1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T TULSA RAM VS. HANSA RAM & ANR. 1. S.B. CIVIL MISC. APPEAL NO.371/2008 DEEN MOHAMMED VS. HANSA RAM & ANR. 2. S.B.CIVIL MISC.APPEAL NO.347/2008 under section 173 of M.V.Act 1988 against the judgment and award dated 02.03.2007 passed by the learned Judge, Motor Accident Claims Tribunal, Bhinmal in Civil Misc. (MAC) Case No.53/2003 and Civil Misc. (MAC) Case No.54/2003. DATE OF JUDGMENT : 14.10.2008 PRESENT HON'BLE MR.JUSTICE MANAK MOHTA Mr.M.C.Bishnoi for the appellants. Mr.N.K.Choudhary ] for the respondents. Mr.Sunil vyas ] BY THE COURT : Both these appeals have been filed by the claimant 2 appellants, against the common judgment and award dated 02.03.07 passed by the learned motor accidents claim tribunal, Bhinmal in MACT cases No.53/2003 (CMA No.371/08) and 54/2003 (CMA No.347/08) by which the learned tribunal awarded compensation of Rs.57, 635/- and Rs.56,722/- (including loss to jeep of Rs.33,222/-) along with interest @ 6% per annum respectively in each case in their favour and against the respondents. In both the appeals common questions of law and facts with regard to enhancement of compensation have been raised therefore, they were heard together and are being disposed of by a common judgment. The brief facts of the case are that,on 25.09.2002 claimants Tulsaram and Deen Mohammed were going in Jeep bearing No. GAT-3689 , the jeep was being driven by Deen Mohammed. At about 07.30 PM when they reached Dharad Road between Pratappura Pump and bridge a jeep bearing No.RJ-16 C1126 which was being driven in a rash and negligent manner and with a high speed by its driver Hansaram (non-claimant No.1),came from front side and hit 3 their jeep, as a result of that claimant appellants Tulsaram and Deen Mohammed sustained grievous injuries. A report of the incident was filed at Police Station, Sanchore and FIR No.262/2002 was registered and the police, after usual investigation, filed challan against the driver-cum-owner of the said jeep , for committing the offence of rash and negligent driving and causing injuries to the claimant appellants. It was further submitted that the said jeep was owned by Hansaram and was insured with respondent No.2 . Therefore it was stated that both the respondents are responsible for payment of compensation to the claimants. Claim petitions were filed by the claimant appellants before the Motor Accident Claims Tribunal, Bhinmal, District Jalore ; under Section 166 of the M.V. Act for awarding adequate compensation for the injuries received by them in the said motor vehicular accident. In claim petition No.53/2003 which relates to CMA No. 371/08 it was averred that the claimant Tulsa Ram was only of 25 years at the time of accident and he was an agriculturist 4 and was earning Rs.10,000/- per month from agricultural activities. It was further submitted that due to injuries sustained by him he remained under treatment since from the date of accident for several months. He became permanent disabled and became unable to do hard work which is required under agriculture work, doctor has certified his permanent disability upto 25% (Ex.93). 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.4,83,000/- was claimed as compensation, under various heads. In claim petition No.54/2003 which relates to CMA No. 347/2008, it was averred that the claimant Deen Mohammed was of 56 years at the time of accident and he was an agriculturist and was also having his own jeep and in addition to agriculture activities he was doing the job of transportation and was earning Rs.4,500/- per month from these sources . He remained under treatment since from the date of accident, for several months. It was submitted that due to injuries he could not work for gain and became permanent disabled, doctor has certified his permanent disability upto 27% 5 (Ex.127). 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.3,73,000/- was claimed as compensation, under various heads. In both the claim cases prayers were made to award reasonable compensation plus interest in favour of claimants and against the non- claimants. Non-claimant No.1 Hansa Ram owner -cum- driver of the said jeep filed his common reply denying all the allegations made in the claim petitions. He further stated that the accident occurred due to the collusion of the jeep driven by Deen Mohammed and the claimants have not made party, the owner of another vehicle. It was also averred that the accident occurred due to bursting of the tyre of his jeep. Therefore, it was stated that claimants are not entitled for any compensation. Non-claimant No.2, insurer of the jeep bearing No.RJ- 16-C 1126, also filed common reply denying the allegations made in the claim petitions and further took the plea that there 6 was breach of policy condition as the driver of the said jeep was not having valid and effective lilcence at the time of accident. It was also submitted that in case of contributory negligence, Insurance Company cannot be made responsible for payment of compensation and prayed to dismiss the claim petitions. The learned tribunal jointly tried both the claim cases and over all six issues were framed . Issue No.1 was framed with regard to responsibility of causing accident and other issues were framed with regard to quantum of compensation and responsibility for the payment of the same. From the side of claimants, Tulsaram was examined as AW/1, and Deen Mohammed AW/2 and AW/3 Ambaram Ram, were also produced their statements were recorded, the claimants also got exhibited certain documents Ex.1 to Ex. 136 in support of their claims. In rebuttal, the respondent Insurance Company got examined NAW 2/1 Mahesh Bhootra and got exhibited Insurance