Suresh vs Anwarkhan and M.P.S.R.T.C.

S.S. Sharma, J.—This appeal by the claimant is against an award dated 26-3-79 given by the Member, Motor Accidents Claims Tribunal, Mandleshwar in Claim, Case No. 34/78. By this award the claim petition has been dismissed.

On 28-12-77 at about 10-30 a.m. the accident in question had occurred. Claimant Suresh along with Gopaldas and deceased Ramsumaran Pande was on a motor cycle. That motor cycle was being driven by Gopaldas while Suresh and deceased Ramsumaran Pande were sitting on the pillion. Respondent No. 1 Anwarkhan was the driver of the passenger bus bearing registration No. M.P.F. 7498 belonging to respondent No. 2 M.P.S.R.T.C. The bus was going from Burwani towards Dhananod. Tne motor cycle referred to above, was coming from the opposite direction. As a result of the dashing of the bus with the motor cycle Gopaldas, Suresh and deceased Ramsumaran Pande fell down.

Claimant Suresh and deceased Ramsumaran Pande were taken to the Civil Hospital at Thhikari. On the same day they were taken from Thhikari Hospital to Indore in a nursing home. Ramsumaran Pande expired.

Appellant Suresh had filed a separate claim petition, which was registered as Claim Case No. 34/78. The widow AND ORS. of Ramsumaran Pande had also filed, a separate Claim Petition, which was registered as Claim Petition No. 33/78. By an order dated 10-1-79 passed in Claim Case No. 34/78, that case and Claim Case No. 33/78 were consolidated and the evidence for both the cases was to be recorded in Claim Case No. 33/78. Counsel for the parties had also agreed to that, which has been mentioned in the said order sheet dated 10-1-79.

The Tribunal in the case of Satyalata and Ors. v. M.P.S.R.T.C. (Claim Case No. 33/78) did find that Ramsumaran Pande had received the injuries in the accident, but according to him the death was not because of those injuries. He further found that the accident had occurred because of the rash and negligent driving of the motor cycle on which Ramsumaran Pande was sitting. He did not also find to be proved that the passenger bus had dashed the motor cycle. He had, however, assessed the compensation against that award in Claim Case No. 33/78. An appeal (Misc. Appeal No. 189/79) was filed in this Court by the claimants. That appeal was allowed by a Division Bench of this Court vide order dated 6-9-81. The Division Bench after an elaborate discussion of the evidence of the relevant witnesses found as follows:

Accordingly, differing from the learned Claims Tribunal, we hold that the accident was caused by the passenger bus and that it was occasioned due to rashness and negligence on the part of Anwar-khan-respondent, No. 1.

It was further found that since Anwarkhan respondent No. 1 was driving the bus at the relevant time during the course of his employment for and on behalf of the respondent-Corporation, he was actually and the respondent-Corporation was vicariously liable.

The Division Bench by its order assessed the compensation at Rs. 48,900/-. Interest @ 6% from the date of the application was also allowed. I was told that the said order of the High Court has attained a finality,

In the instant case the Tribunal found that Suresh had received the injuries as a result of the accident. He further found that the accident was not due to the rash and negligent driving of the passenger bus but was the result of the rash and negligent driving of the motor cycle. The Tribunal, in the event of claimant Suresh being entitled to any compensation, assessed the compensation at Rs. 2000/- by way of loss of income, Rs. 2000/- for paid and agony, Rs. 500/- for deprivation of social life and Rs. 1000/- for medical expenses. However, the Tribunal while dismissing the claim petition, awarded Rs. 500/- as compensatory costs u/s 35(1) C.P.C. to the respondents.

In view of the finding of the Division Bench in the case of Satyalata (supra), both the counsel for the parties in all fairness did not reagitate the question that the accident has occurred owing to the rash and negligent driving of respondent Anwarkhan, who was then driving the passenger bus belonging to the respondent-Corporation, even otherwise there is sufficient evidence on record in support of that inding. All the same in the circumstances, it is now not necessary for me to dwell any further on that question.

Dr. Murti on 28-12-77 had examined claimant Suresh in the nursing home at Palasia, Indore. The diagnosis was aspiration right knee as has been mentioned in Ex. P-37. The blood, which had collected, was taken out under local anaesthesia. The papers Bx. P-37 mentions that Suresh was discharged from the nursing home on 29-12 77. Dr. Murti has further stated that the portion was plastered for a duration of 20 days. He further stated that since the portion was plastered there may have been a crack in the bone According to him the injury may have become all-right within a month and thereafter Suresh did not require any further rest. He also stated that he might have taken Rs. 100/-or Rs. 150/ as fees from Surest). In the cross examination Dr. Murti further stated that the crack bad properly united. As against this, the version of Suresh is that after the discharge from the nursing home, he had returned back to his house and the plaster was removed after a month. Thereafter another doctor was consulted and he had opined to put another plaster for a period of one month. It appears that according to him another plaster was put in, which was removed after a month, but still his knee did not become normal.

