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2023 DIGILAW 2297 (RAJ)

M. C. B. Ashram v. Bhagwati Lal

2023-12-22

BIRENDRA KUMAR

body2023
JUDGMENT : Birendra Kumar, J. - S.B. Civil Misc. Appeal No. 378/2004:- On 14.11.1998, appellant Jojo Abraham was going on a motorcycle of the school bearing Registration No.RJ-24-M-8402 from Sirohi to Abu Road. Near Banaspuliya, a tanker Bearing Registration No. RNY-7071, coming carelessly and negligently dashed against the motorcycle of Jojo Abraham rather, dragged the motorcycle 60-70 ft. and caused serious injuries. For the incident aforesaid, an FIR was lodged and after investigation of the case, the Police submitted charge-sheet against the driver of the offending Tanker. Mr. Jojo Abraham filed Motor Accident Claim Case No.548/2001 for compensation for the serious injuries caused to him and M/s MCB Ashram, the owner of the motorcycle filed Motor Accident Claim Case No.547/2001 claiming compensation for damages to the motorcycle. 2. Both the Claim Cases were decided by common award dated 10.03.2003. The claimants are not satisfied with the quantum of the award, hence these appeals under Section 173 of the Motor Vehicles Act. 3. Learned counsel for the appellants contends that two main points arise for consideration in these appeals are whether the Tribunal was justified in deducting 60% of the award for the contributory negligence of the appellant and whether the Tribunal correctly calculated the compensation payable. 4. Learned counsel for the Insurance Company agrees that the issues raised by the appellants may be considered, however submits that the Tribunal has examined all the aspects and correctly assessed the compensation; consequently, the same requires no interference. 5. Two witnesses of the incident were examined on behalf of the claimants. They are, AW.1 Jojo Abraham one of the claimant and AW.4 Ugam Singh. Both the witnesses are eye-witnesses of the incident and they have consistently supported that the accident was a result of negligence of the driver of the Tanker and not negligence of the motorcycle rider. Non-applicant witness No.1 Bhagat Lal is the driver of the offending tractor. He never made any statement before the Police during investigation of the case rather, filed a written confession in the criminal case arising out of the accident, which is at Exhibit 149. The written confession was made on 18.09.1999, wherein, it was specifically admitted that the accident was result of negligence on the part of the driver. The driver further stated that he has remorse for the accident caused by him. The written confession was made on 18.09.1999, wherein, it was specifically admitted that the accident was result of negligence on the part of the driver. The driver further stated that he has remorse for the accident caused by him. On confession of the driver, the Court passed a judgment of conviction on 18.09.1999 itself, whereby, fine of Rs.2,000/- was awarded and bond under Probation of Offenders Act was also directed to be executed. In the instant claim case, the said driver was examined on 11.02.2003 and for the first time he stated that the motorcycle rider was rash and negligent. The Tribunal believed the statement of the driver and disbelieved the statement of claimants witnesses especially Ugam Singh, who was an independent witness having no relationship with the claimants nor any interest in the claim matter, whereas, the driver had apparent direct interest involved. 6. Learned Tribunal further held that the site plan of the accident prepared by the Police would reveal that there is contribution of negligence of injured Jojo Abraham as well. 7. The learned Tribunal ignored the facts rather evidence on record that after accident, the motorcycle any how stuck in the tanker. Learned Tribunal did not consider that after accident, due to force, the vehicles involved in the accident not maintained the same position which they were maintaining before the accident. Therefore, site plan was not an evidence to prove contributory negligence. In fact there is complete lack of evidence that Jojo Abraham had also contributed to the accident or to the impact of the accident. Hence, finding of the Tribunal to that extent is set aside. 8. In Claim Case No.548/2001, giving rise to above Civil Misc. Appeal No.378/2004, the injured Jojo Abraham stated that at the time of accident, he was of 29 years and a school teacher in AMCB Ashram. He was earning Rs.4,000/- per month. He was also holding the post of "superior". He had to undergo mental trauma due to his serious injuries of fracture etc. and had to frequently visit from Sirohi to Ahemdabad (a distance of about 400 Km.) for his long stretching treatment. The witness has given detailed description of the expenses meted out by him. However, the Tribunal appears to have awarded lesser amount, which was not just and proper in the facts and circumstances of the case. 9. The Tribunal has awarded following compensation: Rs. The witness has given detailed description of the expenses meted out by him. However, the Tribunal appears to have awarded lesser amount, which was not just and proper in the facts and circumstances of the case. 9. The Tribunal has awarded following compensation: Rs. 79,812/- based on medical vouchers plus 20,000/- for 18% permanent disablement of leg + Rs.2500/- for conveyance and Rs.2000/- for that + Rs.20,000/- in case of agony and Rs.32,000/- for loss of eight months income. 