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2018 DIGILAW 944 (RAJ)

Manoj Kumar Sharma v. Narpat Singh Rajput

2018-04-06

DINESH CHANDRA SOMANI

body2018
JUDGMENT : Dinesh Chandra Somani, J. The instant appeal under section 173 of The Motor Vehicles Act, 1988 for enhancement of compensation has been preferred by the claimant-appellant against the judgment and award dated 28.06.2011 passed by Judge, Motor Accident Claims Tribunal, Jaipur City, Jaipur (hereinafter referred as "the Tribunal") in Claim Petition No. 1001/2007 titled as Manoj Kumar v. Narpat Singh & Anr., whereby the learned Tribunal has awarded compensation of Rs. 1,15,000/- to the claimant-appellant along with interest @ 6% per annum from the date of filing of the claim petition. 2. Skeletal material facts necessary for disposal of this appeal are that the claimant-appellant filed a claim petition under section 166 of Motor Vehicles Act, 1988 for compensation of Rs. 3,95,000/- before the Motor Accident Claims Tribunal, Jaipur City, Jaipur stating therein that on 10.02.2007, the claimant appellant was going on his Motor-Cycle No. RJ 14-5M-7404 and on that day at about 12.30 in the noon, a Truck No. RJ-14-GA-9758 driven rashly and negligently by it's driver non-claimant No.1 came from opposite direction and hit the Motor-Cycle. Because of the hit, the claimant-appellant sustained serious injuries. It is also pleaded that after the accident, the claimant was brought to S.K. Soni Hospital, where he took treatment. It is also pleaded that at the time of accident, the claimant-appellant was 23 years aged, he was working with Zandu Pharmaceuticals Ltd., he was getting salary of Rs. 10,000/- per month and prayed to award compensation of Rs. 3,95,000/- in different heads. 3. Non-claimant/respondent No.1 did not choose to appear and to file written statement despite service, therefore, ex-parte proceedings were drawn against him. Non-claimant/respondent No.2/Insurance Company opposed the claim petition by filing the reply thereof, stating therein that driver of the insured vehicle was not having valid and effective driving licence at the time of the accident and thereby breached conditions of the insurance policy, therefore, the Insurance Company is not liable to pay the compensation to the claimant-appellant and prayed to dismiss the claim petition against her. 4. On basis of the pleadings of the parties, learned Tribunal framed four issues. In support of the claim petition, the claimant appellant examined himself as AW-1 and produced certain documents. The non-claimants did not produce any evidence. 5. 4. On basis of the pleadings of the parties, learned Tribunal framed four issues. In support of the claim petition, the claimant appellant examined himself as AW-1 and produced certain documents. The non-claimants did not produce any evidence. 5. After hearing the submissions of learned counsel for the parties, learned Tribunal came to conclusion that on 10.02.2007, Truck No. RJ-14-GA-9758 was driven by non-claimant No.1 and the accident occurred due to rash and negligent driving of the truck. Learned Tribunal also came to the conclusion that on the day of the accident, the vehicle was insured with the non-claimant/respondent No.2 herein, who did not produce any evidence in support of the objection taken in the reply about the breach of policy conditions and awarded compensation of Rs. 1,15,000/- in different heads to the claimant-appellant. 6. Being aggrieved and dissatisfied with the judgment and award passed by the learned Tribunal on 28.06.2011, the claimant-appellant has preferred this appeal for enhancement of compensation. 7. Learned counsel for the appellant submits that the learned Tribunal has manifestly erred in awarding merely a sum of Rs. 72,000/- to the claimant-appellant for the expenses spent by him towards medicines, special diets and transportation, and Rs. 43,000/- only towards physical and mental pain, and permanent disability. Learned counsel also submits that it is proved that the claimant-appellant was working with Zandu Pharmaceuticals Ltd. and he was getting salary of Rs. 8,600/- per month prior to the accident. The appellant sustained serious injury of fracture in his left leg. Despite the prolonged treatment, the appellant has not fully recovered. The movements of his left hip and knee have been restricted and deformity has been developed in his leg. In opinion of the Medical Board, the appellant has got permanent partial disablement of 11.68%. 8. Learned counsel for the appellant submits that the claimant appellant had to remain on leave without pay for more than five months and thereby he suffered loss of income. Working and earning capacity of the claimant-appellant has been considerably reduced and he is suffering economic loss, which will continue throughout his life. 8. Learned counsel for the appellant submits that the claimant appellant had to remain on leave without pay for more than five months and thereby he suffered loss of income. Working and earning capacity of the claimant-appellant has been considerably reduced and he is suffering economic loss, which will continue throughout his life. Considering all these aspects of the case, much higher amount of compensation ought to have been awarded to the claimant-appellant but the learned Tribunal did not award compensation for the loss of amenities of life, loss of income during treatment and loss of future income, and prayed to pass an award for the sum claimed in the claim petition. 