Research › Search › Judgment

Madhya Pradesh High Court · body

2017 DIGILAW 937 (MP)

Gangaram v. State of M. P.

2017-08-28

S.K.AWASTHI

body2017
JUDGMENT 1. Since both the appeals, arise out of the same accident and challenging the same award, therefore, the same are being finally disposed of by common judgment. 2. The appellants have filed these appeals under section 173 of the Motor Vehicles Act, 1988 (for brevity, the 'Act') against the award dated 4.10.2015 passed by the Motor Accidents Claims Tribunal, Morena (for brevity, the 'Tribunal') in Claim Cases No.26/2003 and 27/2003, whereby dismissing their claim petitions for not impleading the Municipal Council Morena as party in the claim petitions. 3. Brief facts of the case are that on 17.1.2001 at about 7:30 am, Gangaram along with Ashok Kumar was going from MS Road towards Ramjanki Mandir, Morena by a motor cycle bearing registration No.MP06 H4375. Gangaram was driving it while Ashok Kumar was the pillion rider. When they reached near Ramjanki temple, at that time driver of the offending tractor bearing registration number CIG 2916 drove the tractor rashly and negligently and dashed against the motor cycle due to which the claimants sustained grievous injuries. The incident was reported to the Police Station Kotwali, Morena and an FIR was registered at Crime No.702/2001 for the offence punishable under sections 279, 337 and 338 of IPC. The claimants were brought to District Hospital Morena where they were hospitalized for a period from 17.10.2001 to 24.10.2001. After that they were shifted to Gwalior where they were treated by Dr. Ravi Goyal. Gangaram sustained fracture on his right thigh and he was operated. Due to these injuries, he sustained permanent disability and he is unable to perform his normal work. The applicant Ashok received grievous injury in the right hand and femur bone. 4. Respondents denied the alleged accident and averments made in the claim petition. 5. The Tribunal after framing the issues recorded evidence of both the parties and tested the claim and after appreciation of evidence the Tribunal found proved the accident and found that the claimants sustained grievous injuries in the accident, therefore, Gangaram is entitled to receive Rs.58,000/- and Ashok is entitled to receive Rs.66,000/- as compensation, but Tribunal has dismissed the claim petition on the ground that the tractor belongs to Municipal Council Morena and same has not been made party in the claim petition in spite of the Court order dated 9.12.2002. 6. 6. Being aggrieved by the findings recorded by the Tribunal, the appellant has preferred this appeal. 7. Learned counsel for the appellants submitted that the Tribunal has wrongly dismissed the claim of the appellants for want of impleading necessary party. He further contended that the Tribunal came to the conclusion that the appellants suffered permanent disabilities, but in spite of this, the Tribunal has assessed only Rs.58,000/- as compensation with respect to Gangaram and Rs.66,000/- as compensation with respect to Ashok Kumar. Hence, he prayed that impugned award is on lower side and deserves to be enhanced. 8. On the other hand, learned counsel for the the respondents No.2 and 3 supported the impugned award and submitted that the same is based on sound reasonings and is in accordance with the provisions of law. 9. I have taken note of rival contentions canvassed on behalf of the parties and perused the record in their context. 10. In this case, the questions emerge for determination are (I) Whether at the time of accident the driver Sobharam s/o Khubiram was driving the offending vehicle (tractor No. CIG 2916); (ii) Whether the Tribunal was right in dismissing the claim petition on account of non-joiner of necessary party, i.e. Municipal Council Morena, and (iii)Whether the amount of compensation as assessed by the Tribunal requires enhancement? 11. With regard to first question, in the present case, the Tribunal has concluded that it is proved that the accident has been occurred by tractor bearing registration number CIG 2196 which belongs to Municipal Council Morena, but it is not established that who was driving it at the time of incident. In this regard, it is pertinent to note that an FIR was lodged against the driver of the above tractor, but the name of driver is not mentioned in the FIR for the reason that after the accident the driver of the vehicle had left the place leaving the tractor on the spot, therefore he could not be identified at the time of accident. During the investigation, the Police found that the vehicle was driven by one Sobharam s/o Khubiram Kadera and the charge sheet has been filed against him. Sobharam is impleaded as accused in the criminal case on the information given vide letter (Exh. During the investigation, the Police found that the vehicle was driven by one Sobharam s/o Khubiram Kadera and the charge sheet has been filed against him. Sobharam is impleaded as accused in the criminal case on the information given vide letter (Exh. P-47) by CMO, Municipal Council Morena in which it was mentioned that on the date of accident i.e. 17.10.2001, Sobharam was deputed as the driver of tractor bearing registration CIG 2196. 12. The respondents No.2 and 3 examined Sobharam (NAW1) who deposed that he is working as watchman in the Municipal Council Morena since 1996. He never drove the tractor of Municipal Council, Morena and he has not caused any accident by the tractor. Sobharam accepted in his cross-examination that the criminal case is pending against him regarding the present accident, but it does not appear from the statement that he has made any complaint to the higher Police Authority that he was not driving the offending vehicle and in spite of that he has been falsely prosecuted in the present case. The respondents have not examined the CMO, Municipal Council, Morena to controvert that actually Sobharam was not the driver of the vehicle and he has not issued the letter (Exh. P-47) , therefore, on the mere statement of Sobharam, it cannot be believed that he was not driving the offending vehicle, thus, the Tribunal has committed error in holding that it is not proved that who was the driver of the offending vehicle at the time of accident. It is also clear from the evidence of appellants that the vehicle was being driven rashly and negligently by the driver Sobharam. 