Ashok Kumar Bhamore vs Rakesh and Others

Hon''ble S.C. Sinho, J.—This appeal u/s 173 of the Motor Vehicles Act, 1988 is directed by the appellant against the award dated 4th October, 2006 passed by Member, Motor Accident Claims Tribunal, Betul, District Betul (M.P.) in M.A.C.C. No. 108/2005, whereby the Tribunal has rejected the claim of the appellant.

Appellant''s case in short is that on 16th March, 2005 respondent No. 1 by driving Tata Sumo No. MP-09-S-3250 which was owned by respondent Nos. 2 and 3 and insured with respondent No. 4. Respondent No. 1 while driving the aforesaid vehicle rashly and negligently turned turtle it. As a result of this accident, appellant sustained a fracture in his left hand and he remained first hospitalized in Lashkar Hospital, Betul from 16th March, 2005 to 19th March, 2005 and thereafter shifted to Padhar Hospital where he remained hospitalized from 19th March, 2005 to 28th March, 2005. Due to this accident, appellant could not perform his duty as Salesman of the Bhargava Agency for six months.

Learned Counsel for the appellant has submitted that a charge-sheet was filed before J.M.F.C. Betul and a Criminal Case No. 414/2005 was tried even then learned Tribunal has wrongly held that it could not be proved that claimant was not travelling in the aforesaid vehicle.

Learned Counsel for the respondent has supported the order and further argued that even if Insurance Company is made liable even then as held in issue No. 4 Insurance Company should be permitted to pay and recover the amount from respondents No. 2 and 3 i.e. owner and driver of the offending vehicle.

Ashok Kumar claimant in his examination in chief has stated that on 16th March, 2005 while he was working as a Salesman in Bhargava Agency was travelling in Sumo No. MP-09-S-3250 driven by respondent No. 1, who was driving the vehicle rashly and negligently resultantly the jeep turned turtle near Sehra road and appellant received fracture in his right hand.

PW-3 Dr. N.R. Padhi, Radiologist, Padhar Hospital on examination of claimant on 19th March, 2005 found that there were two fractures in his left hand, injured remained hospitalized from 19th March, 2005 to 28th March, 2005 as per discharge ticket Ext.... P-7. Apart from this claimant Ashok Kumar Bhamore has further filed a copy of the charge-sheet Ext. P-1, F.I.R. Ext. P-2, M.L.C. report of the appellant Ext. P-3, X-ray report Ext. P-4 by concerned police station against driver of the offending vehicle.

The learned Tribunal has disbelieved the statement of the appellant/ claimant Ashok Kumar on the ground that Ext. P-2 F.I.R. was lodged on 2nd April, 2005 whereas accident took place on 16th March, 2005 and no explanation for this delay is given by the appellant. Apart from this even name of respondent No. 1 Rakesh as driver is not mentioned in the F.I.R. Ext. P-2. The appellant has not filed a criminal case before Tribunal and in claim cases criminal law is not applied when police station Betul Bazar has filed a charge-sheet against the respondent in that circumstances Tribunal should not have disbelieved the version of the appellant on such ground that other passengers were not produced as witnesses or explanation for lodging F.I.R. after 16 days is not explained when police filed a charge-sheet against the offending vehicle regarding this accident, Tribunal should have held that the aforesaid accident took place and on the basis of M.L.C. reports claimant received injuries. Thus I hold that on the date when fateful accident took place respondent No. 1 was driving the offending vehicle rashly and negligently and injured received two fractures.

The learned Tribunal has held in issue No. 2 that injured received 15% permanent disability in his left hand due to this accident and he remained hospitalized from 16th March, 2005 to 29th March, 2005 at Padhar Hospital as per the discharge ticket Ext. P-7 proved by the appellant. Appellant has submitted various bills of the Padhar Hospital as per Ext. P-8 to Ext. P-25 and ultimately filed Ext. P-26 final bill by which appellant made payment of Rs. 11,924/- (12000). Thus, the appellant is entitled for Rs. 12,000/- in this count. Apart from this appellant has remained as indoor patient from 16th March, 2005 to 28th March, 2005, thus, for these 13 days on account of special diet, attendent expenses etc. he is entitled for Rs. 15,000/- as lumpsum. AW-3 Dr. N.R. Padhi Radiologist has specifically stated that appellant received two fractures in his left hand land and was operated by him on 24th March, 2005 and plate was inserted in his left hand. Apart from this he used to go Padhar hospital for follow up treatment on 6th May, 2005 and 7th March, 2006. Dr. Padhi has further given Ext. P-28 the permanent disability certificate where according to it appellant received approximately 15% permanent disability and, thus, appellant is entitled for Rs. 30,000/- on account of permanent disability, pain and suffering.

Appellant has submitted that he was working as a Salesman and getting Rs. 4,000/- per month from the Bhargava Agency. Due to this accident he could not drive motor cycle. Admittedly appellant has remained hospitalized for 15 days. Further no certificate from Bhargava Agency is produced that he attend his job for four months. However, he received fractures in his left hand, therefore, he is entitled for two months pay at the rate of Rs. 4,000/- per month i.e. Rs. 8,000/-.

In the result the appeal is partly allowed. The appellant is entitled for compensation of Rs. 65,000/- (Sixty Five Thousand). The same has to be deposited by the respondents jointly and severally before the Tribunal within a period of 3 months alongwith interest at the rate of 6% per annum from the date of filing of application i.e. 25th June, 2005. However, needless to say Tribunal has rightly held in finding of issue No. 2 that in case the award is satisfied by the Insurance Company then Insurance Company will be entitled to recover the same from the driver and owner.

Accordingly, this appeal is partly allowed.