Rajasthan High Court - Jodhpur
Amarchand Kukar vs Mahaveer Dass & Ors on 5 March, 2013
Author: Arun Bhansali
Bench: Arun Bhansali
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
S.B. CIVIL MISC. APPEAL NO.574/2005
Amarchand Kukar
Vs.
Mahaveer Dass & Ors.
Date of Judgment 05th March, 2013
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. N.L. Joshi, for the appellant.
Mr. U.C.S. Singhvi, for respondent No.3.
----
BY THE COURT:
This appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 ('the Act') by the injured-claimant seeking enhancement of compensation awarded by the Motor Accidents Claims Tribunal, Anupgarh, District Sri Ganganagar ('the Tribunal') vide judgment and award dated 23.02.2005, whereby, he was awarded compensation to the tune of Rs.24,000/-.
The brief facts of the case are that the appellant filed an application for compensation before the Tribunal, inter alia, with the averments that he was going by Car from Bikaner to Anupgarh on 17.10.2000 when at around 09:30 PM near Shobhasar, the respondent No.1 driver, driving the Jeep No.RJ07-P-1027 rashly and negligently collided with the said Car, which resulted in grievous injuries to the appellant; he was aged 45 years and was earning Rs.12,000/- per month by 2 practicing as an Advocate. He suffered injuries on both hands and both legs, which has resulted in permanent disablement and he has spent Rs.50,000/- in the treatment and claimed a compensation of Rs.16,00,000/-.
The owner and driver of the vehicle were proceeded ex parte as despite service by publication, they failed to appear before the Tribunal. The Insurance Company filed its reply denying all the material averments and prayed for dismissal of the application.
The Tribunal framed three issues. On behalf of the claimant four witnesses were examined including Dr.Rajendra Sethiya as AW-4 and 30 documents were exhibited. The Insurance Company produced insurance policy and the same was marked as Exhibit-A/1.
The Tribunal after hearing the parties came to the conclusion that the respondent No.1 was driving the vehicle rashly and negligently, which resulted in the accident and consequent injuries to the appellant and awarded compensation to the tune of Rs.24,000/-.
It was contended by learned counsel for the appellant that despite producing sufficient documentary and oral evidence including the oral evidence of Dr. Sethiya, who had treated the appellant, the Tribunal has awarded a meager amount by ignoring the said evidence and the appellant was entitled to just compensation.
The learned counsel for Insurance Company submitted that 3 the Tribunal has thoroughly examined the evidence and the award impugned does not call for any interference.
I have considered the rival submissions made at the Bar and perused the record of the case.
The Tribunal has refused compensation to the appellant on account of its findings that the appellant had not produced any medical certificate regarding any grievous injury. Regarding the appellant's primary grievance regarding 'ACL Tear', which has been understood as 'Ligament Leak' in his left knee requiring surgery, the Tribunal has come to the conclusion that there is no direct connection between the injuries suffered in the accident and the ACL Tear and the problem to the claimant has arisen on account of his age.
The finding on the connection between the injuries suffered on account of the accident and the ACL Tear in the left knee of the appellant recorded by the Tribunal is clearly perverse.
The appellant has placed on record various prescriptions of hospitals situated at Sri Ganganagar (Exhibit-16), Bikaner (Exhibit-21), Hisar (Exhibit-22), Sirsa (Exhibit-23) and Apollo Hospital, Delhi (Exhibit-24) for his ailment 'ACL Tear' and in almost all the prescriptions, the reason indicated is the injury suffered by him, which injury necessarily is on account of the accident, which occurred on 17.10.2000. The appellant has also produced the medical certificate Exhibit-18 issued by the Medical Officer Incharge, which also clearly shows ACL Tear in its report. The statement of Dr. Rajendra Sethiya AW-4 is clearly 4 supportive of the claim of appellant regarding the injury suffered by him in the accident, which has resulted in ACL Tear. The statement of Dr. Sethiya AW-4 that normally the ACL Tear takes place after the age of 60 years when it happens on account of aging process, has been thoroughly misread by the Tribunal, when it recorded the finding that on account of appellant's age, he has suffered the said problem and there is no direct nexus between the accident and the ailment. Admittedly, the appellant was 45 years of age when the accident occurred and it cannot be said that the ACL Tear had happened to him on account of his age. Consequently, the finding recorded by the Tribunal regarding lack of nexus between the accident and appellant's ailment is set aside.
Almost all the doctors vide Exhibits-16, 21, 22, 23 and 24 have suggested 'Arthroscopy' and in the prescription Exhibit-24 an estimated cost of Rs.50,000/- has been indicated for the same. However, on account of the finding recorded by it, the Tribunal has not awarded any sum for the said treatment. As such, the appellant is entitled to a sum of Rs.50,000/- towards treatment of ACL Tear, which has occurred on account of injury suffered by him due to accident. Even on account of the tests and consultation fee, the Tribunal has only awarded a sum of Rs.5,600/-, wherein, admittedly, a bill of Rs.5,000/- towards M.R.I. was produced by the appellant Exhibit-29 and though the appellant has produced several prescriptions from various doctors, cash receipts of fee from the said doctors have not been 5 produced, which is a normal phenomena while consulting doctors and that too in the year 2000. Looking to the fact that the appellant has moved around various places like Hisar, Sirsa and Delhi seeking treatment for his ailment, the appellant is entitled to a further sum of Rs.15,000/- towards his treatment.
So far as the issue of loss of income is concerned, the appellant is an advocate and has produced certificate from the Tax Bar Association, Anupgarh indicating him as a Member. The type of activity likely to be undertaken by an Advocate though may be hampered by the ailment suffered by the appellant, but the same apparently cannot lead to any direct loss of income, which could be quantified. However, looking to the fact that even four years after the accident, the appellant was moving around seeking treatment for his ailment, which is clear from Exhibit-24, proves the fact that the said injury was nagging him and, therefore, on that count, the appellant is entitled to a lump sum compensation of Rs.10,000/-.
The plea raised by the appellant regarding direct loss of income is not supported either by the copy of return Exhibit-20 filed by him or the statement of AW-3 Chhagan Lal, who claims to be the Junior Advocate with the appellant. The appellant claimed income of Rs.12,000/- per month prior to accident and stated that the same has almost come to a stand still is essentially contrary to the above documentary and oral evidence, wherein, the return indicates an income of Rs.5,000/- per month even prior to the period of accident and the witness 6 AW-3 also states the same.
In view of the above discussion, the appeal is partly allowed. The judgment and award passed by the Tribunal is modified to the extent that appellant would be entitled to a further sum of Rs.75,000/- as compensation alongwith interest @ 6% per annum from the date of filing application for compensation i.e. 21.03.2002 from all the respondents jointly and severally. The enhanced compensation be paid to the appellant within a period of three months. No costs.
(ARUN BHANSALI), J.
A.K.Chouhan/-