Madhya Pradesh High Court
Premnarayan vs Ghanshaym Jha on 2 August, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 2nd OF AUGUST, 2024
MISCELLANEOUS APPEAL No. 1083 of 2009
PREMNARAYAN
Versus
GHANSHAYM JHA AND OTHERS
Appearance:
Shri Ashok Rathore, learned counsel for appellant.
Shri K.S.Rochlani, learned counsel for respondent No.3/Insurance
Company.
ORDER
This Miscellaneous Appeal has been preferred by the
appellant/claimant for enhancement of the amount awarded by the First
Additional Tribunal Gwalior to First MACT Gwalior, vide award dated
27.02.2009 in Claim Case No.119/2008 whereby the Tribunal has awarded
an amount of Rs. 1,62,000/- along with interest @ 9% per annum to the
claimant for the injury suffered in a vehicle accident.
2. The necessary facts for disposal of this appeal are that on
13.03.2006, the appellant after attending classes in the Polytechnic
College was standing outside the college to go to his village Bilaua, at that
juncture the respondent No.1/driver of the bus bearing registration
number M.P.07 /F.1521 by driving the said bus rashly and negligently
dashed the appellant, due to which, he fell down and the tyre of the bus
ran over his stomach. Due to which, he suffered grievous injuries. The
matter was reported to the Police Station Jhansi Road which was
registered at Crime No.89/2006.
3. It is submitted by learned counsel for appellant that the appellant
was 20 years old at the time of accident and was a student of first year of
Electronics Branch at Polytechnic College, Jhansi Road, Gwalior and had
a bright career in future but due to the accident, he suffered grievous
injuries and permanent disability. The tribunal has assessed the income of
appellant as Rs 3,000/- per month and has awarded Rs.72,000/- towards
loss of income, which ought to have been assumed as Rs 5,000/- per
month. Similarly, for pain and suffering, the compensation was to be
awarded to the tune of Rs.1,00,000/- instead of Rs.75,000/- and for
permanent disability, Rs.3,00,000/- ought to have been awarded and
further Rs.1,00,000/- ought to have been awarded under the head of loss
of future enjoyment. The amount awarded on the head of transportation
charges, treatment charges are on lower side. No amount on the head of
expenses in future treatment has been awarded. Thus the compensation
awarded by the learned Tribunal is inadequate. It is prayed that the
compensation amount be enhanced by Rs.12,38,000/- with interest at the
rate of 12% per annum. It is also submitted by the learned counsel for the
appellant that issue No.5 has also not been decided by the Trial Court
correctly. No breach of condition of insurance policy has been proved,
therefore, the order in regard to pay and recover is not tenable.
4. Per contra, it is submitted by learned counsel for respondent
No.3/Insurance Company that so far as the finding on issue No.5 is
concerned, the claimant/appellant has no locus to challenge the same. The
owner and driver of the offending vehicle remained ex-parte before
learned Tribunal so also before this Court. They have got examined the
RTO officers and officer of Insurance Company. They adduced the
evidence as regards the absence of valid and effective license with driver
of the offending vehicle at the time of accident. The finding on that count
has not been challenged by the claimant. It is further submitted that the
amount awarded by the Tribunal is just and proper and no enhancement is
required. Hence, appeal filed by appellant be dismissed.
5. During the pendency of this appeal, appellant has filed an
application under Order 41 Rule 27 of CPC (I.A. No.3140/2018) for
taking additional documents on record.
6. Heard learned counsel for the parties and perused the record.
7. So far as the application (I.A. No.3140/2018) under Order 41 Rule
27 of CPC is concerned, various documents have been filed by the
appellant during pendency of this appeal. This application (I.A.
No.3140/2018) shows that the bills of Hospital charges are of Rs. 90,380/-
and bills of lab charges are of Rs.1,600/-. Most of the documents
appended with this application are of year 2009 but why these documents
have not been filed before the Claims Tribunal and why such documents
are filed belatedly in the year 2018, has not been explained satisfactorily
by the appellant. It is pertinent to mention that each document which is
filed on behalf of one party remains under challenge and rebuttal by other
party and other party has right to adduce evidence against such
documents. Therefore, the documents ought to have been submitted by the
appellant before the Tribunal/Court forthwith. The documents of
Muljibhai Patel Urological Hospital Nadiad were issued on 02.05.2018
and it is not established satisfactorily that these documents are in respect
of the treatment of injuries suffered by the appellant in the accident in
question. After due consideration, this Court is of the view that said
application under Order 41 Rule 27 CPC is not liable to be allowed, and,
accordingly, I.A. No.3140/2018 is dismissed.
8. Having regard to the evidence on record, it is found that on issue
No.5, learned Tribunal has rightly drawn a conclusion on the basis of
statements of Sajal (NAW-1) & Lal Singh (NAW 2) that at the time of
accident the driver of offending vehicle had driven the vehicle without
proper authority. He had no endorsement in the license for driving
passenger vehicle. Furthermore, the said fact has not been rebutted by the
driver and owner of the offending vehicle, they remained absent before
Tribunal as well as this Court, therefore, on this ground the finding of
learned Tribunal is valid and proper.
