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2017 DIGILAW 1326 (RAJ)

Jabbar Nath v. Chairman

2017-05-24

GOVERDHAN BARDHAR

body2017
JUDGMENT : Goverdhan Bardhar, J. 1. The instant civil misc. appeal under Section 173 of the Motor Vehicle Act, 1988 has been preferred by the claimant/appellant for enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Jodhpur (for short ‘the Tribunal’) vide impugned judgment and award dated 07.04.2006 passed in Claim Case No. 548/2005, whereby compensation to the tune of Rs. 11,150/- has been awarded in favour of the claimant/ appellants deducting 50% amount on the principle of contributory negligence. 2. Briefly stated the facts of the case are that the claimant filed a claim petition with the averment that on 02.11.2003, the deceased Thakar Nath and another claimant Jabbar Nath were travelling on Motorcycle RJ-194M-0135 towards Barli village. When they reached Ugmani Golai, Bus No. RJ-19-P-7032 being driven rash and negligently by the driver hit the motorcycle. Due to the accident both Jabbar Nath and Thakar Nath sustained grievous injuries and Thakar Nath later on succumbed to injuries during the treatment. 3. Learned Tribunal issued notices to the non-claimants. Non-claimants No. 2 filed reply to the claim petition and stated that the accident occurred due to negligence on the part of the motorcycle rider, the motor bike being driven on the wrong side. Further the claimant has exaggerated the claim and insurance company cannot be held liable for payment of compensation and prayed for dismissal of the claim petition. 4. The learned Tribunal after hearing both the parties vide its judgment and award dated 07.04.2006 awarded a compensation of Rs. 22,300/- in favour of the claimant/appellant while holding both motorcycle and bus driver guilty of contributory negligence. Hence, this misc. appeal has been filed by the claimant/appellant against the finding of learned Tribunal for contributory negligence so also for enhancement of compensation. 5. Learned counsel for the appellant submits that the learned Tribunal has failed to consider that the deceased was driving the motorcycle on the correct side of the road but the respondent No. 2 driving the bus on wrong side hit the motorcycle. The learned Tribunal misread the evidence as well as the material available on record and relied upon the finding of MTO report and the statement of witness Madan Singh DW-1 who improved his version and made false statement that the accident took place at rear side of the bus. The learned Tribunal misread the evidence as well as the material available on record and relied upon the finding of MTO report and the statement of witness Madan Singh DW-1 who improved his version and made false statement that the accident took place at rear side of the bus. Learned counsel submits that the learned Tribunal has recorded finding about contributory negligence based on conjectures and surmises inasmuch as no material was available on record to show that deceased has not taken reasonable care for safety, more particularly when the evidence tendered by the appellant remained un-rebutted. It is further argued that the learned Tribunal has also erred in deciding the Issue No. 2 with regard to quantum of compensation. It is submitted that appellant claimant sustained injuries on his head, face right leg and left thigh and remained hospitalized for a quite long period and during the period he incurred huge amount on treatment, attendance, nourished diets, transportation etc. It is submitted that the appellant used to earn Rs. 150-200 per day by undertaking labour work and therefore, the learned Tribunal has committed an error in awarding a meagre compensation which deserves to be enhanced suitably. 6. Per contra, the learned counsel for the respondents opposed the submissions advanced by the counsel for the claimant/appellants and submitted that the award passed by the learned Tribunal is just and proper which does not call for any interference. 7. I have considered the submissions on behalf of the counsel for the parties and perused the impugned judgment/award dated 07.04.2006 as also material available on record. 8. The claimant/appellant has challenged the impugned judgment and award mainly on two grounds. Firstly the learned Tribunal wrongly appreciated the evidence available on record and without any basis gave finding that the accident took place due to equal negligence of both the drivers and held that both the drivers were negligence upto 50% each. The learned Tribunal has not considered the facts that the statement of Jabbar Nath, injured appellant finds corroboration from the Police investigation report by which the Police after through investigation found respondent No. 2 guilty and submitted charge-sheet against him. 9. Secondly the learned Tribunal has awarded a meagre amount of compensation. The claimant-appellant categorically stated that due to the accident, he sustained injuries on his head, face, right leg and left thigh and remained hospitalised for quite long period. 