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Judgment
S.L. Talati, J.—Original opponent No. 2, the owner of the motor cycle has preferred First Appeal challenging the award passed by the Motor Accident? Claims Tribunal, Valsad in Motor Claim Petition No. 8 of 1978 on 9.10.1978.
It may be stated that Respondent No. 1 was injured on 29.7.1977 at about 2.30 p.m. on the outskirts of Valsad town. He had gone to Valsad to make some purchases and while he was walking on Halar road he was knocked down by a motor-cyclist. He was thereafter treated at Ashish hospital and again he was treated by Dr. Rajurkar. There was a fracture on the right hand and he was required to be operated upon. Nail was required to be inserted and plaster was put and that plaster was required to be kept for a period of three months. Ultimately on these facts he filed a claim petition and claimed a sum of Rs. 30,000/-. The Motor Accidents Claims Tribunal at Navsari awarded a sum of Rs. 5,000/- to be recovered from opponent Nos. 1 and 2. The claim against opponent No. 3 was dismissed.
Now original opponent No. 2, the owner of the motor cycle has filed this appeal challenging the award of Rs. 5,000/- passed against him. Injured claimant has filed cross-objections and the appeal and the cross-objections are being disposed of by this judgment.
The owner of the motor cycle Nilkanthbhai is examined at Exh. 45. He admitted that the motor cycle belonged to him. According to him he had given it for repairs to original opponent No. 1. In his examination-in-chief he further stated that he had not instructed the repairer to drive the vehicle. In cross-examination he denied the suggestion that he had asked the repairer to return the motor cycle at home. Now the repairer Arvind Patel is examined at Exh. 44 and he stated that he bad repaired the motor cycle and on the date of the accident he was driving the vehicle for the purpose of testing. He in his cross-examination admitted that he did not realise that he should apply brakes. Now that, therefore, he knocked down a pedestrian and therefore, he was negligent because he did not apply brakes. It is also clear that the motor cycle was given for repairs and naturally if it was for testing the motor cycle was being used with the permission of the owner and for the benefit of the owner and therefore, the owner also would be responsible. Therefore, the award passed against opponent Nos. 1 and 2 is fully justified.
Now so far as the insurance company is concerned opponent No. 1 clearly admitted in his cross-examination that he had no licence to drive the motor cycle. He clearly admitted that he never possessed licence for the motor cycle. He also stated that on that day also meaning thereby that on the date on which he was giving evidence he had no licence for running the motor cycle. The learned advocate for the Appellant tried to submit that he was qualified to get the licence. When a person never learnt as to how the motor cycle is required to be driven and when he never applied for his test being taken by a proper authority a person can never be considered to be qualified unless he learns and appears for the test. This is not a case where a person had learnt and given the test and the licence was being issued and during the period the accident occurred. It is also not a case that he had ever had the licence and that, therefore, he had given the test, obtained the licence, but forgotten to renew it. Therefore, by no stretch of imagination it can be suggested that this person was ever qualified to drive the motor cycle. Under these circumstances the argument of the Appellant in this regard is required to be rejected.
Coming to the cross-objection it may be stated that the learned Member of the Tribunal awarded the following amounts:
Rs.
For costs of treatment 2,500-00
For loss of earning 500-00
For physical pain and suffering 2,000-00
Now so far as the evidence of the claimant is concerned his evidence is at Exh. 40. He stated that he remained as an indoor patient in Ashish hospital for a period of about 14 to 15 days. Thereafter he took treatment at Navsari and Dr. Rajurkar had to operate and he had to be in hospital again for 14 days. According to him he had given Rs. 600/- at Ashish hospital and Rs. 800/- to Dr. Rajurkar. His miscellaneous expenditure according to him was about Rs. 200/- to Rs. 300/-. He claimed on that head a sum of Rs. 300/- and he had produced the bills worth Rs. 2,100/-. Considering these circumstances if the Tribunal awarded a sum of Rs. 2,500/- as costs of treatment it cannot be suggested that the proper amount is not awarded.
Now so far as the second item is concerned regarding loss of business during the period the claimant was under treatment, the claimant in his evidence stated that his net income from the hotel which he ran was Rs. 3/- to Rs. 4/- per day and the hotel remained closed for a period of about six months. The claimant is aged 65 years and the hotel is being run by himself and his wife. Considering these circumstances the Tribunal awarded a sum of Rs. 500/- on that count. It cannot be suggested that a proper amount has not been awarded.
The next item is physical pain and suffering. It is clear that the amount awarded is on lower side. The person had to be in hospital twice. On each occasion he was in hospital for 14 days. There was a fracture, on the right hand and according to Dr. Rajurkar, Exh. 41 at the time of operation nail was required to be inserted and the patient was to be kept in plaster for a period of three months. Thereafter Dr. Rajurkar Exh. 41 again examined him and though the fracture had fully healed the shoulder portion was not moving as it should and the percentage so far as movement of the shoulder is concerned, was less by 20% If these facts are properly appreciated it is clear that the amount awarded on the head of pain and suffering, is on very much on lower side This amount is required to be increased and I feel that the claimant is entitled to atleast Rs 5,000/- on that head meaning thereby that he would be entitled to additional amount of Rs. 3,000/- on that head.
It is to be remembered that it was a right hand where the fracture was caused. There was bound to be discomfort and also future economic loss. On that head nothing is awarded. I would award a sum of Rs. 2,000/- on that head. The result would be that the claimant would be entitled to the following amounts:
Rs.
For medical expenses 2,500-00
For closure of business 500-00
For pain and suffering 5,000-00
For future economic loss 2,000-00
Total 10,000-00
Thus the claimant would be entitled to a sum of Rs. 10,000/-. He would be thus entitled to additional amount of Rs. 5,000/-.
I may here mention that the Tribunal awarded interest at 6% from the date of the award. That is not correct. The interest is required to be awarded from the date of filing of the application.
The result would be that the order passed by the Motor Accidents Claims Tribunal, Navsari is substituted by the following order:
Opponent Nos. 1 and 2 jointly and severally pay to the Applicant a sum of Rs. 10,000/- with interest at the rate of 6% per annum from the date of the application till realisation. So far as insurance company, opponent No. 3 is concerned, the order that the claim against opponent No. 3 is dismissed, that order is maintained. Opponent Nos. 1 and 2 to pay proportionate costs to the original Applicant throughout and all the opponents will bear their own costs throughout.