.<^<^i lal*IN| HIGH COURT OF CHHATTISGARH, BILASPUR SINGLE BENCH: HON'BLE SHRI R. L. JHANWAR, J. Misc. Appeal (Cl No. 1497/2009 APPELLANTS Durgesh Kumar and another. Versus RESPONDENT (Claimantl Raghubar ORDER Post for pronouncement on L( August, 2010 Sd/- R.L. Jhanwar Judge ^^fiWS' \w*^ HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH: HON'BLE SHRI R.L.JHANWAR. J. Misc. Appeal (Cl No. 1497 of 2009 APPELLANTS (NON-APPLICANT N0.1) (NON-APPLICANT N0.2) RESPONDENT CLAIMANT 1. Durgesh Kumar, S/o Shri Uday Singh Gond, aged about 20 years, R/o Khongapani, Bhim Dafai, P.S. Chirmiri, Tah. Khadgawan, Distt. Korea (C.G.) 2. Uday Singh, S/o Late Shri Narayan Singh, aged about 45 years, R/o Sonamani Bhim Dafai, P.S. Chirmiri, Tah. Khadgawa, Distt. Korea (C.G.) VERSUS Raghubar, S/o Kanchan, aged about 45 years, R/o Hathwar, Patelpara, P.S. Patna, Tah. Baikundhpur, Distt. Korea (C.G.) MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. 1988 Appearance: Shri Rahul Mishra, counsel for the appellants. Shri Parag Kotecha, counsel forthe respondent. h^^i|wi, ORDER (Passedon /, .08.2010) This appeal is directed against the award dated 29.07.2009 passed in Claim Case No. 15/2009bythe 2nd Additional Motor Accidents Claims Tribunal (F.T.C.), Manendragarh (in short (the Tribunal') whereby in an injury case the Tribunal has awarded as sum of Rs.90,000/- to the respondent/claimant. 2. Aggrieved by the said order, the appellants/owner has filed this appeal. 3. Brief facts, in a nutshell, are that on 07.09.2007 at about 7.00 p.m. whffn.the respondent/claimant was coming to house with his brother on their scooter bearing registration No.C.G.16 G 6056 (henceforth 'the scooter'),the appellant No.1, who was driving his motor cycle bearing I 1 \. F-^r registration No.C.G.16 - 3702 (henceforth 'the motor cycle') in a rash and negligent manner on Baikunthpur road, hit the scooter thereby causing accident, as a result of accident, both the respondent and his brother fell down and got injuries. Report of accident was lodged against the appellant No.1 at Police Station Khadgawan for the offence punishable under Section 279, 337 and 338 ofthe I.P.C. 4. CIaim petition seeking compensation of Rs.8,40,000/- was filed whereby it was pleaded that he was earning Rs.21,792/- out of his employment; he was aged 45 and at the time of incident he was having valid licence. By filing written statement, the appellants (non-applicants before the Tribunal) denied the averments pleaded in the claim petition. 5. After affording opportunity of hearing and hearing the parties, the learned Tribunal has found that the appellant No.1 was negligent for accident, due to which the respondenVclaimant - Raghubar sustained fracture of tibia on his right leg and relying upon document Ex. P.W. II B produced by the respondenVclaimant, the Tribunal awarded a sum of Rs.60,000/- towards loss of income since he was not able to attend his duty from 07.09.2007 to 30.11.2007 and Rs.30,000/- for severe pain and suffering thereby awarded total compensation of Rs.90,000/-. 6 . Learned counsel for the appellants submitted that in this case, though document M.L.C. report Ex.P.W. II B was produced by the claimant but the doctor concerned was not examined. The learned Tribunal ought not to have relied upon the document Ex. P.W. II B and X- ray report without recording evidence of concerned doctor. He placed reliance in the matter of $mt Tijiya Bai v. Syed Aadil & Ors., AIR 2010 (NOC) 2 (CHH.), Hemlal Satnami v. Ravikant Sahu & Others, 2009 (2) C.G.L.J. 414 (DB), Rajesh Kumar alias Raju v. Yudhvir Singh and another, (2008) 7 SCC 305 and A.P.SRTC v. P. Thirupal Reddy, (2005) 12SCC189. 7. On the other hand, learned counsel for the respondent supported the impugned award and argued compensation of Rs.90,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the case. — •rr^. ^. ^ 8. I have heard learned counsel for the parties, perused the impugned award and record oftheTribunal. 9. Durgesh Kumar Singh (appellant No.1 herein) has deposed that offence punishable under Section 279, 337 and 338 ofthel.P.C. has been registered against him and charge sheet has also been filed against him in the Court of Judicial Magistrate First Class in which he admitted his guilt and paid fine. 10. So far as negligence on the part of appellant No.1 is concerned, it has also come in the evidence of Raghubar (respondent herein) A.W.1 that he was going with his brother on the scooter while appellant No.1 was drivihg the motor cycle rashly and negligently and dashed their scooter, due to that, they fell down and sustained fracture. This witness has also stated that appellant No.1 was charge sheeted by the Khadgawan Police Station and the charge sheet has been filed in the Court of J.M.F.C. Chirmiri where the appellant No.ladmitted his guilt and paid fine. Durgesh Kumar Singh (appellant No.1 herein) also admitted this fact in his deposition. Thus, it is clear that hewas negligent in driving the motor cycle on the date of accident and fairly accepted his guilt. 