Huka and anr. Vs. Balekhan and ors. - Court Judgment

Excerpt:
- r.d. shukla, j.1. the appeal is directed against the judgment and award dated 14.2.1984 of the m.a.c.t., jhabua passed in claim case no. 62/83 whereby the appellant no. 2 has been awarded a compensation of rs. 7000/- for having sustained fracture in a motor-accident on 17.8.83. this appeal has been filed for enhancement of the same.2. the brief history of the case is that the claimant deepa filed a petition before the learned tribunal through his father-next friend with the assertions that on the date of accident i.e. 17.8.1983 he was sitting on the pillion of the cycle and was going alongwith one pema towards thandla. meanwhile, motor-jeep no. mpz 4335 driven by respondent no. 1 possessed by respondent no. 2 and owned by respondent no. 3 came from the opposite side. it was in excessive speed. it gave a jerk to the cyclist. the claimant fell down. he sustained injuries including the fracture of the leg. the matter was reported to the police. the claimant was treated in the hospital and remained under plaster for about 3 months. he had to suffer pain and agony. it was also asserted that a permanent partial disability has been caused which is likely to continue for whole of the life. as such, he claimed a conversation of rs. 2,90,000/-.3. the non-applicant-respondents have denied the claim and submitted that it was one pema who contributed in the accident, as he himself was coming in a very high speed. the boy sitting behind the cycle was keeping his two legs straight and therefore he came in forcible contact of the jeep.4. learned tribunal has awarded rs. 7000/- with interest @ 9% as compensation. hence this appeal for enhancement. this appeal has been limited to a compensation of rs. 40000/- only.5. the contention of learned counsel for the appellants is that since a permanent partial disability has been caused and, therefore, the compensation ought to have been much more than what has been awarded. it has also been submitted that a lumpsum compensation has been awarded without specifying the compensation on various heads.6. as against it learned counsel for the state has submitted that there was a contributory negligence and secondly the state has not been made a party and only the chief secretary has been shown as a party to the case who has got nothing to do with the motor-jeep and therefore the compensation may be awarded only against other persons.7. on perusal of record it appears that the driver who has been examined as n. a. no. 1 in the case has admitted the offence before the j.m.f.c. thandla and was sentenced to a fine of rs. 200/- under sections 279 and 338 of i.p.c. though it is true that the finding of the criminal court would not be relevant in a civil proceeding but the fact of conviction and fact of admission can always be taken into consideration.8. there is no appeal by the state including cross-appeal challenging the finding of rash and negligent driving. as such it would be deemed that the accident occurred due to rash and negligent driving of the vehicle by n.a. no. 1 driver.9. there is no dispute that the motor-jeep was in possession and control of n.a.-respondent no. 2-executive engineer.10. now so far as the compensation is concerned learned tribunal has awarded compensation without specifying damages on each head.11. the claimant must have been under pain and agony for nearly three to four months and an amount of rs. 2,000/- ought to have been awarded on that count.12. p.w.1 dr. ramesh tiwari has stated that there was a fracture of right leg and he has further stated that there was some deformity in the right leg. the claimant was limping and there is slight deformity in the right thigh. this witness has not specified as to the percentage of disability. the claimant is a boy of about ten to twelve years. he is in a growing age. thus, there is every possibility of recovery. however, looking to the fact that there was a fracture, there is a slight deformity that is likely to take sometime in complete recovery including the limping and as the boy was studying in class iiird and is a son of a labour, an amount of rs. 10,000/- would be sufficient compensation on that count.13. learned counsel for the respondent has submitted that there is no allegation against the chief secretary, he is not the owner of the vehicle, the state government has not been made a party directly and, therefore, the compensation may be awarded only against the respondent nos. 1 and 2.14. this contention of the learned counsel for the respondent has got some force. however, the executive engineer n.a. respondent no. 2 is a government servant and was keeping the vehicle in that capacity and, therefore, it is for the master to see that how for the amount would be payable by him or else the master of the vehicle i.e. state government will ultimately be responsible for payment.15. as a result the appeal partly succeeds and the award granted by the m.a.c.t. is modified as follows:the claimant would be entitled for a compensation of rs. 2000/- + rs. 10000/- = rs. 12000/- in all with interest at the rate of 12% per annum from the date of application till realisation of the same. the compensation would be payable by respondent no. 1 and 2 jointly and severally.the claimant shall be held further entitled for cost of this appeal. counsel fee rs. 300/-.