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2016 DIGILAW 946 (MP)

Om Prakash v. Prakash Chand

2016-10-21

VED PRAKASH SHARMA

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JUDGMENT : Ved Prakash Sharma, J. This appeal under Section 173 of Motor Vehicles Act, 1988 (for short "the Act"), has been preferred for enhancement of the compensation as the appellant feels dissatisfied with the amount of compensation Rs. 1,42,000/- awarded to him by 13th Additional Motor Accident Claims Tribunal, Indore, District-Indore (hereinafter for short 'the Tribunal') vide award dated 10/04/2007 passed in Claim Case No. 166/2006, for the loss allegedly suffered by him due to injuries sustained in vehicular accident. 2. The necessary facts, briefly stated, are that on 18/11/2004, around 12:30 in the afternoon, while the appellant was coming on his Motorcycle bearing registration No. M.P.-13-JF-4571, to Indore with Madan Singh, as pillion rider, near Police Station Sanwer, Maruti Gypsy bearing registration No. MH-04-AJ-6927, belonging to respondent-No.-1-Prakashchand, insured with respondent No. 3-Oriental Insurance Company and driven at the relevant time by respondent No.2 in a rash and negligent manner, dashed against the Motorcycle. It was further averred that in this accident, the appellant suffered fracture of both the hands and legs and a number of other injuries on the face, head, back, chest and other parts of the body; he was immediately taken to Arvindo Hospital, Indore, where he remained hospitalized from 18/11/2004 to 26/11/2004 and as radius bone of both the legs was found fractured, therefore, by way of operation knailing was done. It was also averred that from 26/11/2004 to 11/12/2004 the appellant remained under treatment as indoor patient at Arihant Hospital and Research Center, Indore and was operated upon and skin grafting was also carried out. Thereafter, he again remained hospitalized from 10/01/2005 to 15/01/2005, in Arihant Hospital. It was further averred that he suffered 70 percent permanent disability, as per certificate (Ex. P/250). The appellant claimed compensation to the tune of Rs.50 Lacs under various heads, averring that he was earning @ Rs.5,000/- per month from his watch shop and that due to disability he is not able to earn his livelihood. 3. Umesh respondent No. 4 is the owner of the motorcycle which was insured with respondent No. 5- National Insurance Company. 4. Respondent No. 3- Insurer of Maruti Gypsy opposed the claim petition on the ground that the accident occurred because of negligence on the part of the appellant, who was riding the motorcycle on the wrong side. Therefore, Insurance Company is not liable to pay compensation. 4. Respondent No. 3- Insurer of Maruti Gypsy opposed the claim petition on the ground that the accident occurred because of negligence on the part of the appellant, who was riding the motorcycle on the wrong side. Therefore, Insurance Company is not liable to pay compensation. It was further averred that the appellant did not have valid driving license at the time of accident and hence he committed breach of the policy conditions. In the alternate it was averred that if at all the driver of the Maruti Gypsy is found negligent, then it is the case of the contributory negligence. Respondent No. 5 also opposed the claim petition during the averments regarding permanent disability etc. It was also averred that accident occurred because of the negligence on the part of the driver of the Maruti Gypsy, therefore, the insusurer of Maruti Gypsy is liable to pay damages. 5. It is noticeable that pillion rider Madan Singh also preferred a separate claim petition under Section 166 of 'The Act'. 6. 'The Tribunal' disposed of both the claim petitions by a common award, which is impugned before this Court. The Tribunal on the basis of appreciation of evidence found that the accident occurred on account of contributory negligence on the part of the appellant as well as the respondent No. 2-Paresh Paliwal, the driver of the Maruti Gypsy. It was further found that the negligence on the part of the appellant was 30% and on the part of the Gypsy Driver it was 70%. 7. Considering the evidence, the Tribunal assessed the amount of compensation of Rs.1,42,000/- and after deducting 30% for the negligence on the part of the appellant, an amount of Rs.99,400/- was awarded in favour of the appellant with a finding that respondent Nos. 1,2 and 3 were jointly and severely liable to pay the same. 8. In this appeal the prayer for enhancement has been made on the ground that despite evidence to the effect that appellant sustained 70% disability, no compensation was awarded towards loss of income. Apart that a pity sum of Rs.33,000/- was granted for pain and suffering and nothing was awarded for future treatment, special diet, transport expenditure etc. Therefore, the compensation amount deserves to be enhanced appropriately. 9. Respondent Nos. 1, 2, 4 and 5 have remained Ex-Party. 