Judgment:
R.D. Shukla, J.
1. This order shall dispose of M.A. Nos. 141 and 147 of 1986. Both these appeals arise out of the judgment and award dated 1.2.1986 of IIIrd Member, Motor Accidents Claims Tribunal, Indore, passed in Claim Case No. 75 of 1983, whereby the claimant-appellant Badri Lal has been awarded a compensation of Rs. 89,959.75 with interest at the rate of 12 per cent per annum from the date of application till realisation, i.e., 22.8.1983 for having sustained injuries including permanent disability of right hand to the tune of 75 per cent and for damages to the motor cycle, in a motor accident on 24.2.1983.
2. There is no dispute that truck tanker No. CPC 736 is owned by respondent No. 2, M.P. Dairy Development Corporation, which shall hereinafter be referred to as 'Corporation' and was driven by Bharat Singh on the date of the accident, i.e., 24.2.1983. It was insured with respondent No. 3. The claimant Badri Lal is the owner of motor cycle bearing No. CPO 2343.
3. The case of the claimant in brief is that on the date of accident the claimant was going on his motor cycle from village Bijalpur to village Makodiya (Kashipra), Shalig Ram was the pillion rider. The milk dairy is situated in the village Chanda Tawawali and it has a gate adjacent to the main road. It is asserted that claimant was coming from opposite side. The truck driver took a sudden turn to his right for going inside the milk dairy and hit the claimant from the front and rear side and thereby caused damage to the motor cycle. The claimant also sustained injuries on head, right shoulder, right hand, right ribs, left shoulder, left knee and thigh. He was admitted in Choithram Hospital and was unconscious from 24.2.1983 to 31.3.1983 and, thereafter, the injured remained in semi-conscious state from 1.4.1983 to 15.4.1983. He was admitted in the hospital from 24.2.1983 to 28.4.1983 and, thereafter, since 7.5.1983 he is taking treatment of physiotherapy in the outdoor wing of Choithram Hospital.
He has claimed compensation of Rs. 65,000/- towards the expenses for treatment and medicines and has further claimed Rs. 25,000/- for future treatment. It has also been asserted that claimant is an agriculturist. Earlier he was driving tractor, but now he cannot drive the same, because of the physical infirmity in the right hand and as such claimed Rs. 5,00,000 as general damages. He has also claimed Rs. 2,840/- as repair charges of motor cycle.
4. The case of the NAs, i.e., owner of the motor tanker, its driver and the insurance company is that the claimant himself was negligent in driving the motor cycle. He was driving it in a high speed and dashed against the truck on the left rear part of the vehicle. It has also been denied that the driver of tanker took a sudden turn.
5. Learned Tribunal after hearing has found that the accident occurred due to rash and negligent driving of the vehicle (tanker) by respondent No. 1, driver, the claimant Badri Lal sustained injuries and was admitted in the hospital. He has developed permanent partial disability of right hand to the tune of 75 per cent. The learned Tribunal has awarded Rs. 22,119.75 towards the treatment, transport charges, medicines and special diet, Rs. 2,840/-towards damage to vehicle (motor cycle). His yearly income has been assessed at Rs. 35,000/-, i.e., Rs. 30,000/- from cultivation and Rs. 5,000/- from the sale of vegetables.
6. The learned Tribunal has awarded Rs. 15,000/- towards pain, shock and suffering and for loss of amenities and enjoyment of life, Rs. 10,000/- for the economic loss up to date of filing of the petition. A loss of Rs. 2,000/- per year has been assessed and by applying multiplier of 20, as claimant was aged about 28 years, has awarded Rs. 40,000/- as compensation towards general damages. The compensation on different headings has been summarised as follows:
Transportationcharges : Rs. 2,160.00Special diet : Rs. 4,500.00Treatment &medicines; : Rs. 15,459.75Expenses incurredin repairs of thedamaged motor cycle : Rs. 2,840.00Economic losssuffered up to thedate of filing ofthis application : Rs. 10,000.00Physical pain, shockand suffering & lossof amenities andenjoyment of life : Rs. 15,000.00For loss of earningcapacity : Rs. 40,000.00______________Total : Rs. 89,959.75______________
Thus, the learned Tribunal has awarded Rs. 89,959.75 in all with interest at the rate of 12 per cent from the date of application till realisation of the same.
7. The claimant Badri Lal has filed M.A. No. 161 of 1986 for enhancement of the compensation while M.A. No. 167 of 1986 has been filed by the Corporation, its driver and insurance company for reduction of the same.
