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MISHRILAL & ORS versus JEEVARAM & ANR

High Court of Rajasthan

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MISHRILAL & ORS v JEEVARAM & ANR - CMA Case No. 04426 of 2004 [2007] RD-RJ 1202 (7 March 2007)

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S.B. CIVIL MISC. APPEAL NO. 4426/2004 (DR/J)

(Mishri Mal & Ors. Vs. Jeeva Ram & Anr.)

Date of Order :: 7th March, 2007

HON'BLE MR. JUSTICE DINESH MAHESHWARI

Mr. Shambhoo Singh, for the appellants.

This appeal against the award dated 02.02.2002 made by the

Motor Accidents Claims Tribunal, Balotra in Claim Case No.15/2001 has been filed on behalf of the claimants on 15.03.2004; and is reported to be barred by limitation by 681 days.

Mishri Mal son of Basti Ram, with his wife Smt. Naini Devi and sons Amrit Lal and Mahendra, moved the claim application against the owner-cum-driver and insurer of a tempo bearing registration No.

RJ04 P 0440 seeking compensation for the loss suffered by the claimant No.1 Mishri Mal, about 55 years in age, because of the grievous injuries sustained in an accident that occurred on 28.05.2000 when the vehicle aforesaid capsized on the way to

Balotra from village Bithuja. The Tribunal has found that the accident occurred for rash and negligent driving by the non-applicant No.1

Jeeva Ram; and that due to the accident, the victim Mishri Mal suffered fracture on his vertebra, and lower portion of his body was paralysed. The Tribunal has found the injured totally confined to bed and has allowed Rs.23,260/- towards treatment expenditure,

Rs.30,000/- towards pains and suffering, Rs.10,000/- towards

-2- transportation, Rs.5,000/- towards attendants and another Rs.5,000/- towards special diets. The Tribunal has further allowed

Rs.1,00,000/-, looking to the age of the victim at 55 years, towards loss of earning capacity and for permanent dependency on others. In this manner, the Tribunal has made the award of compensation in the sum of Rs.1,73,260/- and has also allowed interest at the rate of 9% per annum from the date of filing of claim application.

This appeal by the claimants seeking enhancement over the amount so awarded by the Tribunal was filed on 15.03.2004 and later on an application was filed by the claimants on 23.05.2005 seeking condonation of delay with the submissions that the victim

Mishri Mal was totally confined to bed and his condition deteriorated after decision of the case by the Tribunal; that the other appellants were busy attending on him; that heavy expenses were incurred in treatment but the victim Mishri Mal could not survive and he ultimately expired due to the effect of injuries received in the accident; that the appeal was filed on 15.03.2004 at the instructions of the appellants through the local counsel who handed over the papers to the appellate lawyer.

While considering the matter, this Court posed a specific question about the date of death of Mishri Mal but learned counsel was not in a position to state the said relevant date.

Learned counsel contended that the Tribunal has been in error in taking the income of the victim Mishri Mal only at Rs.1,000/- per

-3- month and in allowing medical expenses on lower side and, therefore, the award in question calls for interference in appeal; and delay caused for the adverse circumstances for the appellants deserves to be condoned.

Having heard learned counsel for the appellants and having examined the record, this Court is clearly of opinion that this appeal remains bereft of substance. Neither there is any explanation for inordinate delay nor the cause stated or suggested inspires confidence nor there appears any scope for interference in the award in question in this appeal at this stage at the instance of the surviving appellants.

It is true that that the victim Mishri Mal sustained grievous injuries and was confined to bed with fracture of back-bone and paralysis of the lower limbs but then, the fact remains that the claim for compensation was consciously made while joining the wife and so also sons of the victim Mishri Mal, about 55 years of age. The record shows that after passing of the award by the Tribunal on 02.02.2002, applications were moved on behalf of the claimants for releasing of the award amount for treatment expenditure; and the

Tribunal passed necessary orders on 26.08.2002, 04.01.2003, and 29.05.2003. So far the claimants are concerned, facing of difficulties by them cannot be denied but such were their surrounding circumstances even while prosecuting the claim application. In the fact situation of this case, it cannot be assumed that after passing of

-4- the award, the appellants were under greater hardship that prevented them from extending instructions for filing of appeal within reasonable time.

Moreover, the averments taken in the application seeking condonation of delay are too general, vague and obscure.

Nothing has been pointed out as to who instructed the local counsel to take up the matter for appeal and when; and nothing is available on record as to when the local counsel extended instructions for filing of the appeal? This appeal has been filed more than two years after passing of the award; and application for condonation of delay, supported by affidavit of the wife of the victim has been filed another year thereafter. Not only the application is wanting in reasonable cause for delay, the same is lacking in particulars on fundamental fact, i.e., the date of death of Mishri Mal, and such date could not be stated even during the course of arguments. On the whole, the application for condonation of delay in this matter remains uncertain and does not inspire confidence.

Even on merits, there appears no cause or reason to entertain this appeal. Looking to the nature of injuries and disablement, the amount of compensation as allowed by the Tribunal might appear standing on the lower side for the injured-claimant but cannot be said to be grossly inadequate and insufficient so as to call for interference now in this appeal. The present one is essentially a case of seeking compensation because of loss suffered due to the injuries sustained

-5- in accident and with the injured having expired, there appears no reason to consider enhancement over the amount of compensation at the instance of his heirs. The amount awarded by the Tribunal towards pecuniary loss and towards loss of estate, though moderate, but cannot be said to be grossly inadequate in the fact situation of the present case; and any other component like non-pecuniary loss, cannot now be considered for the victim not surviving.

As a result of the foregoing discussion, the application under Section 5 of the Limitation Act stands rejected and the appeal stands dismissed being barred by limitation and so also on merits.

(DINESH MAHESHWARI), J. mahendra


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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