IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. No. 663 of 2006 Shiv Kumar … Appellant Vs Smt. Susheela Devi & another … Respondents Sri Mohd. Azim, learned counsel for the appellant Sri R.B. Agarwal, learned counsel for the respondent No. 2 Hon’ble B.C. Kandpal, J. This appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed by the appellant against the judgment and award dated 03.08.2006 passed by Motor Accident Claims Tribunal/District Judge, Udham Singh Nagar in M.A.C.P. No. 163 of 2004, Shiv Kumar Vs Smt. Susheela Devi & others. 2. Brief facts of the case are that on 10.11.2000, the claimant – Shiv Kumar was going along with Kailash Chandra and & others on the tractor trolley of Baburam for Tigri Mela. When the said tractor trolley reached near Gajrolla – Moradabad National Highway, suddenly a truck bearing registration No. HR47A/0687, which was being driven by its driver in a very rash and negligent manner, dashed with the said tractor trolley. In the said accident, seven persons were killed at the spot whereas the claimant/appellant sustained injuries on his head and left leg. He was admitted in the Jeevan Jyoti Hospital, Gajrolla where he was remained under treatment between 10.11.2000 to 24.11.2000 and spent Rs. 30,000/- on his medical treatment. According to the claim petition, he was 21 years of age and used to earn Rs. 4,100/- per month as a cleaner. Therefore, he filed the claim petition for a sum of Rs. 5,00,000/- as compensation in lieu of the physical and mental agony received by him in the accident. 2 3. Thereafter, notices were issued to the opposite parties. Opposite party No. 1 – owner of the vehicle in question did not appear before the court below, therefore, the proceedings against her proceeded ex-parte. 4. Opposite party No. 2 – the New India Insurance Company Ltd. contested the claim petition by filing its written statement before the Tribunal alleging therein that the claim petition was liable to be dismissed for non joinder of the necessary parties. It has also pleaded that the accident took place due to rash and negligent driving of the tractor trolley. Therefore, the claim petition was liable to be dismissed. 5. On the basis of the pleadings of the parties, the Tribunal has framed relevant issues, which were discussed in a great detail. Thereafter, both the parties led evidence in support of their case. After hearing learned counsel for the parties and perusing the entire material available on record, the Tribunal decreed the claim petition for a sum of Rs. 96,000/- along with interest @ 5% per annum from the date of filing the claim petition till the actual date of payment in favour of the claimant/appellant vide judgment and award dated 27.07.2006. 6. Feeling aggrieved by the aforesaid judgment and award, the claimant/appellant has preferred this appeal before this Court for enhancement of the amount of compensation. 7. Heard Sri Mohd. Azim, learned counsel for the appellant, Sri R.B. Agarwal, learned counsel for the respondent No. 2 and perused the record. 3 8. From the perusal of the record, it reveals that the Tribunal while deciding the issue No. 1, relating to the rash and negligent driving has considered the statement of Shiv Kumar (P.W.1), who has produced the first information report in order to support his version. On the other hand, Insurance Company has raised this plea that the accident took place due to rash and negligent driving of the tractor trolley, but the insurer of the truck (Insurance Company) could not produce any evidence in support of its case. Therefore, the Tribunal after scrutinizing the evidence available on record held that the accident took place due to rash and negligent driving of the truck No. HR47A/0687. The finding recorded by the Tribunal is perfectly justified and need no interference. I am in total agreement with the finding recorded by the Tribunal relating to the rash and negligent driving. 9. As far as the amount of compensation is concerned, the Tribunal has decided this issue while deciding the issue No. 3. The Tribunal has awarded a sum of Rs. 21,000/- against the expenses incurred in the medical treatment. The claimant produced the bill pertaining to Rs. 21,000/-. The Tribunal believed all these bills and awarded a sum of Rs. 21,000/-, I think, this amount is just and proper and needs no interference. As far as the amount of compensation awarded by the Tribunal against the disability suffered by the appellant in this accident is concerned, that amount is Rs. 75,000/-. It reveals from the perusal of the record that the claimant suffered a disability upto an extent of 40% on account of injuries sustained by him in the accident. The percentage of the disability suffered by the appellant has not been controverted by the Insurance Company. The appellant had been working as a cleaner in the truck. It is definite that after suffering the disability upto an extent of 40%, his 4 working capacity would be effective with the result his earning capacity would also be suffered. Therefore, the amount awarded by the Tribunal for a sum of Rs. 75,000/- on account of disability suffered by the appellant appears to be on the lesser side. I am of the view that the appellant should be awarded at least a sum of Rs. 1,00,000/- under this head. 10. The claimant also must have incurred at least a sum of Rs. 4,000/- on his special diet as well as on his conveyance while he was shifted to the hospital. Therefore, the claimant should be awarded a sum of Rs. 4,000/- also under this head. Thus the total amount of compensation comes to Rs. 1,25,000/- (21000 + 4000 + 100000). As far as the interest indicated in the impugned judgment and award shall remain intact. 12. For the reasons stated above, the appeal is partly allowed. The impugned judgment and award is modified to an extent that the claimant is entitled for a sum of Rs. 1,25,000/- instead of Rs. 96,000/- along with interest as indicated in the impugned judgment and award. (B.C. Kandpal, J.) 17.12.2008 ASWAL