8. The contention of the learned Counsel for the claimant Badri Lal is that the loss has been assessed on the lower side. Since the claimant now cannot drive the tractor, which is owned by his father, he is required to employ a driver for agricultural operations. As such the pay of driver ought to have been assessed as loss to the claimant. It has also been submitted that the compensation for expenses of attendant during treatment of the claimant has not been properly awarded.
As against it learned Counsel for the respondent Corporation, driver and the insurance company has submitted that the claimant himself was negligent by plying the vehicle in a high speed and, therefore, he could not stop it and dashed against rear portion of the tanker.
9. We were taken to the evidence in the case. Trilok, P.W. 1, who runs a tea shop in front of milk dairy, states that at about 11 a.m. he was in his shop, one motor cycle was coming from the side of Indore and was going towards Dewas, while the tanker was coming from Dewas side in a high speed. The tanker took a sudden right turn for going inside milk dairy. As such, there was a collision between motor cycle and the tanker. The motor cycle dashed against the left front side of the tanker; driver of the motor cycle and the pillion rider both were thrown. They sustained injuries. He, with the help of other persons, sent him (claimant) to M.Y. Hospital, Indore. During cross-examination he admitted that he saw the incident from the distance of 15 feet and he has denied the knowledge as to whether the tanker was empty or was loaded with milk. Ram Singh, P.W. 3, has also given similar statement. Claimant Badri Lal appeared as P.W. 7 in the case and has stated that he was going on the motor cycle with one pillion rider and was driving slowly, but the tanker coming from the opposite side took a sudden right turn. As such there was collision. He has further stated about the injuries and treatment.
As against it the respondents have examined Ramchandra, DW 1, who has stated that tanker was coming slowly, but the motor cyclist was coming with a high speed and dashed against the rear side of the tanker. Thereafter, the tanker driver immediately stopped the vehicle. Bharat Singh, DW 2, tanker driver, has also made a similar statement. Bharat Singh, DW 2, has admitted during cross-examination that he made a report in the Police Station, Transport Nagar, but no such report has been filed in the case.
10. So far as claimant Badri Lal is concerned, as he had sustained grievous injuries and, therefore, it was not possible for him to have made the report. Under the circumstances, it will be presumed that the respondents (driver, Corporation and the insurance company) have not filed the copy of F.I.R. as it was against their interest. It will also be presumed that they have withheld a material evidence.
11. Trilok, P.W. 1, has admitted in para 4 of his statement that tanker has to be slowed down while turning to the right side for entering inside gate of the milk dairy. Ram Singh, P.W. 3, has also admitted in para 3 of his statement that the tanker took a right turn, but by the time motorcyclist had come nearer, as such there was collision.
12. After this accident, the police must have investigated the case, police officials may have prepared site map and seized blood stained earth as well, but that evidence has not been produced by the claimant. Had the tanker taken a sudden turn with high speed there was every possibility of its turning turtle or going upside down. It can also be presumed had the motor-cyclist been driving the vehicle with limited speed he could have stopped the vehicle immediately after the tanker was being taken to the right side. This assertion appears to be correct. Even if the tanker was coming in a high speed it must have been slowed down for taking a turn, but the motor-cyclist was also in high speed and had approached nearer and, therefore, he could not avert the collision by stopping the vehicle. The tanker being a heavy vehicle, comparatively heavy responsibility lies on driver of such vehicle.
In our opinion, the driver of the tanker and the driver of the motor cycle both were negligent. As the responsibility of the driver of heavy vehicle was more he should be held liable for negligent driving to the extent of 2/3rd and 1/3rd responsibility of negligent driving lies on the driver of motor cycle, i.e., claimant.
13. There is no dispute as to the compensation for expenses incurred in repairs of damaged motor cycle as the same stands proved from the statement of Purshottam, P.W. 4, motor cycle repairer. That assessment of the learned Tribunal calls for no interference.
14. So far as the expenses for treatment and medicines are concerned, the same stands proved from the statements of Suresh, P.W. 2, Dr. V.K. Nanderiya, P.W. 5, and Dr. Suresh Kumar Sharma, P.W. 6. P.W. 2 has proved admission of Badri Lal in Choithram Hospital while P.W. 5 and P.W. 6 have stated about the injuries and admission of Badri Lal in Choithram Hospital.
The claimant has filed the bills issued by Choithram Hospital and Research Centre, Indore, i.e., from Exhs. P-20 to P-230. Learned Tribunal has calculated the amount of expenses for treatment and medicines as Rs. 15,459.75. The same has not been disputed. In our opinion that may be rounded to Rs. 16,000/-. Learned Tribunal has further awarded Rs. 2,160/-towards the transportation charges and Rs. 4,500/- for special diet. Since the claimant remained in hospital for more than two months and, therefore, some amount for special diet and expenses incurred for keeping an attendant could be awarded. Learned Tribunal has awarded Rs. 4,500/- for special diet and Rs. 2,160 for transportation charges, but there is no specific evidence regarding the same. In our opinion, therefore, Rs. 3,000/- for special diet and Rs. 2,000/- for keeping attendant would be just and proper. Thus, the just amount in that heading would be Rs. 5,000/-. Over and above this, the claimant can be awarded Rs. 1,000/- for transportation charges. Thus, compensation on the heading of special diet, keeping the attendant and transportation charges would be Rs. 6,000/- only.