10. Apart that a pity sum of Rs.33,000/- was granted for pain and suffering and nothing was awarded for future treatment, special diet, transport expenditure etc. Therefore, the compensation amount deserves to be enhanced appropriately. 9. Respondent Nos. 1, 2, 4 and 5 have remained Ex-Party. 10. Respondent No. 3/Insurer has opposed the prayer for enhancement on the ground that appellant himself is responsible for the accident. It is submitted that entire amount incurred by the appellant in his treatment have been awarded. Apart that reasonable amount has also been awarded towards pain and sufferings. Therefore, it is not a fit case for enhancement. 11. Heard, learned counsel for the parties and perused the record. Contributory Negligence:- 12. Madan Singh (A.W.2) who, admittedly was travelling as pillion rider at the relevant time, has stated in cross-examination that at the time of head-on collusion, while the Gypsy as per the spot map (Ex.P/5), was on the left side of the road, the motorcycle went to the right side, thus, resulting in accident. The testimony of the Madan Singh (A.W.2), who is an eye witness of the accident, clearly indicates, particularly, in the light of the spot map (Ex.P/5), that the appellant was riding the motorcycle on wrong side. Thus, as found by the learned 'Tribunal', it is a case of contributory negligence. Simply because the driver of the Gypsy was not examined before the 'Tribunal', it cannot be said that findings with regard to contributory negligence is against the record or perverse. Further, this Court concurred with the view taken by the learned 'Tribunal' that looking to the fact that accident took place between a four wheeler and a two wheeler, the proportionate liability for the accident was more on the driver of the four wheeler, therefore, the negligence on the part of the Gypsy driver has rightly been held as 70% and on the part of the applicant as 30%. 13. As regards quantum of compensation, the learned 'Tribunal' has discussed the issue in para 24, 27 to 30 of the impugned award. Documents pertaining to medical treatment and expenditure (Ex. P/17 to Ex. P/24), (Ex. P /55 to Ex. P/58), (Ex. P/93 to Ex.P/94) as well as (Ex. P/146 to Ex.P/269) have been dully considered by the learned 'Tribunal'. Some of the bill pertained to advance deposits against which regular final bill was raised. Documents pertaining to medical treatment and expenditure (Ex. P/17 to Ex. P/24), (Ex. P /55 to Ex. P/58), (Ex. P/93 to Ex.P/94) as well as (Ex. P/146 to Ex.P/269) have been dully considered by the learned 'Tribunal'. Some of the bill pertained to advance deposits against which regular final bill was raised. Ex.P/169 is receipt of advance deposit of Rs. 35,000/-, out of which only Rs.9,180/- was appropriated and remaining Rs.25,820/- was returned to the appellant. The learned 'Tribunal' on due computation has accepted all the bills of the appellant and Rs.1 Lac has been awarded to him towards medical treatment. 14. The learned 'Tribunal' has awarded Rs. 12,000/- towards loss of income in respect of immobility of the appellant for three month @ Rs.4,000/- per month. However, considering the fact that the appellant has suffered multiple fractures, it can easily be inferred that he might have remained immobile for around 6 months. Therefore, grant of compensation for loss of income @ Rs.4,000/- p.m. for a period of 6 months i.e. Rs.24,000/- will be reasonable. Hence, as regards loss of income, enhancement of Rs.12,000/- would be just and proper. 15. The learned 'Tribunal' has awarded Rs. 33,000/- for pain and sufferings. This amount, considering the nature of injuries, appears to be on lower side. Therefore, reasonably a sum of Rs.20,000/- deserves to be enhanced under this head. 16. The learned 'Tribunal' has not awarded any compensation for special diet, conveyance and for availing service of care taker. Considering the fact that appellant had to undergo for treatment for a period of 6 months, it would be appropriate to award Rs. 10,000/- towards expenditure on services of care taker, Rs.10,000/- for special diet and Rs.10,000/- for conveyance. Thus, a sum of Rs.30,000/- is required to be awarded under these three heads. 17. In view of the aforesaid, total amount of Rs.62,000/- (Rs.12,000/-+ Rs. 20,000/-+ Rs.30,000/- = Rs.62,000) is required to be enhanced in the present case towards compensation. After deducting 30% against the negligence attributable to the appellant a sum of Rs. 43,400/- (Rs. 62,000/- Rs. 18,600/- = Rs.43,400) can appropriately be enhanced by way of just and proper compensation payable to the appellant. 18. The appeal is accordingly allowed and amount awarded by the 'Tribunal' to the present appellant is enhanced by Rs.43,400/-. After deducting 30% against the negligence attributable to the appellant a sum of Rs. 43,400/- (Rs. 62,000/- Rs. 18,600/- = Rs.43,400) can appropriately be enhanced by way of just and proper compensation payable to the appellant. 18. The appeal is accordingly allowed and amount awarded by the 'Tribunal' to the present appellant is enhanced by Rs.43,400/-. Appellant shall also be entitled for interest on the enhanced amount @ 6% p.a. from the date of application.