9. Per contra, learned counsel for the non-claimant/respondent No.2-Insurance Company vehemently opposed the contentions of learned counsel for the appellant, supported the impugned judgment and award, and prayed to dismiss the appeal being devoid of substance. 10. We gave our anxious consideration to submissions of learned counsel for the parties and perused the record of the case made available to us. 11. Conjoint reading of Injury Report (Ex.7), X-Ray Report (Ex.- 8) and Permanent Disablement Certificate (Ex.11) reveal that the claimant-appellant sustained an injury in his left leg in a road accident, which was found to be serious after X-Ray examination. Due to this injury, the claimant-appellant has suffered permanent partial disablement of 11.68% with difficulty in activity of daily living. 12. The claimant-appellant has produced bills of medicines and investigations to the tune of Rs. 70,290/-. Other bills Ex.25, Ex.53, and Ex.80 to Ex.101 produced by the claimant-appellant relates to transportation and special diet. Learned Tribunal disallowed Ex.25, Ex.53 and Ex.80 to Ex.101 on the premise that appellant did not produce cogent and reliable evidence to prove the said bills. According to discharge ticket (Ex.24), the claimant-appellant was hospitalized on 10.02.2007 and was discharged from the hospital on 12.02.2007. Learned Tribunal has meticulously examined the said bills. Considering all the facts, learned Tribunal awarded Rs. 72,000/- to the claimant-appellant towards expenses of treatment, special diet and transportation. We find no illegality or perversity in the impugned judgment of the learned Tribunal in disallowing the amount of Ex.25, Ex.53 and Ex.80 to Ex.101. 13. Learned Tribunal also awarded Rs. 43,000/- to the claimant appellant for physical and mental agony and loss of amenities due to the permanent partial disability sustained by him. We find no illegality or perversity in the impugned judgment of the learned Tribunal in disallowing the amount of Ex.25, Ex.53 and Ex.80 to Ex.101. 13. Learned Tribunal also awarded Rs. 43,000/- to the claimant appellant for physical and mental agony and loss of amenities due to the permanent partial disability sustained by him. The learned Tribunal did not award any compensation towards the loss of income during treatment and loss of earning capacity. The claimant-appellant has stated in his affidavit that at the time of accident he was working in Zandu Pharmaceuticals Ltd. and he was getting salary of Rs. 10,000/- per month. He remained on leave for more than 5 months, thereby he suffered loss of income, but the claimant-appellant did not produce any documentary evidence in support of his statement to prove that he remained on leave for more than five months due to the injuries sustained by him in the accident. Moreover, the claimant-appellant neither produced any official of his employer nor made any efforts to summon the record of his employer to prove the fact that he remained on leave for about five months, which would have been the best possible evidence to assess the loss of income, if any, caused to the claimant-appellant due to the injury sustained by him in the accident. 14. In cross-examination, the claimant-appellant also deposed that at the time of the accident, he was working with Zandu Pharmaceuticals Ltd. as Junior Sales Officer and he was getting salary of Rs. 10,000/- per month. The claimant-appellant also deposed that he is still working with the same company on the same salary and he is doing the work of marketing. The claimant appellant further deposed that even today he drives motor-cycle and he did not get his driving license cancelled. Deposition of the claimant-appellant in cross-examination, reveals that he is working with the same employer and performing his duties as usual and he is getting the same salary, which he was receiving prior to the accident, thus there is nothing on record to suggest that earning capacity of the claimant-appellant would have reduced due to the injury sustained in the accident. Admittedly, the claimant-appellant still drives motor-cycle after the accident and he neither surrendered his driving license nor made any efforts for cancellation of his driving license due to the permanent partial disability sustained by him. 15. Admittedly, the claimant-appellant still drives motor-cycle after the accident and he neither surrendered his driving license nor made any efforts for cancellation of his driving license due to the permanent partial disability sustained by him. 15. It is pertinent to mention here that the Permanent Disability Certificate (Ex.11) produced by the claimant-appellant, does not find mention about the loss of his earning capacity, if any, due to the injuries sustained by him in the accident. 16. In view of the discussion made above, the learned Tribunal has awarded just compensation to the claimant-appellant towards the treatment expenses, special diet, transportation, and physical and mental agony suffered by him on account of the injury and permanent partial disability. Therefore, the impugned judgment passed by the learned Tribunal does not require any interference and the appeal is devoid of substance. 17. Accordingly, the appeal is dismissed. No costs.