- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL MISC. APPEAL No. 534 of 1996 SUJA RAM & ANS V/S VIJAY RAJ & ORS Mr. KR CHOUDHARY, for the appellant / petitioner Mr. J CHOPRA, for the respondent Date of Order : 8.2.2008 HON'BLE SHRI N P GUPTA,J. ORDER ----- This is owner's appeal against the award of the Motor Accident Claims Tribunal, Balotra dated 30.3.95, whereby an award of Rs.90,100/- has been passed for compensation, on account of personal injury suffered by the injured claimant respondent No.1. The claimant has also filed cross-objection for enhancement of the compensation awarded, and therein the finding on the question of contributory negligence, as arrived at by the learned Tribunal, has also been challenged. The brief facts of the case are, that the respondent claimant filed a claim petition before the Motor Accident Claims Tribunal, Balotra alleging inter-alia, that on 2.10.92, Vijayraj was going on his scooter towards industrial area, Khed road, at a slow speed, when he reached near house of Manak Lal Shrimal on account of - 2 - damage in the road he applied brakes and at that time, the defendant No.1 came driving his tractor negligently, and hit the scooter from behind, with the result that Vijayraj fell down alongwith scooter, and the right tyre of the tractor ran over the right leg of Vijayraj, the injured also sustained head injury, and injuries on the entire body. Then pleading different facts about injuries of the claimant, claim has been filed for a sum of Rs.22,43,000/-. The defendant No.2 owner contested the claim by filing reply, and it was denied that the accident was caused on account of negligence of defendant No.1, rather the tractor was being driven on the correct side with slow speed, and a wrong challan has been filed, Vijayraj had no driving licence, rather he was learning the driving scooter, and on account of his loosing balance, he struck against rear tyre of the tractor, and on account of the scooter falling on his leg, he sustained injury and fracture in the leg, for which defendant no.2 is not at all responsible. It was denied that the injured received any head injury. The learned Tribunal framed 6 issues; issues No.1 and 5 related to the question of negligence, and issue No.2 was about quantum. During trial the claimant examined 3 witnesses, including the injured Vijayraj, A.W.2 Shanker Lal an eye-witness, and Surendra, the brother of the deceased, who attended him all through. Learned Tribunal deciding issues No.1 and 5 together, cataloged the evidence - 3 - including site inspection note Ex.4, the mechanical examination report of the scooter, Ex.9 and found that the leg of the injured was run over by the tractor, and that the accident cannot be said to be caused on account of negligence of the claimant only, rather in the totality of circumstances, the claimant was negligent to the extent of 40%, while negligence of the driver of the tractor was 60%. So far the totality of circumstances considered, is concerned, it has been considered that the accident occurred near divider, and if the tractor would have been moving on the left side, tractor's wheel would not have run over the injured's leg, but then, the manner in which accident occurred, it does involve the negligence of the injured also to some extent. Assessing compensation while deciding issue No.2, learned Tribunal has assessed Rs.18,000/- for loss of income for 9 months. Then Rs.48,830/- has been assessed for medical expenditure duly supported by bills. Then against the demand of Rs.50,000/-, Rs.10,000/- has been assessed for transportation of the victim for medical treatment, and one person alongwith him. Then Rs.50,000/- has been assessed as compensation payable for the mental pain and agony, on account of the injuries sustained. Thus, total compensation has been assessed at Rs.1,26,830/- and deducting 40%, the claimant has been found entitled to Rs.75,098/-. Then pendente-lite interest has been awarded - 4 - at a consolidated figure of Rs.10,090/-, and award has been passed directing this amount to carry interest @ 12% from the date of award till realisation. Assailing the impugned award, it is contended by learned counsel for the appellant, that the finding on the question of negligence, being covered by issues No.1 and 5 is bad, inasmuch as, from the material on record, it is clear, that the injured had fallen down on account of the scooter loosing balance, and had sustained injuries in that process only. Thus, no liability could be fastened even at the 60% on the appellant. challenging the quantum, only submission made is that the amount of Rs.50,000/- awarded for mental pain and agony is excessive. The claimants have also filed cross-objections in this regard, as noticed above, and arguing the cross- objection it is contended by learned counsel for the claimant, that a look at the evidence of the claimants, coupled with the site plan, Ex.4 does show, that there was no negligence on the part of the injured in causing the accident, as injury was sustained by him only on account of being hit by the tractor, and the wheel of the tractor having run over the leg. It was also submitted, that the defendants had not led any evidence whatever, and over and above all this,even the stand taken in the written statement has not been put to the claimant injured in - 5 - cross-examination. Then regarding quantum, it was contended that there is nothing wrong in the award of Rs.50,000/- for mental pain and agony, looking to the nature of the injuries suffered, and long drawn medical treatment undertaken, which was required to be undertaken. However, it was contended that the learned Tribunal has erred in not awarding any compensation whatever for the future loss of income on account of the partial permanent disablement suffered by the victim, inasmuch as, his leg has been shortened by 1½ inch, and at least Rs.12,000/- should have been awarded on that count. Then assailing the assessment of compensation for journey, it was contended that it has been deposed by A.W.3 that the injured was taken from Jodhpur to Bombay by air, and was accompanied by one doctor, and his father. Though