IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.587 of 2008 Upendar Yadav, Son of Bola Yadav, resident of Village- Heru Diara, P.O. Heru Diara, P.S. Kasim Bazar, District- Munger ---- Opp.Party --------- Appellant Versus 1. Mahesh Kumar Das , Son of Sri Upendar Das 2. Indu Kumari wife of Mahesh Kumar Das, both residents of Village- Pupari Tola, Farda, P.S. Farda, Police Station- Naya Ram Nagar, district- Munger ---Appellant--- Opp.Parties—Respondent-1st Party 3. Sunil Mandal, Son of Sri Suraj Narayan Mandal, resident of Village- Hero Diara, P.O. Hero Diara, P.S. Kasim Bazar, District-Munger --------- Opp. Party -- Respondent-2nd Party ---------------------------------- O R D E R For the Appellant: Sri T.N.Maitin, Sr.Advocate For the Respondent nos.1 and 2(Claimants): Sri Raj Kr.Choudhary, Advocate ----------------------------------- 12 19-08-2011 The present appeal has been preferred against an order dated 06.12.2007 and award dated 08.02.2008 passed in Motor Vehicle Accident Claim Case No.94 of 2001 by the 1st Addl.District Judge, Munger , whereby the learned court below has directed the appellant , who is the owner of the offending vehicle , to make payment of total compensation amount of Rs.1,11,800/-. Short fact of the case is that a Claim Case no.94 of 2001 was filed under the Motor Vehicles Act,1988 ( hereinafter referred to as “M.V.Act”) by Respondent nos.1 and 2 before the District & Sessions Judge-cum- M.V. Accident Claim Tribunal, Munger disclosing therein that on 28.10.2000, while Respondent no.1 was coming on the trailer of the tractor of the appellant bearing Registration No.BR 8-9729 after loading soil, due to rash and negligent driving by the driver of the tractor near the brick-kiln at Heru Diara under Police Station- Ram Nagar, District –Munger, the tractor and trailer jerked at the ridge and the claimant fell down 2 and smashed by the engine of the tractor and he became unconscious. Thereafter, several villagers gathered there and subsequently in unconscious position, he was carried to the hospital. The Respondent no.1 received serious injuries. In sadar Hospital, Munger, he was firstly examined. In Sadar Hospital itself, the police after getting information arrived there and recorded the statement of father of the injured. Subsequently, he was referred to Patna Medical College & Hospital, Patna. In the said accident, the claimant lost the sight of right eye, teeth and received head injury and he was defaced and, as such, he became useless and workless. On 28.10.2000, the injured was referred by the doctors of Sadar Hospital, Munger to Patna Medical College & Hospital, Patna and on 29.10.2000, he was admitted in Patna Medical College & Hospital, Patna. After being released from Patna Medical College & Hospital, Patna he was also treated in a Hospital at Lahan (Nepal), but no significant result could come. The claimant also asserted that despite the fact that the police had recorded the statement of his father in the hospital, but later on he noticed that no F.I.R. was lodged. Thereafter a complaint was filed before the Addl. Superintendent of Police. After the intervention of superior police officials at a belated stage an F.I.R. vide Naya Ram Nagar P.S. Case No.159 of 2000 could be registered on 23.12.2000 against the owner of the offending vehicle, who was also owner of the brick-kiln. It was disclosed in the F.I.R. that the son of the informant, who is claimant of the present case, was employed in the brick-kiln of the appellant for last about three years and he was getting Rs.1500/- per 3 month as salary. The claimant in the claim petition also took the plea that besides doing labour work, he was earning Rs.2000/- per month as tutor. It was claimed that the claimant had passed I. Sc. Examination and was I.T.I. Trained and he was teaching students in the morning and evening besides discharging his work as labour of the appellant. The claimant in the claim petition had claimed compensation of two lacs for loss and expenses on medical treatment. Before the court below, in support of the claim case, the claimant examined altogether three witnesses, namely, A.W.1 (the claimant himself), A.W.2- Upendra Das, who is the father of the claimant and one another witness was examined as A.W.3. The claimant brought on record number of documents, which were got exhibited. Number of prescriptions have been got exhibited and also disablement certificate has been got exhibited as Ext. no.2. The disablement certificate granted by the Medical Board to the claimant shows 30 % disablement. The reason for disablement mentioned in the certificate is as “R.E. Optic atrophy (visual handicapped). In the claim case, the appellant having joined the hand with the driver of the vehicle filed a joint written statement. It was claimed by the appellant that the claimant was never an employee in the brick-kiln and, as such, there was no question for giving salary to the claimant. The appellant further took the plea that the father of the claimant had initially filed a complaint case vide Complaint Case no.928C of 2000 in the court of learned Chief Judicial Magistrate against the appellant for the offences under Sections 329, 326, 327,307, 338 and 504 of the Indian Penal Code and Sections 3 4 and 4 of the SC/ST Act against him and one driver, namely, Bijo Yadav. The owner of the vehicle also disputed the claim case on the point of registration number of the offending vehicle. It was further pleaded that despite the fact that in complaint case the father of the claimant had disclosed the name of the driver as Bijo Yadav, but while filing the present complaint, the claimant has arrayed one Sunil Kumar Mandal as Opp.Party no.2 in the claim case being driver of the offending tractor. The learned court below after hearing the parties and considering the documents on record by the impugned order directed the appellant/owner of the offending tractor and the driver of the offending vehicle to pay compensation amount on medical expenses to tune of Rs.15, 000/- , on pain and sufferings Rs.5000/- and compensation due to loss of income Rs.91,800/-. The total compensation amount comes to Rs.1, 11,800/-. Sri T.N. Maitin , learned Senior Counsel appearing on behalf of the appellant has challenged the impugned order mainly on the ground that the documents, particularly prescriptions and disablement Certificate granted by the Medical Board were not proved in accordance with the procedure established by the law. He has further argued that the learned tribunal was required to examine the doctor, who had granted disablement certificate to the claimant , to prove as up to what extent the claimant had suffered injury and as to whether he was completely disable to do or discharge any work in future or not. Sri Maitin, learned Senior 5 Counsel appearing on behalf of the appellant has heavily