1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Smt.Usha vs. Sardar Singh & Ors. S.B. CIVIL MISC. APPEAL NO.2543/2007 against the judgment and award dated 16.08.2007 passed by the learned Judge, Motor Accident Claims Tribunal, Salumber (Addl.District & Sessions Judge (Fast Track) No.2, Udaipur in Motor Accident Claim Case No.92/2006. DATE OF JUDGMENT :: 27.09.2008 PRESENT HON'BLE MR.JUSTICE MANAK MOHTA Mr.Manish Pitaliya for the appellant. Mr. Anil Bachhawat for the respondents. BY THE COURT : The present appeal has been filed by the injured claimant-appellant against the judgment and award dated 16.08.2007 passed by learned Judge, Motor Accident Claims 2 Tribunal, Salumber (Additional District & Sessions Judge (Fast Track) No.2, Udaipur (in short 'the Tribunal') in Motor Accident Claim Case No. 92/2006, whereby the learned Tribunal has partly allowed the claim petition in favour of the claimant- appellant and against non-claimant respondents, holding their joint and several responsibility to pay total compensation of Rs.56,000/- with interest @ 9% per annum from the date of filing of the claim petition i.e. 27.01.2006 . The brief facts of the case, which are relevant for the disposal of the appeal, are that on 13.12.05 the claimant Smt.Usha was going from her house at Lambapanwa towards village Jhunthari. At that time at about 09.30 AM a jeep bearing No.RJ-27-C-5024, which was being driven in a rash and negligent manner by its driver, Sardar Singh, respondent No.1, came with a high speed and hit Smt.Usha from behind , as a result of which she fell down and her left leg got fractured, she also sustained several other grievous and simple injuries on her body. A report of the said incident was lodged at Police Station, Kherwada where Cr.Case No.320/2005 under section 279 , 337 and 338 IPC was 3 registered and the police, after usual investigation, filed challan against the driver of the said jeep while holding driver of the said vehicle for rash and negligent driving and causing injuries to the claimant appellant. It was stated that at the time of accident, the said jeep was owned by Smt. Lakshmi Devi respondent No.2, and was insured with respondent No.3, The New India Insurance Company. The claimant – appellant submitted a claim petition before the Motor Accident Claims Tribunal, Salumber on 27.01.06 under Section 166 of the M.V. Act, for awarding adequate compensation on account of loss of income and pain and suffering due to permanent disability on left leg and several other injuries sustained by her in the said motor accident. In the claim petition it was averred that the claimant was only of 24 years at the time of accident and she was earning Rs.3,000/- per month from tailoring job and on account of said accident she became unable to do the tailoring work. Further, it was submitted that due to these injuries she suffered a lot of monitory loss as well as mental shock and agony. On the basis of these facts, a total sum of 4 Rs.27,50,000/- was claimed as compensation under various heads. Though notices were served on respondent No.1 and 2, driver and owner of the said jeep but , neither they appeared nor any reply was filed on their behalf, therefore, exparte proceedings were initiated against them. Respondent No.3, insurer of the said jeep, in its written statement has denied most of the averments made in the claim petition, and further stated that the said jeep was not involved in the accident but the accident occurred by some other vehicle and since soon after the accident the said jeep reached near the place of occurrence, as such a false criminal case was lodged against the driver of the said jeep. It was further averred that the driver of the said jeep was also not possessing a valid and effective driving licence therefore, the Insurance Company cannot be held liable to pay any compensation and prayed to dismiss the claim petition. The learned Tribunal, on the basis of pleadings of the parties, framed the relevant issues with regard to responsibility 5 of causing accident and with regard to quantum of compensation along with liability to pay the same. The claimant-appellant Smt. Usha, examined herself as AW/1, also got examined AW/2 Sakarchand and got exhibited certain relevant documents, Ex.1 to Ex.38, in support of her claim. In rebuttal, the respondent has not examined any witness in defence. The learned Tribunal, after hearing both the sides, held that the jeep was driven at a high speed and in negligent manner and due to that the accident occurred, in which the appellant Smt. Usha sustained several injuries and over ruled the contentions raised by insurer. Further after considering her age and income, vide its judgment and award dated 16.08.2007 awarded a total compensation of Rs.56,000/-, plus interest thereon @ 9% per annum, holding non-applicant respondents jointly and severally responsible for the payment of the same. The claimant being felt aggrieved and dissatisfied with the 6 amount of compensation, as awarded by the learned Tribunal, has preferred this appeal against the judgment and award dated 16.08.2007 to the extent of quantum of compensation and made submissions for enhancement of the the same. 