Court No. - 25
Case :- FIRST APPEAL FROM ORDER No. - 2603 of 2003 Appellant :- Indra Pal Singh Respondent :- Smt. Shobha Srivastava And Others Counsel for Appellant :- Mohd. Naushad Siddiqui,Abhishek Kr.Srivastava Counsel for Respondent :- Amit Singh
Hon'ble Ram Krishna Gautam,J.
This appeal under section 173 of the Motor Vehicle Act, 1988, has been filed by Indra Pal Singh against Smt. Shobha Srivastava, owner of offending vehicle and its insurer the Oriental Insurance Company Ltd. for enhancement of compensation awarded by impugned Award dated 28.7.2003 passed by M.A.C.T./ Additional District Judge, Court No. 3, Kanpur Nagar, in M.A.C.P. No. 749 of 2001, Indra Pal Singh Vs. Smt. Shobha Srivastava and another, on the ground that the Tribunal has failed to appreciate the facts and law placed before it. It was a claim case based on injury in which the claimant- appellant being a practising lawyer of 15 years of standing was with earning of Rs. 10,000/- per month proved by the testimonies of his witnesses PW1 and PW2 coupled with documentary evidence of permanent disability of 40% (paper no. 46 Ga) but the Tribunal failed to appreciate it. The feamer bone in the right leg of the appellant was fractured and a surgery by inserting iron rod was made over it. All the medical prescriptions, bills and other papers were filed by the claimant as paper nos. 5 Ga, 45 GA, 46 GA, 53 Ga, 20 GA to 33 Ga, 36 Ga, 37 Ga and 49 Ga but these were disbelieved by the Tribunal and a meagre amount has been awarded, hence this appeal.
Heard learned counsel for both sides and perused the judgment and material placed on record.
Claim petition no. 749 of 2001 was filed before the M.A.C.T., Kanpur Nagar, by Indrapal Singh against Smt. Shobha Srivastava, owner of offending vehicle, and its Insurance Company for a claim of Rs. Nine lacs with interest at the rate of 15% per annum on the ground that the claimant being a practising lawyer at Kanpur Nagar along with his co-Advocate Sri Anil Kumar Pal was on the way from Court to home by his motorcycle bearing Registration No. UP 78D 6477 when on 5.9.2001 at about 6.00 P.M. he was near Mohan Vidya Mandir a Tempo bearing registration no. UP 78T 9313 being driven rashly and negligently by its driver came from Nand Lal Chauraha and dashed his motorcycle resulting in grievous injury to the claimant. His feamer of right leg was fractured. He was taken to Hospital of Dr. A. K. Agarwal where he was admitted. Thereafter on 6.9.2001 he was admitted to Ahuja Nursing Home and then to C.L. Nursing Home where he was operated by Dr. T.P. Singh and iron rod was inserted. He remained in the hospital from 6.9.2001 to 11.9.2001. Thereafter he remained under treatment of Dr. T. P. Singh. He was on complete bed rest for three months and owing to which his court work was disturbed. He was a practising lawyer since 1982 and was earning Rs. 10,000/- per month, hence this appeal.
The owner of the offending vehicle in her written statement mentioned the vehicle to be under her ownership and validly and effectively insured by the Insurance Company concerned and being driven by a driver having valid and effective driving license for driving the Tempo and the responsibility, if any, was of Insurance Company.
The Oriental Insurance Company in its written statement denied the facts mentioned in the claim petition and stated that the same to be under onus of proof by owner of the offending vehicle and the claimant. But the claim was highly excessive.
The Tribunal framed four issues. The claimant examined himself and his co-Advocate, who was accompanying him at the time of accident as PW2. Besides filing documentary evidence as per list 5C, 45C and 20C no oral evidence was laid by other side. The Tribunal heard learned counsel for both sides and decided issue nos. 1, 2 and 3 in favour of the claimant and against the Insurance Company. The same has not been appealed before this court. Under decision of issue no. 4 the Tribunal held the above accident, fracture of feamer of right leg, operation of feamer bone, implanting of iron rod and remaining absent from court work for a period of eight months but the Tribunal has not awarded compensation for loss of income in those eight months. Bills and prescriptions for Rs. 25,000/- were filed but were not taken into account by the Tribunal and upon its own volition only Rs. 5000/- was awarded to the claimant and reason for this has been stated that the same has not been proved by the medical practitioner that those were under his prescription. The Tribunal has held that the claimant was a practising lawyer. He had sustained above injury in his right leg in the above accident and it was owing to rash and negligent driving of the offending vehicle for which the claimant has to be awarded compensation but the amount of compensation has not been fixed as per evidence laid before it. There was oral testimonies of two witnesses. The Advocate was abstained from court work for a period of eight months but for this period of eight months no compensation has been awarded by the Tribunal towards the pecuniary loss sustained by the claimant because of not having practice. This loss ought to have been compensated by awarding compensation at the rate of Rs. 10,000/- per month as was claimed by the claimant against which there was no testimony of the respondent. The medical bills of Rs. 25,000/- was not accepted whereas this was held that the claimant was admitted for six days in a hospital, he was operated there and iron rod in his right leg was implanted but a meagre amount of Rs. 5000/- towards medical expenses has been awarded whereas cash memos of Rs. 25,000/- were filed. This too was the failure of Tribunal in taking consideration. Pain and suffering has been compensated by awarding Rs. 10,000/-, which seems to be adequate. The finding of the Tribunal regarding permanent disability is with reason and does not require to be interfered with. Hence, under above facts and circumstances, this appeal merits its allowance.
This appeal is allowed in part and the compensation awarded by the Tribunal to the tune of Rs. 30,000/- is being enhanced in the tune of Rs. 80,000/- for eight months abstaining from advocacy and Rs. 25000/- towards medical expenses in place of Rs. 5000/-. Hence the total compensation will come to Rs. One Lac Thirty Thousand as against Rs. Thirty Thousand awarded by the Tribunal and this amount will be payable to the claimant- appellant with interest at the rate of 7% per annum from the date of filing of the claim petition till the date of actual payment. The amount already paid to the claimant- appellant shall be adjusted.
Order Date :- 21.1.2019 Pcl