15. Learned Tribunal has awarded Rs. 15,000/- for pain, shock and suffering and for loss of amenities and enjoyment of life. In our opinion, an amount of Rs. 6,000/- would be sufficient for the pain and suffering. Learned Tribunal has awarded Rs. 10,000/- for loss of earnings for the year 1983-84. The claimant had remained in hospital from 24.2.1983 to 28.4.1983, i.e., for about 2 months. The maximum that can be said in favour of the claimant is that he may have employed some labour or a driver of tractor for doing agricultural work. Looking to the area of holding which he keeps this loss cannot be more than Rs. 3,000/-. We, therefore, reduce this amount to Rs. 3,000/-.
Dr. Vinod Kumar Nanderiya, P.W. 5, has stated that on 14.3.1983 he examined the claimant and found that the claimant had no strength on the right shoulder and right knee. Thereafter, he prepared report Exh. P-1. He again examined the claimant on 19.8.1984 and found that there is a permanent partial disability of right hand to the extent of 91.5 per cent. He has accepted that the fingers of the claimant were working. There is much less strength in right hand and shoulders. He cannot lift heavy load. The doctor has admitted that the fractured part of bone was united, but as main veins were cut, therefore, weakness has arisen. From the evidence of Dr. Vinod Kumar what can be assessed is that the right hand of the claimant is not working properly even after two years. Learned Tribunal has accepted infirmity in the right hand to the tune of 75 per cent. In our opinion, looking to the future possibility of increase in the strength, further possibility of improvement because of physiotherapy we take the infirmity to the tune of 2/3rd, i.e., 66 per cent.
16. The claimant is not a big farmer. He has only land of 7 bighas, though his father owns 25 acres of land. There is no partition. Thus, there was no possibility of use of alleged tractor for the whole year. Tractor is also not in the name of the claimant. But looking to the fact that the claimant is an agriculturist and was a person of sound health his capacity to work because of loss of strength in the right hand is decreased. Though he can do other work of supervision, management and such other minor work, but for actual agricultural operation he will have to employ a labour for that purpose. Though the employment of labour would also be seasonal, i.e., maximum for 3 to 4 months in a year for cultivation, harvesting and such other work. Looking to the present wages of an ordinary labour if a person is employed for 4 months in a year the charges would be not less than Rs. 3,000 per year and for other months of the year also he required help of some other person for doing hard work of agriculture and for this casual employment of labour he will have to spend nearly Rs. 1,500/-. Thus, the loss to the claimant would come to nearly Rs. 4,500/- per year. The claimant was aged about 30, as such, a multiplier of 15 would be the proper multiplier to be used in the case. Thus, in our opinion, loss to claimant would come to about Rs. 67,500. Thus, the claimant would be entitled to the compensation as under:
Expenses incurred inrepairs of damagedmotor cycle Rs. 2,840/-Expenses incurredin treatment andmedicines Rs. 16,000/-Expenses for specialdiet Rs. 3,000/-Expenses for keepingthe attendant Rs. 2,000/-Transportation charges Rs. 1,000/-Compensation for painand suffering Rs. 6,000/-For loss of earningsfor the year 1983-84 Rs. 3,000/-For loss of earningcapacity Rs. 67,500/-______________Total Rs. 1,01,340/-______________
Since the claimant himself was partially responsible for the incident and we have assessed that contribution to the extent of 1/3rd and, therefore, the compensation deserves to be reduced by 1/3rd. In our opinion, therefore, the claimant would be entitled for a compensation of Rs. 67,560 only with interest at the rate of 12 per cent per annum from the date of application till realisation of the same.
17. As a result, the appeal filed by the claimant Badri Lal, i.e., M.A. No. 141 of 1986 fails, while appeal filed by the Corporation, its driver and insurance company, i.e., M.A. No. 147 of 1986 partly succeeds. The compensation awarded to the claimant is modified and it is directed that the claimant shall be entitled for a compensation of Rs. 67,560/-. The same shall be payable by the Corporation, its driver and insurance company jointly and severally. The claimant shall be further entitled for interest at the rate of 12 per cent per annum from the date of application till realisation of the same. In the facts and circumstances of the case, parties shall bear their own costs.