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MOTI LAL versus UDAI LAL & ORS.

High Court of Rajasthan

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MOTI LAL v UDAI LAL & ORS. - CMA Case No. 0555 of 2007 [2007] RD-RJ 342 (16 January 2007)

S.B.CIVIL MISC. APPEAL NO.555/2007(DRJ)

(Motilal Vs. Udailal & others) 16th January 2007

DATED :

HON'BLE MR.JUSTICE DINESH MAHESHWARI

Mr. Manish Pitaliya for the appellant

Learned counsel for the appellant has cured defect No.2 by mentioning the valuation of appeal in the memo of appeal with permission in the court.

Learned counsel has moved an application seeking dispensing with filing of the certified copy of impugned award.

This appeal has been submitted within 90 days of passing of award and is accompanied by a photostat of the certified copy thereof. It appears that the certified copy has been filed in cognate appeal filed against the same award on behalf of other claimant, son of the present appellant. Having regard to the facts and circumstances of the case and for the averments taken in the application, IA No.220/2007 is allowed and necessity of filing of the certified copy is dispensed with.

Both the defects stand cured.

Learned counsel has been heard on merits of the case.

Briefly put, the background facts are that on 11.08.2002 at about 4:00 p.m. near village Bhindar the appellant Motilal while riding a bicycle with his son Prakash Chandra was hit by a motorcycle bearing registration No.RJ 27 9M 8988 driven by the non-applicant No.1 Udailal; both the riders of bicycle sustained injuries and were admitted to the hospital; and the appellant Motilal was referred to Udaipur Hospital for treatment. Narrating the incident and alleging liability of the non-applicants driver, owner and insurer of the said motorcycle, the appellant and his son Prakash Chandra filed separate claim applications seeking compensation for the loss suffered due to the injuries sustained in accident. The owner and insurer of the vehicle put the claims to contest; and the

Tribunal framed consolidated issues for determination of the questions involved in the two cases related to the same accident. In evidence, the claimant Motilal examined himself as AW-1 and produced two other witnesses Dali Chand AW-2 and Dal Chandra AW-3 in relation to his income; and produced documentary evidence as Ex.1 to 36. The non- applicants did not produce any witness and only the insurer exhibited their insurance policy as Ex.A/1.

With reference to the statement of AW-1 Motilal and the police investigation papers; and for want of rebuttal by the non-applicants, the Tribunal held the accident to have occurred for rash and negligent driving of the non-applicant

No.1 that caused simple and grievous injuries on the person of the claimants. After rejecting other objections of the insurer for want of relevant evidence, the Tribunal considered quantification of compensation separately in the two claim cases.

The present appeal relates to Claim Case No.398/2005 for the loss suffered by the appellant Motilal. The Tribunal took note of the submission of the claimant-appellant that he sustained various injuries and his right leg was broken below the knee; that he remained hospitalised at Udaipur for 25 days and thereafter remained on bed-rest for two years and visited hospitals four times; that he was put on plaster three times for 42 days each; that he spent Rs.50,000/- on treatment and

Rs.20,000/- on four attendants; that before the accident he was taking up carpenter's job earning about Rs.200-300/- per day; that now he was unable to put weight on his leg and could not carry on with his job. The Tribunal after consideration of the material on record has found that the claimant has failed to establish two years' bed-rest and three plasters of 42 days each and the expenditure to the tune alleged.

The Tribunal has also referred to the statements of AW- 2 Dali Chand a childhood neighbour of the claimant about his earnings in the range of Rs.150-300/- per day and so also of the witness AW-3 Dal Chandra about earnings of the claimant as an artisan and carpenter at about Rs.150-200/- per day on the basis of the facts stated by Motilal, the claimant. The

Tribunal has rejected the testimony of these two witnesses being uncertain, vague and hearsay and for being not supported by documentary evidence.

The Tribunal has referred to Injury Report Ex.9 and MLC report Ex.10 in relation to the claimant-appellant and has found him having sustained fracture injury in the middle part of right tibia and fibula bones and his discharge card Ex.14 showing hospitalisation from 16.09.2002 to 17.09.2002.

Further, the Tribunal has referred to the certificate issued by the Medical Board of Government Hospital, Udaipur stating about compound fracture; about operation performed; that the injured was unable to walk without support and having suffered shortening of right leg by 2 inches due to deformity occurring for not joining of the bones properly; and about his limping and being unable to sit crossed-legs leading to 25% permanent disablement.

The Tribunal has proceeded to allow Rs.50,000/- for pains and sufferings due to such permanent disablement; further Rs.4,000/- towards treatment expenditure (with bills

Ex.14 to 34 totaling to Rs.3,809/-); and Rs.5,000/-towards transportation and special diets. The Tribunal has further allowed Rs.12,000/- for six months' loss of income taking average monthly income of the victim at Rs.2,000/-. Yet further, the Tribunal has proceeded to allow Rs.90,000/- towards 25% loss of earning capacity with application of annual multiplier of 15 to the monthly loss of Rs.500/-. In this manner, the Tribunal has awarded compensation to the claimant at Rs.1,61,000/- together with interest at the rate of 6% per annum from the date of filing of claim application. The award aforesaid is sought to be challenged in this appeal as being low and insufficient.

Learned counsel Mr.Manish Pitaliya appearing for the appellant contends that the Tribunal has been in error in not accepting the income of the appellant at Rs.5,000/- per month as established by independent witnesses produced in that relation and despite there being no rebuttal on the part of the non-applicants. Learned counsel further submits that in view of shortening of leg by 2 inches, the award of pecuniary and non-pecuniary loss remains grossly inadequate and deserves enhancement.

Having given a thoughtful consideration to the submissions made by learned counsel and having examined the impugned award, this Court is clearly of opinion that there is no force in this appeal for enhancement and the same deserves to be dismissed without being admitted.

The considerations adopted by the Tribunal, to say the least, have only resulted in making the award rather higher than that of just compensation admissible in this case; particularly when the component of Rs.90,000/- allowed towards loss of earning capacity with reference to 25% disablement appears to be excessive. For the nature of injuries and disablement alleged, and the nature of job the appellant is said to be engaged in, it is difficult to countenance that the alleged disablement has ipso facto resulted in 25% reduction in earning capacity. The amount towards non- pecuniary loss has separately been allowed by the Tribunal at

Rs.50,000/- and that seems to be not inadequate with reference to the age of the appellant at 45 years and the nature of disablement suggested. It is not correct to say that the alleged 2 inches shortening of leg, as certified, has not been duly considered by the Tribunal.

So far income of the appellant is concerned, the testimony of the witnesses AW-2 Dali Chand and AW-3 Dal

Chandra is only that of made up and irrelevant witnesses; and such evidence hardly needs any rebuttal. Even the statements of the claimant remain hollow and not supported by reliable documentary evidence. For want of any cogent and reliable evidence on the assertion of the income at Rs.5,000/- per month, taking of average net income of the victim at Rs.2,000/- per month does not appear an estimate inadequate. The

Tribunal has liberally allowed six months' loss of income at

Rs.12,000/-; and as noticed, another Rs.90,000/- towards the assumed loss of earning capacity.

In the ultimate analysis, the award of compensation as made in this case could only be said to be rather on the higher side and rules out any scope for enhancement.

The appeal fails on merits and is, therefore, dismissed summarily.

(DINESH MAHESHWARI),J.

MK


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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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