1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Smt. Sunita Garg vs. Dharamveer Singh & Ors. S.B. CIVIL MISC. APPEAL NO.1271/2007 against the judgment and award dated 30.11.2006 passed by the learned Judge, Motor Accident Claims Tribunal, Parbatsar, District Nagaur, in Motor Accident Claim Case No.15/2006. DATE OF JUDGMENT :: 30.07. 2008 PRESENT HON'BLE MR.JUSTICE MANAK MOHTA Mr.S.K.Sankhla for the appellant. Mr. Sanjeev Johari for the respondent. BY THE COURT : The present appeal has been filed by the claimant- appellant against the judgment and award dated 30.11.2006 passed by learned Judge, Motor Accident Claims Tribunal, Parbatsar, Distt. Nagaur, (in short 'the Tribunal') in Motor Accident Claim Case No. 15/2006, whereby the learned 2 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.82,800/-, with interest @ 6% per annum from the date of filing of the claim petition, i.e. 09.01.2006 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 02.10.2005, the claimant- appellant, along with her husband, Anil Kumar, were going from Parbatsar towards Bayana in the Roadways bus bearing No.R.J.14-P-2068. When they reached near Bichpuri-patti, a truck bearing No. R.J.05-G-3757, which was rashly and negligently being driven by its driver Dharamveer, in a high speed, came from Bayana side and hit the said bus from the side of the driver, as a result of that the claimant who was sitting inside the bus got fracture of femur bone and also got compound fracture in elbow joint. She also sustained other injuries in her person. The injuries have resulted into permanent disablement upto 36%, as certified by a team of doctors vide Ex.112. 3 The report of the said incident was lodged at Police Station, Bair, Distt.Bharatpur, vide FIR No.178/2005 and after usual investigation, the Investigating Officer came to the finding that the accident took place due to rash and negligent driving of truck by its driver Dharamveer , respondent -non-claimant No.1. As such, a challan was filed against him for the offences under section 279, 337 and 338 IPC before the court of Civil Judge-cum-Judicial Magistrate, First Class, Bair. It was also stated that at the time of accident the said truck was owned by respondent No.2 and was insured with respondent No.3. The claimant submitted a claim petition before the Motor Accident Claims Tribunal, Parbatsar on 09.01.2006 under Section 166 of the M.V. Act, for awarding adequate compensation on account of injuries sustained by her in the said motor accident. In the claim petition, it was averred that the claimant was only of 26 years at the time of accident and she was having knowledge of computer application and was expert in tailoring and was earning Rs.2400/- per month by doing tailoring and on account of said accident she became incapable to undertake the tailoring work and as such she has been deprived of her regular income. It was submitted that she 4 remained under treatment for several months . It was further submitted that due to injuries, she suffered a lot of monitory loss as well as mental shock. On the basis of these facts, a total sum of Rs.16,26,700/- was claimed against non-claimants as compensation under various heads. Notices of the claim petition were served on the respondents-non-claimants. Non-claimant No.1, Dharamveer, driver of the offending truck , filed his reply and denied the allegations pleaded in claim petition and further stated that since the vehicle was insured with non-claimant No.3, therefore, in case of compensation the Insurance Company is responsible for the payment of same and prayed to dismiss the claim petition against him. Similar stand was taken by non-claimant No.2 , owner of the truck, in his reply. Non-claimant No.3, the insurer of the truck in its reply admitted that the said truck was insured with it for the period form 20.11.04 to 19.11.05 but denied all other averments made in the claim petition. It was also stated that the driver of the said truck, at the time of accident, was not having a valid and effective driving licence, as such, the Insurance Company 5 cannot be held responsible for the payment of compensation and it was prayed that the claim petition may be dismissed. 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 examined AW/2 Anil Kumar ( an eye witness of occurrence) and got exhibited documents produced by her , Ex.2, to Ex.112 in support of her claim. In rebuttal, the respondents got examined NAW /1 Chandraveer Singh and got exhibited documents Ex. A-1 and Ex.A-2 in defence. The learned Tribunal, after hearing both the sides, held that due to rash and negligent driving of truck by its driver the accident occurred and in that accident the claimant -appellant sustained several injuries. Vide its judgment and award dated 30.11.06, after considering the age and income of the claimant, awarded a total compensation of Rs.82,800/- plus interest thereon @ 6% per annum, holding non-applicants jointly and severally responsible for the payment of the same. 6 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 30.11.06, 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 claimant-appellants submitted that the learned Tribunal has not properly considered and appreciated the material, for awarding adequate compensation and has given an erroneous finding with regard to the quantum of compensation, therefore, the