11. According to claimant Raghubar, it is clear that he is the employee of S.E.C.L. Katkona and was earning Rs.21.792/- per month. Due to accident, he was absent from his duties for a period of 5 months. The Tribunal has obtained a report dated 27.07.2009 regarding absence ofthe claimant with the signature of the office of S.E.C.L., Katkona. The report was exhibited as Ex.A.III in which it is certified that the claimant was on leave from 07.09.2007 to 30.11.2007. Further it is certified that the claimant was getting Rs.23,860/- at that time. Thus, it is clear that due to accident, the claimant - Ragubar was notable to join his duty for a period of near about 3 months. The contention of the appellants that it is not proved by the claimantthat he was not paid any salary for his absence and for that loss of estate should not be awarded to the claimant is unacceptable since after perusal of cross-examination of claimant - Raghubar in his evidence, he has clearly stated that he took leave from CT7j09.2007 to 30.11.2007. He also deposed that during that period there was no leave in his leave account, therefore, he had to take leave without pay. He further deposed that no payment wasmade to him during that ^r^^^^ .^"^ j;r period. As against this, no evidence was led by the appellants. It is also clear that leave was without pay. Therefore, the learned Tribunal has rightly awarded a sum of Rs.60,000/- on this count. 12. So far as question of awarding Rs.30,000/- towards pain and suffering and medical expenses is concerned, it is clear from the document Ex.A.1 that incident took place on 07.9.2007 and the claimant was medically examined on 8.9.2007. Ex.P.W.II B was also produced which shows that the claimant sustained fracture of tibia in right leg. The nature of injury was in grievous. The claimant would have definitely suffered pain due to that fracture and would have incurred expenses for making the fracture good. 13. In this case, the evidence of doctor is not necessary because the fracture sustained by the claimant is clear from the evidence of Raghubar A.W.1. The M.L.C. report Ex.P.W.II B was also done immediately after the accident. It is also clear that when that document Ex.P.W.II B was admitted in evidence as exhibit, at that time no objection was made by the appellants, therefore, M.L.C. report is admitted in evidence which shows that the fracture sustained by the claimant. It is also clear from the evidence of Durgesh Kumar Singh that he has admitted the guilt under Section 279, 337 and 338 of the I.P.C. and was sentenced to fine, which he has already paid. This also shows that the appellant - Durgesh Kumar is negligent while driving the motor cycle and because of his negligence the claimant sustained fracture on his right leg. Therefore, the evidence of doctor is not necessary in this case. It is also evident in the impugned order that no award was passedon the ground of disability. Taking all these facts into consideration the Tribunal awarded a sum of Rs.30,000/- towards pain and sufferings and medical expenses. 14. In the above citations cited by the learned counsel for the appellant, the facts are different from the facts of the present case since in those cases the disability certificate has been produced but doctor has not been examined. The learned Tribunal has disbelieved the disability certificate. The facts in the above citations are fully distinguishable on the ground of factff and circumstances. Taking the document into consideration, the Tribunal has rightly awarded compensation of Rs.30,000/- towards pain and sufferings and medical expenses to the respondent / claimant. In this |»N»rtNr manner, the Tribunal has also rightly awarded a sum of Rs.60,000/- towards loss of income thereby the Tribunal has awarded total compen?ation of Rs.90,000/- to the claimant, which 1 am ofthe considered opinion is just and fair compensation in the facts and circumstances of this case. 15. In the result, the appeal has no merit. It is liable to be and is accordingly dismissed to extent indicated above. —-— Sd/- R.L. Jhanwar Judge