ORDER
1. This is an appeal under Section 173 of the Motor Vehicles Act, 1988, against the Award dated 15.10.2001, passed by Addl. Motor Accident Claims Tribunal, Mandsaur, in M.V. Case No. 60/2000, whereby claim of appellant has been dismissed as he was not able to prove that accident had occurred on account of rash and negligent driving of Tractor by respondent No. 2 and owned by respondent No. 1.
2. According to appellant-Khemchand, aged 40 years, working as Mason, at the time of accident, was returning home on 27.1.1998, at about 8.30 p.m. when on Daloda-Badwan Road, opposite the house of Gopal Mali, P.S. Bhaugarh, respondent No. 2 herein, driving Tractor bearing Registration No. MKU 4842, came and violently dashed against him. At the relevant point of time, said Tractor was owned by respondent No. 1. It is also not in dispute before us that it was not insured at the relevant point of time. Thus, the Insurance Company had not been joined as one of the respondents
3. On 27.1.1998, after the appellant had met with accident, he was admitted in District Hospital, Mandsaur, at about 11.10 p.m. Bed Head Ticket was prepared by Dr. Deepak Simlot (P.W. 5), who at the time of admission, was working as Assistant Surgeon in the said Hospital. Exs. P/23, P/24 and P/25 are the Admission Ticket, Bed Head Ticket and other prescription prepared by this Doctor. Appellant was thereafter discharged on 2.2.1998 from the said Hospital. In the said accident, appellant had sustained injuries in his head and right shoulder. This Doctor has deposed that at the time of accident it was disclosed by the appellant that he had sustained injury in a motor road accident. This fact also finds place in Ex. P/24 and it is mentioned that since accident, he has not been able to move his shoulder. X-Ray was also taken out by Dr. D.K. Bhatnagar (P.W. 4). Dr. Bhatnagar has proved Exs. P/21 and P/22. Appellant also examined one eye-witness Jagdish (P.W.6) to prove the factum of accident.
4. In the claim petition, it was mentioned that respondent No. 1 had orally promised the appellant, after the accident, that he shall take care of all the expenses that would be required to be spent by appellant for treatment and would also pay him adequate amount of compensation, provided he does not lodge F.I.R. Appellant, who was working as Mason in a village, believed the false promise given by respondents. Consequently, soon after the accident, he did not lodge any report with the police. Even though there appears to be some variance between pleading and proof, but the same is not so variant to non-suit the appellant.
The respondents submitted their reply and denied that any accident had taken place on 27.1.1998 by tractor bearing Registration No. MPU 4842. They further came forward with the plea that on the said date, due to 13th day ceremony to be performed on account of death of grand-mother of respondent No. 1, question of taking out tractor for any work, did not arise. Specific plea is that on the said date tractor was parked in his house and was not driven either by him or by respondent No. 2. Condolence letter Ex. D/1 is on record. To prove this, respondents have also examined Ambalal (D.W. 3). Respondent No. 2 Harishankar is the grand-son of respondent No. 1 -Nandram. Respondent No. 2 Harishankar, who had appeared as D.W. 1, admitted in his cross-examination that said tractor was not insured. There is also great variance in the defence taken by them and the evidence led to prove the said defence. He has admitted that he alone drives the said tractor. He deposed that tractor was not used for 15 days on or before the date of accident and instruction in this regard was given to the Advocate, who had drafted the written statement, but, why this fact does not find place in the written statement, was not known to him. Perusal of condolence letter (Ex. D/1) shows that all functions with regard to 13th day ceremony of the grand mother of respondent Mo. 2 Harishankar were over by morning itself. This fact has also been admitted by Ambalal (D.W. 3) who has proved Ex. D/1. Ambalal has categorically desposed that all 13th day functions were over by 11.00 O’clock in the morning. Accident had taken place at about 8.00 O’clock in the evening. It is not the case of the respondents that tractor was not in a working condition on the said date. From the overall assessment of the evidence available on record, appellant has been able to prove that he had sustained bodily injuries only on account of use of the said tractor by respondent No. 2. He has examined the doctor who had given him treatment soon after the accident. He has also examined the radiologist who had taken X-ray after the accident. Eye-witness account of Jagdish (P.W. 6) also inspires confidence. Apart from this, there is nothing on record to show that appellant had any axe to grind against the respondents and only for that reasons, respondents have been implicated falsely in the case.
5. In fact, respondents had come forward with a false and baseless story that on the date of accident the tractor was not at all taken out from the house due to 13th day functions held on account of death of grand-mother of respondent No. 2. As has been mentioned hereinabove, all the functions were over on the said date before 11.00 a.m. and there is no reason why the tractor could not have been taken out in the evening when the accident had taken place. Evidence produced by respondents appears to be false and concocted.