9. The appreciation and conclusion by learned Tribunal on issue No.2
is based on the evidence on record since neither permanent disability
certificate nor evidence to that effect has been adduced by the appellant,
therefore, the permanent disability has rightly not been found proved by
the learned Tribunal.
10. So far as the other grounds of the appeal are concerned, as regards
insufficient compensation amount, it is found from the evidence on record
that in the accident in question, the appellant has suffered grievous
injuries, therefore, he has undergone nine operations and he has been
admitted in hospital many times for treatment. However, it was incumbent
upon the claimant to prove his case as regards the amount of
compensation and he had to submit documents and oral evidence so as to
enable the learned Tribunal to award proper amount as compensation.
11. Having regard to the evidence, it is found that learned Tribunal has
awarded an amount of Rs.72,000/- towards loss of income; Rs. 75,000/-
for pain and suffering; Rs. 10,000/- for special diet and Rs.5000/- towards
attendant expenses. Total Rs.1,62,000/- has been awarded by the learned
Tribunal as compensation, whereas in para 38 of the impugned judgment,
learned Tribunal has assessed Rs.10,000/- towards the head of
transportation charges and in para 39 of the impugned award, Rs.40,000/-
as expenses on treatment in addition to Rs.1,62,000/- which have not been
added in para 40 of the impugned judgment while computing the total
compensation and, accordingly, on that count, the amount of
compensation lacks by Rs.50,000/-.
12. Learned counsel for the appellant also placed reliance on the
judgment of the Hon'ble Apex Court in the case of G.Ravindranath Vs.
E. Srinivas and another, 2013 ACJ 2131, in which the Hon'ble Apex
Court while considering the grievous injuries sustained by the appellant
therein enhanced the compensation amount from Rs.4,35,000/- to
Rs.20,20,000/-. He has also placed reliance on the case of Anil Kumar
Vs. Branch Manager, National Insurance Company Ltd and Anr.
(2018) AIR (SC) 4136, in which the Hon'ble Apex Court enhanced the
amount to Rs.5,00,000/- in lump sum in addition to the amount awarded
by the Tribunal i.e. Rs.3,43,000/-. In both these cases claimants/appellants
were grievously injured. Each case has its peculiarity. The compensation
amount depends upon the nature of injury caused to the claimant in
accident, complexity of the treatment of such injuries, repeated operations
and the impact of such injuries after treatment on future career and life of
the injured and that is to be assessed on the basis of evidence adduced on
record.
13. From this point of view, on going through the evidence on record, it
is found that the claimant has submitted various bills and vouchers of
treatment of Rs.1,52,600/- while only Rs.40,000/- was awarded on that
count and that too has not been taken into account. In the considered
opinion of this Court instead of Rs.40,000/- the amount of Rs.1,52,600/-
ought to be awarded in favour of appellant/claimant. Similarly, on the
head of transportation charges, having regard to the number of operations
which appellant has undergone and his repeated admissions to the various
hospitals, Rs.25,000/- may be awarded under this head and attendant
expenses also ought to be enhanced upto Rs.25,000/- and special diet upto
Rs.25,000/-. Since, admittedly appellant was a student at the time of
accident, therefore, no enhancement is befitting on the head of loss of
income.
14. Having regard to the nature of injuries and the operations which the
appellant has undergone, the amount awarded on the head of pain and
suffering ought to be Rs.1,00,000/- instead of Rs.75,000/-, as claimed by
the appellant in para 9 of the appeal memo.
15. Accordingly, the appeal is allowed in part by enhancing the
compensation amount as under :
Sr. Head Amount of compensation Amount of
No. awarded by the Claims compensation
Tribunal assessed by this
Court
1 Loss of Income Rs. 72,000/- Rs. 72,000/-
2 Pain and Suffering Rs.75,000/- Rs.1,00,000/-
3 Special Diet Rs.10,000/- Rs.25,000/-
4 Attendant Rs.5,000/- Rs.25,000/-
expenses
5 Transportation Rs.10,000 Rs.25,000/-
6 Treatment Rs.40,000/- Rs.1,52,600/-
Total Rs. 1,62,000/- Rs.3,99,600/-
compensation (Note: Learned Tribunal has
assessed Rs.10,000/- under the
head of transportation charges and
Rs.40,000/- as expenses on
treatment in para 38 and 39 of the
impugned award but this amount
has not been added in para 40 of
the impugned judgment while
computing the total compensation)
16. Thus, the just and proper amount of compensation in the instant
case is Rs.3,99,600/- as against the award of the Tribunal of
Rs.1,62,000/-. Accordingly, appellant/claimant is entitled to an additional
sum of Rs.2,37,600/-, in addition to the amount awarded by the Claims
Tribunal. The remaining terms and conditiouyns imposed by learned
Claims Tribunal shall remain intact.
C.C. as per Rules.
(RAJENDRA KUMAR VANI)
JUDGE
Aman
