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2022 Supreme(All) 218
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
KAUSHAL JAYENDRA THAKER, AJAI TYAGI, JJ.
Prabhat Kumar And Others – Appellants
Versus
Dheeraj And Others – Respondents
First Appeal From Order No.1165 of 2009
Decided on : 11-03-2022
Advocate Appeared:
For the Appellant : Vishesh Kumar Gupta
For the Respondent: Radhey Shyam
Point of Law: The term negligence connotes reckless driving and the injured of claimants must always prove that the either side is negligent. If the injury rather death is caused by something owned or controlled by the negligent party then he is directly liable otherwise the principle of “res ipsa loquitur” meaning thereby “the things speak for itself” would apply.
Headnote:
Motor Vehicle Act, 1988 - Section 173 - Income Tax Act, 1961 - Section 194A (3) (ix) - Accident - Contributory negligence - Grievous injuries - Grant of compensation - Accident having taken place is not in dispute - A young boy of 16 years in the year 2006 met with an accident, learned Tribunal granted a sum of Rs.55,363/- only - Tribunal considered contributory negligence of child to be 10% - Appellant having suffered loss of income besides other grievous injuries in whole of body and had sustained compound fractures, various operations were carried out on appellant by doctors at Shri Sai Hospital and All India Medical Institute of Delhi whereby his one kidney was removed due to injuries - vehicle being insured with insurance company and there is no breach of policy condition is not in dispute - Accident occurred way back in the year 2006 is not in dispute.
Finding of the court :
Compensation right side kidney of the appellant was damaged is an admitted position of fact which is borne out from the records and the judgment, he was treated by several doctors he was treated in All India Medical Institute, Delhi who was opined as oath as PW-7 (Dr..) just because the respondent has contended that treatment was on Government expenses. The injuries suffered by appellant go to show that his one kidney had to be removed. The learned tribunal has taken a hyper technical view in the matter. The medical treatment papers also go to show that liver was damaged, there was lot of blood which had to be drained. Dr. had also examined juvenile, Dr. who was working with Hospital has also treated him his left kidney have to be removed - There was blood Clots in the stomach and therefore he had to be operated his health though Dr. has been examined as PW-4, who has stated that there was grade-4 injuries to the damage and grade-4 injury means that the kidney was damaged to a great extent - The accrued on principal amount of compensation is to be apportioned on financial year to financial year basis and if interest payable to claimant for any financial year exceeds Rs.50,000/-, insurance company/owner is/are entitled to deduct appropriate amount under the head of 'Tax Deducted at Source' as provided u/s 194A (3) (ix) of Act, 1961 and if amount of interest does not exceeds Rs.50,000/- in any financial year, registry of this Tribunal is directed to allow claimant to withdraw amount without producing certificate from concerned Income- Tax Authority - Judgment and decree passed by Tribunal shall stand modified to aforesaid extent.
Result: First Appeal is partly allowed
JUDGMENT :
1. Heard Shri A.K. Shukla for Vishesh Kumar Gupta, learned counsel for appellants; Shri Radhey Shyam, learned counsel for respondent-insurance company; and perused the judgment and order impugned.
2. This First Appeal From Order has been filed under section 173 of Motor Vehicle Act, 1988 (hereinafter referred to 'Act, 1988') by appellants, being aggrieved by judgment and award dated 20.12.2008 passed by Motor Accident Claims Tribunal, Court No.3, Moradabad (hereinafter referred to as 'Tribunal') in Claim Petition No. 326 of 2006 awarding a sum of Rs.55,363/-with interest at the rate of 6% to the injured.
3. The accident having taken place is not in dispute. A young boy of 16 years in the year 2006 met with an accident, the learned Tribunal granted a sum of Rs.55,363/-only. The tribunal considered contributory negligence of child to be 10%. The appellant having suffered loss of income besides other grievous injuries in whole of the body and had sustained compound fractures, various operations were carried out on appellant by doctors at Shri Sai Hospital and All India Medical Institute of Delhi whereby his one kidney was removed due to injuries.
4. The vehicle being insured with insurance company and there is no breach of policy condition is not in dispute. The accident occurred way back in the year 2006 is not in dispute. The involvement of the vehicle is not in dispute and it is proved before the Tribunal that the driver of the vehicle was negligent.
5. The appellant challenges the findings being bad on facts against the record as far non grant of compensation and negligence is concerned. A factual data is not adverted to except that the accident occurred on 8.7.2006 at about 9.00 p.m. when the driver of motor cycle rashly and negligently drove Motorcycle No.UP 21 Q 2563 and caused accident injuring the appellant, when the appellant was going on his road side by moped which is proved by appellant by oral and documentary evidence as such appellant sustained injury on right side kidney and lever was badly damaged in the said accident. The appellant (minor) was about 16 years of age when the accident occurred and his one kidney was removed and he would be by now 32 years of age. Unfortunately tribunal has awarded only Rs.55363/-with 6% rate of interest in which medical Rs.14,000/-is for permanent disability and Rs.29,363/-for medical expenses and Rs.7000/- for special diet and Rs.5000/- for pain and suffering only.
6. It is submitted by the learned counsel for the appellant claimant that the Tribunal has materially erred in calculating the compensation. Learned counsel for appellant has heavily relied on the judgment of Kajal v. Jagdish Chand and others reported in AIR 2020 SC 776 and has contended that the principles for grant of just compensation has not been followed by the tribunal though the appellant proved that the claimant was operated and one of his kidneys got damaged due to accidental injuries had to be removed. According to learned counsel for appellant it was because of the fault of the opponent driver, that the appellant suffered the injuries. According to the learned counsel for the appellant notional yearly income of the injured should be considered Rs.60,000/-per annum; and 40% be added towards future loss of income; multiplier of 18 be granted; loss of earning be calculated at 30% disability; and Rs.1,00,000/-towards pain and suffering; and Rs.75,000/-for all other non pecuniary damages be granted which would be just and proper and would be adequate compensation. Learned counsel has relied on decision of Apex Court in case titled Kajal (Supra), paragraphs 15 and 16 of the (Kajal Supra) judgment quoted herein below:
“15. In R.D. Hattangadi v. Pest Control (India) Pvt. Ltd., (1995) 1 SCC 551, dealing with the different heads of compensation in injury cases this Court held thus:
"9. Broadly speaking, while f
