{ 1 } IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL MISC. APPEAL NO.122/1998 (SMT.TARA BAHIN VS. MAHAVEER PRASAD & ORS.) Date of order : 15.3.2010 HON'BLE MR.JUSTICE A.M.SAPRE Mr. Rajesh Panwar, for the appellant. Mr. Jagdish Vyas, for the respondent. <><><> 1. This is a misc. appeal filed by claimant under Section 173 of Motor Vehicles Act (for short hereinafter called “the Act”) against an award dt. 21.4.97 passed by MACT (2), Udaipur in Claim Case No.147/94(MAC) whereby the Claim Tribunal rejected the claim petition of claimant filed under Section 166 of the Act claiming compensation for the injuries sustained in vehicular accident. 2. Facts of the case are these: 3. It is an injury case said to be sustained by claimant in vehicular accident. According to claimant, who is lady aged around 50 years was travelling on 31.12.93 in one passenger Bus bearing number GJT -159 as one of its passengers from Kherwada to Nathdwara. It { 2 } is at that time, one truck bearing number HR 38/0725 owned by NA-2 insured with NA3 and driven by NA-1 was coming from opposite direction and dashed to the Bus in which claimant was travelling. It is due to this dash, the claimant sustained injuries on her body, which gave rise to filing of claim petition by her, out of which this appeal arises. The claim petition was filed under Section 166 of the Act against the driver (NA-1), owner (NA-2) and insurer of offending vehicle i.e. Truck (NA-3) claiming compensation for the injuries sustained by claimant. It was alleged, inter alia, that accident in question occurred due to sole negligence of driver of offending truck (NA-1) and since on the date of accident, the truck was owned by NA-2 and insured with NA-3 and hence all the three are liable jointly and severally to pay compensation to the claimant for the injuries sustained by the claimant so also the expenses incurred in receiving the medical treatment. It was alleged that claimant sustained fracture in vertebra which resulted 15% of temporary disablement in her body. It was also alleged that claimant had to undergo medical treatment for considerable time in various hospital for the injuries sustained and for that she spent substantial money. In all, thus, she claimed a sum of Rs.3,32,400/- under different heads. 4. The claim was contested only be Insurance Company (NA-3). So far as Driver and Owner of Truck were concerned, they remained ex parte. In substance, the { 3 } defence of Insurance Company was that of denial of claimant's claim. Parties adduced evidence. 5. By impugned award, the Tribunal decided 3 claim petitions i.e. one filed by present claimant and other 2 filed by two claimants who too were travelling in the same bus along with present claimant. The Tribunal dismissed the claim of appellant (claimant) essentially on the ground that it is not proved by her that she sustained injuries on her body in the accident on 31.12.93. So far as other 2 claims were concerned, the Tribunal allowed both of them in part by awarding them reasonable compensation. It was held therein that accident in question occurred due to negligence of driver of truck and that those 2 claimants did suffer injuries while travelling in the bus due to impact of dash. In these 2 cases, the respondents have not filed any appeal. This appeal is filed by claimant whose claim petition was dismissed by Tribunal. 6. Having heard the learned counsel for the parties and on perusal of the record of the case, I am inclined to allow the appeal and while setting aside of the impugned award, allow her claim petition in part and in consequence award reasonable compensation to her as indicated infra for the injuries sustained by her in the accident in question. { 4 } 7. I have gone through the evidence adduced by parties. Having gone through the same, I am of the view that Tribunal was not right in its reasoning and conclusion while rejecting the claim of appellant. It should have been allowed being just and reasonable for award of compensation. 8. It is not in dispute that claimant was the bonafide passenger of Bus in question. It is proved by Ticket filed by claimant (Ex.P/1). It is also held by Tribunal in claimant's favour. I also hold that claimant was bonafide passenger of the Bus and was travelling as passenger in the Bus on 31.12.1993. It is also not in dispute as has been held by Tribunal in this very case by recording a categorical finding in other 2 claim cases (112/94 and 91/94) that accident in question did occur on 31.12.1993 with the truck in question due to negligence on the part of its driver (NA-1). It was also held that it was owned and insured with NA2/3. This finding is not assailed by respondents either in this appeal by filing any cross-objection or cross-appeal in other connecting 2 claim cases. In this view of the matter, I hold that accident in question occurred due to sole negligence of NA-1 and hence all the three non-applicants are liable to indemnity the insured and is required to pay the compensation to the claimant for the loss sustained in the accident. { 5 } 9. In my considered view, the claimant was able to prove that injuries that she sustained were in the accident in question and not prove to it or subsequent to it. Indeed there is nothing on record to hold otherwise. The medical papers and treatment received by the claimant unmistakably prove that the injuries were sustained by her in this accident only. I have no reason to disbelieve the sworn testimony of claimant also on this issue beside the documentary evidence filed in support of her case for proving this fact. Infact, why should the claimant speak lie and file a false case for the injuries is she had not sustain any injury. 