per the petitioner, accident occurred due to rash and negligent driving of respondent No.2 while driving truck of respondent No.1. As per petitioner, he remain admitted in the hospital for seven days and during this period, he was operated upon. 3. The police registered FIR in this case under Sections 279 and 337 of Indian Penal Code against respondent No.2. The petitioner alleged that his monthly income was Rs.10,000/- and he remained without work for thirteen months. The petitioner also claimed an amount of Rs.50,000/- on account of transportation and compensation for pain and sufferings and expenses of treatment. 4. The learned Tribunal below granted Rs. 1,00,561/- as compensation and being aggrieved by the award of the learned Tribunal below, appellant maintained the present appeal. 5. Learned counsel for the petitioner has argued that the Tribunal below has erred while taking the income of the petitioner at Rs.3000/- per month, when petitioner was earning much more than that. He has further argued that though the petitioner has proved on record that he remained without job for thirteen months, but the learned Tribunal below has given him the compensation for remaining out of the job for six months only. He has also argued that compensation for transportation is on the lower side. 6. On the other hand, learned counsel for respondents No.1 and 2 has argued that the vehicle was insured and, if any, compensation is to be paid, that is to be paid by respondent No.3. He has also argued that compensation for transportation is on the lower side. 6. On the other hand, learned counsel for respondents No.1 and 2 has argued that the vehicle was insured and, if any, compensation is to be paid, that is to be paid by respondent No.3. Learned counsel for respondent No.3 has argued that though the vehicle was insured, but the compensation awarded is already on the higher side and it is required to be reduced. Learned counsel for the petitioner in rebuttal argued that the Tribunal below has not rightly granted the compensation on account of death of donkey and that is also required to be enhanced and taking into consideration the cost of the donkeys these days, it should have been increased. 7. To appreciate the arguments of learned counsel for the parties, I have gone through the record in detail. As far as issue No.1, whether accident was the result of rash and negligent driving of the vehicle of respondent No.1, being driven by respondent No.2 and petitioner sustained injuries in the said accident. The issue was decided in favour of the petitioner and there is no appeal against the findings. So, these findings need no discussion. As far as issues No. 3 and 4 are concerned, the issues are regarding validity of driving licence and collusion of petitioner with respondents No. 1 and 2. These issues were decided against respondent No.3 and as there is no appeal against the findings on these issues, these findings also require no discussion. Now the only question involved in this appeal is whether the amount of compensation awarded to the petitioner is just and reasoned or it requires enhancement. 8. It is evident that the petitioner has not proved on record any disability he has suffered. Neither there are pleadings with regard to disability nor proof to that effect. Petitioner while appearing in the witness-box had deposed that he remained bedridden for seven months and he will be unable to work for another six months. Meaning thereby, the petitioner is unable to do work for thirteen months. This statement of the petitioner that he is unable to do work for thirteen months is not supported by any other cogent evidence. Meaning thereby, the petitioner is unable to do work for thirteen months. This statement of the petitioner that he is unable to do work for thirteen months is not supported by any other cogent evidence. However, in the present proceedings, even if we take the statement of the petitioner as a gospel truth and taking into consideration the injuries, i.e. fracture of the left leg of the petitioner and nature of work he is performing, the petitioner after suffering fracture, can be said to be not in a position to do the work of loading and unloading and also the manual work for one year from the date of fracture. So, this Court comes to the conclusion that the petitioner is entitled for loss of income for twelve months. 9. As far as income of the petitioner was concerned, the learned Tribunal below has taken the income of the petitioner as income of the unskilled labourer. In the instant case, the petitioner was having two donkeys and it can be safely inferred that he was earning more than that of an unskilled labourer. Though, there is no evidence on record to come to the conclusion that petitioner was earning more than that of unskilled labourer, except his own statement, but taking into consideration the fact that the petitioner was not only an unskilled labourer, but he was working with two donkeys, the income of the petitioner is required to be taken more than of unskilled labourer. So, this Court taking judicial notice of the fact that the petitioner was having two donkeys and he was himself fit to do manual labour, the income of the petitioner is taken at Rs.4500/-. This way, the petitioner is entitled for actual loss of income to the tune of Rs.4500/- x 12= Rs.54,000/-. 10. Now coming to the treatment charges, the same were awarded to the petitioner as per actual bills produced by the petitioner. For pain and sufferings, an amount of Rs.20,000/- awarded by the Tribunal below is just and reasoned and for attendant charges, the amount of Rs.10,000/- awarded is just and reasoned. The petitioner remained admitted in the hospital only for seven days and taking into consideration the topography and the place of residence of the petitioner and place where the petitioner was treated, conveyance charge of Rs.4500/- seems to be just and reasoned. The petitioner remained admitted in the hospital only for seven days and taking into consideration the topography and the place of residence of the petitioner and place where the petitioner was treated, conveyance charge of Rs.4500/- seems to be just and reasoned. The amount of loss of donkey is awarded Rs.10,000/-, which is also just and reasoned and compensation of Rs.5000/- awarded on account of special diet also needs no interference. 11. Accordingly, the award is required to be enhanced to the extent of actual loss of income only from Rs.18,000/- to Rs.54,000/-. So, the award is modified and petitioner is awarded a sum of Rs.1,36,561/- (Rs. One lac thirty six thousand five hundred and sixty one only) alongwith interest @ 7.5% from the date of filing of claim petition till deposit. Petition is accordingly disposed of. No order as to costs.