Sunil Kumar @ Sandeep Kumar vs Bilal And 3 Others
2017 Latest Caselaw 7452 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                                    A.F.R.	      
 
                                                                               Court No. 35 
 
                                                                               Reserved on 14.09.2017     				                                     Delivered on 30.11.2017  
 

 
                                  
 

 
Case :- FIRST APPEAL FROM ORDER No. 1072 of 2017       
 
Appellant :- Sunil Kumar @ Sandeep Kumar
 
Respondent :- Bilal And 3 Others
 
Counsel for Appellant :- A.K. Srivastava
 

 
Hon'ble Bharati Sapru,J.

Hon'ble Mahboob Ali,J.

(Delivered by Hon'ble Mahboob Ali,J.)

This First Appeal From Order has been preferred by the claimant/appellant ('appellant, for short) Sunil Kumar @ Sandeep Kumar under Section 173 of Motor Vehicles Act 1988, assailing the validity of the judgment and award dated 14.09.2012 passed by Sri Yogesh Kumar-I, District Judge, Badaun/Motor Accident Claims Tribunal (the "Tribunal, for short) in Motor Accident Claim Petition No.347 of 2009 ( Sunil Kumar @ Sandeep Kumar Vs. Bilal and others), awarding compensation of Rs. 9,000/- with 7% interest per annum from the date of filing the petition.

2. Briefly stated the facts are:-

That the appellant filed claim petition for compensation of Rs. 5,40,000/- (Five Lacs Forty Thousand) before the Tribunal contending therein that on 31.03.2009 at about 11.00 A.M. when he was coming back to his home after taking his Class- 10th examination with his maternal uncle namely, Rajendra Kumar on pillion by Motor Cycle bearing Registration No. U.P. 24J 9976, near Hydle Colony, P.S. Civil Lines, District Badaun, a Truck bearing Registration No. U.P.-21N 4007 which was being driven rashly and negligently, dashed the motor cycle from behind, as a result of which the appellant sustained serious injuries, initially he was treated in district Hospital, Badaun and later by other doctors, he spent about Rs. 1,00,000/- in the treatment which is still continuing.

Respondent no. 1 and 2 (owners of the offending Truck), in their written statement denied the factum of the accident alleging that the appellant who is a minor sustained injuries while learning motor cycle-driving. They also contended that the truck was duly insured and the driver who was driving the Truck carefully, was having a valid and effective driving licence, thus, if there comes any liability to pay compensation that would be of the Insurance Company.

Respondent no.3 (driver of the truck) also denied the alleged accident and stated that on the date of incident, his driving license was valid and effective.

Respondent no.4 (Insurance Company) while denying the factum of accident, in its written statement, alleged that if at all any such accident took place that was due to the sole negligence of the motor cyclist. It is also alleged that the truck in question was being plied without valid and effective route permit and fitness certificate and its driver was not having a valid and effective driving license, thus the answering Insurance Company is not liable to pay any compensation.

3. The Tribunal concluded that there is no evidence on record regarding the expenses entailed in the treatment of the claimant, neither any medical certificate is produced, nor any doctor who allegedly treated the appellant has been examined. Only two witnesses-APW-1 appellant Sunil Kumar and APW-2 Rajendra Kumar (Maternal Uncle of the claimant/appellant) have been examined. APW-I (appellant) has deposed that he does not know as to what amount was spent in his treatment and only his maternal uncle Rajendra Kumar APW-2 can tell about the expenses incurred in his treatment. APW-2 Rajendra Kumar in his examination has also not stated anything about the amount of medical expenses incurred in the treatment of the appellant. In these circumstances, the Tribunal awarded a compensation of Rs. 9000/- with 7% interest i.e. Rs. 1,000/- for pain and sufferings as per Second Schedule of Motor Vehicles Act and Rs. 8000/- for the treatment of simple injury of the appellant.

4. The award has been challenged by the claimant-appellant, inter-alia on the following grounds:-

(1) That the appellant was admitted in hospital and his permanent disability was certified by the doctor, but the Tribunal failed to consider this fact and wrongly held that the appellant sustained simple injuries.

(2) That the Tribunal has not considered the factum of medical expenditure to the tune of Rs. 1,50,000/- entailed in the treatment of the appellant for the period of 2 ½ months at K.K. Hospital, Bareilly and thereafter, long treatment by Dr. Satyendra.