relied upon a Judgment of the Apex Court, reported in (2011) 1 SCC 343(Raj Kumar Vs. Ajay Kumar & Anr). He has further argued that the claim case of the claimant was itself doubtful due to the reason that as claimed in the claim petition, the accident had taken place on 28.10.2000, whereas the claim petition was filed on 11.9.2001. In sum and substance, it has been argued on behalf of the appellant that in absence of specific evidence before the court below, particularly in absence of a doctor, who had granted certificate for disablement, it was not proper for the court below to allow the claim on the basis of loss of future earning on account of disability of the claimant. He has further argued that it was admitted case of the claimant that in the accident, the claimant had lost sight of one eye besides some other injuries. It was argued that the injuries sustained by the claimant were not enough for preventing the claimant to earn in future. In sum and substance, it was submitted that without any specific finding as up to what extent , the claimant had sustained injuries, the learned court below has committed gross error in allowing compensation under the head of loss of income i.e. Rs.91,000/-. Sri Raj Kumar Choudhary, learned counsel appearing on behalf of Respondent nos.1 and 2/ claimants submits that all the documents, which were produced by the claimant , were got exhibited without any objection being raised by either of the parties. It was submitted that since the documents, particularly disablement certificate have already been got exhibited, the appellant may not 6 be allowed to take the plea at this stage that those documents were not proved in accordance with the procedure established by the law. It has further been argued that the claimant, who was examined as A.W.2, and A.W.2, who is the father of the claimant, were cross- examined at length, but the appellant could not extract anything to create doubt on the claimant’s case. It was submitted that the learned court below has rightly and legally passed the order, which requires no interference. Besides hearing the learned counsel for the parties, I have also perusal the materials brought on record. I have also perused the evidence of A.W.1 (claimant). On perusal of the same, it appears that the claimant was cross-examined at length and his attention was also drawn during his cross-examination to the fact relating to filing of the complaint case by the father of the claimant against the owner of the offending vehicle i.e. the appellant and one Bijo Yadav in the capacity of the driver of the offending vehicle. In reply to the question, the claimant has tried to explain that the said complaint was filed by his father and there is possibility that he was not aware with the name of the driver, but actually at the time of the accident, the vehicle was being driven by Sunil Kumar Mandal, whose driving licence was also brought on record. The evidence of all the witnesses in support of the claim has got credence particularly on the point that the claimant sustained injury in the accident of the tractor of the appellant. Since the owner /appellant had not come out with a case that the vehicle was insured at the time of the accident obviously, the appellant was liable to pay 7 compensation in favour of the claimant. Now the question is as to whether in view of nature of injury sustained by the claimant, the court below was justified in allowing compensation due to loss of future earning. So far as compensation under the head of (i) medical expenses and (ii) pain and sufferings are concerned, the Court is of the opinion that the order of the court below to the extent of aforesaid compensation requires no interference. However, so far as compensation due to loss of income is concerned, the Court has got serious doubt in its mind, particularly in view of Raj Kumar’s case (supra) and the materials, which were brought before the court below in the present case. It was the case of the claimant that he lost sight of one eye. The claimant was labourer and employed on monthly salary of Rs.1500/- in the brick-kiln of the owner of the offending vehicle i.e the appellant. In absence of sight of one eye, it is difficult to swallow that such person can be prevented from functioning as labourer and if he is able to function as labourer , he can earn what he was earning prior to the accident .In Raj Kumar’s case ( supra) , the Hon’ble Supreme Court has categorically dealt with this situation, particularly the compensation claimed in the personal injury cases. At this stage, it would be appropriate to quote paragraph-6 of the said Judgment, which is as follows: “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 8 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). 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. In view of the peculiar facts and circumstances of the present case as well as in the light of the guidelines of the apex court in Raj Kumar’s case (supra), the Court is of the opinion that the order of the court below to the extent of granting compensation due to loss of income i.e. Rs.91,800/- is not sustainable in the eye of law and accordingly, this part of the order is liable to be set aside and is hereby set aside. So far as the amount of compensation relating to medical expenses , which has been awarded by the court below, is 9 concerned, the Court is of the opinion that the said amount is required to be enhanced in view of the fact that the claimant after the accidence was taken to Sadar Hospital,Munger for his treatment and thereafter he was carried to Patna Medical College & Hospital and thereafter he was again treated by number of doctors, which is evident from the number of prescriptions , which had been brought on record by the claimant. Accordingly, the compensation amount of medical expenses can be enhanced to Rs.25, 000/- as it was claimed by the claimant. The appellant, who is the owner of the offending vehicle is directed to pay compensation for medical expenses to the tune of Rs.25, 000/- and compensation amount to the tune of Rs.5000/- for pain and sufferings as awarded by the claims tribunal. The learned court below has held that the claimants will get interest @ 6 % from the date of order till the realization of the said amount .In terms of Section 171 of the Motor Vehicles Act and in view of the peculiar facts and circumstances of the present case, it is held that the claimants are entitled to get interest on the aforesaid amount @ Rs.6% per annum from the date of filing of the claim case till the date of realization. With the above modification and alteration, the appeal stands partly allowed. The statutory amount, which has been deposited at the time of filing of the appeal, is directed to be remitted back to the court below for its payment to the claimants. NKS/- ( Rakesh Kumar, J.)