Rajasthan High Court - Jodhpur
Bhanwar Lal Sharma vs Mohammad Hussain And Ors on 9 April, 2021
Bench: Rameshwar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 409/1999
Bhanwar Lal Sharma S/o Shri Kanhiya Lal Sharma, r/o
Raghunath Garh, presently at Sathana Bazar, Bijay Nagar,
District Ajmer (Raj.).
----Appellant
Versus
1. Mohammad Hussain, Musalman S/o Shri Haji Alladdin Nilgar,
r/o Shahpura, Tehsil Shahpura, District Bhilwara (Raj.).
2. Shri Ismail Mohammed, Musalman S/o Shri Jamaluddin
through Pareek Studio, Shriram Takiz, Shahpura, District
Bhilwara (Raj.).
3. The Oriental Insurance Co. Ltd. Registered Office : Oriental
House, A-25/27, Asaf Ali Road, New Delhi - 110 002, through
Branch Manager, Bhilwara, Bhilwara (Raj.).
----Respondents
For Appellant(s) : Mr. Usman Ghani
For Respondent(s) : Mr. U.S.C. Singhvi
HON'BLE MR. JUSTICE RAMESHWAR VYAS
Judgment
09/04/2021
The instant appeal under Section 173 of the Motor Vehicles
Act, 1988 (afterwards referred as 'Act of 1988') for enhancement
of compensation has been filed by appellant - Bhanwar Lal against
the award dated 20.02.1999 passed by the Motor Accident Claims
Tribunal, Bhilwara (afterwards referred as 'Tribunal') in MAC Case
No.432/1994, whereby, the Tribunal has awarded a sum of
Rs. 40,000/- as compensation.
Brief facts of the case are that on 09.07.1994 when the
appellant, as a pillion rider, was going on a Scooter, a Truck
bearing registration No. RSE-876, being driven rashly and
(2 of 5) [CMA-409/1999]
negligently by its driver respondent No. 1, hit the Scooter,
resultantly Purshotam died and the appellant & Kaluram sustained
injuries. Respondent Nos. 2 and 3 are owner and insurer of the
Truck respectively.
As per the averments made in the claim petition the
appellant sustained grievous injuries, for which, he was referred
from M.G. Hospital, Bhilwara to S.M.S. Hospital, Jaipur, where
appellant remained hospitalized from 18.07.1994 to 20.08.1994.
During the said period, the appellant was operated twice for the
fracture in his left leg. A sum of Rs. 2,15,000/- has been claimed
as compensation in the following heads:-
(i) Expenses incurred during treatment : Rs. 25,000/-
(ii) Expenses incurred relating to special : Rs. 5,000/-
diet, attendant and other misc. heads
(iii) Loss of income during treatment : Rs. 10,000/-
(iv) Loss on account of permanent dis- : Rs. 1,50,000/-
ability.
(v) Pain & suffering : Rs. 25,000/-
After service on respondent Nos.1 and 2 nobody was
appeared on their behalf and, therefore, learned Tribunal
proceeded ex parte against them.
Respondent No. 3 - Insurance Company filed reply to the
claim petition. It was submitted that at the time of accident the
Truck driver did not possess a valid & effective driving licence.
The amount claimed in the claim petition is fictitious.
During the inquiry, the appellant himself was produced as
witness and certain documents were also exhibited to substantiate
the claim. No evidence was produced on behalf of respondents.
Learned Tribunal after considering the material available on
record has decided the issue of rash & negligent driving by
(3 of 5) [CMA-409/1999]
respondent No. 1 in favour of appellant and awarded a sum of
Rs.40,000/- only in the following terms:-
(i) Expenses incurred for treatment : Rs. 10,000/-
(ii) Pain & Suffering : Rs. 25,000/-
(iii) Economic loss during treatment : Rs. 5,000/-
As per the finding of learned Tribunal permanent disability
certificate was not proved by producing the author of the
certificate. The appellant failed to produce discharge certificate
and other medical documents.
Not satisfied with the quantum of compensation, the
appellant has preferred the present misc. appeal.
As per the contention of learned counsel for the appellant
learned Tribunal has not awarded just & fair compensation to the
appellant. The disability certificate produced by the appellant
should have been relied. The appellant remained hospitalized in
S.M.S. Hospital, Jaipur regarding treatment for the injuries
sustained by him on account of road accident. The appellant was
operated many times, for which, oral evidence should not have
been discarded.
Learned counsel appearing for respondent - Insurance
Company contended that there is no need to enhance the
compensation awarded by the learned Tribunal. It was contended
that due to injuries sustained by the appellant no permanent
disability has been caused to him. It was further contended that in
absence of oral evidence of the author of certificate (Exhibit-P/9)
the same cannot be read in evidence.
Heard learned counsel for the parties and perused the
material available on record.
(4 of 5) [CMA-409/1999]
It is the admitted position that the appellant sustained one
grievous injury in his left leg. As per injury report there was
fracture of middle 2/3 region of femur. Other injuries are of simple
nature. The oral statement also reveals that for treatment of
fracture the appellant was admitted in M.G. Hospital, Bhilwara and
thereafter referred to S.M.S. Hospital, Jaipur, where he was
admitted and operated upon. The statement of appellant in this
regard should not be disbelieved. As per the photocopy of
discharged ticket the appellant was admitted on 18.07.1994 and
discharged on 20.08.1994. As per the oral statement the appellant
was also hospitalized in Medical College, Ajmer.
The above factual position could not be rebutted by learned
counsel for respondent - Insurance Company.
In view of the above factual position this Court is of the view
that the appellant has not been compensated in just & fair manner
by the learned Tribunal. It is true that permanent disability
certificate being issued by a private Doctor cannot be acted upon
without examination of that Doctor before the Tribunal. But the
fact remains that the appellant should be compensated in other
heads i.e. expenses incurred during the treatment and for his pain
& suffering in a proper manner.
The oral statement made by the injured before the Tribunal
could not be rebutted in cross-examination. The photocopy of
discharge ticket and operation note, available on record of the
Tribunal, shows that the statement of appellant can be relied upon
regarding his treatment.
On the basis of evidence available on record, the appellant is
entitled to get compensation in the following terms:-
(i) For pain & suffering : Rs. 50,000/-
(ii) For loss of income during : Rs. 10,000/-
(5 of 5) [CMA-409/1999]
treatment
(iii) Expenses for transportation : Rs. 20,000/-
supplementary diet and
attendant.
(iv) Medical expenses : Rs. 20,000/-
(v) Expenses incurred during : Rs. 25,000/-
hospital.
-----------------
Total Rs. 1,25,000/-
-----------------
On the basis of the above conclusion, the appeal is partly
allowed. The appellant is entitled to get compensation of
Rs. 1,25,000/- instead of Rs. 40,000/- awarded by the learned
Tribunal. On the enhanced amount of compensation i.e.
Rs. 85,000/- the appellant would be entitled to get interest @ 6%
per annum from the date of application till realization of the
amount.
(RAMESHWAR VYAS),J
AK Chouhan/-
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