(3) That the Tribunal has also not considered the loss of future prospects.

5. Heard learned counsels for the parties and perused the material available on record.

6. The contentions made by the learned counsel for the appellant are mainly on two scores

One, that the appellant has been rendered permanently disabled due to serious injuries sustained in the accident and another, that he incurred an amount of Rs. 1,50,000/- in the treatment by different doctors in different hospitals.

7. As regards the first contention regarding permanent disability, the Tribunal has observed that from the perusal of photo copy of the injury report (paper No. 52-C) filed by the claimant, it transpires that the petitioner was examined by the Doctor only a little after the accident and found a lacerated wound 3cm X 3cm X bone deep on the left leg of the petitioner and advised for X-ray. Tribunal has also proceeded to observe that the petitioner has not filed any medical report or certificate or discharge summary of any hospital or X-ray report/X-ray plate, nor any Doctor who had allegedly treated the petitioner, has been produced for examination.

8. The appellant in his oral testimony as APW-1 has deposed that he became disabled in the accident and he remained admitted in District hospital, Badaun for 3-4 days where he was medically examined and 20 days thereafter, he went to Doctor Neel Kamal, Ramayani Hospital, Badaun where his left foot was plastered and he came back home, he remained under the treatment of Dr. Neel Kamal for about one and a half month, thereafter, he remained admitted in K.K. Hospital, Bareilly for about 9-10 days under the treatment of Doctor Satyendra where an operation was done and a rod was implanted in his leg.

9. Learned counsel for the petitioner urged that the tribunal has overlooked the factum of disability of the petitioner regarding which disability certificate has also been filed on record. Learned counsel took us through paper no. 34 ga which is a photocopy of disability certificate on which opposite party has endorsed " not admitted, photocopy not admissible".The Tribunal has specifically mentioned in its impugned judgment that no medical certificate has been filed nor any Doctor has been produced in oral evidence. APW 1 Sunil Kumar, the appellant himself has stated that papers regarding the treatment in District hospital could not be filed due to lack of knowledge. Thus, it transpires that clear and cogent evidence required to establish the factum of disability, has not been brought on record by the appellant.

10. Regarding another submission of appellant's learned counsel about the alleged medical expenditure of Rs.1,50,000/-, the statement of appellant himself, needs special mention. In his oral testimony, as APW- 1, the appellant Sunil Kumar has deposed that he has no knowledge about the amount spent in his treatment and his maternal uncle knows about it. In this regard relevant portion of his statement is extracted below:-

".... डॉक्टर नील कमल के यहाँ इलाज में कितना रुपया खर्च हुआ, उसकी मुझे जानकारी नहीं है I बरेली में इलाज में मेरे कितने रुपये खर्च हो गए, यह भी मुझे जानकारी नहीं है I अब तक मेरे इलाज में कितने रुपये खर्च हो गए है, यह जानकारी मुझे नहीं है, मेरे मामा को मालूम है I"

Appellant's maternal uncle Sri Rajendra Kumar (APW-2) has also not uttered even a single word in his deposition regarding the medical expenses of the appellant. In these circumstances the Tribunal, concluding that since appellant (APW-1) and his maternal uncle (APW-2) have not stated any word about the amount of money spent in the treatment of the appellant and the prescriptions and cash memos filed by the appellant have not been proved, has proceeded to award an amount of Rs. 1000/- under the head of pain and suffering and Rs. 8,000/- for the medical treatment of simple injuries as per Second Schedule of Motor Vehicles Act, 1988.

11. Lastly, the learned counsel for appellant has urged that the appellant was barely 17 years old at the time of incident, and he has been rendered disabled due to injuries sustained in the accident, his fractured leg was operated upon in which steel rod was implanted, but the Tribunal has not considered these factors and the point of loss of future prospects, has also not been taken care of.

12. From perusal of the impugned judgment and after careful examination of the matter, following points have emerged which necessitate one more opportunity to the appellant to make out his case, if he can, successfully, do so:-

(a) Appellant Sunil Kumar APW-1 has deposed that medical papers regarding his treatment were not filed due to lack of knowledge.

(b) Only photo copy of the disability certificate is filed by the appellant, whereas, original disability certificate needs to be brought on record.

