Himachal Pradesh High Court
Vijay Kumar vs Sanjeev Kumar And Others on 2 August, 2016
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.299 of 2010 Reserved on : 27.7.2016 .
Decided on: 2nd August, 2016
Vijay Kumar ...Appellant.
Versus
Sanjeev Kumar and others ...Respondents.
Coram
of
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 Yes.
For the appellant :
rt Mr. Vivek Singh Thakur, Advocate.
For the respondents : Mr. Jitender Ranot, Advocate vice Mr. B.S. Thakur, Advocate, for respondents No.1 & 2.
Ms. Leena Guleria, Advocate vice Mr. G.R. Palsra, Advocate, for respondents No.3 & 4.
Mr. O.P. Negi, Advocate, for respondent No.5.
Mr. Aman Sood, Advocate, for respondent No.6.
Chander Bhusan Barowalia, Judge.
The present appeal under Section 173 of the Motor Vehicles Act, 1988, is maintained by the appellant/petitioner/claimant (hereinafter referred to as 'claimant') for enhancement of the compensation awarded by learned Motor Accidents Claims Tribunal-II, Fast Tract Court, Hamirpur, dated 24.4.2010, in MAC Petition No.26 of 2007.
2. The brief facts giving rise to the present appeal are that on 4.7.2007, claimant was travelling in bus bearing No.HP-33-1175 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:56:30 :::HCHP 2owned by respondents No.3 and driven by respondent No.4, which was on its way to Sarkaghat from Mandi. When it reached at .
village Khaylag at about 12:30 pm, truck bearing No.HP-28-2237 came from the opposite side being driven by respondent No.2, owned by respondent No.1 in a rash and negligent manner and in high speed, due to which he could not control it while taking pass of from the bus in a fast speed, as a result of which the truck struck against the bus, thereby caused injuries on the right arm of the rt claimant. The accident had taken place due to rash and negligent driving of the driver of the bus bearing No. HP-33-1175 and driver of truck bearing No. HP-28-2237, respondent No.1. The claimant had suffered the permanent disability. The monthly income of the claimant stated to be `15,000/-. FIR was lodged in Police Station, Sarkaghat, District Mandi. Hence, claim petition preferred for a sum of `10,00,000/- with interest @ 12 % per annum from the date of the accident till the realization of whole amount. Further case of the claimant is that after filing reply by all the respondents to claim petition, issues were framed and evidence was led by the parties and thereafter claim petition was allowed partly to the tune of `76,797/- alongwith 6% interest from the date of petition.
3. The only question which is now involved in the appeal is whether the learned Tribunal below has awarded compensation ::: Downloaded on - 15/04/2017 20:56:30 :::HCHP 3 amount on account of injury/disability on the lower side and the same requires to be enhanced.
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4. The application of the applicant under Order 41 Rule 27 read with section 151 CPC, is separately dismissed vide separate order of the date.
5. Learned counsel appearing on behalf of the claimant has of argued that the learned Tribunal below has not taken into consideration the fact that claimant was BA Pass, Computer rt hardware knowing person and was earning `15,000/- per month.
He has further argued that claimant has suffered disability to the extent of 41%.
6. On the other hand, learned counsel appearing on behalf of respondents argued that the compensation awarded is just reasoned. The learned Tribunal below has also come to the conclusion that claimant has signed petition with his own hand, therefore, the compensation is rightly awarded. It is further argued that the claimant has failed to prove his income.
7. In rebuttal learned counsel appearing on behalf of the claimant has argued that income of the claimant was duly proved by the statement of claimant and otherwise also learned Tribunal below should have taken the judicial notice of income of BA Pass person having knowledge of Computer hardware.
::: Downloaded on - 15/04/2017 20:56:30 :::HCHP 48. To appreciate the arguments of learned counsel for the parties, I have gone through the record of the case carefully.
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9. The learned Tribunal below has awarded global compensation amount on account of injury/disability of `25,000/-, attendant charges for the period remained admitted in hospital to the tune of `1,198/-, medical expenses and taxi charges are of `45,599/- as well pain and suffering from injury/disability for `5,000/-. Now, as far as the compensation on account of rt injury/disability is concerned, the learned Tribunal below has awarded `25,000/-, this Court finds that this part of the award is requires to be dealt with appropriately after taking into consideration the evidence which has come on record.
10. As far as the monthly income of the claimant is concerned, as per the claimant, he was doing the work of Computer hardware and earning `15,000/- per month. He has also stated that he could not complete his MA degree on account of the accident. He has further deposed that he has done BA and BP. Ed.
11. Now, coming to the disability/injury, as per Doctor, the claimant has suffered disability to the extent of 41 %, as there was permanent loss of function of right upper limb. Taking into consideration the disability of 41% of right limb is there and with respect to the whole body, the disability of the claimant can be taken at 20%.
::: Downloaded on - 15/04/2017 20:56:30 :::HCHP 512. The claimant has stated on oath that he is Graduate, B.P Ed and Computer hardware knowing person. The claimant is a .
young man of 31 years of age, so on taking the judicial notice of all these aspects, the claimant is held to be not earning not less than an unskilled labourer, as such, the income of the claimant can be taken as `5000/- per month. Now 20% of the income comes to of `1,000/- per month. The annual loss of income comes to `12,000/-
. Now, taking into consideration the age of claimant at the time of rt accident being 30 years, the multiplier of 15 is applied to his annual income which comes to `1,80,000/-. Taking into consideration the nature of injury/disability suffered by the claimant, he is held entitled to the tune of `1,80,000/- on account of the disability in place of `25,000/- awarded by learned Tribunal below is accordingly modified. Therefore, the claimant is held entitled to the compensation of injury/disability under the following heads :
i) Global compensation on account of `1,80,000/-
injury/disability.
ii) Attendant charges for the period `1,198/-
remained admitted in hospital globally as not specifically mentioned.
iii) Medical Expenses and Taxi `45,599/-
Charges as per the bills produced.
iv) Pain and suffering for injury/disability. `5,000/-
Total : `2,31,797/-
::: Downloaded on - 15/04/2017 20:56:30 :::HCHP 6The enhanced amount is just to be paid by respondents No.5 & 6 in the ratio of 50:50. However, the claimant is held entitled interest .
at the rate of 7% per annum from the date of petition till its realization.
13. The appeal is accordingly disposed of. In the peculiar facts and circumstances of the case, parties are left to bear their of own costs.
rt (Chander Bhusan Barowalia)
nd
2 August, 2016 Judge
(CS)
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