1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T VAGA VS. NATIONAL INSURANCE COMPANY & ORS. S.B. CIVIL MISC. APPEAL NO.2578/2007 against the judgment and award dated 14.08.2007 passed by the learned Judge, Motor Accident Claims Tribunal, Addl.District & Sessions Judge, (Fast Track No.4), Udaipur , in Motor Accident Claim Case No.612/2006. DATE OF JUDGMENT :: 06.08.08 PRESENT HON'BLE MR.JUSTICE MANAK MOHTA Mr.Deepak Menaria for the appellant. Mr.R.K.Singhal for the respondents. BY THE COURT : The present appeal has been filed by the claimant- appellant against the judgment and award dated 14.08.2007 passed by learned Judge, Motor Accident Claims Tribunal, Addl. District & Sessions Judge,(Fast Track No.4), Udaipur , in Motor Accident Claim Case No.612/2006, whereby the 2 learned Tribunal has partly allowed the claim petition in favour of the claimant-appellant and against respondents, holding them jointly and severally responsible for the payment of total compensation of Rs.26,000/-(inclusive the amount awarded under 'No Fault Liability') with interest @ 9% per annum from the date of filing of the claim petition, i.e. 10.02.05 and further directed them to make the entire payment to claimant appellant. The brief facts of the case, which are relevant for the disposal of the appeal are that on 11.04.04 , the claimant- appellant was going from Jhadol, towards Phalasiya by travelling in jeep bearing No.RJ.27-T-0861. When the jeep reached near the gate of RSEB office, at village Keerat, a jeep coming from Phalasiya, bearing No.RJ.06-T-0325 which was being rashly and negligently driven by its driver Babu, non- claimant No.3, dashed against the jeep in which the claimant appellant was travelling, as a result of which, the claimant appellant sustained several grievous injuries. The report of the said incident was lodged at Police Station, Phalasiya , were Cr.Case No.41/2004 was registered and after usual investigation, the Investigating Officer came to the finding that 3 the accident took place due to rash and negligent driving of the jeep by its driver Babu ,non-claimant No.3. As such, a challan was filed against him for the offences under section 279, 337 338 and 304-A IPC, before the court of Addl.Chief Judicial Magistrate, Jhadol. It was also stated that at the time of accident the said jeep was owned by Chhagan Lal, non- claimant No.2 and was insured with National Insurance Company, non-claimant No.1. The claimant submitted a claim petition before the Motor Accident Claims Tribunal, Addl.District & Sessions Judge, Fast Track No.4,Udaipur on 10.02.2005, under Section 166 of the M.V. Act, for awarding adequate compensation on account of injuries sustained by him in the said motor accident. In the claim petition, it was averred that the claimant was only of 36 years at the time of accident and he was earning Rs.5,000/- per month by doing masonry work and on account of said accident, he became incapable to undertake the masonry work. It was submitted that he remained under treatment for several months . It was further submitted 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.4,48,000/- was claimed 4 against non-claimants, as compensation under various heads. Notices of the claim petition were served on the non-claimants. Non-claimant No.1,insurer of the said jeep , filed its reply and denied the allegations, pleaded in the claim petition and further stated that accident occurred due to the clashing of both the jeeps and it happened due to the rash and negligent driving of Jeep No.RJ.27-T-0861 by its driver. It was further averred that the claimant appellant has not made the driver, owner and insurer of jeep No.RJ.27-T-0861 as partiesand further stated that the non-claimant No.3, driver of the jeep was not in possession of a valid and effective licence at the time of accident and the driver was also not in possession of permit to drive the vehicle in the alleged route and the insurer was not informed of the occurrence of the accident in time, as such, the Insurance Company cannot be held responsible for the payment of compensation and it was prayed that the claim petition may be dismissed. Chhaganlal, non-claimant No.2, owner and Babu, non- claimant No.3, driver of the jeep, filed their reply and denied all the allegations pleaded in the claim petition and further 5 stated that the accident occurred due to rash and negligent driving of jeep No.RJ.27-T-0861 by its driver. It was also stated that since jeep was insured with non-claimant No.1, insurer, therefore, in case of compensation, the Insurance Company is responsible for the payment of same, and prayed to dismiss the claim petition against them. The learned Tribunal, on the pleadings of the parties, framed relevant issues with regard