Harmel Chand vs Amritsar Const. Co. And Ors.
2004 Latest Caselaw 1124 Del

JUDGMENT

R.S. Sodhi, J.

1. This appeal is directed against the judgment dated 12.1.1989 of the Motor Accident Claims Tribunal, Delhi in Suit No.89/81 whereby the learned Tribunal has awarded a sum of Rs. 67,310/- with an interest of 10 % to the claimant on account of injury suffered by him in an accident that occurred on 23.1.1981.

2. Brief facts of the case as noted by the Motor Accident Claims Tribunal is as follows:-

"The present claim petition has been filed by the petitioner, Harmail Chand u/s 110-A of the Motor Vehicles Act, 1939 for grant of compensation against the Amritsar Construction Company, Ram Sahai, driver and the New India Assurance Co. Ltd., on account of the injuries sustained by him in the accident on 23/1/81 at about 6.15 p.m.

According to the petitioner on 23.1.81 at about 6.15 p.m., he was going towards his residence while driving three wheeler scooter No. DER-1844 at a slow speed and on the correct side of the road, and when the truck bearing No.DLG-154 driven by the respondent No.3 rashly and negligently came from the opposite direction and hit the three-wheeler scooter of the petitioner after going on the wrong side of the road, as a result of this impact, the Scooter was dragged up to a considerable distance and the petitioner received numerous injuries and become unconscious and was removed to the hospital. The petitioner had claimed a sum of Rs. one lac with 12% interest stating that he has suffered injuries and became disabled and his treatment is still going on and his life has been shortened due to the accident.

The petition was contested by the respondents. The respondent No.1 and 2 filed a joint written statement stating that petition is bad for misjoinder of parties and not properly verified and signed. Regarding the amount of compensation, the respondents have submitted that the said amount is out of a proportions. The respondents have submitted that the accident was not caused due to the rash and negligent driving on the part of driver of the truck No.DLG-154. The respondents have further submitted that the truck was insured with respondent No.4 is liable to pay the amount of compensation to the petitioner. The respondents have submitted that the earing of the petitioner cannot be more than Rs.10/- per day and his claim that he was saving Rs.40/- per day is not correct. The respondent No.4, Insurance Company has also filed a w/s taking preliminary objection that respondent, driver was not holding a valid driving license and respondent No.3 was not driving the vehicle under the instructions and in the employment of Regd. owner. Regarding the factum of accident, the Insurance Co. has denied the same for want of knowledge.

In the replications filed by the petitioner the averments made in the petition have been affirmed and those made in the w/s have been denied and the happening of the accident has been asserted to be due to rash and negligent driving on the part of truck driver.

On the pleadings of the parties, following issues were framed in the case on 28.4.82:-

1. Whether the respondent No.3 was rash and negligent in driving the truck No.DLG-54 on the date, time, and place as alleged in the position?OPP.

2. If so, whether the petitioner sustained the injuries in the accident as alleged in the petition?OPP.

3. To what amount of compensation, if any, is the petitioner entitled, and if so, from whom and in what proportion? OPP

4. Whether the respondents are not liable for the objections taken in their w/s?OPP

5. Whether the respondent No. 1 & 2 are the owners of the truck in question?OPP

6. Relief."

3. It is contended by counsel for the appellant that the Tribunal has gone wrong in not appreciating that the claimant was earning a sum of Rs.40/- per day and that there is nothing on record to show that the claimant was not working regularly and continuously and, therefore, there was no reason to have arrived at a figure of Rs.800/- instead of Rs.1200/- per month. He also submits that the Tribunal has gone wrong in assessing compensation on account of mental pain and agony and suffering while awarding a sum of Rs.40,000/-. He submits that the nature of the accident and the medical treatment certainly demanded a higher amount under this head. He prays that the amount awarded be enhanced to Rs.1,00,000/- as originally claimed.

4. Counsel for the Insurance Company on the other hand contends that the judgment under challenge is a well reasoned judgment and there is no necessity to modify the same.

5. Heard counsel for the parties and have perused the material on record as also the judgment under challenge it appears to me that the Tribunal has rightly taken into consideration the fact that the claimant himself would have taken some days off during the month and, therefore correctly arrived at the figure of Rs.800/- per month. However, I find the nature of the accident was such where the three wheeler rickshaw was hit by the offending vehicle and the claimant suffered multiple injuries together with fracture on both the legs while being dragged by the truck for over ten metres. The result has been that the claimant has sustained a permanent disability of the right leg being shortened by 11/2 inch. The continuous treatment must have caused great deal of pain and suffering to the claimant besides loss of income.

6. In the totality and the circumstances of this case, I deem it appropriate to increase the compensation under the head mental pain, agony and suffering to Rs.50,000/- as claimed by the appellant in his grounds of appeal. Under the head permanent disability no amount has been awarded by the Tribunal. It would also be appropriate in the facts and circumstances of the case that a sum of Rs.30,000/- be awarded. I order accordingly.

7. The aforesaid increase shall carry an interest at the rate of 9% from the date of filing of the claim till realization and be disbursed by the Insurance Company in terms of the award.

8. With this modification, FAO 199/1989 is disposed of.