As it is, the papers Ex. P-37 of the Kailash Nursing Home do not make any mention about any plastering having been done or there being any crack in the bone. The version of Suresh that he had consulted another doctor and his knee was replastered does not at all stand substantiated. He has neither examined the said other doctor nor has produced any document to support that claim. His version that he still suffered from disability inasmuch as he neither can run nor drive a cycle or that there is some pain, has to be rejected, as an exaggerated version to claim more of the compensation.

Suresh in his evidence stated that he does cotton business. In para 39 he further stated that he and his father are partners of the registered partnership firm. It also was admitted that they maintain regular books of account about the business. Admittedly, no such books of account have been produced in evidence to substantiate the assertion that the firm does a business of about 2-3 lacs per year, by which there is a saving of about 25-30 thousand every month. That could have been the better evidence to support the bald claim about income as has been made by Suresh chandra. The Tribunal has in the circumstances assessed the income of the claimant on the basis of the demand note sent by the Income Tax Department. It appears that the Tribunal has not even read the demand note Ex-P-13 properly. By this Ex. P-33 a notice was given that for the assessment, year 1977-78, a sum of Rs. 12/- was determined to be payable by him. The Tribunal was not correct in observing that by this Ex. P-33 a demand of Rs. 8,000/- was made from Sureshchandra.

Learned Counsel for the respondents had challenged the finding of the Tribunal with regard to the compensation amount, as according to him the award of Rs. 2000/- towards loss of income was not only excessive but there was no material or evidence to support that finding. He had also assailed the assessment of the compensation amount on the other heads including that of medical expenses, for which as he urged, there was no evidence.

Now as stated above, according to Dr. Murti the leg was put under plaster only for. 20 days. He has also stated that for the injury to become all right a month''s time may have been taken and thereafter he did not require any rest. He has also admitted that the crack must have united. As it is, the papers of the nursing home i.e. Ex. P-37 neither makes a mention about the crack nor about the plastering of the knee. It has already been stated above that Suresh has made an exaggerated version about the injuries and the replastering to claim a higher compensation. The Tribunal had assessed the loss of income of Suresh to be Rs. 1000/- per month but he has awarded the compensation for two months i.e. Rs. 2000/-. In my opinion, there was absolutely no justification for awarding compensation for the loss of income for two months. The claimant would, therefore, be entitled atmost only to an amount of Rs. 1000/-, which would be the loss of income for one month and this is a period, which alone can be justified from the evidence of Dr. Murti and giving the best of it to the claimant.

The Tribunal has awarded for the pain and suffering, an amount of Rs. 2000/-. In my opinion, this amount could neither be said to be that excessive or that low, which could call for any interference. In these circumstances, the awarding of compensation of Rs. 500/- for deprivation of the society was wholly meaningless and the claimant was, therefore, not entitled to that amount of Rs. 500/-, which has been assessed on that count by the Tribunal. An amount of Rs. 1000/- has further been awarded to the appellant towards medical expenses. As a matter of fact, the appellant has not proved the actual medical expenses, but all the same it could certainly be taken into consideration that the appellant had come from a place in the District Kbargone to Indore and was admitted in a private nursing home. He also must have been accompanied by a person or two and was in the nursing home atleast till next day. He had also paid some fees to Dr. Murti. Taking into account the to-and-fro expenses, nursing home expenses and the fees that he might have paid to the Doctor, the award of Rs. 1000/- can certainly be upheld.

The appellant would thut be entitled to a total amount of Rs. 4000/- under the different heads as have been stated above.

Learned Counsel for the appellant then urged that the appellant was deprived of this compensation during the all these years and so he should be allowed interest @ 1% In my opinion, in these circumstances, the appellant should be awarded interest @ 9% per annum.

Consequently, this appeal is allowed. The respondents shall be liable jointly and severally to pay an amount of Rs. 4000/- to the appellant by way of compensation, as stated above. The respondents shall also be liable jointly and severally to pay interest on the said amouat @ 9% per annum from the date of the application, i.e. 23-6-1978 till its recovery. The appellant shall also be entitled to his costs of both the Courts below. Counsel''s fee before the Tribunal and this Court shall be Rs. 300/-, in each Court.