to responsibility of causing accident and with regard to quantum of compensation. The claimant-appellant got examined herself as AW/1 and also got exhibited documents produced by him , Ex.2, to Ex.15 in support of his claim. In rebuttal, the non-claimants neither got examined any witness nor exhibited any document in defence. The learned Tribunal, after hearing both the sides, held that due to rash and negligent driving of jeep No.RJ.06-T-0325 by its driver, the accident occurred and in that accident the claimant -appellant sustained several injuries. Vide its judgment and award dated 14.08.07 , after considering the age 6 and income of the claimant, awarded a total compensation of Rs.26,000/-, plus interest thereon @ 9% per annum, holding non-applicants jointly and severally responsible for the payment of the same. The claimant-appellant, being felt aggrieved and dissatisfied with the amount of compensation, as awarded by the learned Tribunal, has preferred this appeal against the judgment and award dated 14.08.07 and made submissions for enhancement of the compensation amount. Notice of appeal was given to the respondents, record of the case was called and the parties were heard. During the course of arguments, learned counsel for the appellant submitted that the learned Tribunal has not properly considered and appreciated the facts, with regard to determination of adequate compensation and determined a meagre amount of compensation, that is required to be modified and enhanced. It was further submitted that the claimant has received several injuries on his person and on the basis of injuries sustained by him, a certificate in respect of permanent disability had been issued by the Doctor, Ex.13, 7 by which his efficiency has been found to be reduced by 10%. It was stated that looking to the age of the appellant, as proved to be 38 years and taking into consideration his income , Rs.200/- per day, a reasonable compensation, under the head of permanent disability, should have been determined. But the learned tribunal has determined compensation without any basis ,a lump sum amount of Rs.20,000/- under that head and awarded a petty amount for the pain and agony and suffering and medical expenses and in this way, a total amount of Rs.26,000/- has been awarded. On the basis of these submissions, it was urged that adequate compensation may be determined and awarded, and the appeal may be allowed. On the contrary, the learned counsel for the respondent supported the judgment and award passed by the learned tribunal and submitted that reasonable compensation has been awarded and there is no scope for further enhancement. I have considered the rival contentions and perused the finding and conclusion drawn thereon. The main question remains for consideration in the 8 appeal is whether the awarded compensation is not adequate, just and reasonable, and it requires enhancement ?. In this respect , I have seen the submission of claimant, as well as the material placed from his side. The claimant appellant has stated that several injuries have been sustained by him in accident, he remained hospitalised for several days and plaster treatment was done. On the basis of injuries sustained by him , permanent disability has been certified by a team of Govt. doctors upto the extent of 10%. Injuries are further supported by his statement, as well as other material placed on record and there is no rebuttal from the other side. The learned tribunal has determined a lumpsum compensation of Rs.20,000/- in this respect. Looking to the age and injuries sustained by him, and the income as stated by the claimant, I find that the awarded compensation in this respect is on the lower side, and is not found just and reasonable. Taking into consideration the percentage of disability shown by the doctors, vide Ex.13, it comes to more that Rs.35,000/- but the learned tribunal has awarded only Rs.20,000/- under this head. Considering the over all facts of the case, an additional 9 sum of compensation of Rs.15,000/ is required to be added in the awarded compensation of Rs.26,000/-. That comes to Rs.41,000/- Considering the facts, the claimant appellant is also entitled to receive interest on the enhanced amount, at the same rate as awarded by the learned tribunal, i.e. 9% per annum from the date of filing of the claim petition. On the basis of the aforesaid discussion, in the net result, the appeal is partly allowed and the awarded compensation of Rs.26,000/- is enhanced by Rs.15,000/- , that comes to Rs.41,000/. Further, the appellant will get interest @ 9% per annum , on the enhanced amount, from the date of filing of the claim petition. Rest of the judgment is confirmed. No order as to costs. (MANAK MOHTA), J. l.george