1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Divesh Kikawat vs. Mahaveer Lal Gangawat & Anr. S.B. CIVIL MISC. APPEAL NO.497/2007 against the judgment and award dated 06.02.2006 passed by the learned Judge, Motor Accident Claims Tribunal,(Fast Track), Banswara, in Motor Accident Claim Case No.345/2005 . DATE OF JUDGMENT :: 06.08. 2008 PRESENT HON'BLE MR.JUSTICE MANAK MOHTA Mr.M.Trivedi for the appellant. Mr.Anil Bachhawat ] for the respondents. Mr.P.Nayak ] BY THE COURT : The present appeal has been filed by the claimant- appellant against the judgment and award dated 06.02.2006 passed by learned Judge, Motor Accident Claims Tribunal, (Fast Track), Banswara (in short 'the Tribunal') in Motor 2 Accident Claim Case No. 345/2005 , whereby the learned Tribunal has partly allowed the claim petition in favour of the claimant-appellant and against respondents holding their responsibility to pay total compensation of Rs.93,500/- with interest @ 6% per annum from the date of filing of the claim petition i.e. 01.07.02. The brief facts of the case which are relevant for the disposal of the appeal are that on 01.05.2002 at about 01.00 PM claimant appellant, was going on his motor cycle towards Banswara , when he reached near Moujarati talai, a car bearing No.R.J.03-C-0545, which was being driven by non-claimant No.1 Mahaveerlal Gangawat in a rash and negligent manner and with a high speed, hit him as a result of which he fell down and sustained several grievous injuries on his person, including two fractures. The claimant appellant was admitted in the M.G.Hospital, Banswara and was under treatment for several months. His motor cycle was also damaged badly. It was averred that the accident took place due to the rash and negligent driving of the said car by its driver Mahaveer Lal Ganganawat, non-claimant No.1, and at the time of accident, the car was insured with non-claimant No.2 The National 3 Insurance Co.Ltd. The report of the said incident was lodged at Police Station, Banswara and FIR No.167/2002 was registered and the police, after usual investigation, filed challan against the driver-cum-owner of the car, for committing the offence of rash and negligent driving and causing injuries to the appellant. The claimant appellant submitted a claim petition before the Motor Accident Claims Tribunal, Banswara on 01.07.02 under Section 166 of the M.V. Act for awarding adequate compensation for the injuries received on his face, compound fractures on leg, and several other injuries sustained by him in the said motor vehicular accident. In the claim petition, it was averred that the claimant was only 21 years at the time of accident and he was an employee of LIC, Banswara, he was also doing the work of transportation, whereby he was earning Rs.6,000/- per month and on account of said accident, he remained under treatment since the date of accident for several months. 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.24,32,000/- was claimed as compensation, under various heads. 4 Non-claimant No.1,owner -cum-driver of the said car, and non-claimant No.2, insurer of the said car, filed their separate replies and denied almost all the averments made in the claim petition and stated further that the accident occurred due to rash and negligent riding of the motorcycle by the claimant , he came with a high speed and as he was trying to turn the motorcycle, it slipped, as a result of which he fell down and sustained injuries. It was submitted that since the terms and conditions of the Insurance Policy have been violated , therefore, the Insurance Company could not be held liable to pay any compensation and further prayed to dismiss the claim petition. 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 examined himself as AW/1 and got examined AW/2 Shailesh Jain and AW/3 Dr.Sudhindra Kumar Bhatnagar, and also got exhibited certain documents produced by him in support of his claim. In rebuttal, the non- claimants did not produce any witness in defnece. 5 The learned Tribunal, after hearing both the sides, held that the car was driven at a high speed and in negligent manner, due to that the accident occurred in which the claimant appellant sustained several injuries and vide its judgment and award dated 06.02.06, awarded a total compensation of Rs.93,500/- plus interest thereon @ 6% per annum, holding non-claimants jointly and severally responsible for 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 06.02.06 to the extend 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 6 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. During the course of arguments, learned counsel for the claimant appellant, submitted that learned tribunal has not properly appreciated and considered the facts, while determining the quantum of compensation and awarding interest thereon, as only 6% interest has been awarded thereon. It was further submitted that the appellant has established by his own evidence and with the help of evidence of AW/2 Shailesh Jain and AW/3 Dr.Sudhindra Kumar Bhatnagar, that he sustained several injuries on his person. Specifically with regard to injuries sustained by him, AW/3 Dr.Bhatnagar has been produced and he has categorically stated that there were two fractures on his leg . After considering injuries on his body, permanent disability of 40 % was found and a certificate in this respect Ex.50 was given. It was also stated that for treatment he visited Ahmedabad, where twice he was operated upon and expenses of near about Rs.2 lacs were spent, and he remained 8-9 months under treatment and his leg became shortened. In this way, he has 7 suffered a lot, by way of medical expenses and also suffered loss of income. It was contended by the learned counsel that at the time of accident, he was only of 21 years and he was earning Rs.6,000/- per month, but the learned tribunal has not awarded reasonable and adequate amount under the different heads, as claimed. It was further submitted that the learned tribunal , without any basis , contrary to the permanent disability certificate, in which disability has been shown upto 40%, determined disability upto 13% and on that basis awarded a very meagre amount of Rs.13,000/- under this head. It was submitted that under other heads also the compensation amount has not been granted properly . On the basis of above submissions, it was urged that reasonable compensation amount may be determined and awarded, and the appeal may be allowed. The learned counsel for the respondents refuted the contentions and supported the judgment and submitted that the learned tribunal has considered in detail, the material available on record, and has properly determined the amount of compensation under each head and there is no scope for enhancement of compensation amount and it was 8 urged that the appeal may be dismissed. So far as the factum of responsibility of accident is concerned ,the finding on the relevant issue arrived at by the learned tribunal, is not suffering from any infirmity or irregularity , that deserve to be maintained. But while considering the material available on record, the learned tribunal has not properly determined the quantum of compensation specifically with regard to permanent disability, sustained by the appellant . In this context I have seen the statement of witnesses and the material in support thereof. Specifically in this case ,AW/3 Dr.Bhatnagar has appeared and he has proved permanent disability certificate, issued under his signature, along with his accompanying doctors. This certificate is found to be issued by Government doctors, certifying 40% disability of the right ankle joint. On the basis of material , the learned tribunal has determined total deficiency upto 13% and on that basis Rs.13,000/- has been awarded under this head. But considering the age and the income, as established by the claimant, a loss of Rs.250/- per month can safely be assessed and on that basis that comes to more than Rs.50,000/-. But the learned tribunal has awarded only 9 Rs.13,000/- . Thus, on the basis of material available on record, an enhancement of Rs.41,500/- is just and reasonable. Thus, the total compensation comes to Rs. 1,35,000/-. Further the learned tribunal has awarded interest at the rate of 6% per annum.But considering the submissions, the awarded interest is on lower side, that should be enhanced to 7.5% per annum. On the basis of aforesaid discussion, the compensation is determined to be Rs.1,35,000/-. Further the claimant will be entitled to get interest at the rate of 7.5% per annum on total compensation amount. In the net result, the appeal is partly allowed and the awarded compensation of Rs.93,500/- is enhanced by Rs.41,500/-. that comes to Rs.1,35,000/-. On total compensation amount, the appellant will be entitled to get interest @ 7.5% per annum from the date of claim petition. Rest of the judgment is confirmed. No order as to costs. (MANAK MOHTA), J. l.george