Ramchandra vs Sahabrao and Others

This order shall also govern disposal of Misc. Appeal No. 14 of 1992, Sahabrao s/o Gulabraoji and Two Ors. v. Ramchandra s/o Dhulji Barodiya, as both these Misc. Appeals have been preferred against the common Award passed by learned Third Addl. Motor Accident Claims Tribunal, Ratlam in Claim Case No. 19 of 1989 (old No. 49 of 1986) on 5.9.1991.

Misc. Appeal No. 461 of 1991 has been filed u/s 173 of the Motor Vehicles Act, 1988 by appellant/claimant Ramchandra for enhancement of compensation and Misc. Appeal No. 14 of 1992 has been filed by the Insurance Company as well as owner and driver for setting aside the award passed by the Tribunal.

The brief facts of the case are that on 21.10.1985 appellant/claimant Ramchandra was going on his motor cycle bearing registration number MPI-1933 from Bangrod towards Ratlam. One Babulal was sitting as a pillion rider on the aforesaid motor cycle. Near Jaora Naka one Matador, bearing registration number MBO-1556, which was being "driven by respondent No. 2 Kamal and owned by respondent No. 1 Sahabrao, coming behind the said motor cycle, dashed the motor cycle. As a result of dash, the motor cycle collided with the bus which was going ahead. Motor cyclist fell down and due to accident received severe injuries. Ramchandra received severe injuries in his head, leg and other parts of the body and his ear was cut and injured. He remained in the hospital from 21.10.1985 to 10.11.1985. He filed claim petition before the Tribunal and his submission was that he became permanently disabled on account of the injury in the ear and has lost his hearing capacity. Before the Claims Tribunal the appellant also examined Babulal (P.W. 2) who was going as a pillion rider; Dr. Jagdish Jain (P.W. 3); Jakir Hussain (P.W. 4); Dr. C.S. Tanwar (P.W. 5); and Dr. G.L. Verma (P.W. 7).

The claim was disputed by the respondents and written statement was filed on behalf of respondent Nos. 1 and 2, owner and driver, and not on behalf of respondent No. 3-Insurance Company. It was submitted on behalf of the Insurance Company that the written statement filed by respondent Nos. 1 and 2 be also treated for the Insurance Company.

After having full trial, the learned Tribunal awarded a sum of Rs. 1,000/-towards diet; Rs. 3,000/- towards medical expenses; Rs. 3,000/- towards other expenses during the course of the treatment; Rs, 2,500/- towards employing labour for agricultural operations during the period of illness; and a sum of Rs. 12,000/ - towards permanent disablement. Thus, the Tribunal has awarded a total sum of Rs. 21,500/-.

We have heard learned Counsels appearing for the parties in both these appeals and perused the record.

The submissions of Mr. Agrawal, learned Counsel for appellant/claimant is that the learned Tribunal has not considered the evidence of Dr. Jagdish Jain (P.W, 3) who was E.N.T. Specialist, who has stated in his evidence that according to the Audiogram which was taken and marked as Ex. P/2, the claimant has lost his hearing capacity and has sustained permanent disability in his right ear up to 90% and in left ear up to 40%. It was further stated that this disability shall remain for rest of the life. Therefore, the submission of Mr. Agrawal was that the learned Tribunal has not properly assessed the amount of compensation and has only awarded a meagre amount towards the total disablement and loss of hearing capacity.

In reply Mr. Kuldeep Bhargava, learned Counsel for respondents submitted that there is no medical evidence available on record about such a percentage of disability. He further submitted that appeal filed on behalf of the claimants for enhancement of compensation be dismissed and appeal filed on behalf of the Insurance Company be allowed and award passed by the Tribunal be set aside.

We have heard learned Counsels for the parties and perused the record. We have also perused the evidence of Dr. Jagdish Jain (P.W. 3) who was examined as E.N.T. Specialist. We have also perused other evidence of Dr. C.S, Tanwar (P.W. 5) who was also a Surgeon; and Dr. G.L. Verma (P.W. 7) who had given primary treatment at District Hospital, Ratlam. From the evidence of Dr. Jain (P.W. 3) it is clear that the claimant has lost his hearing capacity in both the ears and from the award it is clear that the Tribunal has not taken the aforesaid evidence into consideration for awarding compensation. Thus, in view of the aforesaid evidence on record, the amount of Rs. 12,000/- towards loss of hearing capacity is quite insufficient and deserves to be enhanced. Therefore, we allow this appeal and award a sum of Rs. 50,000/- towards loss of hearing capacity. Looking to the permanent disability, the amount of compensation could have been more but looking to the age of the claimant which was around 53 years on 21.10.1985, the amount of Rs. 50,000/- would be an appropriate compensation for loss of hearing capacity at this age. Towards medical expenses the Tribunal has awarded only Rs. 3,000/- which is on lower side. Looking to the statement of claimant who had spent Rs. 5,000/- to Rs. 6,000/- on audiogram and also on other treatment. Thus, the amount of compensation towards treatment is also enhanced from the Rs. 3,000/-to Rs. 20,000/-.

Looking to the age and the disability suffered by the claimant, the total amount of compensation is enhanced to Rs. 70,000/- instead of Rs. 21,500/- with 9% interest from the date of the petition for compensation. Thus, Misc. Appeal No. 461 of 1991 is allowed to the extent indicated above with no order as to costs.

We have also perused the appeal filed by owner and driver as well as Insurance Company which was registered as M.A. No. 14/1992. It is true that the Insurance Company had not filed any written statement, independently. It was admitted in the written statement filed by owner and driver that the vehicle Matador was insured with United India Insurance Company, Indore and the rest of the claims were denied. Neither Insurance Company nor any body on behalf of the owner or driver entered into the witness box to rebut the allegations of the accident or of damages or compensation. In fact the appellants could not satisfy us that how the claimant is not entitled for any compensation, when the accident was proved and the disability was also proved. Thus, in view of the aforesaid factual matrix on record, we do not find any merit and substance in the appeal preferred by the owner and driver as well as Insurance Company. The same is hereby dismissed, with no order as to costs.

Retain this order in the record of Misc. Appeal No. 461 of 1991 and place its copy in the record of connected Misc. Appeal No. 14 of 1992.

Record be returned.