PRAVEEN YADAV Vs. ADITYA KUMAR NIGAM

JUDGEMENT

(1.) This is claimants appeal under Section 173 of Motor Vehicles Act, for enhancement of the compensation awarded by the Eighth Additional Motor Accidents Claims Tribunal, Gwalior, in Claim Case No. 01 of 2002 vide award dated 16.5.2003. The appellant had sustained serious injuries on his body and for the injuries sustained he was awarded a compensation of Rs. 2,40,000. Inter alia contending that the compensation awarded is very much on the lower side this appeal is filed for enhancement of the compensation.

(2.) APPELLANT claims to be homoeopathy doctor and it is stated that on 11.9.2001 appellant was going on a scooter bearing No. MP 07 -D 4801 from Deen Dayal Nagar to Arya Nagar Murar. Scooter was driven by Rakesh Singh, he was driving the scooter very slowly, when the scooter reached a place near Circuit House, a Maruti car bearing No. MP 07 -M 0432 driven and belonging to respondent No. 1, Aditya Kumar Nigam and insured with the respondent No. 2, insurance company came from the wrong side, dashed against the scooter, as a result both Rakesh Singh and appellant sustained injuries. Inter alia claiming that because of the accident appellant was first admitted in Civil Hospital where he was given preliminary treatment and thereafter shifted to J.A. Group of Hospitals and, thereafter, he was treated by one Dr. V.P. Midda in Janak Hospital and Garg Nursing Home. The plaintiff had suffered various fractures and injuries to his body, he was operated upon and rods were implanted and bone graft surgery were conducted, he filed claim petition for compensation of Rs. 14,50,000. Against the aforesaid claim made, the learned Tribunal has awarded Rs. 70,000 towards the medical expenses, Rs. 10,000 towards future treatment and Rs. 20,000 has been awarded for pain and suffering, a sum of Rs. 17,600 has been awarded towards loss of earnings because of accident and by assessing disability at 20 per cent and by calculating his income at Rs. 300 per day, Rs. 1,22,400 awarded as compensation, total compensation on various heads comes to Rs. 2,40,000. Mr. Arun Sharma, counsel for the appellant invites my attention to the statement of appellant so also that of Dr. V.P. Midda, PW 4 and argues that appellant was under treatment for about 2 years and according to the doctor he had sustained injuries and fractures on left thigh and right leg tibia and fibula bone was fractured, he was operated upon in Garg Nursing Home. Dr. V.P. Midda, Plastic Surgeon also conducted bone grafting, plate was implanted and he will require further treatment because of serious injuries sustained by him. Even on 20.1.2003 when Dr. Midda examined him he was not completely cured, he was required to walk along with a frame, his right leg has been reduced in length by about 1 1/2 inch and various other infirmities were found as is indicated in Exh. P211. According to the doctor the nature of injuries sustained indicates that he has suffered disablement of 50 per cent. Mr. Arun Sharma points out that this certificate and statement of doctor was accepted by the Tribunal and the Tribunal has found that the appellant has sustained permanent disablement of 50 per cent, however, after doing so in very arbitrary manner compensation is assessed only by assessing 20 per cent permanent disability which according to Mr. Sharma is highly improper and cannot be sustained. Thereafter, Mr. Sharma invites my attention to various documents and medical bills more than 100 in number available on the record and points out that from all these bills the amount comes to more than Rs. 1,15,770.15. Against this amount without taking note of these bills only a sum of Rs. 70,000 is awarded, this according to Mr. Sharma is very much on the lower side and he seeks for enhancement of the compensation on this count that apart it was submitted by Mr. Sharma that as the appellant was unable to work for a period of two years a sum of Rs. 17,600 only, granted for loss of earnings is very much on the lower side, accordingly he prays for enhancement of the compensation.

(3.) I have heard learned Counsel for parties at length and perused the records. From the records it is clear that appellant had suffered serious injuries because of the accident even though the accident took place on 11.9.2001 when the appellant was examined by Dr. V.P. Midda, PW 4 on 20.1.2003 it was found that the appellant was not completely cured. Dr. Midda, PW 4 had treated the appellant throughout and the entire documents pertaining to treatment of appellant in Garg Nursing Home on 29.5.2002 till his discharge, i.e., more than 260 documents are filed and proved and from the statement of Dr. Midda it is clear that finally when the appellant was examined on 20.1.2003 he was found to be unable to walk, he could walk only with the help of a frame, his right leg was reduced in length by about 1 1/2 inch, hip joint were only 0 to 19 and knee joint 0 to 120 degrees, his ankle 5 degree equines deformity and has stiff subtalar of right foot and he has 50 per cent permanent physical disability, according to Dr. Midda he has suffered 50 per cent disablement on his right lower limbs. In his cross -examination Dr. Midda clearly stated that the injuries suffered are serious in nature. The documents available on record clearly show that appellant had suffered serious injuries and the Tribunal also after assessing the statement of the witness has accepted the disablement to the tune of 50 per cent as certified by the doctor vide Exh. P211, in spite of doing so without recording any reason has assessed the compensation only by calculating disability of 20 per cent, this was not proper as Tribunal was not correct in reducing the disablement from 50 per cent to 20 per cent, the Tribunal has also found that the earning of claimant is Rs. 3,000 per month. The insurance company has not challenged this finding by filing any cross -appeal or objection that being so I find no reason to interfere with the findings. Exh. P202 indicates that the appellant is a qualified homoeopathy doctor, registered with the State Homoeopathy Council vide Exh. P203 that being so contention of learned Counsel for insurance company that claimant has failed to prove his qualification and profession is not correct. Available on record are also more than 126 medical bills and receipts issued with regard to treatment and payment made to doctors and plastic surgeon for operation and other expenses, the total amount of these bills come to more than Rs. 1,15,770.15, in spite of this and other documentary evidence available on record Tribunal has only awarded a sum of Rs. 70,000 towards medical expenses, this in my opinion was not proper, accordingly in the facts and circumstances of the case I find error in the award passed by Tribunal in the matter of calculating the disablement and granting compensation.