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2020 DIGILAW 227 (MP)

Kalabai v. Nandkishore

2020-02-12

PRAKASH SHRIVASTAVA

body2020
ORDER 1. Heard on IA No. 8651/2019 which is an application for condonation of delay in filing the appeal. There is delay of 46 days in filing the appeal. 2. After hearing the learned counsel for the parties and on the perusal of the IA, it is found that the appellant was prevented from filing the appeal within time on account of the bonafide reason. The delay is unintentional and it has not taken place on account of any deliberate lapse on the part of the appellant. 3. On due consideration, it is found that a good ground is made out for condoning the delay. 4. Accordingly, I.A. No. 8651/2019 is allowed. Delay in filing the appeal is condoned. 5. Heard finally with consent. 6. This appeal under section 173 of the Motor Vehicles Act is at the instance of the claimant challenging the award dated 1.4.2019 passed in Claims Case No. 200/2017 by the MACT, Mandsaur seeking enhancement of the compensation amount awarded by the tribunal. 7. The appellant/claimant had filed the claim petition before the tribunal with the plea that on 15.1.2017 when she was going along with Lalchand on the motorcycle, the accident was caused by the Tiago-XZ No. MP 13 CB 6531 driven in rash and negligent manner by the respondent No. 1 in which the appellant had received grievous injuries. Accordingly compensation was claimed. 8. The respondent No. 1 had filed the reply denying the liability and further taking the plea that the vehicle was duly insured. 9. The respondent No. 2 had also filed the reply taking the stand of the violation of the policy condition. 10. The claims tribunal by permitting the parties to lead the evidence and after examining the same had found that the accident was caused on account of the rash and negligent driving of vehicle No. MP 13 CB 6531 by the respondent No. 1 in which the appellant had received the grievous injuries. Though the appellant had produced the permanent disability certificate (Exhibit P-11) but the same was disbelieved because that was not proved by the Doctor. The tribunal further found that the appellant had suffered the fracture of hip at three places and she was remained hospitalized for some time, therefore, the tribunal has awarded a sum of Rs. 10,000/- under the head of disability, Rs. 2,29,747/- under the head of medical expenses, Rs. The tribunal further found that the appellant had suffered the fracture of hip at three places and she was remained hospitalized for some time, therefore, the tribunal has awarded a sum of Rs. 10,000/- under the head of disability, Rs. 2,29,747/- under the head of medical expenses, Rs. 30,300/- under the head of transportation charges, Rs.10,000/- towards attendant charges, Rs. 5,000/- towards special diet and Rs.15,000/- towards the loss of income. Thus, the tribunal had passed an award of Rs. 3,00,100/-. 11. Learned counsel for the appellant submits that the tribunal has committed an error in not awarding the adequate compensation amount and the amount awarded by the tribunal under the different heads is on the lower side. 12. As against this, learned counsel for the insurance company has supported the impugned award. 13. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the appellant had suffered the fracture of the hip and she was operated. The appellant had remained hospitalized in District hospital, Mandsaur, Mewad hospital, Mandsaur and Jhalawad and Metri hospital, Kota. The age of the appellant has been found to be 52 years and the monthly income has been determined by the claims tribunal as Rs.5,000/-. Having regard to the nature of fracture which was suffered by the appellant and the period of her hospitalization, the tribunal has committed an error in awarding only a sum of Rs. 10,000/- under the head of injury. 14. In the circumstances of the case, I am of the opinion that the appellant is entitled to a sum of Rs. 25,000/- under this head. The tribunal has not committed any error in awarding a sum of Rs. 2,29,747/- (round figure 2,30,000/-) under the head of the actual medical expenses and awarding a sum of Rs. 30,300/- under the head of transportation charges but the tribunal has awarded lower amount under the head of attender charges having regard to the period of hospitalization of the appellant, hence, the appellant is entitled to a sum of Rs. 20,000/- under the head of attender charges. Similarly, the amount under the head of special diet deserves to be enhanced Rs. 5,000/- to 10,000/-. 20,000/- under the head of attender charges. Similarly, the amount under the head of special diet deserves to be enhanced Rs. 5,000/- to 10,000/-. The loss of income calculated by the tribunal is only 15,000/- whereas the appellant had remained hospitalized for a considerable period and could not perform work for a long period, therefore, she has suffered the loss of income of Rs.22,000/-. The tribunal has not awarded any amount under the head of pain and suffering, therefore, the appellant is entitled to a sum of Rs.5,000/- under this head. Thus, the appellant is entitled to total compensation of Rs.3,42,300/- whereas the tribunal has only awarded a sum of Rs.3,00,100/-. Hence, the appellant is entitled to further enhancement of Rs.42,200/-. 15. Accordingly, the appeal is partly allowed. The compensation as awarded by the tribunal deserves to be and accordingly enhanced by a sum of Rs.42,200/- (Rupees forty two thousand two hundred). The enhanced amount will bear interest at the same rate as awarded by the tribunal and will be governed by the same conditions as contained in the award of the tribunal. No cost. .................