^^^/{^ jaS' "w BEFORE THE HON'BLE fflGH COURT OF CHHATTISGARH AT BILASPUR ';L^I M.A.C.No:.7:.L./2009 (^) t.9. -'' - B .. - .SBfS^'ffl1 c^^,J / APPELLANT (APPLICANT) ...<^^' ,'^'IA^ -^^ Versus Smt. Kusum Tiwari W/o Shri. Vinod Tiwari, age 46 years, R/o Qr. No. 1/A, St. 24, Sector -9, Bhilai, District Durg, Chhattisgarh ^^ «"^"' ^ RESPONDENTS 1. ><2' d- 3. Shasuddin Musalman S/o Jaki( Jakir) Husain, age 33 years, R/o camp II, P. S. Chhawani, Near Bainkunth Dham, Bhilai, Tehsil & District Durg, CUhattisgarh. Roop Naranin Agarwal S/o Shri. Puran Lal Agarwal, Add. D/17, Sector- 4, Devendra Nagar, Raipur, (C.G.). The Branch Manager , National Insurance Company Limited, Branch Office - Raipur, Through Branch Manager, Bhufani Complex, G. E. Road , Power House , Bhilai Tehsil & District Durg, Chhattisgah. APPEAL U/S 173 OF MOTOR VEHIGLE ACT 1988 FOR ENHANCEMENT OF THE COMPENSATION RS. 4,44,0007- (FOUR LAC FORTY FOUR THOUSAND ONLY) CLAIM EV APPEAL FIXED COURT FEE RS, I5/- HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAIVI: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRIRANGNATH CHANDRAKAR, J. Appellant Applicant Respondents Misc. Appeal (0 No. 264 of 2009 Smt Kusum Tiwaari, W/o Shri Vinod Tiwari, age 46 years, R/o Qr No.1/A, St 24, Sector - 9, Bhilai, District Durg Chhattisgarh VERSUS 1. Shasuddin Musalman, S/o Jaki (Jakir) Husain, age 33 years, R/o Camp II, PS Chhawani, Near Bainkunth Dham, Bhilai, Tehsil & Distric Durg Chhattisgarh 2. Roop Narain Agarwal, S/o Shri Puran Lal Agarwal, Add D/1 7, Sector - 4, Devendra Nagar, Raipru (CG) 3. The Branch manager, National Insurance Company Limited, Branch Office - Raipur, Through Branch Manager, Bhutani Complex, GE Road, Power House, Bhilai Tehsil & District Durg, Chhattisgarh Appeal under Section 173 of the Motor Vehicle Act, 1988 Present: Shri Uttam Pandey, counsel for the appellant. Shri Anurag Jha, counsel for respondent No.2 Shri Dashrath Gupta and Shri Santosh Bharat, counsel for respondent No.3. ORDER ith (11InJuly,2011) 1 - .^i£^ The following order of the Court was passed by Rajeev Gupta, C.J. Appellant/ Claimant Smt Kusum Tiwari is seeking enhancement of the compensation awarded by the 2 Additional Motor Accident Claims Tribunat, Durg (for short 'the Tribunal') vide award dated 17.11.2008, passed in Ctaim Case No.17/2008. 2) As against the compensation of Rs.22,32,000/- claimed by the appellant/ claimant by filing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by her in the motor accident on 11 .07.2007, the Tribunal awarded a total sum of Rs.2,51,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 3) The Tribunal on a close scrutiny of the entire evidence led before it held that claimant Smt Kusum Tiwari sustained multiple serious injuries including fractures in the motor accident on 11.07.2007; the accident occurred due to rash and negligent driving of the driver of the offending vehicle Truck bearing registration No.C.G.04-0/0831; though the above offending vehicle Truck on the date of the accident was insured with the National Insurance Company Limited, the driving license of the driver of the Truck was fake license, the insurance company was not liable to pay compensation to the claimant and the liability in that behalf was of the owner and driver of the Truck. Learned Tribunal further directed the insurance company to first pay the 1 amount of compensation to the claimant and recover the same from the owner ofthe Truck. 4) The Tribunal considering the number and nature of the injuries proved to have been sustained by the claimant in the motor accident and the amount proved to have been spent on treatment awarded Rs.90,000/- towards medical expenses; Rs.75,000/- towards pain suffering; Rs.36,000/- towards loss of income for one year; Rs.25,000/- towards attendant; Rs.15,000/- for conveyance; and Rs.10,000/- for special diet. The Tribunal, thus, awarded a total sum of Rs.2,51,000/- as compensation to the claimant for the injuries sustained by her in the motor accident. The Tribunal, further directed payment of interest on the above amount of compensation of Rs.2,51,000/- @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 5) Shri Uttam Pandey, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.2,51,000/- only, though the appellant spent substantial amount on her treatment and her treatment is still continuing. 6) Shri Dashrath Gupta and Shri Santosh Bharat, learned counsel for respondent No.3, the National Insurance Company Limited, on the other hand contended that the Tribunal has liberally awarded excessive sumof Rs.2,51,000/- to the claimant. 7) Shri Anurag Jha, learned counsel for respondent No.2 Roop Narain, the owner ofthe Truck supported the award. •^> 8) In a motor accident claim case, what is important is that, the compensation to be awarded by the Courts/Tribunals should be just and proper compensation in the facts and circumstances of the case. It should neither be a meager amount of compensation, nor a Bonanza. 9) Now we shall examine as to whether the compensation of Rs.2,51,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case. 10) The Apex Court in the case of Raj Kumar Vs Ajay Kumar and another reported in (2011) SCC 343 while considering the correlation between the percentage of permanent disability certified by the Doctor and the percentage of loss of future earning capacity observed in para 25 as below: "The Tribunal has proceeded on the basis that the permanent disability of the injured claimant was 45% and the loss of his future earning capacity was also 45%. The Tribunal overlooked the fact that the disability certificate referred to 45% disability with reference to the left lower limb and not in regard to the entire body. The said extent of permanent disability of the limb could not be considered to be the functional disability of the body nor could it be assumed to result in a corresponding extent of loss of earning capacity, as the disability would not have prevented him from carrying on his avocation as a cheese vendor. Therefore, the permanent functional disability of the body assessed as 25% and the loss of future earning capacity as 20%" 11) Claimant Smt Kusum Tiwari was aged about 46 years on the date of the accident. The claimant suffered fracture of her right Tibia and Fibula bones is established from the evidence of AW/2 Dr Akhil Yadav. The bills and vouchers produced by the claimant before the Tribunal in regard to the medical expenses were to the extent of Rs.86,441/- and the Tribunal has awarded Rs.90,000/- towards medical expenses. 12) The compensation of Rs.2,51,000/-, awarded by the Tribunal when examined in the context of the above mentioned broad features of the case and the above quoted dictum of the Apex Court in the case of Raj Kumar Vs Ajay Kumar (supra), we are satisfied, does not call for any enhancement in this appeal. 13) The appeal filed by the appellanVclaimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed. 14) No order as to costs. Sd/- Chief Justice Sd/- Rangnath Chandrakar Judge