Judgment:
R.D. Shukla, J.
1. This order shall dispose of M.A. Nos. 141/86 and 147/86. Both these appeals arise out of the Judgment & award dated 1.2.1986 of IIIrd Member, Motor Accident Claims Tribunal, Indore, passed in Claim Case No. 75/83, whereby the claimant-appellant Badrilal has been awarded a compensation of Rs. 89,959.75 with interest @ 12%p.a.from the date of application till realisation i.e., 22.8.83 for having sustained injuries including permanent disability of right hand to the tune of 75% 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 referred to as 'Corporation and was driven by Bharatsingh on the date of accident i.e., 24.2.1983. It was insured with respondent No. 3. The claimant Badrilal 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). Shaligram was the pillion rider. The Milk dairy is situated in 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, remained in semi-conscious stage from 1.4.1983 to 2. 15.4.1983. He was admitted in the hospital from 24.2.1982 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 further claimed Rs. 25,000/- for future treatment. It has also been asserted that claimant is an agriculturist. Earlier he was driving motor tractor, but now he cannot drive the same, because of the physical infirmity in the right hand and as such claimed Rs. 5 lacs as general damages. He has also claimed Rs. 2840/- as repair charges of motor cycle.
4. The case of the NAS i.e., owner of the motor tanker, its driver and the Insurance Co. 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 motor 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 (Motor Tanker) by respondent-1 driver, the claimant Badrilal sustained-injuries and was admitted in the hospital. He has developed permanent partial disability of right hand to the tune of 75%. The learned Tribunal has awarded Rs. 22119.75 towards the treatment, transport charges, medicines and special diet. Rs. 2,840/ - towards the damage to vehicle (Motor Cycle). His yearly income has been assessed to Rs. 35,000/- per year i.e., Rs. 30,000/- from cultivation and Rs. 5,000/- from sale of vegetables.
6. Learned Tribunal has awarded Rs. 15,000/- towards pain, shock and suffering and 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 toward general damages. The compensation on different heading has been summarised as follows:
Rs. 2,160.00 : Transportation (conveyance) charges.Rs. 4,500.00 : Special diet.Rs. 15,459.75 : Treatment & medicines.Rs. 2,840.00 : Expenses incurred in repairs of thedamaged motor cycle.Rs. 10,000.00 : Economic loss suffered upto the date offiling of this application.Rs. 15,000.00 : Physical pain, shock and suffering & loss ofamenities and enjoyment of life.Rs. 40,000.00 : For loss of earning capacity.Rs. 89,959.75 : Total
Thus, the learned Tribunal has awarded Rs. 89959.75 in all with interest @ 12% from the date of application till realisation of the same.
7. The claimant Badrilal has filed M.A. No. 161/86 for enhancement of the compensation while M.A. No. 167/86 has been filed by the Corporation, its driver and Insurance Co. for reduction of the same.
8. The contention of the learned Counsel for the claimant Badrilal is that the loss has been assessed on the lower side. Since the claimant now cannot drive the Motor 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 Co. 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 motor tanker.
9. We were taken to the evidence in the case. P.W. 1 Trilok, who runs a tea shop in front of Milk Dairy, states that at about 11 a.m. he was in his hospital, 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 motor tanker took as sudden right turn for going inside Milk Dairy. As such, there was a collusion between motor cycle and the tanker. The motor cycle dashed against the left front side of the motor 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' and he has denied the knowledge as to whether the tanker was empty or was loaded with Milk. P.W. 3 Ram Singh has also given similar statement. Claimant Badrilal 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 motor tanker coming from the opposite side took a sudden right turn. As such there was collusion. He has further stated about the injuries and treatment. As against it the respondents have examined D. W. 1 Ramchandra, who has stated that motor tanker was coming slowly, but the motor cyclist was coming with a high speed and dashed against the rear and back side of the tanker. Thereafter, the tanker driver immediately stopped the vehicle. D.W. 2 Bharatsingh, tanker driver has also made a similar statement. D.W. 2 Bharatsingh 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 Badrilal is concerned, as he 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 & Insurance Co.) have not filed the copy of FIR, as it was against their interest. It will also presume that they have withheld a material evidence.
11. P.W. 1 Trilok has admitted in para-4 of his statement that truck tanker has to be slopped down while turning to the right side for entering inside gate of the Milk Dairy, P.W. Ramsingh has also admitted in para-3 of his statement that the truck tanker took a right turn, but by the time motor cyclist come nearer, as such there was collusion.
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 truck tanker taken a sudden turn with high speed there was every possibility of its turn turtle or going up side 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 slopped 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 collusion by stopping the vehicle. The motor tanker being a heavy vehicle, comparatively heavy responsibility lies on driver of such vehicle.
In our opinion, the driver of the motor tanker and the driver of the motor cycle both were negligent. As the responsibility of driver of heavy vehicle was more he should be held liable for negligent driving to the extent of 2/3rd and l/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 P.W. 4 Purshottam, 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 statement or P.W. 2 Suresh, P.W. 5 Vinod Kumar Nanderiya & P.W. 6 Dr. Suresh Kumar Sharma. P.W. 2 has proved admission of Badrilal in Choithram Hospital while P.W. 5 & P.W. 6 have stated about the injuries and admission of Badrilal in Choithram Hospital.
The claimant has filed the bills issued by Choithram Hospital and Research Centre, Indore i.e., from Ex. P/20 to P/230. Learned Tribunal has calculated the amount of expenses for treatment and medicine 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 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/- towards 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 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 the loss of earning for the year 1983-84. The claimant remained in hospital from 24.2.1983 to 28.4.1983 i. e., for about 2 months. The maximum what 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 holding which he keeps this loss can not be more than Rs. 3,000/-. We, therefore, reduce this amount to Rs. 3,000/-.
Dr. Vinod Kumar Nanderia (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 Ex. 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%. 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 were united, but as main veins were cut, therefore, weakness arisen. From the evidence of Dr. Vinod Kumar what can be assessed is that the right hand of claimant is not working properly even after two years. Learned Tribunal has accepted infirmity in the right hand to the tune of 75%. 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%.
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 motor tractor for the whole year. Motor 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 of 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 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 years, as such, a multiplier of 15 would be the proper multiplier to be used in the case. Thus, in our opinion, the loss to the claimant would come to about Rs. 67,500/-.
Thus, the claimant would be entitled to the compensation as under:
Rs. 2,840.00 Expenses incurred in repairs of damaged motor cycle.Rs. 16,000.00 Expenses incurred in treatment and medicines.Rs. 3,000.00 Expenses for special diet.Rs. 2,000.00 Expenses for keeping the attendant.Rs. 1,000.00 Transportation charges.Rs. 6,000.00 Compensation for pain and suffering.Rs. 3,000.00 For loss of earning for the year 1983-84.Rs. 67,500.00 For loss of earning capacity.___________Rs. 1,01,340.00___________
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 @ 12% p.a. from the date of application till realisation of the same.
17. As a result, the appeal filed by the claimant Badrilal i.e., M.A. No. 141/86 fails while appeal filed by the Corporation, its driver and Insurance Company i.e., M.A. No. 147/ 86 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 be payable by the Corporation, its driver and Insurance Company jointly and severally. The claimant shall be further entitled for interest @ 12% p.a. from the date of application till realisation of the same. In the facts and circumstances of the case, parties shall bear their own costs.