Research › Search › Judgment

Rajasthan High Court · body

2021 DIGILAW 843 (RAJ)

Bhanwar Lal Sharma v. Mohammad Hussain, Musalman

2021-04-09

RAMESHWAR VYAS

body2021
JUDGMENT Rameshwar Vyas, J. - The instant appeal under Section 173 of the Motor Vehicles Act, 1988 (afterwards referred as 'Act of 1988') for enhancement of compensation has been filed by appellant Bhanwar Lal against the award dated 20.02.1999 passed by the Motor Accident Claims Tribunal, Bhilwara (afterwards referred as 'Tribunal') in MAC Case No.432/1994, whereby, the Tribunal has awarded a sum of Rs. 40,000/- as compensation. 2. Brief facts of the case are that on 09.07.1994 when the appellant, as a pillion rider, was going on a Scooter, a Truck bearing registration No. RSE-876, being driven rashly and negligently by its driver respondent No. 1, hit the Scooter, resultantly Purshotam died and the appellant & Kaluram sustained injuries. Respondent Nos. 2 and 3 are owner and insurer of the Truck respectively. 3. As per the averments made in the claim petition the appellant sustained grievous injuries, for which, he was referred from M.G. Hospital, Bhilwara to S.M.S. Hospital, Jaipur, where appellant remained hospitalized from 18.07.1994 to 20.08.1994. During the said period, the appellant was operated twice for the fracture in his left leg. A sum of Rs. 2,15,000/- has been claimed as compensation in the following heads:- (i) Expenses incurred during treatment Rs. 25,000/- (ii) Expenses incurred relating to special diet, attendant and other misc. heads Rs. 5,000/- (iii) Loss of income during treatment Rs. 10,000/- (iv) Loss on account of permanent disability. Rs. 1,50,000/- (v) Pain & suffering Rs. 25,000/- 4. After service on respondent Nos.1 and 2 nobody was appeared on their behalf and, therefore, learned Tribunal proceeded ex parte against them. 5. Respondent No. 3 Insurance Company filed reply to the claim petition. It was submitted that at the time of accident the Truck driver did not possess a valid & effective driving licence. The amount claimed in the claim petition is fictitious. 6. During the inquiry, the appellant himself was produced as witness and certain documents were also exhibited to substantiate the claim. No evidence was produced on behalf of respondents. 7. Learned Tribunal after considering the material available on record has decided the issue of rash & negligent driving by respondent No. 1 in favour of appellant and awarded a sum of Rs.40,000/- only in the following terms:- (i) Expenses incurred for treatment Rs. 10,000/- (ii) Pain & Suffering Rs. 25,000/- (iii) Economic loss during treatment Rs. 5,000/- 8. 7. Learned Tribunal after considering the material available on record has decided the issue of rash & negligent driving by respondent No. 1 in favour of appellant and awarded a sum of Rs.40,000/- only in the following terms:- (i) Expenses incurred for treatment Rs. 10,000/- (ii) Pain & Suffering Rs. 25,000/- (iii) Economic loss during treatment Rs. 5,000/- 8. As per the finding of learned Tribunal permanent disability certificate was not proved by producing the author of the certificate. The appellant failed to produce discharge certificate and other medical documents. 9. Not satisfied with the quantum of compensation, the appellant has preferred the present misc. appeal. 10. As per the contention of learned counsel for the appellant learned Tribunal has not awarded just & fair compensation to the appellant. The disability certificate produced by the appellant should have been relied. The appellant remained hospitalized in S.M.S. Hospital, Jaipur regarding treatment for the injuries sustained by him on account of road accident. The appellant was operated many times, for which, oral evidence should not have been discarded. 11. Learned counsel appearing for respondent Insurance Company contended that there is no need to enhance the compensation awarded by the learned Tribunal. It was contended that due to injuries sustained by the appellant no permanent disability has been caused to him. It was further contended that in absence of oral evidence of the author of certificate (Exhibit-P/9) the same cannot be read in evidence. 12. Heard learned counsel for the parties and perused the material available on record. 13. It is the admitted position that the appellant sustained one grievous injury in his left leg. As per injury report there was fracture of middle 2/3 region of femur. Other injuries are of simple nature. The oral statement also reveals that for treatment of fracture the appellant was admitted in M.G. Hospital, Bhilwara and thereafter referred to S.M.S. Hospital, Jaipur, where he was admitted and operated upon. The statement of appellant in this regard should not be disbelieved. As per the photocopy of discharged ticket the appellant was admitted on 18.07.1994 and discharged on 20.08.1994. As per the oral statement the appellant was also hospitalized in Medical College, Ajmer. 14. The above factual position could not be rebutted by learned counsel for respondent Insurance Company. 15. The statement of appellant in this regard should not be disbelieved. As per the photocopy of discharged ticket the appellant was admitted on 18.07.1994 and discharged on 20.08.1994. As per the oral statement the appellant was also hospitalized in Medical College, Ajmer. 14. The above factual position could not be rebutted by learned counsel for respondent Insurance Company. 15. In view of the above factual position this Court is of the view that the appellant has not been compensated in just & fair manner by the learned Tribunal. It is true that permanent disability certificate being issued by a private Doctor cannot be acted upon without examination of that Doctor before the Tribunal. But the fact remains that the appellant should be compensated in other heads i.e. expenses incurred during the treatment and for his pain & suffering in a proper manner. 16. The oral statement made by the injured before the Tribunal could not be rebutted in cross-examination. The photocopy of discharge ticket and operation note, available on record of the Tribunal, shows that the statement of appellant can be relied upon regarding his treatment. 17. On the basis of evidence available on record, the appellant is entitled to get compensation in the following terms:- (i) For pain and suffering Rs. 50,000/- (ii) For loss of income during treatment Rs. 10,000/- (iii) Expenses for transportation supplementary diet and attendant. Rs. 20,000/- (iv) Medical expenses Rs. 20,000/- (v) Expenses incurred during hospital Rs. 25,000/- Total Rs. 1,25,000/- 18. On the basis of the above conclusion, the appeal is partly allowed. The appellant is entitled to get compensation of Rs. 1,25,000/- instead of Rs. 40,000/- awarded by the learned Tribunal. On the enhanced amount of compensation i.e. Rs. 85,000/- the appellant would be entitled to get interest @ 6% per annum from the date of application till realization of the amount.