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2018 DIGILAW 1846 (RAJ)

Heera Das v. Rafiq Mohd

2018-09-06

PRADEEP NANDRAJOG

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JUDGMENT PRADEEP NANDRAJOG, J. 1. Rafiq Mohd. is aggrieved by the quantum of the award. He was the injured. Heera Das is aggrieved by the award in so far as it fastened liability on him and has absolved the Insurance Company from the liability to pay. 2. The date of the accident is 28.1.2000. As per Rafiq Mohd. he was riding his motor vehicle when Jeep bearing No.RJ-03-C-0339 driven by Prem Shanker hit him. 3. The FIR Ex.1 names Prem Shanker as the driver of the Jeep. The owner of the Jeep is Heera Das who, in response to the notice under Section 133 of the MV Act informed that Jeep was usually driven by his son Bhagwati Lal, but on the day of the accident it was being driven by Prem Shanker. 4. Driving license Ex.A-1 of Prem Shanker shows that on the day of the accident he was having a learner's license which had a condition that it permitted him to drive a Jeep but under the supervision of a person holding a valid driving license. 5. Hoping to get over this issue Prem Shanker as also Bhagwati Lal who appeared as NAW1 and NAW2 claimed that Bhagwati Lal was the driver of the Jeep. Their testimony has been disbelieved by the learned Judge, MACT for the reason in the FIR Prem Shanker has been named as the driver of the Jeep and as noted above, the owner of the Jeep: Heera Das informed when served with the notice under Section 133 of the MV Act that at the time of accident Prem Shanker was driving the Jeep. Thus I concur with this finding that Prem Shanker was driving the Jeep. 6. But, I disagree with the conclusion drawn by the Tribunal regarding fastening of the liability. It is not a case where the driving license possessed by Prem Shanker was not valid. It is not a case where Prem Shanker was not holding a license to drive the Jeep. What has been violated by him is a condition of the license which required a person holding a permanent license to drive the Jeep being with him to supervise him. 7. Under the circumstances I hold that the Insurance Company is liable to satisfy the award and to that extent appeal filed by Heera Das is allowed. 8. With respect to the appeal filed by Rafiq Mohd. 7. Under the circumstances I hold that the Insurance Company is liable to satisfy the award and to that extent appeal filed by Heera Das is allowed. 8. With respect to the appeal filed by Rafiq Mohd. for enhancement of the compensation the award is in sum of Rs. 85,000/-. The break-up is Rs. 50,000/- towards medical expenses through the bills exhibited, Rs. 20,000/- for the disability had to be discomfort in walking and Rs. 15000/- for pain and suffering. 9. In his testimony Rafiq Mohd. stated that he was working as Khalasi when the accident took place. Under whom he was working as a Khalasi has not been elaborated. No particulars of the employer have been disclosed. He claims that he was earning Rs. 3000/- p.m. but no proof has been given. However, during cross-examination he said that he was working under one Lal Khan Ji, Head Saheb. 10. I have no reason to disbelieve the statement of Rafiq Mohd. that he was working as a Khalasi, i.e. a labour on a truck. As noted above the accident took place on 28.1.2000 and a salary of Rs. 3000/- p.m. to a Khalasi in said year can be presumed to be a correct statement. 11. Unfortunately, there is no disability certificate proved and the only guidance would be Ex.11 the report of a Medical Board which records that as a result of the accident the right tibia and fibula of Rafiq Mohd. was fractured. The patient feels pain and difficulty in walking. It records 10% disability which baffles me. No shortening of the leg has been recorded. Merely because Rafiq Mohd. felt pain and difficulty in walking does not make him a disabled person. 12. Under the circumstances, I see no scope to enhance the compensation awarded to Rafiq Mohd. 13. The appeal filed by Rafiq Mohd. is dismissed.