1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T RAJ KUMAR vs. BANSHI LAL& ORS. S.B. CIVIL MISC. APPEAL NO.660/07 Under section 173 of the Motor Vehicle Act 1988 against the judgment and award dated 01.12.2005 passed by the learned Judge, Motor Accident Claims Tribunal, Chittorgarh in Motor Accident Claim Case No.410/2003. DATE OF JUDGMENT :: 13.10.2008 PRESENT HON'BLE MR.JUSTICE MANAK MOHTA Mr.Manish Pitaliya for the appellant. Mr.L.D.Khatri for the respondents. BY THE COURT : The present appeal has been filed by the claimant- appellant against the judgment and award dated 01.12.2005 passed by the learned Judge, Motor Accident Claims Tribunal, Chittorgarh in Motor Accident Claim Case 2 No.410/2003 whereby the learned Tribunal has partly allowed the claim petition in favour of the claimant-appellant and against respondents, holding their joint and several responsibility to pay total compensation of Rs.1,10,000/- with interest @ 6% per annum from the date of filing of the claim petition i.e. 21.07.03. The brief facts of the case, which are relevant for the disposal of the appeal, are that on 02.11.02 the claimant appellant Raj Kumar was going along with his goods towards Bhilwara by travelling in Loading Taxi No.RJ-09/G-2700 which was being driven by Banshilal driver, non-claimant No.1, carrying urad, moong, chavle and other grocery items . At about 1.30 PM, when the taxi reached near hotel 'Sanjeevni', about 9 Kms. ahead of Gangrar , all of a sudden due to rash and negligent driving of the taxi by its driver , the taxi overturned as a result of that the claimant appellant sustained several grievous injuries on different parts of the body, including fractures, resulting in permanent disability. A report of the said incident was lodged at Police Station, Gangrar, where FIR No.250/2002 was registered under 3 section 279 , 337 and 338 IPC and the police, after usual investigation, filed challan against the driver of the said jeep for committing the offence of rash and negligent driving and causing injuries to the claimant appellant. At the time of accident the said Taxi was owned by Ishaq Mohd. and it was insured with non-claimant No.3 National Insurance Company. The claimant-appellant submitted a claim petition before the Motor Accident Claims Tribunal, Chittorgarh on 21.07.03 under Section 166 of the M.V. Act, for awarding adequate compensation for his permanent disability and several other injuries sustained by him in the said motor accident. It was stated that doctors have certified his permanent disability upto 27% vide Certificate Ex.40. In the claim petition it was averred that the claimant was only of 37 years at the time of accident and he was earning Rs.10,000/- per month from the grocery shop M/s UdaiLal Sohan Lal Jain owned by him and on account of said accident he became unable to do the business as usual as earlier. Thus, it was 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.20,34,000/- was 4 claimed as compensation under various heads. After issuance of notices of claim petition, the driver and the owner of the said Taxi, non-claimant No.1Banshi Lal and non-claimant No.2 Ishaq Mohd. submitted their reply and admitted the fact that at the time of the accident, Banshi Lal was the driver and Ishaq Mohd. was the owner of the said Taxi but denied all other averments made in the claim petition and prayed for rejection of claim petition. The Insurance Company, non-claimant No.3, while submitting a detailed reply, admitted the factum of the Taxi being insured with its Company, however, at the same time denied the averments made in the claim petition and stated that the driver of the Taxi , was not having a valid and effective driving licence at the time of accident and further stated that the claimant appellant who was travelling in the loading taxi unauthorizedly has sustained any injury, the insurance company is not responsible for payment of compensation and prayed to reject the claim petition . 5 The learned Tribunal, on the basis of pleadings of the parties, framed the relevant issues with regard to responsibility of causing accident and with regard to quantum of compensation along with responsibility of paying the same. The claimant-appellant Raj Kumar, examined himself as AW/1 and got exhibited documents produced by him Ex.1 to Ex.42 , in support of his claim. In rebuttal, the non-claimant No.3 insurer, got examined NAW/1 N.R.Tanwar and produced Ex.A/1, copy of insurance policy of loading taxi. Non-claimant No.1 and 2 have not examined any witness in defence. The learned Tribunal, after hearing both the parties , held that the loading taxi was driven at a high speed and in negligent manner and due to that the accident occurred, in which the claimant -appellant Raj Kumar sustained several injuries and vide its judgment and award dated 01.12.05 over ruled the other contentions raised by the respondents. Further , considering the material , awarded a total compensation of Rs.1,10,000/-, plus interest thereon @ 6% per annum, holding non-applicant respondents jointly and severally responsible for 6 the payment of the same. The claimant, 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 01.12.05 to the extent of quantum of compensation 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-appellant 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 and is required to be modified to this extent and prayed that adequate and reasonable amount of compensation may be enhanced. It was further contended that due to several injuries sustained by him a Medical Board of doctors has certified the permanent 7 disability upto 27% and a Certificate to this effect (Ex.40), was given by the Head of the Department of the Government Hospital, after examination, but the learned tribunal has discarded these important evidence without assigning good reasons. It was urged that due to permanent disability he cannot work as was doing earlier . Further he has to face disability through out his life, that should have been taken into consideration. His working capacity has been reduced . Thus, he has suffered loss of income and in future also has to suffer . Looking to his age and injuries sustained by him, that has been certified by doctors upto 27% vide Ex.40. On the basis of income, reasonable compensation should have been assessed but learned tribunal has committed grave error, that should be rectified. Learned counsel for the appellant submitted that on other heads also learned tribunal has not properly awarded compensation. He drew my attention towards the material available on record. On the basis of these submissions, it was prayed to enhance the compensation. Further rate of interest as assessed by the tribunal to be 6% may also be enhanced and the appeal may be allowed. 