10. I do not agree to the reasoning of Tribunal when it was held that since in the MLC done, no injuries were noticed and hence it can not be held that these injuries were sustained in the accident. In the first place, since no X-Ray was taken in MLC and hence the medical was not fully done. Secondly, when immediately after the MLC, the X-Ray was got done, the injuries were noticed and lastly the medical treatment papers clearly go to show that they relates to the period immediately after the accident. This clearly shows that injuries were suffered only in the accident occurred on 31.12.1993 and not later on or earlier. There is nothing in the cross-examination of claimant or in the rebuttal evidence to prove otherwise. The Tribunal was thus too technical in its approach in appreciating the evidence and gave importance to { 6 } irrelevant facts for denying the just claim of claimant. 11. I also do not subscribe to the reasoning of Tribunal when it was held that since no such discrepancies was mentioned or/and stated given in Section 161 proceedings by the claimant and hence she is not entitled to claim any compensation for the injuries. This reasoning to say the least is perverse. In the first place, the issue in this case arose out of civil case and not in criminal case. Secondly, it was not necessary to say all these things in Section 161 proceedings by the claimant. Thirdly, there was no occasion for the Tribunal to have made Section 161 proceedings as basis for deciding the claim petition under Section 166 of the Act and lastly when there was independent evidence available on record to decide the issue, then in such event, the same had to be decided on such material rather than to find fault in Section 161 proceedings. 12. This takes me to the next question as to what should be the reasonable compensation that can be awarded to claimant for the injuries sustained by her. 13. I have gone through the evidence adduced by the claimant on the issue of injury sustained by her. In my opinion, taking into consideration the nature of injury, the extent of damage caused in her legs to the extent of 15%, temporary disability occurred in her body, resulting in { 7 } reducing her capacity to some extent to work for some time, the expenditure incurred in receiving medical treatment in actual and the loss, mental pain / suffering suffered due to her involvement in accident, I consider it proper to award in lump sum the compensation Rs.50,000/-. In other words, in my view, the claimant is held entitled for a total sum of Rs.50,000/- by way of compensation for the injuries sustained by her. 14. The compensation awarded to the claimant is a just, reasonable and proper looking to the facts and circumstances of the case and taking into account the law laid down by the Supreme Court in these types of cases in relation to several heads taken note of supra with reference to evidence brought on record by the parties. Indeed in such cases, no fixed and any static formula as such is provided for determining the compensation and the same is required to be determined on the basis of totality of evidence adduced and the relevant factors which are required to be taken into consideration as mentioned supra. It is on this basis, the courts have to work out award of reasonable compensation to the claimant for the injuries sustained. 15. Learned counsel for the appellant cited some authorities for claiming enhancement. I have gone through these authorities. In my opinion and as observed supra, every case depends upon facts of each case and one can { 8 } rely upon the cases for awarding compensation. Indeed taking into consideration these authorities and then applying the law so laid down to the facts of this case, I have arrived at the figure for determining compensation mentioned supra. 16. In this view of the matter, the appeal succeeds and is allowed in part. Impugned award is set aside. The claim petition is allowed against the non-applicants and an award of Rs.50,000/- is passed against non-applicants jointly and severally. The awarded sum will carry interest at the rate of 6% p.a. from the date of application till realization. All other findings are upheld being not under challenge. Counsel fees Rs.500/-, if certified. (A.M.SAPRE ),J. /Anil/