1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T RAM RATAN CHHANGANI vs. MOHD.AYUB KHAN @ SALIM & ORS. S.B. CIVIL MISC. APPEAL NO.219/2000 under section 173 of the Motor Vehicles Act against the judgment and award dated 15.11.1999 passed by the learned Judge, Motor Accident Claims Tribunal (First), Jodhpur , in Motor Accident Claim Case No.178/1997. Date of Judgment :: 17.11.08 PRESENT HON'BLE MR.JUSTICE MANAK MOHTA Mr. Rajesh Panwar for the appellant. Mr.R.K.Mehta for respondent No.3. BY THE COURT : The present appeal has been filed by the claimant- appellant against the judgment and award dated 15.11.1999 passed by learned Judge, Motor Accident Claims Tribunal, (First) , Jodhpur (in short 'the Tribunal') in Motor Accident Claim 2 Case No.178/1997, whereby the learned Tribunal has awarded a total compensation of Rs.61,800/-with interest @ 12% per annum on the said amount, from the date of filing of the claim petition i.e. 28.05.97 in favour of claimant and against non- claimant respondents. Briefly stated, the relevant facts for the disposal of the appeal are that on 15.12.96 the injured appellant-claimant, his brother Vijay Prakash and his other relatives were travelling in a Jeep bearing No.RJ-07 C 0795 from Phalodi to Ramdeora. While they were returning back from Ramdeora to Phalodi, the jeep was being driven by its driver Mohd.Ayub Khan, respondent No.1. At that time, at about 06.00 PM, when the jeep crossed 'Nachna Fanta' at the National Highway No.15, since the jeep was being driven rashly, negligently and with a high speed, as such the driver of the jeep lost control over the jeep and it went off the road and turned turtled, as a result of that the appellant-claimant and other occupants of the jeep sustained several injuries. The claimant-appellant sustained grievous injuries including fracture of tibia bone in right leg and clavicle bone. He was immediately taken to Primary Health Centre, Pokaran, from where he was shifted to Mahatma 3 Gandhi Hospital, Jodhpur where he remained admitted as an indoor patient for one week. During the period of hospitalisation his right leg was plastered twice but ultimately since the bones did not join properly it resulted in shortening of leg by 1 ½ “ and permanent limping, due to which he was unable to ride scooter etc. His working efficiency has been effected adversely . The doctor has certified his permanent disability upto 12% vide certificate Ex.7. It was stated that at the relevant time , the age of appellant- claimant was 46 years and he was Government servant and was holding the post of Supervisor in the Telecom Department and his monthly income was Rs.5,632/- (Ex.9). It was submitted that due to accident he remained on leave from 16.12.96 to 21.03.97 and he suffered loss of income during the treatment period. A total compensation of Rs.4,00,000/- was claimed . Further it was stated that the jeep was owned by respondent Mana Ram and was insured with respondent No.3. Thus, prayer was made to pass order against all of them for the payment of compensation. Despite service of notice, non-claimant No.1 and 2 4 (respondent No.1 and 2) driver and owner of said jeep, did not file any reply and, therefore, exparte proceedings were held against them. United India Insurance Co.Ltd., non-claimant No.3 (respondnet No.3), filed its written reply and mostly denied the averments made in the claim petition for want of knowledge and stated that the said jeep was being used as taxi and the driver of the jeep was not having a valid and effective licence and since the terms and conditions of the Insurance Policy have been violated, therefore, the Insurance Company could not be held liable to pay any compensation. On the basis of pleadings of the parties, the learned tribunal framed relevant issues with regard to the factum of accident and with regard to the quantum of compensation and the responsibility of paying the same. During the course of trial, claimant AW/1 Ram Ratan himself appeared as a witness and his statement was recorded. The claimant got examined AW/2 Vijay Prakash and AW/3 Dr.Arun and produced and got exhibited certain documents Ex.1 to Ex.30 in support of his claim. The respondents neither produced any witness nor any document in rebuttal. 5 The learned tribunal, after hearing both the sides, vide its judgment and award dated 28.05.97 held that the accident occurred due to rash and negligent driving of jeep by its driver while remaining in service of respondent No.2 and caused injuries to appellant and other persons further the tribunal overruled the other contentions raised by the respondent No.3 . The learned tribunal further awarded a total compensation of Rs.61,800/- plus interest thereon @ 12% per annum and held the non-claimants responsible jointly and severally for the payment of compensation. The claimant being felt aggrieved and dissatisfied with the amount of compensation as awarded by the learned tribunal, challenged the judgment and award and preferred this appeal for enhancement of the compensation amount. Notices of appeal were given to the respondents. Record of the case was called and the parties were heard. None appeared on behalf of respondent No.1 and 2, despite service of notice. During the course of arguments learned counsel for the claimant -appellant submitted that the learned tribunal has not properly considered and appreciated the material on record for awarding proper and adequate compensation and has given 6 an erroneous finding with regard to quantum of compensation, therefore, the judgment and award is required to be modified to that extent. Learned counsel for the claimant appellant further contended that the learned tribunal has awarded under different heads a total compensation of Rs,61,800/- but the awarded amount is meagre one and the learned tribunal has also not awarded compensation on some important aspect. The learned counsel submitted that due to grievous injuries sustained by the claimant , including fracture of tibia bone in the right leg and in clavicle bone, the appellant remained hospitalised and under treatment for a long time. His leg was plastered twice. Even that was not found joined properly and ultimately his leg remained shortened by 1 1/2” . Due to this long