Policy Ex.A/1. After hearing both the sides the learned tribunal held that 7 accident occurred due to sole rash and negligent driving of the jeep bearing No. RJ-16C 1126 driven by its driver -cum- owner Hansa Ram resulting in causing injuries to claimant appellants. The learned tribunal further over ruled the other contentions raised by non-claimants. Thereafter considering the age of the applicants and assessing their income and taking into consideration the expenditure incurred by them , awarded compensation to each claimant as stated above and holding the joint and several responsibility of the respondents for the payment of same. The claimants being felt aggrieved and dissatisfied with the amount of compensation awarded by the learned tribunal filed above mentioned appeals , notice of appeal were issued, record of cases were called and parties were heard. During the course of arguments learned counsel appearing for both the appellants submitted that the learned tribunal has not properly considered and appreciated the material on record while awarding compensation, therefore, the finding and the judgment to this extent is not correct and requires modification and a prayer was made to enhance the 8 awarded compensation. It was further submitted that the claimant appellants were mostly engaged in agriculture activities that requires hard manual labour and due to injuries sustained by the claimants, they were unable to perform work as they were discharging earlier to said accident, hence their income have been adversely effected , they have suffered a lot by this way but the learned tribunal has not given due weightage to the material, despite that there was no rebuttal from the other side. It was submitted that the learned tribunal firstly has not assessed the income of the appellants correctly and further has not assessed the expenses incurred in treatment and loss due to non-performance of work during that period. It was also contended that due to injuries sustained, both the appellants became permanently disabled and handicapped. The doctors have , after examination, certified their disability upto 25% and 27% respectively and have given certificates in this respect. The claimants have produced and proved those certificates Ex.93 and Ex.127 which are public documents as issued by Government doctor in discharging his duty . But the learned tribunal , without assigning any sound reason, has discarded material evidence 9 on the pretext that said certificates were given by the doctor who has not treated. This ground of rejection is not sustainable. The learned counsel for the appellants also cited judgments given in cases of Vibgyar Plastics vs.K.Munusamy 1 (2002) ACC 402 in support of his contentions. It was urged that on the basis of permanent disability, a reasonable sum of loss of future income may be assessed on the basis of work and income and adequate amount of compensation may be awarded. It was also urged that under other heads, the learned tribunal has not awarded appropriate compensation, therefore, those may also be enhanced. A prayer was made to allow the appeals. On the contrary learned counsel for the respondents refuted the contentions raised by the appellants' side and supported the judgment and award passed by the learned tribunal. It was contended that after considering the material , learned Judge has already awarded reasonable and just amount of compensation. There is no scope for further enhancement and prayed that the appeals may be dismissed. Learned counsel for the respondents also cited judgment 10 given in the case of Sudhir Bhuiya v. National Insurance Co.Ltd. 2005 (1) TAC 66 (Cal.) in support of his contentions. I have considered the rival contentions and perused the findings and conclusion drawn by the learned Judge. The main question remains for consideration in appeals is whether the awarded compensation by the learned tribunal in these cases are not adequate and does those require enhancement ? So far as the finding with regard to factum of accident is concerned, I have perused the finding on issue No.1. There is no infirmity and illegality in the conclusions. The finding is based on the material. It is also pertinent to note that the police has also filed positive report against the driver of the offending vehicle alleging responsible, respondent No.1 , driver of the vehicle for causing the accident, resulting in causing injuries to claimants. Thus the tribunal rightly held him responsible for the payment of compensation. Therefore, to this extent the finding of learned tribunal is maintained. The learned tribunal determined the compensation 11 under different heads to be awarded to the appellants but from the perusal of material and awarded compensation in each case, it seems that material has not been properly appreciated and has not awarded reasonable, adequate and just compensation to injured claimants . Therefore, it requires re- appreciation. I have considered the statement of appellant Tulchha Ram with regard to appeal No.371/08. Tulchha Ram has stated in his statement that he was sitting in the jeep, in accident his leg, hand, head and other parts of the body got injured, he has stated that he was engaged in agriculture job due to injuries sustained by him he remained under treatment for a long time, his income has been adversely effected. On the basis of injury sustained by him, a Government doctor , after examination, has certified permanent disability upto 25% vide Ex.93. The learned tribunal has discarded this evidence on the pretext that the said certificate has been given by other doctor who have not treated and other reasons assigned by him but reasons for not taking the said certificate in consideration