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IN THE HIGH COURT OF RAJASTHAN AT JODHPUR
Rameshwar Vyas, J.
Bhanwar Lal Sharma – Appellant
Versus
Mohammad Hussain and Ors. – Respondents
S.B. Civil Misc. Appeal No. 409 of 1999
Decided On : 09-04-2021
Motor Vehicles Act, 1988 - Section 173 – Appeal - Appellant, as a pillion rider, was going on a Scooter, a Truck, being driven rashly and negligently by its driver respondent No. 1, hit the Scooter, resultantly died and appellant & Kaluram sustained injuries – Held, Court is of the view that the appellant has not been compensated in just & fair manner by learned Tribunal - It is true that permanent disability certificate being issued by a private Doctor cannot be acted upon without examination of that Doctor before Tribunal. But the fact remains that appellant should be compensated in other heads i.e. expenses incurred during treatment and for his pain & suffering in a proper manner - Appeal partly allowed.
JUDGMENT :
Rameshwar Vyas, J.
1. The instant appeal under Section 173 of the Motor Vehicles Act, 1988 (afterwards referred as 'Act of 1988') for enhancement of compensation has been filed by appellant - Bhanwar Lal against the award dated 20.02.1999 passed by the Motor Accident Claims Tribunal, Bhilwara (afterwards referred as 'Tribunal') in MAC Case No. 432/1994, whereby, the Tribunal has awarded a sum of Rs. 40,000/- as compensation.
2. Brief facts of the case are that on 09.07.1994 when the appellant, as a pillion rider, was going on a Scooter, a Truck bearing registration No. RSE-876, being driven rashly and negligently by its driver respondent No. 1, hit the Scooter, resultantly Purshotam died and the appellant & Kaluram sustained injuries. Respondent Nos. 2 and 3 are owner and insurer of the Truck respectively.
3. As per the averments made in the claim petition the appellant sustained grievous injuries, for which, he was referred from M.G. Hospital, Bhilwara to S.M.S. Hospital, Jaipur, where appellant remained hospitalized from 18.07.1994 to 20.08.1994. During the said period, the appellant was operated twice for the fracture in his left leg. A sum of Rs. 2,15,000/- has been claimed as compensation in the following heads:-
| (i) | Expenses incurred during treatment | Rs. 25,000/- |
| (ii) | Expenses incurred relating to special diet, attendant and other misc. heads | Rs. 5,000/- |
| (iii) | Loss of income during treatment | Rs. 10,000/- |
| (iv) | Loss on account of permanent disability. | Rs. 1,50,000/- |
| (v) | Pain & suffering | Rs. 25,000/- |
4. After service on respondent Nos. 1 and 2 nobody was appeared on their behalf and, therefore, learned Tribunal proceeded ex parte against them.
5. Respondent No. 3 - Insurance Company filed reply to the claim petition. It was submitted that at the time of accident the Truck driver did not possess a valid & effective driving licence. The amount claimed in the claim petition is fictitious.
6. During the inquiry, the appellant himself was produced as witness and certain documents were also exhibited to substantiate the claim. No evidence was produced on behalf of respondents.
7. Learned Tribunal after considering the material available on record has decided the issue of rash & negligent driving by respondent No. 1 in favour of appellant and awarded a sum of Rs. 40,000/- only in the following terms:-
| (i) | Expenses incurred for treatment | Rs. 10,000/- |
| (ii) | Pain & Suffering | Rs. 25,000/- |
| (iii) | Economic loss during treatment | Rs. 5,000/- |
8. As per the finding of learned Tribunal permanent disability certificate was not proved by producing the author of the certificate. The appellant failed to produce discharge certificate and other medical documents.
9. Not satisfied with the quantum of compensation, the appellant has preferred the present misc. appeal.
10. As per the contention of learned counsel for the appellant learned Tribunal has not awarded just & fair compensation to the appellant. The disability certificate produced by the appellant should have been relied. The appellant remained hospitalized in S.M.S. Hospital, Jaipur regarding treatment for the injuries sustained by him on account of road accident. The appellant was operated many times, for which, oral evidence should not have been discarded.
11. Learned counsel appearing for respondent - Insurance Company contended that there is no need to enhance the compensation awarded by the learned Tribunal. It was contended that due to injuries sustained by the appellant no permanent disability has been caused to him. It was further contended that in absence of oral evidence of the author of certificate (Exhibit-P/9) the same cannot be read in evidence.
12. Heard learned counsel for the parties and perused the material available on record.
13. It is the admitted position that the appellant sustained one grievous injury in his left
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