treatment, he remained on leave for a long time. He was not having medical leave in balance, therefore, he had to exhaust privilege leave also and on account of that he suffered a loss of near about Rs.12,000/- and the appellant has been able to establish that loss by documentary evidence but the learned tribunal has not awarded a single rupee under this head. Likewise, due to long treatment, under compulsion he 7 had to take diet according to the advice given by the doctor but the tribunal has not awarded a single rupee under this head. It was also submitted that the appellant visited hospitals so many times for taking advice of doctor and in that head he incurred near about Rs.4,000/- but the learned tribunal has awarded only Rs.1,000/-. Likewise, lesser amount has been awarded under the head of expenses for attendant. Learned counsel for the appellant further submitted that due to severe injuries sustained by him a team of doctors , after examination , has certified permanent disability upto 12% and gave a certificate in this respect (Ex.7) and that was got proved by producing concerned Dr.Arun. Despite that , the learned tribunal, without establishing permanent loss due to permanent disability, awarded a lumpsum amount of Rs.35,000/- but looking to his future career , as due to above mentioned injuries, he became permanently disabled to discharge the routine and daily work even after the retirement he has to suffer due to permanent disability, the tribunal should have given due weightage to this aspect. Thus, on the basis of above submission, it was urged that awarded compensation under different head be reconsidered 8 and just and reasonable compensation be awarded and appeal may be allowed. On the contrary, learned counsel for the respondent refuted the contention and supported the finding given by the learned tribunal and submitted that learned tribunal, after considering full aspect of the case, has awarded reasonable compensation , that should be maintained and it was urged that there is no scope for future enhancement , therefore, appeal may be dismissed. I have considered the rival submission and perused the finding and conclusion drawn thereon. The main question remains for consideration is, whether the awarded compensation is not just and adequate and does it require further enhancement ? So far as the finding with regard to factum of expenses is concerned, I have perused the relevant material and the finding arrived at by the learned tribunal. The conclusion is based on the statement of the injured claimant himself as well as AW/2 Vijay Prakash, who was also found to be occupant of 9 the jeep. It is also relevant to consider that the police has filed challan against the driver of offending vehicle, after thorough investigation, alleging that the accident occurred due to rash and negligent driving of the driver. During the course of appeal, it has also not been assailed by the opposite side. Thus the finding with regard to issue No.1 deserves to be maintained. I have also considered the contentions raised by the claimant appellant with regard to quantum of compensation. Learned tribunal has determined compensation under different heads but the learned tribunal has not awarded any sum under the head of loss of salary. From the perusal of record , it reveals that due to injuries sustained by the claimant, he remained under treatment for a long time. During that period he also remained absent and that has been proved by documentary evidence that after exhausting medical leave he had to consume privilege leave also. The appellant has stated in his statement that a loss of near about Rs.20,000/- came under this head. It is believed that he remained on leave due to severe injuries. Therefore, he is held entitled to receive loss of salary of Rs.2,000/- of that period. Likewise, the learned 10 tribunal under the head of diet has not awarded a single rupee. Again looking to the injury sustained by him, he had to take diet according to the advice of the doctor. Under this head a sum of Rs.3,000/- is just and reasonable. Further, the learned tribunal , while awarding loss due to permanent disability, has not properly established the loss due to disability but a lumpsum amount of Rs.35,000/- has been awarded. The learned tribunal specifically should have considered the disability certificate by the doctor that has been proved by AW/3 Dr.Arun. A certificate in this regard is on record , Ex.7. Therefore, considering these materials , looking to his age, proved income and of 46 years, taking the multiplier of 13 a loss of income due to permanent disability can safely be assessed as Rs.500/- per month, though it comes higher , but considering this loss, the compensation comes under this head (500x12x13) =78,000/-. After deducting the sum awarded by the tribunal of Rs.35,000/- the amount comes to Rs.38,000/- , thus claimant is entitled to recover the remaining said sum. I have considered the other amount awarded under the different heads. But considering the over all facts, no scope for 11 enhancement is made out. Thus, on the basis of aforesaid discussion, a total sum of Rs.12,000/- + 3,000/- + 38,000/-= Rs.53,000/- is just and reasonable to be enhanced, along with the awarded compensation, that comes to Rs.1,14,800/-. Further the appellant will also be entitled to get interest at the rate of 7.5 % on the enhanced amount. Thus, on the basis of aforesaid discussion, the appeal is partly allowed and awarded compensation is enhanced by Rs.53,000/- that comes to Rs.1,14,000/-. Further the claimant appellant will be entitled to receive interest on the enhanced amount at the rate of 7.5% per annum from the date of filing of the application. As the vehicle was found insured with the respondent at the time of accident, earlier awarded amount has been directed to be paid by the respondent, likewise, the enhanced amount is also directed to be paid by the respondent. Two months' time is granted for the payment of the remaining due amount and enhanced compensation. If the amount is not paid within the stipulated period, then the appellant claimant will be entitled to start recovery proceedings. Rest of th judgment is maintained. No order as to costs. 12 (MANAK MOHTA), J. l.george