6. Appellant did not lodge the report with the police as he was given a false promise by respondents that he would be adequately compensated for the treatment required to be taken by him and for permanent disability as well. Thus, appellant, who appears to be a rustic villager, believed false promise given to him by respondents. Respondents appeared to be influential and moneyed persons. When appellant did not get proper response from respondents, he preferred to file a claim soon after expiry of six months before the Claims Tribunal.
7. Appellant also realised his mistake of believing a false word of mouth of respondents and then woke up from his hibernation and lodged F.I.R. with the Police. But, by that time, it was too late in the day, thus, police also refused to take cognizance of said accident. Appellant was, therefore, constrained to file a private complaint against the respondents before the competent Criminal Court. Said private complaint was registered under Section 279 r/w Section 337 of I.P.C. against the respondents by the said Court. Learned Counsel for parties were not able to inform this Court with regard to ultimate result of said private complaint.
8. If appellant had not been injured on account of rash and negligent driving of aforesaid tractor belonging to respondent No. 1 and driven on the relevant date by respondent No. 2, at bast he-would not have gone to the extent of filing private complaint, against the respondents, after his belated F.I.R. was not registered by the police. This is an additional fact against the respondents to show that it was only respondents who were responsible for causing bodily injury to appellant by the use of the tractor.
9. This finding of-Claims Tribunal that appellant did sustain injuries, but the same were not caused due to rash and negligent drivingof the tractor by respondent No. 2, cannot be sustained in law. From the overwhelming evidence available on record, it is. (sic) that appellant was injured on 27.1.1998 due to rash and negligent (sic) belonging to respondent No. 1 and driven by respondent No. 2. Evidence so fed by appellant is natural and inspires confidence. There was also no reason why this appellant would have falsely implicated the respondents. Claim of appellant has erroneously been dismissed only on the ground that he had not lodged any FIR. Delay in lodging of FIR and then filing private complaint by appellant against the respondents, fully established that he was given a false promise by respondents, which was not fulfilled by them, whereby appellant was constrained to move the Court of Law.
10. For the reasons what has been said hereinabove, it is established that appellant sustained bodily injury on 27.1.1998 on account of rash and negligent driving of tractor belonging to respondent No. 1 and driven by respondent No. 2 at the relevant point of time.
11. Since the tractor was not insured, which stands proved from the evidence of respondent No. 2 Harishankar himself, no liability could have been fastened on Insurance Company. Even otherwise, Insurance Company has not been joined as one of the respondents.
12. Now, the question that arises for consideration is as to how much amount the appellant would be entitled to Dr. K.C. Shrimal (P.W. 1) had examined the appellant on 19.11.2000 i. e., after two years from the date of accident. He had gone through all the medical prescriptions and other relevant papers before giving him permanent disability certificate Ex. P/1. It is also to be mentioned herein that appellant was required to take treatment at Ahmedabad and Udaipur, apart from Mandsaur, where he was initially admitted soon after the accident. Dr. K.C. Shrimal (P.W. 1), after fully examining the appellant and after going through the record and treatment papers of this appellant, opined that permanent disability to the upper right limb was to the extent of 50% and due to non-movement in elbow 35% permanent disability was assessed. Thus, to his right arm the total disability was assessed at 85%. This fact was also noted by the Member, Tribunal while the appellant was in the witness box.
13. As has been mentioned hereinabove, appellant was aged 40 years at the time of accident and was working as Mason, there cannot be any denial of the fact that he cannot work as a Mason as it requires continued movement of both hands. Even today when he was present before us, during the course of hearing, he showed to us that he was unable to move his right hand in any direction. His right hand has also become thinner than the left hand and it has no weight bearing capacity. For all these reasons, we are of the opinion that he would not be able to perform the work of Mason as he used to do earlier. He has whole life ahead of him. With this impairment he would have to find out some other way of earning his livelihood. At this advanced age it would also be difficult for the appellant to find out some other avenues so as to make his both ends meet. Looking to all these facts and features, he has to be compensated adequately so that he may be able to feed his family and himself.
14. Keeping in view the permanent disability sustained by appellant in a road accident, in our considered opinion, a sum of Rs. 2,00,000 (Rs. two lacs only) would be just and proper amount of compensation to be awarded to appellant. This amount is inclusive of the treatment that has been taken by him so far.
15. Thus, appeal is allowed. Appellant is held entitled to receive in all a sum of Rs. 2,00,000 from the respondents jointly and severally. Aforesaid amount would carry interest at the rate of six per cent per annum, from the date of application, till it is actually paid. Respondents to bear costs of litigation throughout. Counsel’s fee Rs. 1,000, if certified.