IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL MISC. APPEAL No. 184 of 1996 BHIM SINGH V/S CHAIN SINGH Mr. RAJESH PANWAR, for the appellant / petitioner Mr. BK BHATNAGAR, for the respondent Date of Order : 7.2.2008 HON'BLE SHRI N P GUPTA,J. ORDER ----- This appeal has been filed by the claimant, against the award of learned Motor Accident Claims Tribunal Barmer, dt. 13.9.1995, decreeing the claim of the appellant for personal injury, for a sum of Rs. 17,000/-, along with interest @ 12%, from the date of application till realisation, against defendants no. 1 and 2, being the owner and driver, however, exonerating the Insurance Company. The facts of the case are, that on 20.3.1992 the appellant was traveling on Scooter No. RJ 15M-0556, being driven by Girdhar Singh. The scooter stopped near Nehru Piao, and when they were alighting from scooter, the delinquent motor cycle RJ 04 M-0828, being driven negligently, hit the appellant, resulting into causing a fracture of right tibia of the appellant. The appellant claimed a total compensation of Rs. 2,11,000/-. The claimant had claimed the amount by including Rs. 30,000/- for medical expenditure, Rs. 10,000/- for mental pain and agony, Rs. 12,000/- for the loss of income, and Rs. 1,58,000/- for permanent disablement. The claim petition was contested on various grounds, denying the factual aspects also. The insurer also contested the claim, interalia on the ground, that the driver was not having any valid driving license. It was also pleaded, that at the time of accident, the vehicle was not insured with the Insurance Company at all. Learned Tribunal deciding issue no.1 held, that the accident occurred on account of negligent driving of motor cycle. Then, deciding issue no.2, relating to quantum, it was held, that it is established from the evidence of the two witnesses of the claimants, that the claimant's right leg got fractured, and he had to take treatment for 5-6 months. The Injury Report Ex.-5 and X-Ray Report Ex-6 were relied upon, and for that he was held entitled to Rs. 10,000/-. Then, for mental pain and agony he was awarded Rs. 4,000/-. Regarding medical treatment, the claim was negatived on the ground, that no medical bills have been produced. Then, regarding loss of income, it has been held, that in this regard he has deposed to 2 have not been able to work for about 6-7 months, and on that basis Rs. 12,000/- have been claimed, and he was held entitled to Rs. 3,000/- only, on that count. Thus, the above compensation has been assessed. It was also observed, that consequent upon injury, the leg got bent, and he cannot undertake any physical activity. Then, deciding issue no. 5 about the liability of the Insurance Company, it was held, that since it is objected that the driver was not having any valid license, and the witness of the insurer Shri H.K. Motwani has been examined, and a photo copy of license has been produced, which is shown to have been issued on 10.3.1995. Thus, it was found that the driver was not having any valid license, and thus the Insurance Company has been exonerated. Assailing the impugned judgment and award, it is contended, that in view of the latest judgment of Hon'ble the Supreme Court, in National Insurance Co. Ltd. Vs. Laxmi Narain Dhut, reported in MACD 2007(1) (SC)-472, the Insurance Company cannot be exonerated, on the ground of driver not having any valid license, at best the Insurance Company can recover the amount from the owner, but so far as the third parties are concerned it has to make payment. Then, regarding quantum also it is contended, that the amount awarded is grossly inadequate, inasmuch as the learned Tribunal has found, that leg has been permanently bent, and the appellant cannot undertake any physical work, 3 while on that count no compensation has been awarded. Likewise the amounts awarded under different heads have also been assailed, to be inadequate. Learned counsel for the respondent, on the other hand, supported the impugned judgment. I have considered the submissions, and have gone through the record. A look at the statement of the appellant A.W.1, does show, that he has clearly deposed to have suffered permanent disablement, and note to that effect is also there in the statement. He has deposed that he was kept under plaster for two months, and even thereafter the leg was not perfectly alright, then he undertook local treatment for about a month. Then, he has also deposed that earlier his leg was perfectly alright, but now, on account of disability, he cannot perform that much of work, and he cannot properly move, nor can he lift any heavy article, and that, there has been diminution in the working capacity, on account of disability. He has also deposed, that the disability is of permanent nature. To this there is no rebuttal evidence. Then, a look at Ex.10, the photograph of the appellant, also does show, that lower limb is substantially bent. In my view, in such circumstances, the compensation awarded by the learned Tribunal is inadequate, 4 and requires interference. The amounts awarded, being Rs. 10,000/-, and Rs. 4000/- are maintained. However, the appellant is held entitled to be awarded at least a sum of Rs. 3,000/-, for medical expenditure, as he had undertaken treatment for long period of three months, in which course he had to move also from place to place, and obviously must have taken medicines. Then, the amount awarded for loss of income during the period of 6-7 months, during which he could not work is also inadequate. He has deposed, that he was getting Rs. 2,000/- per month, while a total sum of Rs. 3000/- has been awarded. In my view, this figure is also required to be increased from Rs. 3000/- to Rs. 10,000/-. Then, nothing has been awarded for the future loss of income. The victim was 21 years of age at the time of accident, and he has suffered the partial permanent disablement, adversely affecting his income. Considering the totality of circumstances, looking to the occupation of the victim, his age, and the extent of disability, his physical visibility, in my view, a sum of Rs. 20,000/- would be adequate compensation for the future loss of income. Thus, the appellant is found entitled to a compensation of Rs. 47,000/-, of course along with interest as awarded by the learned trial court. Coming to the question of liability of Insurance 5 Company, in my view, the matter is now settled down by the Hon'ble Supreme Court, in the recent judgment in Laxmi Narain Dhut’s case, and therefore, the Insurance Company is liable to pay the compensation, of course it may recover back from the owner. The appeal is accordingly partly allowed. The compensation awarded by the learned Tribunal is enhanced from Rs. 17,000/- to Rs. 47,000/-, and Insurance Company is also held liable for the said amount. The parties shall bear their own costs. ( N P GUPTA ),J. /sushil/ 6