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2017 DIGILAW 1676 (RAJ)

Lalit Kumar v. Sarvajeet Singh

2017-07-27

ARUN BHANSALI

body2017
JUDGMENT Arun Bhansali, J. - This appeal for enhancement of compensation has been filed by the appellant against judgment and award dated 30.09.2000 passed by Motor Accident Claims Tribunal, Abu Road (''the Tribunal''), whereby, the appellant has been awarded compensation to the tune of Rs. 59,000/- for the injuries suffered by him and the same has been reduced by 40% on account of contributory negligence. 2. The application for compensation was filed by the appellant claimant seeking compensation of Rs. 5,80,000/- on account of disablement suffered by him. It was claimed that on 08.11.1996 at about 8-9 AM the claimant was riding on a Scooter bearing registration No. GUY-5082 from Janapur to Abu Road when the offending vehicle a Trailer bearing registration No. HR37-4356 struck the Scooter from behind, resulting in the appellant suffering simple and grievous injuries. It was claimed that the appellant had undergone treatment at Pindwara and Palanpur, where he underwent operations and for permanent disablement suffered by him compensation was claimed. 3. The application was contested by respondent Insurance Company questioning the quantum of compensation claimed and it was denied that there was any permanent disability. It was also submitted that the accident occurred on account of contributory negligence by the appellant, who was driving the Scooter alongwith two pillion riders. 4. Based on the averments made by the parties, the Tribunal framed three issues i.e. issue No. 1, issue No. 8 and issue No. 9 pertaining to the accident, negligence and contributory negligence. 5. While framing issue No. 1, the Tribunal came to the conclusion that the appellant was driving the Scooter and the offending Trailer came from behind, which was being driven rashly and negligently and struck the Scooter, resulting in simple and grievous injuries to both the appellant as well as Shailesh Kumar. 6. Under issue No. 8 it was determined that the accident occurred on account of the Trailer colliding with the Scooter from behind and the plea raised by the Insurance Company that on account of the Scooter being driven with two pillion riders, the appellant could not maintain the balance, which resulted in the accident, was negated. 7. 6. Under issue No. 8 it was determined that the accident occurred on account of the Trailer colliding with the Scooter from behind and the plea raised by the Insurance Company that on account of the Scooter being driven with two pillion riders, the appellant could not maintain the balance, which resulted in the accident, was negated. 7. However, while deciding issue No. 9 pertaining to contributory negligence without discussing anything, the Tribunal held that the appellant alongwith the owner, driver and insurer of the Trailer were liable for payment of compensation and held the appellant liable for 40% of the amount of compensation. 8. While assessing the amount of compensation, the Tribunal came to the conclusion that though the permanent disablement certificate has been produced, but the same has not been produced by the doctor, who treated the appellant and though disability to the extent of 40% has been indicated, but it cannot be said that the disability occurred on account of injuries suffered in the accident. 9. Regarding the disability of reduction in the leg by two centimeter and for other disabilities pertaining to knee, shoulder and hip, the Tribunal opined that the same would go away over a period of time and, based on the such findings, awarded a sum of Rs. 21,000/- for three grievous injuries, Rs. 4,000/- for two simple injuries, Rs. 30,000/- for medicines, Rs. 2,000/- for special diet & Rs. 2,000/- for going to Palanpur as conveyance and in all Rs. 59,000/- has been awarded as compensation. 10. It is submitted by learned counsel for the appellant that the findings of the Tribunal are contradictory, inasmuch as, while deciding issue Nos.1 and 8 it has been determined that the accident occurred on account of negligence of driver of the Trailer and that the accident did not occur on account of the Scooter getting imbalanced as there were two pillion riders, however, under issue No. 9 without indicating anything, the appellant has been held liable to the extent of 40% and, therefore, the said finding on issue No. 9 deserves to be quashed and set aside. 11. 11. Further submissions were made that though during the oral evidence before the Tribunal it was specifically noticed and indicated in the statement by the Presiding Officer that there were marks of the stitches on hand and leg of the appellant, the finding recorded by the Tribunal that the fact that disability occurred on account of accident has not been proved is totally baseless and, as such, the same deserves to be set aside and the appellant is entitled to award of adequate compensation. 12. Learned counsel appearing for the respondent Insurance Company supported the award impugned. It was submitted that the very fact that the appellant was driving the Scooter alongwith two pillion riders is sufficient to come to a conclusion that he had contributed to the accident and, therefore, the finding recorded by the Tribunal does not call for any interference. Further submissions were made that the appellant failed to produce any material for supporting the quantum of compensation claimed by him in the application and, therefore, the Tribunal was justified in awarding Rs. 59,000/-. 13. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 14. So far as the finding of the Tribunal under issue No. 9 holding the appellant liable for 40% compensation in case of Shailesh Kumar and that appellant was entitled to only 60% compensation from the respondent Nos. 1 to 3 is concerned, the said finding on face of it is unsustainable, inasmuch as, while deciding issue No. 1, the Tribunal has specifically come to the conclusion that the Trailer, which struck the Scooter from behind, was being driven rashly and negligently by its driver. 