JUDGMENT
P.K. Jaiswal, J.
1. This Order shall govern the orders in all the seven appeals as they arise out of common award passed by the Motor Accidents Claims Tribunal. All the appeals are filed against the impugned award dated 31.1.2000 passed by the Motor Accidents Claims Tribunal, Morena. All the appeals are filed for enhancement of compensation, Other findings recorded by Claims Tribunal are not under challenge. These appeals are confined to quantum of compensation.
2. Misc. Appeal No. 632 of 2000 has been filed by the parents of the deceased Chhaya and the other appeals were filed by the claimants-injured,
3. Claimants had submitted a claim that on 28.3.1994, Raj Kumar Goyal, Seema Jain, Rakesh alias Rajesh Jain, Darshanlal Jain, Rani Devi Jain, Gaurav Jain, Mohani Jain, Padam Chand Jain and others were returning from Sonagiri to Morena in jeep bearing registration No. MP 06-B 0024.The jeep was driven in a rash and negligent manner by the jeep driver which collided with the tractor-trolley bearing registration No. CPG 6404. The said tractor was parked towards the left side of the road. Accident occurred on 28.3.1994 at 11 in the night at A.B. Road near village Jaura. The jeep was driven in a rash and negligent manner by the driver of the jeep. In all two persons Rahul and Chhaya died and others received injuries. Claims Tribunal has referred to the pleadings of the parties, wherein it is clearly mentioned that jeep was driven in a rash and negligent manner and in spite of protest of the passengers the driver had not reduced the speed of the jeep and dashed against the tractor-trolley which was parked and stationed towards left side of the road. The Claims Tribunal has recorded a finding that accident occurred on account of negligence of drivers of both the vehicles and held that it is a case of composite negligence and directed that 60 per cent of the claim amount shall be paid by the jeep driver, its owner and insurance company and rest 40 per cent of the amount shall be paid by the driver of the tractor-trolley, its owner and the insurance company. As regards liability to pay the compensation on account of the composite negligence is concerned there is negligence on the part of drivers of both the vehicles. Therefore, drivers, owners and insurance company of both the vehicles are jointly and severally liable to pay the compensation. It could not be proved that there was no negligence on the part of the driver of tractor-trolley. As such owners of both the vehicles are jointly and severally liable to pay the compensation and I hold that Claims Tribunal has not committed any error in holding that this is a case of composite negligence.
4. In Misc. Appeal No. 312 of 2000 claim was filed by the claimant Raj Kumar Goyal who had sustained injuries in his left shoulder, head and left hand and he also sustained fracture in his left leg and a number of injuries in various other parts of the body. It was also contended that on account of aforesaid injuries he became permanently disabled. He was admitted in J.A. Group of Hospitals up to 31.3.1994 and thereafter when he returned back to Morena he was admitted at Parvati Nursing Home for 10 days and thereafter for four months he was advised for bed rest. He was treated by Dr. Siyaram Sharma who after examining him on 25.2.1996 issued disability certificate, Exh. P77, stating that his left knee was 35 per cent disabled. The Claims Tribunal on the basis of evidence of Dr. Siyaram Sharma, AW 3, held that due to accident his left leg was permanently disabled to some extent and awarded Rs. 5,000 towards special diet and medical expenses though the appellant had claimed Rs. 22,000 towards medical expenses, but he submitted the bill for Rs. 2,900 only vide Exhs. P185 to P189. Rs. 5,000 for the pain and suffering, Rs. 35,000 towards permanent disability and Rs. 5,000 towards future loss. Thus, Claims Tribunal awarded a sum of Rs. 50,000 as the compensation. learned Counsel for the appellant submitted that the compensation awarded by the Claims Tribunal is on the lower side. On the other hand, learned Counsel for both the insurance companies submitted that Dr. Siyaram Sharma, AW 3, in para 3 very specifically admitted that appellant has not suffered any permanent disability and Dr. Siyaram Sharma, AW 3, was not the treating doctor. Doctor’s statement determining the loss of disability should be based upon scientific tests. Dr. Siyaram Sharma, AW 