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2018 DIGILAW 1254 (HP)

Mamta Devi v. Kamal Kumar

2018-07-09

CHANDER BHUSAN BAROWALIA

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JUDGMENT Chander Bhusan Barowalia, J. - The present appeal under Section 173 of the Motor Vehicles Act, 1988, is maintained by the appellant/respondent (hereinafter referred to as the ''respondent'') for quashing and setting aside the impugned award, dated 01.03.2016, passed by the learned Motor Accident Claims Tribunal-Ill, Kangra at Dharamshala, H.P, in MAC Petition NO.100-G/13/2008. 2. Brief facts giving rise to the present appeal are that on 28.8.2007 at about 11:00 AM, respondent-petitioner (hereinafter referred to as the ''petitioner 7 ) alongwith a pillion rider, was on his way from Amlehar to Manpul, on his motorcycle bearing No.HP-55- 3791, it struck against Maruti Car bearing NO.HP-55A-0259, at place Majiar, as a result of which, petitioner sustained multiple injuries i. e. fracture of leg bone and thereafter, he was taken to CHC, Nadaun. It is alleged that the offending vehicle was driven by the respondent in a rash and negligent manner, due to which, the incident had occurred and the petitioner sustained injuries. The husband of the respondent also came to CHC Nadaun and assured that he will bear all the expenses of his medical treatment and thus, persuaded the petitioner not to report the matter to the police. The petitioner was treated at Government Hospital, Nadaun as well Krishna Hospital, Hamirpur. Neither the respondent nor her husband paid any expenses of medical treatment, as promised. 3. Respondent contested the petition by filing a reply whereby, preliminary objections of maintainability, cause of action and estoppel were taken. On merits, respondent denied the factum of accident and also denied that the husband of the respondent promised to pay for medical expenses of the petitioner. Respondent had not disclosed owner of the offending Maruti car and the Insurance Company with whom the offending vehicle was registered. Thereafter, the petitioner moved an application, under Order 6 Rule 17 of the Code of Civil Procedure, for amending his petition, as to implead the name of the owner. He from his own sources came to know that the offending Maruti car is owned by the respondent and in this regard, he made an application, which was allowed. 4. The learned Tribunal below framed following issues on 14.7.2009 : "1. Whether respondent No.l with her rash and negligent driving on 28.8.2007 injured petitioner? OPP. 2. Issue No.l is proved in affirmative to what amount of compensation petitioner is entitled to and from whom? OPP. 3. Relief." 5. 4. The learned Tribunal below framed following issues on 14.7.2009 : "1. Whether respondent No.l with her rash and negligent driving on 28.8.2007 injured petitioner? OPP. 2. Issue No.l is proved in affirmative to what amount of compensation petitioner is entitled to and from whom? OPP. 3. Relief." 5. After deciding Issue Nos.l and 2 in favour of the petitioner, the learned Tribunal awarded compensation of Rs. 4,39,148/- to the petitioner. 6. Learned counsel appearing on behalf of the appellant has argued that the learned Tribunal has not taken into consideration the fact that the appellant was driving the vehicle with due care and caution and the accident cannot be attributed to him. He has further argued that the liability is required to be fastened on respondent. On the other hand, learned counsel appearing on behalf of respondent has argued that it was the appellant only, who is responsible for the accident and he is liable to pay the compensation amount. 7. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record of the case carefully. 8. The petitioner, while appearing as PW-2, deposed that he is a contractor by profession and partnership with one Ashwani Kumar. He is also having three mixtures (to mix the concrete for construction) and a tractor. He has deposed that on 28.8.2007 around 10-11 AM, while he was on his way from Almehar to Manpul, on his motorcycle bearing No.HP-55-3791 with a pillion rider, he was struck by a Maruti car bearing NO.HP-55-A-0259 at place near Majhiar. The car was driven in a high speed and after striking with the motorcycle, it stopped at a distance of 10 meters. A lady was driving a car and there was also a Baby on board. He fell down from the motorcycle and his right leg got fractured. The incidence occurred in front of the house and flour mill of Desh Raj and Santosh Kumar. He was brought to Nadaun Hospital by Desh Raj and Santosh Kumar. Respondent and her husband Bhupinder Kumar promised him to bear all his medical expenses and persuaded him not to report the matter to the police. He was referred to Hamirpur hospital, his relatives took him to Hamirpur hospital, but Bhupinder Kumar, again persuaded him to get his treatment in Krishana Hospital instead of Government Hospital. He spent Rs. Respondent and her husband Bhupinder Kumar promised him to bear all his medical expenses and persuaded him not to report the matter to the police. He was referred to Hamirpur hospital, his relatives took him to Hamirpur hospital, but Bhupinder Kumar, again persuaded him to get his treatment in Krishana Hospital instead of Government Hospital. He spent Rs. 40,000/- on his treatment. He remained bed ridden for three months after this mishap. He was earning Rs. 10,000/- per month. He suffered 17% disability due to this mishap. Respondent and her husband had initially given Rs. 700-800/- for his treatment, but later on no money was paid, as promised. After the incidence, he is disabled to do heavy works and is facing difficulty in climbing stairs. In his cross-examination, he has admitted that Desh Raj and Santosh Kumar, are known to him since his childhood. PW-3, Santosh Kumar, deposed that on 28.8.2007, around 10-11:00 AM, while he was going towards flour mill, he saw that respondent struck her car with the motorcycle of the petitioner, due to which, leg of the petitioner was broken. The petitioner was taken to Nadaun Hospital, where the respondent