air ticket has not been produced on record, but then on this aspect, there is no cross-examination, and after looking at the documents of own file, learned counsel for the claimant informed, that the air ticket charges paid were worth Rs.13,995/- for the three persons. It is contended that apart from this, the injured was taken from Balotra to Jodhpur, then was taken back from Jodhpur to Balotra, after three months' hospitalisation, then he was again taken once for check-up. Thus, the award of Rs.10,000/- is grossly inadequate. I have considered the submissions and have examined the records. - 6 - A look at the statement of the injured, A.W.1, Vijayraj shows that he has clearly deposed, that on the fateful day he was going on the scooter to industrial area, and when he reached near the betel and merchant shop of Hari Ram, his scooter slipped and he fell down, at that time the delinquent tractor came from behind and ran over his leg, and that he sustained injury on his head from the tractor, and his femur bone got fractured. It is significant to note that in cross-examination, nothing has been suggested to this witness, as to how did he fall, or that as a matter of fact he received injuries only on account of fall from the scooter, or on account of the scooter having fallen on him, and not by any run over by the tractor, or by any impact of the tractor. Though this is the pleading taken in the written statement. Likewise, coming to A.W.2, the eye witness, he has also deposed that the tractor was coming from behind, and the tractor driver intended to overtake, and in that process, hit the scooter, as a result of which the scooter driver fell down, and the tractor's larger wheel ran over the thigh of the scooter driver. In cross-examination, this witness has also not been suggested anything, that the injuries were suffered on account of the fall of the scooter on the injured, of course, his reliability was sought to be assailed on the ground of the possibility of his seeing the incident. With this, significantly no evidence has been led on the side of - 7 - the defendants so much so that even the driver of the tractor has not mustered the courage of appearing in the witness box. Then a look at the site plan shows that the tractor is lying towards further west of the scooter, which is lying at point 'A', while the tractor is lying at point 'B'. Both these places are towards the left hand side of the road being southern side. In such circumstances, it cannot be said that if the scooter driver was driving at his left hand side, he was driving on any wrong side, and as appears from the site plan Ex.4, there was enough space available in the north for the tractor, to find the passage without causing any impact on the scooter, or the fallen scooter driver. Even as is pleaded in the written statement that the scooter driver dashed against the tyre of the tractor, which obviously means that the injured did come in contact with the tractor, which would not have been possible if the tractor driver would have taken use of the clear passage available in the north of the road. In my view, the finding recorded by the learned Tribunal about scooter driver being also negligent to some extent is not at all sustainable. It is clear on record that the accident was caused solely on account of the negligence on the part of the tractor driver. The finding of the learned trial Court on issues No.1 and 5, to this extent, is set aside/modified. Then coming to the question of quantum, so far as - 8 - the award of Rs.10,000/- by the learned Tribunal on the count of journey of the victim injured to and fro Jodhpur amount to Rs.10,000/-, in my view, is grossly inadequate, inasmuch as, the learned Tribunal has not taken into account the fact that A.W.2 had clearly deposed that the injured had taken to Bombay by air duly accompanied by a doctor and his father. Obviously, this stand by itself shows the magnitude of the seriousness of the injuries. Likewise, the learned trial Court has not taken into consideration the expenditure incurred in the victim being carried to Jodhpur from Balotra and then the persons, who had gone to Bombay being required to return to Jodhpur or Balotra, as the case may be. Then so far his having in requirement to go second time to Bombay is concerned, in that regard, I do not find any evidence on record, either oral or documentary. However, in my view, the expenditure incurred for the above purposes, and the expenditure incurred for the attendants in Bombay, including their lodging and boarding etc. is required to be adequately assessed, and awarded, and in my view, the appropriate amount to be awarded under this head should be Rs.25,000/- instead of Rs.10,000/-. Accordingly, this item of award of Rs.10,000/- is enhanced to Rs.25,000/-. Coming to the award of Rs.50,000/- on account of mental pain and agony, I do not find it to be excessive. Admittedly or in any case as found by the learned Tribunal, - 9 - the victim had to remain under treatment for good long 9 months, which included 3 months' hospitalisation at Bombay and ultimate shortening of leg, resulting into permanent disablement, the mental pain and agony suffered by the victim can be better comprehended than described and thus, this amount does not require any downward interference. As appears from the impugned award that no amount has been awarded for the loss of income on account of the partial permanent disablement suffered by the injured, which is clearly established from the evidence on record, and in my view, the amount of Rs.12,000/- as claimed by the learned counsel for the claimant cannot be said to be excessive. Therefore, the claimant is also awarded a sum of Rs.12,000/- by way of compensation for future loss of income on account of partial permanent disablement comprising in shortening of the right leg. Consequently, the appeal is dismissed and the cross-objections are allowed, the claimant is held entitled to the entire amount of compensation as assessed, and the assessment of compensation is enhanced by a total sum of Rs.27,000/- as above. The parties shall bear their own costs. ( N P GUPTA ),J. /tarun/