HIGH COURT OF CHHAJTISGARH AT BILASPUR SB: Hon'bleShri Justice R. L.Jhanwar, IVI.A.No.686of2008 APPELLANT 'a RESPONDENTS Lokeshwar Versus Shyam Sunder and others. y\.-^<->1 s.-g-i^r^ ^ ORDER ForPronouncementofOrder ^ .12.2010 Sd/- R.L. Jhaiiwar Judge i:; [ \: HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH: HON'BLE SHRI R.L.JHANWAR, J. Misc. Appeal (C) No. 686 of 2008 APPELLANT Claimant RESPONDENTS NON-CLAIMANT Lokeshwar, aged about 33 years, son of Late Devlal Dhruv, Resident of village Sarsopuri, Police Station Arjuni, Distt. And Tah Dhamtari (C.G.) VERSUS Shyam Sunder, aged about 24 years, son of Shri Purushottam Dhruv, Resident of village Kima, Post Baitalpur, Police Station Hirri, Distt. And Tah. Bilaspur (CG) Sanjay Shukla, aged about 42 years, son of Shri Jaishankar Shukla, Resident of 17/556, Ravi Nagar, Tah. Bandha, Near Kailaash Provision Stores, Distt. AndTah. Raipur (C.G.) Manager, the Oriental Insurance Co. Ltd. Madina Building, Kachery Chowk, Jail Road, Distt. And Tah. Raipur (C.G.) MISCELLANEOUS APPEAL UNDER SECTION 173 OFTHEIVIOTOR VEHICLESACT,1988 Appearance: Shri Ram Kumar Tiwari, counsel fbrthe appellant. None for respondentsNo. 1 &2. Shri SudhirAgrawal, counsel for respondent No.3. ORDER (Passedon <^ .12.2010) This is claimant's appeal seeking enhancement of compensation awarded by Motor Accidents Claims Tribunal, Dhamtari (for short 'Claims Tribunal') in claim case No. 58/2007 vide order dated 02.01.2008 whereby the Tribunal awarded Rs.47,625/- as total compensation has awarded in an injury case. 2. Appellant / Claimant - Lokeshwar claimed compensation of Rs.7,50,000/- by filing a claim petition under section 166 of the Motor |3??;?7—'"^——- "—- \'^ '•^t .Sji,i s» .f" Vehieles Act (for short 'the Act') for the injuries sustained by him in the mQtor accident on 10.01.2007 when he was going on motor cycle bearing No. C.G. 05 A 1381 driven by one Bodhiram Sahu to Kaendal and on way near Sanchua bridge, respondent No.1 dashed his motor cycle by rashly and ne'gligently driving the Metador bearing No.C.G.07/ZB/0923, resulting into multiple injuries over his body including fracture on shoulder. The claimant pleaded that he was admitted in Masihi Hospital, Dhamtari w.e.f. 10.01.2007 till 17.01.2007 and thereafter hewas admitted in Community Health Center, Kurud w.e.f. 18.01.2007 till 18.02.2007 for treatment. The claimant furtherpleaded that as a result of injuries he was permanently disabled and was unable to perform his duties. It was also pleaded thaf at thetime of accident he was aged 33 years and was working as Hamali and earning Rs.100/- per day and Rs.3000/- per month. 3. The owner and driver of the offending vehicle - Metador did not eontest the claim and were proceeded ex parte before the Tribunal. The insurer ofthe offending vehicle - Metadaor contested the claim and denied its liability to pay compensation to the claimant on the plea that the driver of Metador was not holding a valid driving licence and thesaid Metador was being plied in breach of the policy conditions. The accident occurred due to rash and negligent driving of both the drivers and on the basis of contributory negligence, the appellant ought to have made owner and insurer as parties in the claim petition but he did not add them. 4. The Tribunal on a close scrutiny of the evidence led before it holding that the claimant - Lokeshwar sustained injuries including fracture op shbulder on 10.01.2007 and considering the accident occurred due to rash and negligent driving of both the drivers of the vehicles, found contributory negligence of75 per cent on the part of respondent No.1 and 25 per cent on the part of driver of motor cycle. It was also held that as the offending vehicle - Metador was insured on the dafe of the accident with the insurance company, the'insurance company i.e. the Oriental Insurance company was also liable to pay compensation to the claimant. 