Rajasthan High Court - Jodhpur
Ayub Mohd vs Jakir Khan & Anr on 6 December, 2017
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 839 / 2007
Ayub Mohammad S/o Shri Nasir Mohammad by cast Lakhara
Musalman aged 31 years R/o Talwara Distt. Banwara.
----Appellant
Versus
1. Jakir Khan S/o Shri Navab Khan by cast Musalman R/o
Khodan Police Station Lohariya Tehsil Garhi Distt. Banswara.
(Owner & Driver)
2. The National Insurance Company Ltd., Branch Commercial
Area, Dahod Road, Opposite Forest Office, Banswara
(Insurer)
----Respondent
Connected With
S.B. Civil Misc. Appeal No. 855 / 2007
Smt. Rajiya Bee W/o Shri Rafik Mohammad by cast Lakhara
Musalman aged 33 years R/o Talwara Distt. Banswara
----Appellant
Versus
1. Jakir Khan S/o Shri Navab Khan by caste Musalman R/o
Khoan Police Station Lohariya Tehsil Garhi Distt. Banswara
(Owner & Driver)
2. The National Insurance Company Ltd., Branch Commercial
Area, Dahod Road, Opposite Forest Office, Banswara
(Insurer)
_____________________________________________________
For Appellant(s) : Mr. Mahendra Trivedi
For Respondent(s) : Mr. TRS Sodha and Ms. Deepika Soni
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Judgment 06/12/2017 These two appeals under Section 173 of the Motor Vehicles Act, 1988 (for short, 'Act of 1988'), filed by appellant-claimants, are arising out of same judgment and award dated 14.11.2016, passed by Motor Accident Claims Banswara, (for short, 'the (2 of 7) [ CMA-839/2007] learned Tribunal'), therefore, both these appeals are heard together and disposed of by this common judgment.
In both the appeals, afflictions of the appellants are confined to quantum of compensation determined and awarded by the learned Tribunal. Appellants have craved for enhancement of compensation on various counts including permanent disablement suffered by them due to the injuries suffered in the accident.
Succinctly stated, facts of the case are that appellant- claimants filed two separate claim petitions under Section 166 of the Act of 1988 seeking compensation for the injuries suffered by them in a motor accident which occurred on 18 th of August 2005 while they were traveling in a Mini Bus bearing Registration No.RJ- 03/P-1186. As per claim petitions, accident had occasioned due to rash & negligent driving of mini bus by its driver (first respondent) and its colliding with a tree resulting in numerous injuries to the appellant-claimants. Appellant-claimant Ayub Mohd. in Claim Petition No.307/2006 quantified compensation under different heads to the tune of Rs.12,12,000 whereas appellant-claimant Smt. Rajgiya Bee in other Claim Petition No.308/2006 has claimed compensation to the tune of Rs.12,10,000.
The claim petitions were contested by owner-driver and insurance company by filing separate written statements denying all the allegations contained therein. The insurance company has (3 of 7) [ CMA-839/2007] also raised certain objections for absolving it from its liability to pay compensation.
On the basis of pleadings of rival parties, the learned Tribunal framed six issues including the issue of relief. In support of their case, appellants/claimants examined themselves by appearing in witness box and produced certain documents whereas no evidence either ocular or documentary was adduced on behalf of respondents. The learned Tribunal, after hearing the arguments, awarded compensation of Rs.44,000 to appellant Ayub Mohd. and Rs.39,000 to appellant Smt. Ragiya Bee.
I have heard learned counsel for the appellants as well as learned counsel for the respondents, perused the impugned judgment & award and thoroughly scanned the record of case.
The solitary question, which arises for consideration in these appeals, is whether amount of compensation awarded by learned Tribunal to both the appellants is insufficient/inadequate on the touchstone of criteria of just compensation within the meaning of Section 168 of the Act of 1988.
Now, I propose to examine grievances of the appellants in the light of evidence and other materials available on record.
(4 of 7) [ CMA-839/2007]
(i) Civil Misc. Appeal No.839/2007 (arising out of Claim Case No.307/2006).
