IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE HIRDESH th ON THE 7 OF JULY, 2023 MISC. APPEAL No. 5921 of 2019 BETWEEN:-

SMT. KAILASHBAI W/O RAMNATH KALBELIYA, AGED ABOUT 39 YEARS, OCCUPATION: LABOUR R/O GRAM RIYAWAN TEH. PIPLODA DISTRICT RATLAM (MADHYA PRADESH)

.....APPELLANT (SHRI MANISH JAIN, LEARNED COUNSEL FOR THE APPELLANT)

AND

1. MANGUSINGH S/O SHAMBHUSINGH RAJPUT, AGED ABOUT 37 YEARS, OCCUPATION: DRIVER AND OWNER, R/O GRAM BANWADA TEH. JAORA, DISTRICT RATLAM (MADHYA PRADESH)

2. THE ORIENTAL INS. COM. LTD. THROUGH D.M.

D.O. SAILANA ROAD, OPP. SHREE RAM MANDIR RATLAM, DIST RATLAM (MADHYA PRADESH)

.....RESPONDENTS (SHRI SARANJIT SINGH CHAWLA, LEARNED COUNSEL FOR RESPONDENT NO.2)

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

ORDER

By this appeal filed under Section 173 of the Motor Vehicles Act, 1988, the appellant has challenged the award dated 27.07.2019 passed by II Additional Motor Accident Claims Tribunal, Jaora, District Ratlam in Claim Case No.39/2018 and has sought enhancement of the compensation amount.

2. The appellant Kailash Bai had filed the claim petition before the Signature Not Verified Tribunal with the plea that on 11.05.2018 respondent no.1 who is owner and driver of the offending vehicle MP-09-BA8500 drove rashly and negligently and hit the motorcycle which was driven by Ramnath. Due to that accident appellant/claimant received grievous injuries. Accordingly, the appellant filed claim petition before the Tribunal claiming compensation of Rs.31,00,000/-.

3. Respondent no.1 filed reply denying the accident and taken stand that the vehicle was duly insured with respondent no.2, therefore liability was on the Insurance Company. Respondent no.2 had filed reply denying the liability by raising the plea of violation of the policy conditions.

4. The Claims Tribunal after permitting the parties to lead evidence and examining the same had found that the accident was caused on account of rash and negligent driving of vehicle No.MP-09-BA-8500 by respondent no.1 on 11.05.2018 who is the owner of the vehicle, insured with respondent no.2 and in the said accident the claimant received injuries which resulted in 11% permanent disability. The Tribunal further found that there is no violation of terms and conditions of insurance policy hence it fastened the liability upon respondent no.2/Insurance Company. The Tribunal found 11% disability and assessed the income of the deceased as Rs.4,500/- per month and found the age between 41 years to 45 years and assessing compensation in respect of loss of earning capacity as Rs.83,160/- and in other heads like treatment, transport, special diet, attendant and physical and mental pain awarded as Rs.34,370 Rs.5,000 Rs.5,000 Rs.5,000 Rs.8,000/- and awarded total compensation of Rs.1,40,530/-

in favour of the appellant.

5. Learned counsel for the appellant submitted that Tribunal committed an error in awarding compensation on lower side.

6. As against this learned counsel for the Insurance Company has Signature Not Verified supported the impugned award.

7. Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the accident had taken place in the year 2018 hence, the Tribunal has committed an error in calculating the monthly income of the deceased as Rs.4,500/-. Having regard to the year of the accident and the age of the deceased, the Tribunal ought to have calculated the monthly income of deceased as Rs.6,000/- per month. The claimant had 11% permanent disability, so in the head of loss of earning capacity, an amount of Rs.6,000/- per month has to be calculated which comes to Rs.1,10,880/-.

8. On perusing the record it was found that the Tribunal awarded a sum of Rs.34,370/- for medical treatment, which is not acceptable to claimant as she produced each and every medical bill of treatment, so in this head Rs.50,000/- must be awarded and in other heads like attendant, physical and mental pain and spec