Bhawan Prakash Tyagi vs Mohd. Atif And Others
2021 Latest Caselaw 4624 UK

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

                        AO No. 296 of 2011

Bhawan Prakash Tyagi                          ..................Appellant

                             -versus-


Mohd. Atif and others                         .............Respondents


Advocates appeared in the case:-

For Appellant           : Mr. Pankaj Miglani, learned counsel for
the appellant.

For Respondents         : Mr. B.D.Pande, learned counsel appearing
for the respondent.


     Date of hearing and Judgement : 18.11.2021


Sri S.K.Mishra, J.

1. Heard Mr. Pankaj Miglani, learned counsel for the appellant and Mr. B.D.Pande, learned counsel for the respondent.

2. None appears for the Insurance Company. On the last date, none appears for the Insurance Company and we have recorded that if nobody appears on the adjourned date, the matter will be taken up for final disposal in their absence, in case it is taken up for final disposal.

3. In this appeal under Section 173 of the Motor Vehicles Act, 1988, the appellant being claimant has assailed the final judgment/award passed by the learned Judge Presiding, Motor Accident Claims Tribunal, Haridwar (hereinafter referred to

as "the Tribunal" for brevity), in Motor Accident Claim No. 137 of 2009, dated 31.03.2011 allowing partially the claim petition of the appellant, awarding a meagre amount of Rs. 58,232/- as compensation.

4. The case of the petitioner, in short, is that on 05.02.2007, while he was travelling from Addhyana to Manglore, alongwith one Omkar Tyagi, a motor accident took place between a Maruti Zen Motor Car bearing Registration No. UP12F4491 and the motorcycle of the appellant i.e. UP11J0612 causing injury to his right leg. The injuries he suffered required a surgery and affixing of a rod to the right leg. He suffered a permanent disability of 40 to 42 % of his right leg as per the report of the Chief Medical Officer, Haridwar. Hence, he claims a sum of Rs. 10 Lakhs and also prayed that a sum of Rs.75,000/- should be granted to him for defraying medical expenses. The appellant also claimed that he was working as a daily wager and also looks after buffalos and sells milk and in that process he earns a sum of Rs.7,000/- per month. It is also borne out from the record that because of such accident, a criminal case bearing Criminal case No. 66 of 2007 has also been imitated for the offences under Section 279, 337, 338 and 427 of the IPC.

5. The opposite party nos.1 and 2 i.e. the owner and driver of the vehicle, the motor car has submitted that the driver of the motorcycle was in a drunken condition, that is why, there was an accident and the driver of the motor car was driving a vehicle very carefully. Moreover, the motor car had a valid insurance policy, hence, the insurance company is

liable to pay the money. Opposite party i.e. respondent no.3, the Insurance Company has filed a written statement. While admitting the accident, he claimed that the Insurance Company covering the risk of use of the motorcycle has not been made a party and disputed the income of the appellant and also that the driver had no valid driving licence etc. On such pleadings, the Tribunal cast four issues relating to the accident and the appellant sustaining injuries thereby, whether the vehicles involved in the accident were having a proper and valid documentation; whether the appellant is guilty of contributory negligence; and whether the appellant is entitled to the compensation and if he is what should be the amount of compensation to be paid to him.

6. On behalf of the petitioner, four witnesses were examined including himself. On the other hand, the opposite party nos.1 and 2 examined only one witness, who was the driver of the motor car involved in the accident. Deciding the issue no.1 the Tribunal came to the conclusion that there was an accident and as a result of the accident the appellant has sustained serious injuries and there was a fracture on his right leg. As far as issue nos.2 and 3 are concerned the Tribunal came to the conclusion that the driver of the motor car was driving the car in a rash and negligent manner, which led to the accident and, therefore, the application was not bad for non-joinder of necessary party, i.e. for the non-impletion of the insurance company covering the motor cycle or two wheeler.

7. However, coming to the issue no.4, the Tribunal came to the conclusion that the appellant has only submitted medical bills of sum of Rs.1,18,232/- and that there is no real connection between its certificate, which was issued after three years of accident. But, the Trial Court has held that this is a summary inquiry under the Motor Vehicles Act, 1973, the strict rules of evidence as envisaged under the Indian Evidence Act, 1872 is not applicable to such proceedings in its full force, therefore, he came to the conclusion that the arguments advanced by the learned Advocate of Insurance Company cannot be accepted. However, while coming to the amount of compensation, he awarded Rs.40,000/- towards compensation for disability and Rs.18,232/- for the medical expenses, which in our consideration is grossly inadequate. In this case, we further calculate the total amount of compensation, the appellant is entitled to :-

For the loss of income etc. a compensation of 40 to 45 % for disability of his right leg, the appellant is entitled to Rs.1,50,000/-, the petitioner has already submitted a bill of Rs.1,18,232/- added to it, there may be some bills which were not preserved by the appellant and the expenses of travelling to the hospitals and expenses of the attendant which we calculate to be total Rs.45,000/-. For pain and sufferings, we are inclined to grant a sum of Rs. 50,000/- to the appellant for suffering a fracture of his right leg wherein a rod has been fixed and that led to 40 to 45 % disability of his right leg. Thus, a total amount comes to Rs.2,45,000/-

rounded up to Rs.2,50,000/-. The petitioner is also entitled to simple interest of 6% from the date of filing of the application under Section 166 of the Motor Vehicles Act, 1973. The amount be disbursed in favour of the appellant within a period of two months, failing which it shall carry a penal interest at the rate of 8% from the date of the filing of the application.

8. With such observation, the Appeal from Order is allowed.

9. There shall be no order as to costs.

10. Urgent certified copy of this order be granted on proper application.

(S.K.Mishra) Judge

KKS