ARJUN Vs. SANJAY

JUDGEMENT

(1.) This appeal is filed by the appellant under Section 173 of the Motor Vehicles Act against an award dated 18.8.2006 passed by learned Additional Member, MACT, Dhar in claim case No. 95/2003. By the impugned award, the Claims Tribunal has awarded a total sum of Rs. 1,70,100 with interest @ 8% per annum for the injuries sustained, arising out of the accident occurred on 24.12.2002. But the finding of contributory negligence has also been recorded, however, 50% amount of the total compensation has been deducted.

(2.) Appellant had preferred a claim petition under Section 163A of the Motor Vehicles Act, with the averments that on 24.12.2002 when he was coming along with his brother from Dhar. The Respondent No. 1 corning from back on a motorcycle bearing registration No. MP 11-E-3264 dashed him in front of Shubham Transport at Indore Ahmadabad Road, Dhar. Arising out of the said accident appellant was having comrmmitted fracture of right tibia and fibula and also received other injuries. Initially he was admitted in Mittal Hospital, Dhar, later on shifted to Unique Hospital, Indore, where he was treated by doctors and in medical expenses he spent about Rs. 77,000 in total. It is also contended that on account of communitted fracture, of tibia and fibula, he is having permanent disablement, therefore, compensation to the tune of Rs. 6,00,000 was sought in claim petition. It is said that prior to the accident he was engaged in the business of milk vending and earning Rs. 6,000 per month. Now he is unable to perform the said business on account of disablement. The Respondent Nos. 1 and 2 by filing the reply averred that the appellant himself was driving the vehicle rashly and negligently in violation of the traffic rules and by having an immediate turn, however, dashed to the motorcycle of Respondent No. 1. A criminal case was registered against the appellant, on the complaint of Respondent No. 1. The Respondent No. 3 National Insurance Company by filing the reply has denied all the allegations as pleaded in the claim petition. It is also denied that the motorcycle belongs to Respondent No. 1 had driven rashly and negligently and dashed the motorcycle of the appellant. It is also averred that the owner and driver of the motorcycle driven by the appellant bearing registration No. M.P.- 11 BB-0248 are also the necessary party, who have not joined in claim petition, though it is a case of contributory negligence, wherein the appellant and respondent No. 1 both are held liable. In view of the said submission prayer was made to dismiss the claim petition.

(3.) Before the Claims Tribunal the papers of the criminal case registered on the instigation of the appellant has been filed (Exs. P-1 to P-6). Ex. P-7 is a X-ray report of Mittal Hospital, Dhar dated 24.12.2002, whereby the communitted fracture of mid shaft of right tibia and fibula at same level was found. The medical bills of Unique Hospital and the discharge card is also available. As per case summary, the appellant was having fracture of tibia and fibula mid shaft below knee, interlocking, nail with distal and proximal screw in site were filled with. The certificate of permanent disablement Ex. P-58 was produced of Dr. M. K. Borasi, wherein while calculating the disablement of right knee, 5% disability was opined and of ankle joint 12%. Surprisingly no X-ray fracture of ankle joint is available in case summary or in discharged ticket. It was merely fracture of shaft tibia and fibula near knee joint. The same reveals from the X-ray report of Unique Hospital. The X-ray seen and relied upon by Dr. Borasi is also available on record, which is indicative of knee joint only. X-ray of the ankle joint, if any, seen by Dr. Borasi while giving permanent disablement is not on record. Thus, it is apparent that the communitted fracture of right leg shaft of tibia and fibula bone was to the injured, but Dr. Borasi while calculating permanent disablement further shown the disablement of ankle joint, without having any X-ray of ankle joint or seeing the summary of discharge ticket. Thus, the disablement 12% as shown for ankle joint cannot be counted, while calculating future loss of earning.