(c) APW-1 (appellant) has stated that he has no knowledge as to what amount was spent in his treatment and only his maternal uncle Rajendra Kumar can tell about it, but his maternal uncle (APW-2) has also not stated anything about the medical expenditure of the appellant.

(d) The tribunal has not taken into account the medical bills/cash memos filed by the appellant, whereas, they ought to have been considered after due verification.

(e) Any of the doctors, who have allegedly examined the appellant regarding his disability, has not been produced and got examined.

(f) Any of the doctors, who might have treated the appellant for his injuries, has also not been produced before the tribunal.

13. It may be relevant to refer to the following observations of the Hon'ble Apex Court in the case of Arvind Kumar Mishra vs. New India Assurance Company Ltd. And Another, 2010 (10) SCC, 254:-

"....that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was in so far as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered......"

In the case of Raj Kumar vs. Ajay Kumar and Another, (2011) 1 Supreme Court cases 343 Hon'ble Supreme Court has laid down general principles relating to compensation in injury cases.

Hon'ble Apex Court in Govind Yadav vs. New India Insurance Company Ltd. 2012 (1) TAC-1 (S.C.) emphasising the need of awarding adequate compensation in the cases of disablement, reiterated the principles laid down in the cases of Arvind Kumar Mishra (Supra) and Raj Kumar vs. Ajay Kumar (Supra).

14. In cases of personal injury, the Tribunal has to first decide the factum of permanent disability. If the appellant is able to prove his disablement successfully then the Tribunal needs to proceed to determine the effect and extent of such disability keeping in view the principles laid down by the Hon'ble Apex Court in catena of cases, some of which have been cited above, but once the Tribunal comes to the conclusion that there is no permanent disability then question does not arise to proceed further. In this regard the observation of Hon'ble Supreme Court in the case of Raj Kumar vs. Ajay Kumar and another (Supra) is extracted below:-

"..... If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity."

15. From the scrutiny of the material on record, this much is clearly reflected that the matter has not been pursued in right earnest and the appellant has been careless and casual in approach in bringing about the material facts on record and adducing clear and cogent evidence. In these circumstances the question which arises for consideration is whether the appellant be deprived of just, fair and reasonable compensation, just on the ground that due to lack of knowledge or his causal and careless approach, he could not bring on record the cogent and sufficient evidence to establish his claim. We feel that doing this, would amount to denial of justice to the claimant/appellant.

16. In view of all the facts and circumstances of the case and bearing in mind the object of the Motor Vehicles Act,1988, emanating from its social and beneficial character, it is expedient in the interest of justice that one more opportunity be provided to the appellant to establish his claim. In this regard following observations of the Hon'ble Apex Court in Bimla Devi vs. Satbir Singh, (2013) 14 SCC, 345 are of much relevance:-

".....it is clear that Appellants have been callous and negligent in prosecuting the matter and did not do so in right earnest. We cannot take a pendentic view of the matter so as to shut the doors of justice to the Appellants. Motor Vehicles Act is a social piece of legislation and has been enacted with intent and object to facilitate the Claimants/Victims to get redress for the loss of loosing of family member or for injuries at an early date. In any case, money cannot be any substitute for it, but in long run it may have some soothing effect. Thus, it is desirable to adopt a more realistic, pragmatic and liberal approach in these matters. In our considered opinion, interest of justice would be served and fully met if Appellants are afforded at least one more opportunity to prove their case to the satisfaction of the Claims Tribunal."

17. In this background of the matter, considering the submissions of learned counsel on behalf of the appellant and keeping in view the foregoing discussion and observations, particularly in the light of principles laid down by the Hon'ble Apex Court, we are of the considered opinion that one more opportunity be afforded to the appellant to prove his case so that he may get just, fair and adequate compensation, if he is able to prove his claim to the satisfaction of the Tribunal. The Respondents would also be at liberty to lead evidence in rebuttal, if they so desire.

18. In the light of this, the impugned judgment and award dated 14.09.2012 passed by the Tribunal is hereby set aside and the appeal is accordingly allowed. The matter is remitted to the Tribunal with the observations and direction as aforesaid. Since the matter is old, the Tribunal would endeavour to dispose of the said claim petition on merits and in accordance with law within a period of six months from the date on which a certified copy of this order is produced before it.

                                     (Mahboob Ali,J.)            (Bharati Sapru,J.)
 

 

 
Order Date :- 30.11.2017                                     
 
Radhika