IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE GAJENDRA SINGH th ON THE 12 OF FEBRUARY, 2024 MISC. APPEAL No. 5298 of 2022 BETWEEN:-

SHAILENDRA KUMAR MEHRA S/O LATE SHRI BABULAL MEHRA, AGED ABOUT 35 YEARS, OCCUPATION: LABOUR VILLAGE SUHAJNI POST OFFICE POLA MAJHOLI DISTRICT JABALPUR (MADHYA PRADESH)

.....APPELLANT (BY MS. ANKITA KHARE - ADVOCATE)

AND

1. MANISH SINGH THAKUR S/O SHRI MAAN OCCUPATION: DRIVER OF MOTOR CYCLE 1279 MANEGAON PURANI BASTI VILLAGE TEMAR DISTRICT JABALPUR (MADHYA PRADESH)

2. NIKHLESH VISHWAKARMA S/O SHRI BALMURAT VISHWAKARMA R/O GURAIYA PLOT MALI MOHALLA VEER SAVARKAR WARD JABALPUR (VECHILE OWNER MOTORCYCLE NO, MP 20 MZ

6497) (MADHYA PRADESH)

3. NATIONAL INSURANCE COMPANY LTD. 495 MARHATAL KARAMCHAND CHOWK JABALPUR (MADHYA PRADESH)

.....RESPONDENTS (BY SHRI PRAFUL SAINI - ADVOCATE FOR RESPONDENT NO.1)

This appeal coming on for admission this day, the court passed the following:

ORDER

This miscellaneous appeal under Section 173(1) of the Motor Vehicle Act, 1988 has been preferred feeling aggrieved by the order dated 23.08.2022 in Signature Not Verified Signed by: HIMANSHU MACC No.2839 of 2017 by IIIrd Additional Member, MACT Jabalpur (M.P.)

for enhancement of Rs.4,00,000/-.

2. Facts in brief are that appellant/claimant filed an application under Section 166 of Motor Vehicles Act, 1988 for a compensation of Rs.15,00,000/- regarding personal injuries occurred due to rash and negligent driving of motor cycle no.MP-20-MZ-6497 by respondent no.1, owned by respondent no.2 and insured by respondent no.3 on 23.08.2017 at 8:00 pm near Pola Bakswahi Madhiya Manjhauli District Jabalpur. He was treated from 23.08.2017 to 15.09.2017 in City Hospital, Jabalpur where treatment was costed Rs.8,00,000/- . Despite this costly treatment he sustained permanent physical disability. At the time of accident, appellant was of 35 years and earned Rs.8,000/- per month from Bidi manufacturing job. Now he is not able to do any work.

3. Respondent no.1 and 2 did not contest and respondent no.3 contested the case on the ground that FIR is delay by 25 days. There is a breach of policy. Amount claim was also objected.

4. Tribunal framed issues and recorded the evidence of appellant Shailendra Kumar Mehra (PW-1) and admitted the documents Ex.P-1 to P-73 including the permanent physical disability certificate. Respondent did not file any document.

5. Appreciating the evidence, learned Tribunal found proved that the appellant sustained injuries due to negligent driving of respondent no.1. Vehicle was owned by respondent no.2 and insured by respondent no.3 but did not find proved that injuries caused any permanent physical disability or the injuries grievous in nature. Tribunal awarded a total amount of Rs.32,267/- in the following heads; Rs.27,267/- for medical expenses and Rs.5,000/- for physical & mental pain.

Signature Not Verified Signed by: HIMANSHU

6. Feeling dissatisfied with the award, appeal has been preferred on the ground that income of the appellant is not assessed properly. Duration of admission in hospital is not taken into consideration. Permanent physical disability certificate has not been relied. Application under Order 26 Rule 9 has been rejected and most of the heads has not been awarded.

7. Heard learned counsel for the parties.

8. Learned counsel for respondent supported the findings and amount of compensation as awarded by Tribunal.

9. Perused the record.

10. In para-13 of the award, Tribunal has discarded the physical disability certificate (Ex.P-28) on the ground that to prove the physical disability, no concrete facts are brought on record. Tribunal also recorded the finding that Ex.P-27 does not indicate that appellant suffered grievous injury. It also referred that final report (Ex.P-1) has been submitted under Section 279 and 337 of I.P.C.

11. Tribunal has mentioned that Ex.P-6 to P-26 relate to treatment of appellant in City Hospital and Research Centre Pvt. Ltd. Jabalpur. These documents relate to the h