Meetha Lal vs Gobha Ram And Ors
2022 Latest Caselaw 3504 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

          S.B. Civil Miscellaneous Appeal No. 1397/2010

Meetha Lal S/o Chouth Mal, aged 28 years, resident of
M.No.2933, Uniyoron ka Rasta, Chandpole Bazar, Jaipur
                                                          ----Appellant/Claimant
                                     Versus
1. Gobha Ram son of Manne Ram Jat, resident of Village
Agarpura Thana Jobner, District Jaipur (Driver)
2. Munna Ram son of Binwa Ram Jat, resident of Village
Agarpura, Thana Jobner, District Jaipur (Owner)
3.   United   India    Insurance         Company          Limited,   through   its
Divisional Manager, Transport Nagar, Jaipur
                                                 ----Respondents/Defendents

Connected With S.B. Civil Miscellaneous Appeal No. 2062/2009 Mahesh son of Mool Chand Kumawat, aged 32 years, resident of Makan No.3438, Kayanji Ka Rasta, Chandpole Bazar, Jaipur

----Appellant/Claimant Versus

1. Gobha Ram son of Manne Ram Jat, resident of Village Agarpura Thana Jobner, District Jaipur (Driver)

2. Munna Ram son of Bhinwa Ram Jat, resident of Village Agarpura, Thana Jobner, District Jaipur (Owner)

3. United India Insurance Company Limited, through its Sr. Divisional Manager, Transport Nagar, Jaipur.

                                                 ----Respondents/Defendents


For Appellant(s)           :     Mr. Ram Sharan Sharma
For Respondent(s)          :     Mr. Raaj Pal Choudhary



          HON'BLE MR. JUSTICE BIRENDRA KUMAR

Judgment reserved on                     :               31/03/2022
Date of Pronouncement                    :               04/05/2022

1. The appellants are not satisfied with the quantum of

compensation decided by the Motor Accident Claims Tribunal No.3,

(2 of 8) [CMA-1397/2010]

Jaipur District, Jaipur on 11.08.2005, hence these appeals under

Section 173 of the Motor Vehicles Act, 1988.

2. The appellant-Meetha Lal had brought Claim Case

No.164/1996 corresponding to Claim Case No.207/2004 and

appellant-Mahesh had brought Claim Case No.163/1996

corresponding to Claim Case No.208/2004. Both the claim

petitions were decided by the impugned judgment and award

dated 11.08.2005, which is under challenge in both these appeals.

Hence, both these appeals were heard together.

3. The brief facts of the case are that on 28.02.1996, both the

appellants were going on a motorcycle to Niwai from Jaipur. As

soon as they reached near Rampura, a Truck bearing registration

No.RRB-5736 rashly and negligently came and dashed against the

motorcycle causing serious injuries to the appellants. For the

accident aforesaid, FIR No.33/1996 was registered with Police

Station Chaksu, District Jaipur. After investigation of the case,

police submitted challan with finding that the driver of the

offending truck was responsible for the accident.

4. It is worth to point out here that the driver of the truck

confessed in criminal case vide his confessional statement at

Ex.13 and statement in Court vide Ex.14 that due to his fault,

accident took place.

5. The case of the claimants is that at the time of accident,

appellant-Meetha Lal was aged about 20 years and appellant-

Mahesh was aged about 24 years. Both were engaged in business

of jewellery and were separately earning Rs.5,000/- per month.

Both claimed Rs.12,42,000/- as total compensation separately. At

the time of accident, Meetha Lal was driving the motorcycle and

Mahesh was a pillion rider. Appellant-Mahesh sustained fracture on

(3 of 8) [CMA-1397/2010]

right thigh bone and appellant-Meetha Lal sustained fracture of

bones below knee.

6. Before the Tribunal, both the appellants were examined as

A.W.1-Mahesh and A.W.2-Meetha Lal. Both have supported the

factum of accident as eye-witnesses of the occurrence and they

further deposed that the accident took place due to negligence of

the driver. They have deposed about the pecuniary loss caused

due to the accident.

7. The factum of accident and insurance of the vehicle is proved

and established by the oral and documentary evidence on record

vide copy of FIR, charge-sheet and certificate of policy of

insurance.

8. Mr. Ram Sharan Sharma, learned counsel for appellants

contends that the claim of the appellants was not controverted nor

their claim of monthly income was controverted, however, the

learned Tribunal taking hyper-technical approach in absence of

any documentary evidence of income, took income of a daily

wager i.e. Rs.72/- per day for choosing multiplicand. Learned

counsel further contends that meager amount has been awarded

under other heads which is not just and proper.

9. Though the respondents led no evidence before the Tribunal,

however, learned counsel for respondents-Mr. Raaj Pal Choudhary

contends that the driver of the truck had no driving license as

such there is no violation of the terms and conditions of the policy,

hence insurance company is not liable to pay. Learned counsel for

the respondents further contends that the chances of contributory

negligence of the motorcycle rider cannot be ruled out, hence the

Tribunal should have apportioned certain amount for contributory

negligence of the motorcycle rider.

