Research › Search › Judgment

Rajasthan High Court · body

2021 DIGILAW 825 (RAJ)

Sikandar Shah v. Kanni Ram

2021-04-08

DEVENDRA KACHHAWAHA

body2021
JUDGMENT Devendra Kachhawaha, J. - The instant appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed by the appellant-claimant against the judgment and award dated 18.10.2012 passed by the learned Judge, Motor Accident Claims Tribunal, Jaitaran, District Pali in Claim Case No. 18/2009 titled as Sikander Shah Vs. Kanni Ram & Ors. whereby, the learned Tribunal has awarded a sum of Rs.43,620/- as compensation, hence, this appeal has been filed for enhancement of compensation amount. 2. Briefly put the facts of the case giving rise to this appeal are that on the fateful day of 17.06.2004 at around 2:00 pm, the appellant-claimant boarded the bus bearing registration No. RJ22-P-0575 scheduled for Pali to Ajmer, the claimant by taking the ticket for Barr, started his journey; then, the said bus, when reached near the Railway crossing situated at Pali boundary, the non-applicant No.1 by driving the bus rashly and negligently has made a cut and as a result, the claimant s left hand came out from window and hit by the gate of a vehicle standing on that side of the road; as a result of the said accidental hitting, the claimant sustained serious injuries and the left elbow was fractured for which, he was taken to hospital at Pali and Bilara, where he was treated for the said injuries; the First Information Report No. 582/2004 was chalked out in regard to the said accident and the case was registered for the offences punishable under Sections 279, 337 and 338 of the Indian Penal Code; the Police, after investigation, filed FR but the learned Trial Court has taken cognizance for the aforesaid offences against the non-applicant No.1 and registered the case. 3. Despite service of notice upon the non-applicant No.1, he did not appear before the learned Tribunal whereupon, order was passed for ex-parte proceedings. By submitting written statement, the non-applicants No. 2 and 3 alleged that the accident was not occurred due to the mistake of the non-applicant No.1; that the non-applicant No.1 had a valid license/permit to drive the vehicle; that the accident was occurred due to negligence of the claimant himself; that the claimant had made an exaggerated claim on the basis of his age and income which is liable to be not granted; and lastly, the non-applicants No. 2 and 3 prayed for rejection of the claim petition. 4. 4. On the basis of the pleadings of the parties and after hearing learned counsel for both the sides, the learned Tribunal has framed as many as five issues which are reproduced here as under:- 5. In support of the claim petition, on behalf of the claimant, his oral statement was recorded as AW-1 and the statement of his father was recorded as AW-2 and in the documentary evidence, exhibits 1 to 34 have been produced and exhibited. 6. No oral evidence and documentary evidence has been produced on behalf of the non-applicants. 7. The Tribunal heard the final arguments and proceeded to decide the case by determining the issues so framed, as referred above. 8. While determining issue No.1 regarding liability of the accident, the Tribunal had proceeded to decide this issue in the manner that the claimant was held responsible to the extent of 40% for the accident in question and this issue was partly allowed in favour of the claimant. While determining issue No.2 regarding plying of the bus by non-applicant No.1 for the benefit of nonapplicant No.2, the learned Tribunal decided this issue in favour of the claimant, as the claimant was able to prove this issue. While determining issue Nos. 3 & 4 regarding quantum of compensation and absolving the non-applicant-Insurer from its liability to pay the compensation, the learned Tribunal had proceeded to decide these issues in favour of the claimant and finally made the award by allowing compensation to the tune of Rs.43,620/- in favour of the claimant, after deducting 40% of the amount from the total compensation amount of Rs. 72,700/-. 9. For ready reference, the order dated 18.10.2012 is reproduced here as under:- 10. Heard learned counsel for the parties and perused the material available on record, including the judgment and award passed by the Tribunal concerned. 11. In support of his claim seeking enhancement of the amount of compensation, learned counsel for the appellant-claimant stated that the Tribunal has gravely erred in calculating the compensation by considering only 10% loss of income due to permanent disablement, though the permanent disablement was assessed at 15% by the Tribunal itself. Learned counsel prayed that the loss of income due to permanent disablement may be considered at 15% and the award may be modified to that extent. Learned counsel prayed that the loss of income due to permanent disablement may be considered at 15% and the award may be modified to that extent. Learned counsel further stated that the learned Tribunal has not allowed any amount on the aspect of future prospects and, therefore, he prayed that some reasonable amount on the aspect of future prospects may also be awarded in favour of the appellantclaimant. It was also stated by the learned counsel for the appellant-claimant that the learned Tribunal has wrongly deduced 40% amount from the total assessed compensation, as there was no fault on the part of the claimant in the accident. 