judgment and award is not sustainable to this extent and requires modification. It was further submitted that the learned tribunal has awarded inadequate amount of compensation. It was established before the learned tribunal that the appellant sustained severe injuries in accident and remained under treatment for a petty long time. Heavy expenditure occurred on medicine, during hospital stay and visits. It was also contended that on the basis of injury 7 sustained by her, a team of doctors , after thorough examination, has certified her permanent disability upto 36% vide Ex. 112. There was nothing material, from the side of respondents in rebuttal. But the learned tribunal, accepted the permanent disability upto 20% on her body, without any basis. It was also contended that the appellant has established that she was earning Rs.2400/- per month by job of tailoring . It was also contended that the appellant is having knowledge of computer science. She is also educated , therefore, she was in a position to earn much more, but due to accident, her working efficiency has been reduced , particularly, in job of tailoring and job of computer, the importance of arms and limbs are material and she has been adversely affected in that respect. Therefore, the learned tribunal should have considered the facts in right perspective, and should have awarded compensation on the basis of permanent disability, certified by the doctors. It was also contended that looking to her age of 27 years, she has to suffer these permanent disability through out her life. But the learned tribunal, has not appreciated the fact and granted only Rs.82,800/- compensation in all. It was also contended that the learned tribunal has awarded 6% rate of interest, that is also not 8 reasonable and that should be enhanced to 12 %. On the basis of these submissions, it was contended that the awarded compensation may be modified and just and reasonable compensation may be awarded and the appeal may be allowed. On the contrary, the learned counsel for the respondents supported the judgment and award given by the learned tribunal, and it was contended that the learned tribunal, after considering the material available on record, has granted reasonable compensation, that should be maintained and the appeal may be dismissed. I have considered the rival submissions and perused the finding on each issues and the conclusion drawn thereon. The main question remains for consideration is, whether the awarded compensation is not adequate, just and proper and it requires enhancement ? So far as the finding with regard to the factum of accident is concerned, I have perused the finding, that is based on well 9 reason , relying on the submissions of the witness, and the material available on record, and that is maintained. So far as the conclusion with regard to the quantum of compensation is concerned, I have seen the finding of learned tribunal. In this respect AW/1 Smt.Sunita Garg, claimant herself , has appeared before the learned tribunal. She has stated in detail how the injuries were caused and under what process she remained under long treatment. She has further stated that due to injuries her working efficiency has been reduced and her usual income had been adversely effected. On the basis of injuries sustained by her a team of Government doctors have certified her permanent deficiency upto 36%. She has also stated in her statement that out of tailoring job, she used to earn Rs.2400/- per month. She had also stated that she was having knowledge of computer science, and material in support thereon, has also been placed on record. But the learned tribunal, has determined her yearly income as Rs.15,000/- per annum and on that basis assessed the compensation taking into consideration her permanent disability upto 20%. There was no basis to reduce the permanent disability as given by the doctors , against the 10 certificate Ex.112, available on record, specially when there was no material in rebuttal. It has also come on record that she remained hospitalised and she has suffered a lot. But the learned tribunal has not awarded adequate compensation. Considering the over all material available on record, at least taking into consideration 36% permanent disability, a loss of Rs.54,000/- per annum, can safely be assessed and taking her age in to consideration, by applying the multiplier of 18, compensation comes to Rs.97,200/- but the learned tribunal has awarded Rs.27,600/- for her medical expenses and Rs.1200/- for attendants and hospital expenses. But no amount has been awarded under pain and suffering and under other expenses. Thus, Rs.10,000/- is appropriate to be awarded in this respect. In this way, the total compensation comes to Rs.1,36,000/-. The learned tribunal has awarded 6% interest per annum that is on lower side, for which no reason has been awarded. Taking into consideration the rate of interest of nationalised bank, rate of interest is enhanced to 7.5%. 11 Thus, on the basis of aforesaid discussion, the appeal is partly allowed and awarded compensation of Rs.82,800/- is enhanced by Rs.53,800/- , that comes to Rs.1,36,000/- plus 7.5% interest on total amount of compensation, from the date of filing of the claim petition. Rest of the judgment is maintained. No order as to costs. (MANAK MOHTA), J. l.george