1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T SAMPAT RAJ Vs. NARAIN SINGH & ORS. S.B. CIVIL MISC. APPEAL NO. 2009/2007 against the judgment and award dated 18.04.2007 passed by the learned Judge, Motor Accident Claims Tribunal, Barmer in Claim Case No.149/2005. DATE OF JUDGMENT :: 11th July,2008 PRESENT HON'BLE MR.JUSTICE MANAK MOHTA Mr.M.L.Khatri for the appellant. Mr.O.P.Singhvi for the respondent. BY THE COURT : The present appeal has been filed by the injured- claimant against the judgment and award dated 18.04.2007 passed by learned Judge, Motor Accident Claims Tribunal, Barmer (in short 'the Tribunal') in Claim Case No.149/2005 whereby the learned Tribunal has awarded a sum of Rs.62,680/- as compensation in favour of claimant-appellant 2 and the said amount has been ordered to be payable jointly and severally by the non-applicants along with interest @ 9% per annum from the date of filing of the claim petition i.e. 22.09.05. Briefly stated the facts relevant for the disposal of the appeal are that on 08.12.04 at about 10.00 PM the claimant appellant, along with his relatives, was traveling in Qualis No. RJ04 C-1870 from Gandhidham to Barmer. On 09.12.04 in the morning at 05.30 AM when they reached near the Pump of Aduram, at the National High Way No.15, Narain Singh, respondent No.1 driver of the vehicle started driving the vehicle rashly and negligently with a high speed, as a result of which the vehicle turned towards 'Kucha' road and collided with a babul tree due to which Mangilal, a co-passenger, died and the claimant-appellant received grievous injuries at his back and knee and also fracture of the shoulder . A report of the incident was lodged at Police Station, Sadar Barmer where the police, after investigation, filed charge sheet against Narain Singh, (driver) respondent No.1. The claimant submitted a claim petition before the Motor 3 Accident Claims Tribunal , Barmer on 22.09.05 under Section 166 of the M.V. Act for awarding adequate compensation for the grievous injuries sustained by him in the said motor accident. It was stated in the claim petition that due to injuries, he suffered a lot of monitory loss as well as mental shock. On the basis of these facts a total sum of Rs.2,75,800/- was claimed as compensation under various heads. A reply to the claim petition was submitted on behalf of respondents No.1, 2, and 3, who denied the averments made against them and stated that the claimant is not entitled for compensation of Rs.2,75,800/- as claimed by him and the claim petition deserves to be dismissed. On the basis of pleadings of parties, the learned Tribunal framed relevant issues. During the trial, the claimant examined himself as AW-1 and certain relevant documents were got exhibited. No evidence was led in defence by either of the non-claimants 4 (respondents). The learned Tribunal after hearing both the sides, vide its judgment and award dated 18.04.07 awarded a sum of Rs.62,680/- as compensation in favour of claimant-appellant and the said amount has been ordered to be payable jointly and severally by the non-applicants along with interest @ 9% per annum from the date of filing of the claim petition i.e. 22.09.05. The claimant, feeling aggrieved and dissatisfied with the amount of compensation as awarded by the learned Tribunal, has preferred this appeal for enhancement of the compensation amount. Notices of appeal was given to the respondents and arguments were heard. During the course of arguments learned counsel for the claimant-appellant submitted that the learned Tribunal has given an erroneous finding with regard to the quantum of compensation, therefore, the judgment and award is required to be modified. It was contended by the learned counsel for the appellant that the learned Tribunal has not properly 5 determined the compensation and has awarded a meagre amount of compensation. It was also contended by the learned counsel for the appellant that during treatment the appellant claimant had to move to different hospitals and for that he incurred huge expenses, near about Rs.15,800/-, but the learned Tribunal has awarded only Rs.2,000/- in that respect. Likewise due to serious injuries sustained, he could not work for near about 12 months and in this way he also suffered loss of income. But the Tribunal has not awarded a single paisa in this respect. On the basis of these submissions it was urged that reasonable compensation may be enhanced and appeal may be allowed. On the contrary, learned counsel for the respondent refuted the contentions raised by the appellant's side and submitted that the applicant sustained only three injuries on his person and as per X-ray report there was only one fracture. Considering the injuries and the expenses incurred on treatment, learned Tribunal has awarded just and reasonable total amount of Rs.62,680/-. It was submitted that there is no scope for further enhancement and the appeal may be 6 rejected. I have considered the rival submissions and perused the finding and conclusion arrived thereon. So far as the accident is concerned, the finding of the learned tribunal is based on the statement of the witnesses as well as on documentary evidence. It is pertinent to note that police, after usual investigation, also filed challan against non- petitioner No.1, driver of the offending vehicle. Thus, the finding to that extent does not require any interference. The learned Tribunal , while determining the compensation, has considered Ex.4, injury report as well as Ex.5, X-ray report and it was found that the appellant has sustained three injuries, one of them was a fracture and on that basis Rs.7,000/- have been awarded. Further the learned tribunal has awarded Rs.50,680/- for expenses incurred by the appellant on medicine. The learned tribunal has awarded Rs.3,000/- for medical expenses during treatment and Rs.2,000/- have been awarded for transportation. In this way a total compensation of Rs.62,680/- has been awarded. But taking into consideration the injuries sustained by the appellant, it can easily be inferred that he 7 remained under treatment and during that period he has suffered loss of income. From the perusal of the petition it seems that the appellant was a contractor. Taking into consideration the compensation awarded by the learned tribunal I feel it proper to award Rs.5,000/- by way of loss of income due to the injuries, in addition to whatever amount has been awarded to the appellant. Thus, on the basis of aforesaid discussion, the total compensation is determined to be Rs.67,680/- and further on the enhanced amount of Rs. 5,000/-, the appellant will be entitled to receive 9% interest per annum from the date of filing of the application, as already awarded by the Tribunal I determine the amount. Rest of the contention of the appellant are not sustainable , they are hereby rejected. On the basis of the aforesaid discussion, the appeal is partly allowed and the awarded compensation amount, is enhanced by Rs.5,000/-, to Rs.67, 680/- . Further on the enhanced amount of Rs.5,000/- appellant will also get 9% interest per annum from the date of filing of the application till realisation. Respondents are held jointly and severally 8 responsible for for the payment of the same. Rest of the judgment is confirmed . Cost made easy. (MANAK MOHTA) J. l.george