12. On the contrary, learned counsel for the respondents (RSRTC) stated that there are serious contradictions in regard to age of the claimant in pleadings, injury reports and permanent disablement certificate. Learned counsel also stated that in the year 2009, the minimum wages were Rs.1898/- and in the case at hand, the Tribunal has already taken the income of the claimant as Rs.3,000/- per month, which is already on the higher side and evidence of contributory negligence available on record, therefore, no interference is called for at the hands of this Court. Learned counsel prayed for dismissal of the appeal with the submission that the learned Tribunal has made reasonable award and, therefore, no indulgence could have been granted in this appeal. 13. In reply, learned counsel for the appellant-claimant stated that the non-applicants have not filed any separate appeal challenging the impugned judgment and award on the ground of age and income, therefore, the claim of the appellant-claimant seeking enhancement on the submissions, as noted hereinabove, may be considered sympathetically. 14. After scanning through the impugned judgment and award, this Court is of the opinion that this appeal deserves to be allowed only by modifying the award in terms of the findings regarding determination of permanent disability. This Court finds that while determining the permanent disability, the Tribunal has assessed the same at 15% but while calculating the loss of income, the permanent disability has been taken at 10% only without stating any reason. Therefore, this Court is of the opinion that the claimant is entitled to get 15% permanent disability instead of 10%. Further, this Court is also of the opinion that as per pronouncement made by Hon ble the Supreme Court in the case of National Insurance Company Ltd. Vs. Therefore, this Court is of the opinion that the claimant is entitled to get 15% permanent disability instead of 10%. Further, this Court is also of the opinion that as per pronouncement made by Hon ble the Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi, (2017) AIR SC 5157, the appellant-claimant deserves to be allowed 40% towards future prospects for which, the amount would comes to Rs. 1,20,960/- [Rs. 4,200/- (3000 + 40%)x 12x16x15/100 = Rs.1,20,960/-) and after adding the amount as allowed by the Tribunal towards dietary & attendant expenses, medical expenses, physical and mental agony, loss of amenities in future which comes to Rs. 15,100/-, thus, total amount comes to Rs. 1,36,060/- (Rs. 1,20,960/- + Rs. 15,100/-) . 15. So far as, the argument regarding 40% deduction by holding the claimant liable and negligent for the accident in question is concerned, looking to the documentary and oral evidence available on record, this Court is of the opinion that the Tribunal has rightly held the claimant contributory negligent and liable for the accident in question and, therefore, no error has been committed by the Tribunal in deducting 40% amount on this count. 16. After deducting 40% from total award towards contributory negligence for the accident in question, the claimant would be held entitled to get Rs. 81,636/- and out of which, Rs. 43,620/- has already been awarded by the Tribunal, therefore, in this view of matter, the claimant would be held entitled to get Rs. 38,016/- (Rs.81,636/- - Rs.43,620/- = Rs.38,016/-) rounded off to Rs. 38,000/-. 17. As a result of the above discussions, the instant appeal filed on behalf of the appellant-claimant - Sikander Shah is partly allowed, in the manner indicated above. Meaning thereby, the claimant is now entitled to get enhanced amount of compensation in the sum of Rs. 38,016/- (Rs.81,636/- - Rs.43,620/- = Rs.38,016/-) rounded off to Rs. 38,000/- on the basis of 15% loss of income due to permanent disablement and 40% towards future prospects, after deduction of 40% amount as contributory negligence of the claimant himself. 18. The respondents-non-applicants are directed to deposit the said amount of Rs. 38,000/- with the Tribunal concerned within a period of four weeks; and upon deposition of the amount aforesaid, the Tribunal is directed to disburse the same to the appellant-claimant. Remaining award is maintained as it is. 19. 18. The respondents-non-applicants are directed to deposit the said amount of Rs. 38,000/- with the Tribunal concerned within a period of four weeks; and upon deposition of the amount aforesaid, the Tribunal is directed to disburse the same to the appellant-claimant. Remaining award is maintained as it is. 19. Record of the Tribunal be sent back immediately.