Appellant-claimant, in the said claim petition, is awarded compensation under different heads to the tune of Rs.44,000. Upon perusal of the record, it clearly emerges out that due to accidental injuries appellant (Ayub Mohd.) has suffered 20% permanent disability and also remained idle for three months during treatment. The Disability Certificate Ex.24 issued by duly constituted Medical Board is clear and unequivocal, and therefore, cannot be doubted. That apart, expenses incurred by the appellant for medical attendance including bills of prescribed medicines are also on record. Undoubtedly, appellant, at the time of accident, was 30 years old and due to disability suffered by him in the accident, his efficiency has impaired. The impairment of efficiency had its obvious adverse effects on the earnings of the appellant and so also on his future prospects. Therefore, in totality, in my considered opinion, the quantum of compensation determined and awarded by learned Tribunal is grossly inadequate and not commensurating with the injuries suffered by him. While refraining to examine the matter in the light of present scenario, taking into account a very significant fact that accident occurred more than a decade back, without applying the requisite criteria for assessment of just compensation, I feel persuaded to enhance lump sum amount of compensation in the matter. Taking into account all relevant considerations, in my opinion, it would be appropriate to the enhance compensation amount to Rs.90,000.
(5 of 7) [ CMA-839/2007] Accordingly, the award is modified and enhanced to Rs.90,000 and appellant Ayub Mohd. is declared entitled for the enhanced amount of Rs.46,000. The resultant position, in respect of compensation payable to him, is as under:
Compensation Amount enhanced Total amount payable amount awarded by learned tribunal Rs.44,000 Rs.46,000 Rs.90,000
(ii) Civil Misc. Appeal No.855/2007 (arising out of Claim Case No.308/2006).
Likewise, appellant-claimant Smt. Ragiya Bee in her claim petition is awarded compensation under different heads to the tune of Rs.39,000. On going through the record, it is clear that she too on account of accident suffered grievious injuries on her legs, nose, elbow and ankle and also a fracture in right leg and remained under treatment for three months. Injury Report and X-ray Report Ex.26 & 27 are produced on record and the Disability Certificate, showing her 12% permanent disablement, issued by duly constituted Medical Board, is clear and unequivocal and cannot be doubted. That apart, prescriptions and bills of medicines are also on record. The appellant, at the time of accident, was about 31 years old and was engaged in sewing work and bangles business, but due to the disability suffered in the accident, her efficiency has impaired. The impairment of efficiency had its obvious adverse effects on her earnings so also (6 of 7) [ CMA-839/2007] on her future prospects. Therefore, in totality, in my considered opinion, the quantum of compensation determined and awarded by learned Tribunal is grossly inadequate and not commensurating with the injuries suffered by her. While refraining to examine the matter in the light of present scenario, taking into account a very significant fact that accident occurred more than a decade back, without applying the requisite criteria for assessment of just compensation, I feel persuaded to enhance the amount of compensation in lump sum. As such, taking into account all the relevant considerations, in my opinion, it would be just and proper to enhance the compensation amount to Rs.80,000. Therefore, the award is modified and compensation is enhanced to Rs.80,000 and appellant Smt. Ragiya Bee is declared entitled for the enhanced amount of Rs.41,000. The net position in relation to payment of compensation amount to her is as under:
Compensation Amount enhanced Total amount payable amount awarded by learned Tribunal Rs.39,000 Rs.41,000 Rs.80,000 Resultantly, these appeals are allowed in part and the award of the learned Tribunal is modified to the extent of enhancing the compensation amount awarded to appellant-claimants from Rs.44,000 to Rs.90,000 in case of appellant-claimant Ayub Mohd. and from Rs.39,000 to Rs.80,000 in case of appellant-claimant Smt. Ragiya Bee with the direction that the enhanced amount be paid to within four weeks from the date of receipt of certified copy (7 of 7) [ CMA-839/2007] of the judgment. The enhanced amount of compensation in both the cases shall carry interest @7.5% from the date of filing of claim petitions.
Record of the Tribunal be remitted back forthwith.
(P.K. LOHRA), J.
Bharti/123-124