alongwith her husband Bhupinder Kumar came. Bhupinder Kumar promised the petitioner to bear all the expenses of his medical treatment. Thereafter, the petitioner was taken to Hamirpur hospital. The said accident has occurred due to rashness and negligence of the respondent. In his cross-examination, he deposed that he had not gone to his shop at Nadaun, on that day, as it was Raksha Bandhan. PW-4 Desh Raj, deposed that on 28.8.2007, accident of a car and a motorcycle had occurred in front of his house. The said car was driven by the respondent and there was also a baby on board the car. The car was coming from Nadaun side, whereas the motorcycle was coming from Dhaneta side. Due to this accident, leg of the petitioner was broken. There was also a pillion rider on the motorcycle of the petitioner, but he did not sustain any injury. The petitioner was taken to Nadaun Hospital, but he did not accompany him. PW-5, Ashwani Kumar, deposed that he is a partner of the informant in shuttering business. The petitioner is having three mixtures, a tractor and shuttering material. The petitioner used to earn Rs. 8000/- to Rs. 10,000/- per month. The petitioner was taken to Nadaun Hospital, but he did not accompany him. PW-5, Ashwani Kumar, deposed that he is a partner of the informant in shuttering business. The petitioner is having three mixtures, a tractor and shuttering material. The petitioner used to earn Rs. 8000/- to Rs. 10,000/- per month. After the mishap, petitioner could not work for 4-5 months. PW-6, Dr. Ramesh Chauhan, Orthopedic Surgeon, deposed that he was the member of medical board examining the petitioner with respect to disability. The petitioner has 17% permanent disability and the disability certificate Ex.PW6/A. He has opined that the injury due to which, disability is caused is possible in a road side accident. The respondent while appearing as RW-1, deposed that she was not driving the car bearing NO.HP-55A-0259 on 28.8.2007 and no accident of the motorcycle of the petitioner had occurred with her car, on that day and the entire story presented by the petitioner is fictitious. She has denied the earnings of the petitioner. She further deposed that no compromise was affected between the petitioner and her husband. The petitioner did not know how to ride the motorcycle and was riding it on a high speed, in a rash and negligent manner and the accident occurred due to skidding of the motorcycle on the road. In his cross-examination, she has admitted that she does not know how to drive the car and she is not having any driving licence. She has admitted that she is having a Maruti 800 Car bearing registration NO.HP-55A-0259 and after the accident of her husband, she used to drive the car. Though, the respondent has denied that she was not driving the car, but it has come on record that she was driving the vehicle in question and the facts, which have come on record also shows that the accident has occurred due to the rashness and negligence driving of the respondent. Now, coming to the award of compensation, for which, the petitioner-claimant is entitled, this Court finds that at the time of accident, age of the petitioner was 41 years, so the multiplier of 15 is required to be applied in the present case. Now, coming to the award of compensation, for which, the petitioner-claimant is entitled, this Court finds that at the time of accident, age of the petitioner was 41 years, so the multiplier of 15 is required to be applied in the present case. As far as income of the petitioner is concerned, he is a contractor by occupation and also having three mixtures (to mix the concrete for construction) and a tractor, as also doing the business of providing shuttering material for construction of buildings. As far as the income from the tractor etc. is concerned, he has not stated that he was driving the tractor himself. Without there being any exact evidence with respect to the earnings, the learned Tribunal has rightly assessed his earnings at Rs. 10,000/- per month, but the earnings on account of the tractor and by supplying shuttering material used for concrete construction can be reduced due to his disability, the answer is no. The only reduction in the income due to disability can be attributed to the works, he was doing manually. So, this Court finds that the learned Tribunal below has calculated the loss of earnings to be Rs. 10,000/-, by taking into consideration the total monthly income from two tractors and shuttering material. This Court thinks it appropriate to take the loss of income, which is only because of his personal inefficiency to do the manual work of shuttering and tractor, while keeping on his income, as it was on account of the disability. So, the loss of income because of disability is taken as Rs. 6000/- and in this way 17% disability, which comes to Rs. 1020/-, (Rs. 1020 x 12 = Rs. 12,240/-) disability for one year and the multiplier is required to be applied is 15 (Rs. 1020 x 12 x 15= Rs. 1,83,600/-). So, the loss of future earnings comes to Rs. 1,83,600/-. As far as the compensation for pain and suffering is concerned, this Court finds that the learned Tribunal has awarded Rs. 50,000/-, which is excessive and the same is required to be reduced to Rs. 25,000/-. Nothing can be awarded for the loss of amenities, as it is not shown, as to what amenities, the petitioner has lost because of 17% disability. As far as the loss of earnings during treatment period is concerned, it is required to be reduced to Rs. 25,000/-. Nothing can be awarded for the loss of amenities, as it is not shown, as to what amenities, the petitioner has lost because of 17% disability. As far as the loss of earnings during treatment period is concerned, it is required to be reduced to Rs. 18,000/- in place of Rs. 30,000/-. Rest of the award needs no interference. 9. Accordingly, the impugned award, passed by the learned Motor Accident Claims Tribunal-Ill, Kangra at Dharamshala, dated 01.03.2016 is modified in the aforesaid terms. The appeal stands disposed of, so also miscellaneous applications, if any. No order as to costs.