8 On the contrary, learned counsel for the respondent refuted the contentions and supported the judgment and award passed by the tribunal and submitted that already just compensation has been awarded that does not require further enhancement and prayed that the appeal may be dismissed. I have considered the rival submissions and perused the material available on record. The main question arises for consideration is whether the awarded compensation is not just and reasonable and requires enhancement ? So far as the finding with regard to factum of accident and responsibility for payment thereof is concerned, I have perused the finding given by the learned tribunal, that has not been agitated by any party, that is based on material available on record and that does not suffer from any infirmity, thus that deserves to be maintained. I have also considered the material available on record, keeping in mind the contentions raised by the learned counsel for the parties and the finding with regard to compensation arrived at by the learned tribunal. 9 In this respect, first of all I have perused the statement of claimant AW/1 Raj Kumar in which he has stated that in accident his femur bone of right leg was fractured. Firstly he was treated at Bhilwara and thereafter he was shifted to Udaipur and treated at Mewar Orthopedics Hospital, Udaipur. His leg was operated upon and steel rod was inserted and due to this, he remained under complete rest for a period of six months. He has further stated that even after the treatment, he could not work as earlier. The doctor , on the basis of injuries sustained by him, has certified permanent disability upto 27%. He has also produced and proved permanent disability Certificate Ex.40. He has further stated that he cannot walk freely and is unable to squat and cross the leg as earlier. There is a restricted right hip joint movement and his leg is shortened by 1/2”. On the basis of these statements it can easily be inferred that his working efficiency has been badly effected. In his statement he has also stated that he was engaged in grocery shop and was earning Rs.10,000/- per month from that business activity. In support of his contention, he has also placed documentary evidence showing his income prior to accident and after accident. His age has been 10 shown as 37 years at the time of accident. The learned tribunal , after considering the material available on record, has awarded compensation on the basis of medical bills Rs.19,650/-, the expenditure incurred for the treatment by the claimant and taking into consideration the time consumed in recovery of six months, awarded loss of income of that period and expenses incurred for keeping attendant, a total sum of Rs.16,680/-. Thus, under these heads a total sum of (19,650+16,680/-)=Rs.36,330/- has been awarded. Further , with regard to pain and suffering on the basis of injuries, as stated to be fractured femur bone and other injuries and its further effect thereof, a lump sum Rs.73,670/- has been awarded. In this way, a total sum of (36,330+73,670) =Rs.1,10,000/- has been awarded plus further interest has been awarded at the rate of 6% per annum. But considering these amounts of compensation awarded under different heads, no adequate and reasonable compensation has been awarded specifically under the head of permanent disability. A lump sum amount has been awarded taking into consideration the injuries sustained by him, with out assessing the future loss of income in the light of percentage of permanent 11 disability, his age and income. There is sufficient material available on record and looking to his injuries the doctor has certified permanent disability upto 27% vide Ex.40. The tribunal should have given due weight to this important piece of evidence but the tribunal has not given due consideration to this important evidence. Therefore, the awarded compensation requires reconsideration and appellant is entitled to get reasonable compensation under this head. Taking into consideration the permanent disability as proved by the document to be 27%, (Ex.40) and there is no rebuttal from the other side that the certificate has been issued by a team of doctors of Government Hospital at Udaipur. The certificate has been issued after examination of the claimant. Taking into consideration the injuries sustained by him the permanent disability assessed by the doctors is not unjustified. On the basis of permanent disability and considering his income as stated by the claimant, supported by the documentary evidence the loss of income can safely be assessed as Rs.500/- per month and further considering his age, taking suitable multiplier of 16 , compensation under the head of permanent disability comes to (500x12x16)=Rs.96,000/- but the learned 12 tribunal has awarded compensation under pain and suffering and considering permanent disability a total sum of Rs.73,670/-. Thus, after reassessing separately that is assessed as under that, under the head of pain and suffering looking to the injuries Rs.30,000/- is reasonable and under head of permanent disability Rs.96.000/- total (30,000+96,000) Rs.1,26,000/- Therefore, it is enhanced by (1,26,000 -73,670) =Rs.52,330/-. The claimant appellant is entitled to receive the same. I have also considered the compensation awarded under other heads, looking to the material available on record that the claimant remained under treatment for six months , he could not work for gain but the tribunal has awarded , along with attendant expenses, a sum of Rs.16,680/- that is not reasonable. It is enhanced by Rs.30,000/- that comes to Rs.46,680/-. The claimant will be entitled to receive the same. Thus, on the basis of aforesaid discussion, the compensation awarded by the learned tribunal of Rs.1,10,000/- is enhanced to Rs.1,92,330/-. The claimant will also be entitled to get interest on the enhanced amount from the date of filing 13 of claim petition. Learned tribunal has awarded 6% rate of interest on the compensation amount but no reason has been assigned for lesser rate of interest. Considering the submission and the prevailing rate at that time, a minimum enhancement from the awarded rate of interest of 6% per-annum to 7.5% is justified. Thus, claimant appellant will be entitled to get interest on the awarded amount and on enhanced amount @ 7.5% per annum from the date of filing of the claim petition. In the net result , on the basis of aforesaid discussion, appeal is partly allowed to the extent of compensation, that is modified and enhanced from Rs.1,10,000/- to Rs.1,92,330/-. Further, interest will be chargeable at the rate of 7.5% . For the payment of enhanced amount of compensation, owner as well as the insurer of the vehicle are held jointly and severally responsible. The vehicle was found insured at the time of accident. The Insurance Company is, therefore, further directed to make payment within a period of two months from the date of order, failing which the claimant will be entitled to initiate recovery proceedings in accordance with law. Rest of the 14 judgment is maintained. No order as to costs. (MANAK MOHTA), J. l.george