5. It is clear from the evidence of the appellant A.W.1 that he was admitted inMasihiHospital.Dhamtariw.e.f. 10.01.2007 till 16.01.2007 and thereafter as against the advice of concerned he left the said Hospital and was admitted in Community l-1ealth Center, Kurud where he remained • / w.e.f. 18.01.2007 till 15.02.2007. Documents Ex.P.8 to Ex.P.22 produced by the appellant relating to Masihi Hospital, Dhamtari reveal that the appellant was admitted for a period of 6 days and sustained fracture on his right shoulderand the documents i.e. bills of medical stores exhibited as Ex.P.25 to Ex.P.35 also reveal that medicines mentioned therein were prescribed by Dr. V.K.Pandey and the appellant must have spent expenses for neeessary treatment but the prescriptions thereof were not produced in evidence. Dr. Vinod Pandey A.W.2, whoexamined the appellant, has stated that the appellant was admitted in C.H.C. Kurud w.e.f 18.01.2007 till 15.02.2007 and after examination he issued a disability certificate Ex.P.41 to the appellant in which the appellant sustained 45% permanent disability has been shown. Though it has not come in evidence as to why the appellant has changed the Hospital for treatment, but on the basis of pleadings and evidence adduced, it is clear that the appellantsustained injuries and fracture on right shoulder and wasadmitted in Hospital for necessary treatment. However, considering the number and nature of the injuriessustained by the claimant in the motor accident and the amount proved to have been spent on his treatment, the Tribunal awarded a sum of Rs.10,000/- for treatment, Rs.5000/- towards pain and mental agony, Rs.3000/- towards special diet and Rs.3000/- for loss of income during the period the claimant could not perform his duties for two months on account injuries sustained by him. 6. So far as the income of the appellant is concerned, although there was no clinching evidence regardirig the income of the appellant, but the Tribunal assessed his annual income at Rs.2500/- and taking into consideration that the age of the appellant was 33 years, applied multiplier of 17. By multiplying the annual amount bf Rs.2500/-with 17, the lossof future income would be Rs.42,500/-. Thus, the Tribunal awarded Rs.63,500/- as total compensation. The Tribunal further considered that the accident took place due to rash and negligent driving of both the driver of motor cycle and respondent No.1, awarded 75% of the amount i.e. Rs.42,500/- as total compensation to the claimant along with interest at 6% per-annum from the date of filing of the claim petition till the date of actual payment. r •EB ,,-ff^"'''~!:^^''-.. ^c\ 7. Shri Ram Kumar Tiwari, learned counsel for the appellant vehemently argued that the Tribunal has erred in recording finding that there was contributory negligence on the part of both the drivers of the vehicles and has further erred in awarding meager compensation of Rs.42,500/- based on the finding of contributory negligence. The amount awarded by the Tribunal is meager amount of compensation when compared with the loss of earning capacity of the appellant on account of permanent disabilityto the extent of 45% sustained by him on account of the injuries in the motoraccident. 8. On the other hand, learned counsel for respondent No.3 Shri Sudhir Agrawal opposed the arguments and submitted that the amount of compensation of Rs.42,500/- is just and fair compensation and thusno interference is required. 9 The evidence of appellant that he was working as Hamali in Food Corporation of India is not reliablesince there was no document produced to show that he was /-/ama/iworking in the Godown of F.C.I. or its Office. In the absence of such document, the Tribunal fixed his income at Rs.2500/- per month. By using multiplier of 17, awarded Rs.42,500/- towards loss of future income. By adding Rs.21,000/- under other heads, the total compensation was worked out by the Tribunal at Rs.63,500/- and after finding the accident occurred due to rash and negligent driving of both the drivers, fixed the awardat Rs.47,625/- to be paid to the claimant. 1 amofthe considered opinionthatthe Tribunal did not commit any error in awarding Rs.47,625/- as total compensation and did not commit any error in recording the finding of contributory negligence. 10. As regards permanent disability sustained by the appellant, Dr.V.K.Pandey, A.W.2 has certified the permanent disabilityto the extent of45% resulting from the injuries and fracture of right shoulder. The extent ofpermanent disability certified by the doctorto the extent of45% isonly with regard to right shoulder of the appellant and not of his entire body. Thus, it cannot be accepted that on accountof the permanent disability to the extent of 45% of the appellant's right shoulder he has been rendered unfit to perform his duties as Hamali. . -^ ~ 11. For the foregoing reasons, the compensation of Rs.47,625/- awarded by the Tribunal when examined in the context of the above mentioned broad features of the case, 1 am satisfied, is just and proper conipensation inthe facts and circumstances ofthe present case. 12. I, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal. 13. The appeal, therefore, is liable to be and is hereby dismissed. No orderasto costs. R.L. Jhanwar Judge