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Section 173 in The Motor Vehicles Act, 1988

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Patna High Court
Shailendra Thakur vs Manish Kumar & Anr on 10 May, 2012
Author: Shailesh Kumar Sinha

                                      In the matter of an appeal under section 173 of
                                      the Motor Vehicles Act, 1988
                              Miscellaneous Appeal No.75 of 2009



2. DIVISIONAL MANAGER, THE NEW INDIA INSURANCE COMPANY LTD. PODDAR COMPLEX, CLUB ROAD, P.S. MITHANPURA, DISTRICT - MUZUFFARPUR .... .... Respondent/s =========================================================== Appearance :

Advocate or the Appellant/s :        Mr. AJAY KUMAR
                                     Mr. MUKESH PRASAD SINGH
                                     Mr. SHAMBHU SARAN SINGH
Advocate for the Respondent/s :     Mr. SANJAY SINGH

=========================================================== CORAM: HONOURABLE MR. JUSTICE SHAILESH KUMAR SINHA ORAL JUDGMENT Date: 10-05-2012 This appeal is directed against the award dated 22nd of December 2008 passed by the Additional Motor Vehicles Accident Claims Tribunal - V, Muzuffarpur (hereinafter referred to as the "Tribunal) in Claim Case No. 263 of 2005 whereby the claim of Rs. 1,98,981/- as also the interest at the rate of 6 percent per annum from the date of filing of the case till payment, was allowed in favour of the appellant who was pillion rider of the motor cycle bearing Registration no. BR 06B 8333 which was hit by the truck bearing Registration No. BR-1A-2471, insured with the respondent - Insurance Company.

The appellant, in this appeal is aggrieved mainly by deducting 50 percent of the compensation amount allowed on account of the contributory negligence and also did not allow any compensation for future treatment, loss of amenities and enjoyment of life, however, allowed compensation of Rs. 5,000/- 2 towards pain and suffering.

The short relevant facts are that the appellant was pillion driver to the motorcycle which was being driven by one Sachidanand Jha. The said motorcycle hit from behind by the aforesaid truck, resulting into serious injury to the pillion rider. On account of the said injury, after undergoing treatment for about one month, his left leg above thy was amputated. The appellant, who was aged about 38 years, having a monthly income of Rs. 3000/- per month from which the family was maintained, claimed a compensation of Rs. 2,18,000/- The First Information Report was lodged vide Exhibit - 8. The applicant after his treatment, filed the aforesaid claim case for the compensation as mentioned above.

The Tribunal upon considering the evidence brought on the record, assessed a compensation of Rs. 5,60,000/- however, since on account of the said accident, the applicant was disabled to the extent of 60 percent as per the disability certificate vide Exhibit -1, the compensation was calculated to the tune of Rs. 3,45,600/-. The Tribunal, thereafter, deducted 50 percent from the said sum on account of the contributory negligence of the driver of the motorcycle and as such, the final compensation payable arrived was Rs. 1,72,000/- + medical expenses as per the vouchers to the tune of Rs. 21,191/- besides a sum of Rs. 5,000/ on account of the pain and suffering. As such, the total net compensation of Rs. 1,98,991 + interest at the rate of 6 percent 3 per annum was directed to be paid.

In this case, the owner of the offending vehicle did not appear, however, the respondent - insurance company appeared and filed written statement taking a plea that the motorcycle driver also contributed in the said accident i.e. contributory negligence, although no evidence whatsoever was adduced on behalf of the Insurance Company.

Mr. Ajay Kumar, learned counsel for the appellant submits that the Tribunal committed serious error of law and fact by deducting 50 percent from the computed amount i.e. Rs. 3,45,600/- on account of the contributory negligence even though there is absolutely no evidence on the record to hold any contributory negligence on the part of the driver of the motorcycle or on the part of the pillion rider and as such, the above deduction of 50 percent deserves to be set aside. It is further contended that Tribunal did not allow any compensation on account of future treatment of the applicant as also the loss of amenities and enjoyment of life. The amount of compensation of Rs. 5000/-, allowed on account of pain and suffering was absolutely meager. Learned counsel relied upon a decision of the Apex Court in the case of Govind Yadav Vs. New India Insurance Co. Ltd. reported in (2011) 10 SCC 683 which was a case in which also a leg of the victim was amputated on account of motor accident. It is further submitted that in the aforesaid case, the Hon'ble Supreme Court allowed a compensation on account of the 4 future treatment, loss of amenities, enjoyment of life, pain and suffering. It is accordingly submitted that such compensation should be allowed on account of the future treatment and loss of enjoyment of life. Besides the compensation of Rs. 5,000/- for a injury, pain etc. is a meager amount and as such, a reasonable amount should be allowed on account of the pain and suffering.

Mr. Sanjay Singh, learned counsel for the Insurance Company, on the other hand, submits that the motorcycle driver in the given circumstances could reasonably be said to have contributed negligence while driving the motorcycle on the main road. However with respect to the contributory negligence, no evidence could be brought on the record. It is further submitted that Tribunal has allowed a sum of Rs. 5,000/- on account of pain and suffering, and in absence of any evidence in support of the claim for future treatment and any loss of enjoyment of life, the same could not be sustained.

Upon considering the rival submissions of the parties, it would appear that the grievance on behalf of the appellant is that there could be no valid justification for deducting 50 percent from the amount of computed value of compensation i.e. 3,45,600 in absence of evidence on the record. On behalf of the Insurance company, no evidence is adduced suggesting negligence on the part of the motorcycle driver in question, on which, the appellant was the pillion rider. Therefore, in my opinion, the deduction of Rs. 50 percent of the computed value of compensation could not 5 be sustained in law as such the appellant is entitled to get the full computed amount of compensation i.e. Rs. 3,45,600/- + medical expenses of Rs. 21,191/- as allowed by the tribunal. Besides the compensation amount, on account of pain and suffering, which has been allowed to the tune of Rs. 5,000/- for the amputation of leg above thy, appears to be small amount as such, in my opinion, the said amount on account of pain and suffering a sum of Rs. 50,000/- can be taken as reasonable. As against the future treatment, a sum of 75,000/- appears to be reasonable since the amputation of leg may require the periodical replacement by the artificial limb. As against the head for loss of amenities and enjoyment of life, a sum of Rs. 60,000/- could be a reasonable. Therefore, in total a net compensation amount Rs. 5,51,791/- is payable to the appellant with simple interest at the rate of 6 percent per annum from the date of filing of the application till such payment is made which may be made within a period of 3 months from today.

The award dated 22nd of December 2008 in claim case No. 263 of 2005 is modified to the above extent.

The appeal stands allowed to the above extent. The lower court records be sent down without delay.

(Shailesh Kumar Sinha, J) Jagdish/-