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-appellants 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 her a Medical Board of doctors has certified the permanent disability upto 15% and a Certificate to this effect (Ex.13), was given by the Head of the Department of the Government Hospital, after examination, but the learned tribunal has discarded this important evidence without any valid reason. It 7 was also contended that on other heads also adequate compensation has not been awarded. On the basis of these submissions, it was urged that a just and reasonable amount of compensation may be enhanced and appeal may be allowed. On the contrary, the learned counsel for the respondent refuted the contentions and supported the judgment given by the learned tribunal. It was further contended that a just and reasonable amount of compensation has already been awarded, thus, there is no scope for further enhancement and prayed that the appeal may be dismissed. I have considered the rival submissions made by the learned counsel for the parties and perused the record. The main point arises for consideration in appeal is that whether the awarded compensation by the learned tribunal is not adequate and does it require enhancement ? I have perused the findings given on different issues. So far as the finding with regard to factum of accident is 8 concerned, that is based on the statement of witnesses and other material placed in this respect. It is also revealed that the police has also filed challan against the driver of offending vehicle for rash and negligent driving and causing accident. Thus, the finding on issue No.1 is maintained. The learned tribunal rightly held driver of the vehicle for causing accident and I have also considered the contention with regard to quantum of compensation and perused the finding in this respect. The learned tribunal has awarded compensation of Rs.19,000/- on the basis of medicine bills and Rs.2,000/- has been awarded for diet . Further a sum of Rs.35,000/- has been awarded for pain and suffering, looking to the impact of injuries . In this way, total compensation of Rs.56,000/- has been awarded but no compensation has been awarded under the head of permanent disability. The appellant has stated that she suffered several injuries in the accident and a team of doctors after examination , has certified permanent disability upto 15% vide Ex.13. This certificate has been given by Government Hospital. The appellant is a lady , further she has stated that she was engaged in tailoring job , looking to the nature of job the described permanent disability is material 9 and will adversely effect her working performance and that will create loss of income. Therefore, under this head, fresh appreciation of evidence is necessary. She has stated in her statement that prior to accident, she used to do tailoring job and out of that job, she used to earn Rs.3,000/- per month. She has further stated that after accident, due to injury sustained by her she became unable to perform that job. With regard to permanent disability, she has produced a certificate, Ex.13 given by a team of government doctors and as per that document, a disability has been shown upto 15 % in her body . Considering her age and income it can safely be assessed that the minimum loss due to this permanent disability to be Rs.250/- per month and on that basis, taking the multiplier of 17 loss of income comes to (250x12x17) Rs.51,000/-. At least she is entitled to get Rs.50 ,000/- under this head, the learned tribunal has disallowed her claim but the reasons assigned by learned tribunal that the injury sustained on her leg would not adversely effect her income, further, the said injury could not be treated as permanent disability, are not sustainable. It has come on record that she was engaged in tailoring job. Thus, 10 considering the role of leg in discharging the work , certainly her income will be adversely effected, further, a team of doctors has certified that injury as permanent disability and there is no rebuttal from the other side. Thus, the finding of learned tribunal in this respect is perverse and is required to be set aside. Therefore, on the basis of aforesaid discussion, a sum of Rs.50,000/- under the head of permanent disability is awarded and appellant will be entitled to receive the same. I have also considered the amount of compensation awarded under other heads but looking to the facts of the case, no further enhancement is needed. Thus, on the basis of aforesaid discussion, the appeal is partly allowed to the extent of awarded compensation, the amount of compensation is modified and enhanced by Rs.50,000/-. Thus, total compensation comes to Rs.1,06,000/-. Further the claimant appellant will be entitled to get interest @ 9% per annum as awarded earlier, on the enhanced amount of compensation, from the date of filing of claim application. 11 The responsibility of paying the said amount is held jointly and severally of respondents. The Insurance Company is further directed to deposit the amount with learned tribunal within one month of the order, failing which the appellant will be entitled to recover the same as per law. Rest of the judgment and award is maintained. No order as to costs. (MANAK MOHTA), J. l.george