9. Secondly the learned Tribunal has awarded a meagre amount of compensation. The claimant-appellant categorically stated that due to the accident, he sustained injuries on his head, face, right leg and left thigh and remained hospitalised for quite long period. But the learned Tribunal failed to assess separately as pecuniary damages and special damages. 10. The first ground is relating to contributory negligence of the injured appellant. According to the claimant injured, accident took place due to rash and negligent driving on the part of bus driver Madan Singh and there was no negligence on the part of the appellant injured Jabbar Singh. Ex-1 is charge-sheet. FIR (Ex-2) reveals that FIR was registered by SHO, Police Station Soorsagar, Jodhpur against the bus driver under Sections 279, 337 and 304 IPC shows that the accident occurred due to rash and negligent drivelling on the part of bus driver. After investigation the police submitted charge-sheet against the bus driver under Sections 279, 337 and 304 IPC with specific allegation that bus driver caused the death of Thakar Nath due to rash and negligent driving and the appellant claimant sustained injuries. In view of direct evidence against the bus driver, the accident was occurred due to rash and negligence driving on the part of bus driver. 11. There is no evidence on record to suggest any negligence on the part of appellant injured who was handling and riding on the motorcycle. In absence of such direct or corroborative evidence, the learned Tribunal has given wrong finding about contributory negligence on the part of the injured claimant. In view of aforesaid, the learned Tribunal erred in conclusion that the said accident occurred due to equal contributory negligence on the part of the appellant injured and the said conclusion was not based on evidence but based on mere presumption and surmises and deserves to be set aside. 12. Second question relates to just and proper compensation. The injured claimant has produced Ex-13 injury report, Ex-14 x-ray report and Ex-15 discharge ticket. But no disability certificate has been produced. The claimant appellant stated in his evidence that in the accident, he sustained injury on his head, face, right leg and left thigh. During the period of his treatment, he incurred huge amount on treatment, attendance, nourished diet, transportation etc. But no evidence with regard to the expenses towards medical treatment, prescriptions, bills etc. The claimant appellant stated in his evidence that in the accident, he sustained injury on his head, face, right leg and left thigh. During the period of his treatment, he incurred huge amount on treatment, attendance, nourished diet, transportation etc. But no evidence with regard to the expenses towards medical treatment, prescriptions, bills etc. were produced on record. After considering the entire facts and circumstances and material available on record, the learned Tribunal has awarded compensation to the tune of Rs. 22,300/- to the claimant appellant. There is no evidence on record regarding any physical disability in the nature of permanent or partials. But Ex-13, Ex-14 and Ex-15 reveal one of injury of grievous nature i.e. compound fracture of right leg. The learned Tribunal while assessing compensation has not taken note of fracture of right leg. In the opinion of this Court, the claimant appellant is entitled to get Rs. 15,000/- for pain and suffering due to the injury of fracture of right leg. Thus, it is held that the claimant/appellant is entitled to Rs. 15,000/- towards pain and suffering due to the injury of fracture of right leg. The compensation awarded under other heads to the claimants does not call for any interference. 13. Accordingly, the appeal is partly allowed. The finding of the learned Tribunal regarding deduction of 50% of the amount of compensation for contributory negligence is set aside. The claimant/appellant is entitled to get 100% amount of compensation. While modifying the judgment and award dated 07.04.2006, the claimant is held to be entitled to a sum of Rs. 15,000/- for pain and suffering due to injury of fracture of right leg. In all, the claimant/appellant is entitled to get compensation to a sum of Rs. 37,300/- (Rs.15,000/- + Rs. 22,300/-) instead of Rs. 11,150/- awarded by the learned Tribunal. The claimants will also be entitled to interest on the enhanced amount of compensation at the rate of 7.5% per annum from the date of filing the claim petition till realisation.