is not tenable. The claimant has stated in his 12 statement about the gravity of injuries and effect thereof and the injuries have been further corroborated by relevant documents. The doctor has , after examination of the claimants, and perusal of record has given certificate with regard to permanent disability Ex.93, it was not necessary that the said certificate should have been given alone by the treating doctor. On the contrary, after passing a reasonable time , looking to the impact and effect of said injuries , the said certificate has been given. That should have been considered by the learned tribunal, therefore, the finding given to this effect is quashed. The conclusion finds support from the judgment given in Vibgyar Plastics's case (supra). In that case it has been observed that there is no rule of thumb that only the Certificate issued by the doctor who treated the injured alone has evidentiary value to determine the amount of compensation and not the one issued later by another doctor, who did not treat the injured. Disability is a condition which can be assessed by any qualified medical practitioner and the same is liable to be acted upon, subject, of course, it inspires confidence in the Court. On the contrary, the judgment cited by the respondent 's side is not relevant. Thus, while considering 13 the age of appellant to be 25 years and income as determined by the tribunal of the appellant , on the basis of said permanent disability, a loss of future income as Rs.500/- per month can safely be assessed and further applying the multiplier of 17, compensation under this head comes to (500x12x17)= Rs.1,02,000/-, which the claimant appellant is held entitled to receive. I have also perused the sums of compensation awarded under other heads, the appellant has alleged his income to be Rs.10,000/- per month, but no reliable proof has been filed. Therefore, the tribunal, while assessing the monthly income of Rs.3,000/- compensation has been awarded under different heads a total Rs.57, 635/-, there is no scope for further enhancement . Thus, adding the compensation as awarded aforesaid, total compensation comes to (Rs.57,635+ 1,02,000) =1,59,635/- rounded to 1,59,700/-.The tribunal has awarded interest @ 6% per annum that is on the lower side, no reason has been assigned for lesser rate .Thus, the rate of interest is enhanced to 7.5% per annum and the claimant appellants will be entitled to receive interest at this rate, on total compensation amount from the date of filing of claim petition. 14 I have considered the statement of Deen Mohammed, with regard to appeal No.374/2008. The injured appellant has stated in his statement that he was driving the vehicle in slow speed, he got injuries in accident, he remained in treatment for long time . He was engaged in agriculture job and was earning Rs.10,000/- per month. The claimant has sustained several grievous injuries resulting in permanent disability upto 27%, that has been certified by a Government doctor but the learned tribunal discarded that part of evidence on the context that certificate Ex.127 was given by the doctor who has not treated him and not awarded a single rupee under this head, but as discussed above, this reason is not sustainable and the finding given in this respect by the tribunal is liable to be quashed. Looking to the age of the claimant appellant at the time of accident to be 56 and his income along with the permanent disability has been shown to be 27% in his body, the claimant is an agriculturist and the importance of limb can easily be assessed in hard manual labour in agriculture thus, on the basis of this, a loss of future income under this head can safely be assessed as Rs.500/- per month and 15 considering his age, multiplier of 8 is applied. Therefore, the appellant is entitled to receive compensation of (Rs.500x12x8)= Rs.48,000/- more. He will also be entitled to get interest thereon. I have also considered the sum awarded of Rs.56,722/- under other heads including compensation with regard to injuries Rs.23,500/- and damage caused to jeep Rs.33,222/- .Looking to the over all facts, there is no further scope to enhance , thus , the awarded amount under other heads is maintained but adding the aforesaid enhanced amount, total compensation comes to (56,722 +48,000) =1,04,722/- rounded to 1,04,800/- . The learned tribunal further held that out of loss determined for jeep of Rs.33,222/-, the insurer will be responsible to the extent of Rs.6,000/- and for the rest amount ,owner will be sole responsible that is maintained. The learned tribunal has awarded 6% interest per annum but no reason has been assigned , that is on lower side, he is entitled to 7.5% interest per annum on total compensation amount, thus it is modified to this extent. 16 Thus, on the basis of aforesaid discussions, both the appeals are partly allowed and the amount of compensation is modified and enhanced in appeal No.371/08 from Rs.57,635/- to Rs.1,59,700/- and in appeal No.347/08 from Rs.56,722/- to Rs.1, 04,722/-. Further in both the cases, interest @ 7.5% per annum is chargeable from the date of filing of claim petitions. It is held that for the enhanced payment of compensation, owner and insurer are held jointly and severally responsible, subject to limit as directed by learned tribunal in MACT Case No. 54/2003 filed by Deen Mohammed (CMA No. 347/08). As the vehicle was found insured with the Insurance Company, therefore, the Insurance Company is further directed to make payment or deposit the same within two months from the date of this order failing which the appellants will be entitled to recover the same. Rest of the judgment is confirmed. No order as to costs. (MANAK MOHTA), J. l.george