                                           (4 of 8)                      [CMA-1397/2010]



10.   The   learned    Tribunal       while      deciding         the   quantum     of

compensation took the income of a daily wager as multiplicand

and multiplied it with 12 to get yearly loss of income and

thereafter, multiplied with 16 for appellant-Meetha Lal and

multiplier of 17 for appellant-Mahesh. The appellants were

medically examined on 29.02.1996 i.e. the day following the

accident and on the basis of X-Ray Report, the doctor of Medical

College and Hospital, Jaipur found that the appellant-Meetha Lal

has no bony injury at the skull, no bony injury was found at the

right thigh, fracture of tibia and fibula on left leg was noticed.

Injuries No.2 & 4 were simple, whereas injury No.3 was grievous

one. In respect of appellant-Mahesh, the doctor recorded that

there was fracture at right thigh besides other scratches vide

reports at Ex.7 & Ex.8. Thereafter, a team of doctors issued

permanent disablement certificate, a copy whereof is at Ex.A-87 of

Meetha Lal and Ex.11 of Mahesh, wherein it is mentioned that

Meetha Lal would have difficulty in squatting, walking fast for long

distance and sitting cross legged, therefore, he had 19.40% of

permanent disability. The appellant-Mahesh had 26.53% of

permanent disability.

11. In the case of Raj Kumar v. Ajay Kumar and anr.

reported in (2011) 1 SCC 343, wherein the Hon'ble Supreme

Court held that for assessing the future loss of earning due to

permanent disability, the Tribunal/Court must be conscious that

the criteria should not be the extent of permanent disability found

by the medical reports, rather the assessment should be based on

the percentage of inability to the injured, which prevented him

from doing the same vocation or from performing other vocations.

(5 of 8) [CMA-1397/2010]

12. In the case on hand, the disability of the appellants was of a

limb and not of whole body. The appellants were not incapacitated

to follow the vocations they were doing or from performing other

vocations, therefore, it was a case wherein compensation should

have been awarded for the injuries.

13. In the case of Raj Kumar (supra), the Hon'ble Supreme

Court in para Nos. 6 & 7 stated as follows :-

"6. The heads under which compensation is awarded in personal injury cases are the following:

Pecuniary damages (Special Damages)

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on account of permanent disability.

(iii) Future medical expenses.

Non-pecuniary damages (General Damages)

(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life(shortening of normal longevity).

In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.

7. Assessment of pecuniary damages under item (i) and under item (ii)(a) do not pose much difficulty as

(6 of 8) [CMA-1397/2010]

they involve reimbursement of actuals and are easily ascertainable from the evidence. Award under the head of future medical expenses - item (iii) -- depends upon specific medical evidence regarding need for further treatment and cost thereof. Assessment of non-pecuniary damages - items (iv),

(v) and (vi) --involves determination of lump sum amounts with reference to circumstances such as age, nature of injury/deprivation/disability suffered by the claimant and the effect thereof on the future life of the claimant. Decision of this Court and High Courts contain necessary guidelines for award under these heads, if necessary. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability - item (ii)

(a). We are concerned with that assessment in this case."

14. In the case of Jagdish v. Mohan & Ors. (2018) 4 SCC 571,

the claimant who was injured of a motor-vehicle accident had

claimed that he was a carpenter and earning Rs.6,000/- per

month. The Tribunal disbelieved the claim of income and granted

him reduced income. The Hon'ble Supreme Court said that the

claim could not have been regarded as being unreasonable or

contrary to a realistic assessment of the situation on the date of

accident.

15. In the case on hand, consistent case of the claimants is that

they were earning Rs.5,000/- per month. Since the income was

not within the taxable range, no one is expected to maintain an

account book of such income. Evidently, the approach of the

Tribunal was pedantic one and not humanitarian while deciding the

"just compensation".

16. In view of the settled guidelines, it is a case of personal

injury, hence both the appellants are entitled to compensation

under the following heads :-

(7 of 8) [CMA-1397/2010]

Loss of earning during treatment, the appellants were under bed rest for three months, hence they got actual loss of Rs.5,000/-x3 = Rs.15,000/-.

             Both    the     appellants        were      treated      in    the
       Government          Hospital,     hence        no         charges    for

hospitalization was made against them, therefore, no compensation is payable under this head. However, on the basis of vouchers of the purchase of medicines, the learned Tribunal awarded Rs.8,500/- which is affirmed considering the nature of injury for which the appellants had gone for surgery and implants.

They are entitled for Rs.10,000/- each for transportation expenses and Rs.10,000/- each for nourishing food.

There was need for helper during the period of treatment till they were unable to walk freely, hence under this head, Rs.30,000/- is payable to each of the claimants.

For future medical expenses, the claimants are entitled for Rs.50,000/- each.

Besides the aforesaid, both the claimants are entitled for Rs.1,00,000/- each for pains, sufferings and trauma as a consequence of injuries and another Rs.1,00,000/- for loss of amenities and expectation of life.

Thus, the total payable compensation is calculated at Rs.3,23,500/- for each of the claimants.

17. The respondent insurance company is directed to make

payment of the aforesaid amount minus already paid amount

along with interest awarded by the Tribunal within two months,

failing which 12% interest to be payable till the date of realization.

(8 of 8) [CMA-1397/2010]

18. The appeals stand allowed, to the aforesaid extent.

19. Copy of this order be placed in each connected file.

(BIRENDRA KUMAR),J

BMG

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