13. Now coming to the next question, the submissions put-forth by learned counsel for the appellants are that the Tribunal has committed error in dismissing the claim petitions by adopting hypertechnical approach. The doctrine of nonjoiner or misjoinder of parties does not apply to the proceeding initiated under section 166 of the Motor Vehicles Act 1988. If the counsel of the claimants was not arrayed the Municipal Counsel, Morena as party, then the claimants cannot be made to suffer for the mistake of their counsel. It is also submitted that the Chief Municipal Officer, Municipal Council, Morena was made party in the claim petition, therefore, it cannot be said that the claim petition suffers due to nonimpleading the proper party in the claim petition. 14. It is also submitted that the Chief Municipal Officer, Municipal Council, Morena was made party in the claim petition, therefore, it cannot be said that the claim petition suffers due to nonimpleading the proper party in the claim petition. 14. Learned counsel for the appellant has also relied on the judgment passed in the case of Chatradhari Upadhyay and Another v. Babu Singh and another, [AIR 1981 Orissa 123], in which it was observed that it is for the Tribunal to see who is actually liable to pay the compensation and it is the duty of the Tribunal to find out the liability of a person to pay compensation. Section 166 is not a civil suit and the provision of Order 1 rule 10 is not applicable in the motor accident claim case. 15. To resolve this controversy, the provision of the Motor Vehicles Act are required to be looked into. section 140 of the Act provides that “where death or permanent disablement of any person has resulted from an accident arising out of the use of a motor vehicle or motor vehicles, the owner of the vehicle shall, or, as the case may be, the owners of the vehicles shall, jointly and severally, be liable to pay compensation in respect of such death or disablement in accordance with the provisions of this section.” 16. From perusal of registration certificate, it appears that the tractor bearing number CIG 2916 is registered in the name of Chief Municipal Officer, Municipal Council Moren, thus, it is clear that the respondent No.2, Chief Municipal Officer, Municipal Council Morena is the registered owner of the offending tractor. The "Owner" has been defined in section 2(30) of the 1988 Act . "owner" means a person in whose name a motor vehicle stands registered, and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement". Hence, it is clear that section 2(30) of the Act, appellants were not obliged to make Municipal Council, Morena as party in the claim petition, therefore, the trial Court has committed error in dismissing the claim petition. 17. Hence, it is clear that section 2(30) of the Act, appellants were not obliged to make Municipal Council, Morena as party in the claim petition, therefore, the trial Court has committed error in dismissing the claim petition. 17. Now, so far as the quantum of award is concerned, from perusal of statement of appellant Gangaram and documents of his treatment, it appears that he sustained fracture of right femur bone and he was hospitalized for a period from 17.10.2001 to 24.10.2001. He was operated and a steal road was inserted in his right leg. Appellant filed disability certificate (Exhibit P-28) issued by Dr. S.H. Dandotiya. On the basis of this certificate, the Tribunal assessed that the appellant received 30% permanent disability in the accident, therefore, he is entitled to receive Rs.35,000/- with respect to the disability and Rs.23,000/- towards medical expenses, but the Tribunal has not assessed any amount under the heads of pain and suffering, special diet, transportation expenses and loss of income, therefore, it would be appropriate to award Rs. 10,000/- towards pain and suffering, Rs.3,000/- under the head of special diet, Rs.1,500/- towards transportation expenses and Rs. 6,000/- for loss of income for the period of three months, therefore, the appellant Gangaram is entitled to get Rs. 78,500/- instead of Rs. 58,000/-. 18. Appellant Ashok Kumar received fracture on his radius and ulna bone and left femur bone. He was hospitalized for a period from 17.10.2001 to 24.10.2001 at district hospital, Morena. He was operated and due to injuries he sustained permanent disability of 30%, therefore, the Tribunal assessed that the appellant Ashok Kumar is entitled to receive Rs.50,000/- towards the injuries sustained by him and Rs.16,000/- towards medical expenses, but the Tribunal has not assessed any amount in the head of pain and suffering, special diet, transportation expenses and loss of income, therefore, looking to the injuries sustained by appellant in the accident, it would be appropriate to award Rs. 15,000/- under the head of pain and suffering, Rs. 4,500/- for special diet, Rs.1,500/- for transportation expenses and Rs. 8,000/- towards loss of income for the period of three months, therefore, the appellant-Ashok Kumar is entitled to receive Rs. 95,000/-instead of Rs. 66,000/- as compensation. 19. In view of foregoing discussion, both the appeals filed by the appellants are allowed in part. The respondents No.2 and 3 shall be jointly or severally liable to pay Rs. 8,000/- towards loss of income for the period of three months, therefore, the appellant-Ashok Kumar is entitled to receive Rs. 95,000/-instead of Rs. 66,000/- as compensation. 19. In view of foregoing discussion, both the appeals filed by the appellants are allowed in part. The respondents No.2 and 3 shall be jointly or severally liable to pay Rs. 78,500/- to the appellantGangaram and Rs. 95,000/- to the appellant Ashok Kumar towards compensation with interest at the rate of 6% per annum from the date of filing of the claim application till the realization. The said amount be paid within a period of sixty days from the date of order passed by this Court. No order as to cost.