10. The permanent disablement was of one of the legs of the injured which got shortened by one and half inch. As such, he was unable to walk conveniently. In Raj Kumar v. Ajay Kumar & Anr. reported in (2011) 1 SCC 343 , the Hon'ble Supreme Court said that for assessing the future loss of earning due to permanent disability, the Tribunal/Court must be conscious that the criteria should not be to the extent of permanent disability found by the medical experts, rather the assessment should be based on the percentage of inability to the injured which prevented him from doing the same vocation or from performing other vocations. In para-6, the Hon'ble Supreme Court laid down the heads under which compensation can be awarded for personal injuries. The same reads as under:- "6. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special Damages) (i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General Damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). (iii) Future medical expenses. Non-pecuniary damages (General Damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities(and/or loss of prospects of marriage) and loss of expectation of life." 11. Evidently, appellant Jojo Abraham had undergone treatment of his injuries, which continued for a year and Mr. Jojo Abraham specifically stated that he could not attend his Office. No contrary evidence is on the record. In spite of that, the Tribunal reduced the loss of earning to eight months, which should be twelve months. In fact the claimants would be entitled for following just compensations. For expenses relating to treatment and hospitalization and medicines Rs.79,812/- awarded by the Tribunal stands affirmed as it is based on vouchers/receipts. For nutrient food, just compensation would be of Rs.30,000/-. The distance required to be travelled for getting treatment and the period of the treatment would justify grant of Rs.30,000/- for transportation. The appellants got loss of earning for a year and in that period, there were chances of enhancement of salary, the same is calculated at Rs.50,000/-. There is no need to award for loss of future earning on account of disability as the nature of work was not hampered after completion of treatment. However, Rs. 8,000/- would be payable or assistance for one year. For damages for pain, suffering, trauma as a consequences of injures and loss of amenities including loss of prospects of desired marriage Rs. 3,00,000/- would be just compensation. The amount would cover loss of expectation of life. The total compensation payable is Rs. 5,07,812/-. This Court is not inclined to disturb the rate of interest @ 6.75% awarded by the Tribunal. 12. With the aforesaid modification in the award, Civil Misc. Appeal No.378/2004 stands allowed. 3,00,000/- would be just compensation. The amount would cover loss of expectation of life. The total compensation payable is Rs. 5,07,812/-. This Court is not inclined to disturb the rate of interest @ 6.75% awarded by the Tribunal. 12. With the aforesaid modification in the award, Civil Misc. Appeal No.378/2004 stands allowed. The insurer is directed to pay the aforesaid amount minus already paid amount within two months, failing which 8% interest would be payable till the date of realization. S.B. Civil Misc. Appeal No. 221/2004: 13. The Tribunal has assessed loss of Rs. 1000/- for damages to the motor-cycle and 60% has been deducted for contributory negligence. Even minimum amount of Rs.6000/- under Section 147 of the Motor Vehicles Act has not been awarded by the Tribunal only for the reason that the vehicle was sold to someone else in damaged conditions, hence, there was no evidence as to how much was spent for repairing of the said vehicle. The Tribunal has adopted pedantic approach as the impugned award would reveal that Exhibit 147 is seizure memo and exhibit 148 is Motor Vehicle Inspection Report and both the reports reveal that front wheel, mud-guard, tire, petrol tank and light was damaged. For repairing of the same, expenses of Rs.6000/- on the date of accident could not have been said to be unbelievable. It cannot be said that he has not sustained loss in the accident and requires no damage. Therefore, the amount of compensation against motorcycle of the claimant is modified to the extent of Rs.6,000/-. 14. With the aforesaid modification, this appeal also stands allowed to the aforesaid extent. 15. Though the New India Assurance Company Ltd. has filed a cross objection bearing S.B. Civ.Cross Objection No. 32/2004, however, on perusal of the cross objection, it is evident that the Insurance Company has filed reply of the memo of appeal and has supported the judgment of the Tribunal. 16. In view of the aforesaid discussion, the cross objection also stands disposed of.