15. The defence of the Insurance Company pertaining to the fact that the Scooter was being driven alongwith two pillion riders by the appellant, resulting in imbalance and consequent accident, has also been determined under the issue No. 8 against the Insurance Company and once the two findings were recorded by the Tribunal, the only possible conclusion, which could be drawn, was that the appellant had not contributed to the accident and the finding on issue No. 9 should have been in favour of the appellant. However, without any discussion whatsoever under issue No. 9 as a presumption and by apparently invoking principles of composite negligence, finding has been recorded and the order has been passed. 16. However, without any discussion whatsoever under issue No. 9 as a presumption and by apparently invoking principles of composite negligence, finding has been recorded and the order has been passed. 16. The case of composite negligence arises where a third party''s rights arise in case two vehicles are held liable for the accident and as in the present case the same has not been held under issue Nos. 1 and 8, the finding on issue No. 9 cannot be sustained. 17. So far as the submissions made by learned counsel for the respondent Insurance Company about the aspect that the very fact that more than two persons were riding the Scooter ipso facto lead to contribution of the driver of the Scooter also have no substance unless the said aspect is proved as a fact by way of evidence that on account of the vehicle being driven with more than one pillion rider the same led to the accident, the same cannot be a reason to come to a conclusion that the appellant contributed in the accident. 18. So far as the award of compensation is concerned, the two reasons recorded by the Tribunal - one that the doctor, who treated the appellant has not issued the certificate and that it was not proved that the disability occurred on account of the injuries suffered from the accident in question, are wholly baseless and cannot be sustained. Once the doctor who has examined the appellant and has given a certificate regarding the disability and also entered the witness box, it is not necessary that only the doctor, who has treated the claimant has to give the disability certificate and to appear in the witness box and, therefore, the requirement sought by the Tribunal being without any basis, the rejection of the disability certificate cannot be sustained. 19. Further finding of the Tribunal regarding lack of proof of disability on account of the accident is also without any basis, inasmuch as, the appellant has produced sufficient material to indicate that after the accident he had undergone operations and when the appellant was being examined the Presiding Officer has specifically indicated during the course of statement that there were stitch marks measuring 12" on the left hand and stitch marks from knee till hip on the left foot, which clearly indicates that disability arose out of the accident only. 20. 20. As already noticed hereinbefore, the Tribunal under various heads awarded compensation of Rs. 59,000/- and denied compensation for loss of future income on wholly unsustainable grounds i.e. lack of proof of injuries from the accident and that the disability, if any, would go away on its own. 21. Hon''ble Supreme Court in Sandeep Khanuja vs. Atul Dande & Ors. : (2017) 3 SCC 357 laid down that crucial factor, which has to be taken into consideration, is to assess as to whether the permanent disability has any adverse affect on the earning capacity of the injured and that the multiplier method is the recognized method for assessing the compensation in case of permanent disability as well. 22. The appellant claimed income of Rs. 5,500/- per month while working at Surat in diamond industry and also indicated that on account of injuries and permanent disablement suffered at his hand and leg, the nature of work, which he was doing, he was unable to do. The doctor, who was examined, indicated the disability at 10% on account of shortening of leg and 10% each qua knee, hip and the shoulder. 23. Looking to the nature of work being done by the appellant, the overall permanent disability on account of injuries suffered by him thus can be taken at 25% qua the whole body. The income, which has been claimed being paid to the appellant, has not been supported. Looking to the nature of work being performed by the appellant, the salary/income is assessed at Rs. 4,000/- per month. The claimant was aged 29 years at the time of accident and, therefore, a multiplier of 17 in terms of judgment in Sarla Verma vs. Delhi Transport Corporation : (2009) 6 SCC 121 deserves to be applied and based on the same, the claimant would be entitled to 1000 (being 25% of 4000) x 12 x 17 = 2,04,000/-. The rest of the compensation awarded by the Tribunal under different heads to the tune of Rs. 59,000/- does not call for any interference. 24. Consequently, the appeal is partly allowed. The award dated 30.09.2000 is modified to the extent that the finding on issue No. 9 is set aside and the compensation awarded to the appellant is enhanced from Rs. 59,000/- to Rs. 2,63,000/-. 59,000/- does not call for any interference. 24. Consequently, the appeal is partly allowed. The award dated 30.09.2000 is modified to the extent that the finding on issue No. 9 is set aside and the compensation awarded to the appellant is enhanced from Rs. 59,000/- to Rs. 2,63,000/-. The appellant would be entitled to interest on the unpaid & enhanced compensation @ 8% per annum from the date of application i.e. 19.04.1997 till the date of actual payment. All the respondents would be jointly and severally liable for payment of amount of entire compensation. The compensation be paid to the appellant in his saving bank account. The Insurance Company is directed to make payment of the unpaid/enhanced compensation in terms of the award within a period of six weeks.