3, without performing scientific test issued a certificate which is inadmissible in evidence. They submitted that visual opinion of the doctor has no evidentiary value and for determining the nature of permanent disability there must be sufficient evidence on record to determine total or partial disablement. In the instant case there is no evidence regarding performing of scientific test and learned Claims Tribunal without taking guidance of Schedule to Workmen’s Compensation Act erred in arriving at the conclusion of the permanent disability. They further submitted that compensation awarded by the Claims Tribunal is already on higher side. In support of the said contention they placed reliance on the Full Bench decision of this Court in the case of Kamal Kumar Jain v. Tazuddin . From the evidence on record it is clear that the appellant has not suffered any permanent disability on account of accident. Dr. Siyaram Sharma, AW 3, in his cross-examination very specifically admitted that disability part can be cured by physiotherapy. In respect of income it is averred that he was working at Mangilal Harishchand and he was getting Rs. 2,000 per month as salary and his monthly income was Rs. 2,000. Harishchand Goyal, AW 5, who is one of the partners of the firm in his statement stated that appellant worked up to March 1994 and thereafter due to accident he stopped working. He further stated that appellant was getting Rs. 2,000 per month. The appellant and Harishchand Goyal, AW 5, are brothers. This witness further stated that earlier his father was the owner of the said firm and after death of his father he and his mother are partners of the firm. Harishchand Goyal, AW 5, in his cross-examination admitted that his both sons Rakesh Kumar Goyal and Sanjay Goyal are sitting in the shop and getting salary per month.
5. With the above finding the Claims Tribunal came to the conclusion that firm is owned by the claimant and his family members and they all are getting salary just to show low income of the firm and held that due to disability he suffered a loss of Rs. 3,000 per annum and awarded Rs. 35,000 on that account. It is true that the appellant had suffered fracture and thus, it is a case of grievous injury which has caused pain and suffering. On account of suffering fracture in the left leg his leg must be plastered for about 8 to 10 weeks. He was admitted in the hospital and considering overall charges of treatment he is entitled for compensation of Rs. 20,000 towards medical expenses. Compensation is determined as Rs. 65,000 (rupees sixty-five thousand). Award of Claims Tribunal is modified. Claimant will also be entitled for interest at the rate of 6 per cent per annum on the enhanced amount of compensation from the date of filing of appeal.
6. In Misc. Appeal No. 327 of 2000, claim was filed by Rakesh alias Rajesh Jain on the ground that due to accident he received serious injuries and his pelvic bone of left leg was fractured. He also received injuries on various parts of the body. He was admitted at District Hospital, Morena and thereafter he was advised for bed rest for two months. Rajesh Jain, AW 3, himself admitted that due to the injuries he has not suffered any permanent disability. The claimants submitted that he spent Rs. 15,000 to Rs. 20,000 on his medical treatment, but no bill was filed before the Claims Tribunal. He filed X-ray report, Exh. PI80, only and no medical bill or hospital bill was filed by him. From the X-ray report Tribunal came to the conclusion that pelvic bone of left leg was fractured and on account of the said fracture he was awarded total sum of Rs. 10,000. learned Counsel for appellant contended that compensation awarded by the Claims Tribunal is on the lower side. On the other hand, the learned Counsel for the respondents submitted that amount awarded by the Claims Tribunal is on the higher side since he suffered only one fracture and as such he is not entitled for any enhancement in compensation.
7. From the evidence on record it is clear that he suffered only one fracture on pelvic bone which is evident from Exh. PI 80 and considering the same, Claims Tribunal awarded Rs. 1,000 towards medical expenses and special diet, Rs. 6,000 towards injuries and Rs. 3,000 towards pain and suffering. Total sum of Rs. 10,000 is awarded to the appellant. Looking to the facts and circumstances of the case in the opinion of this Court the amount awarded by Claims Tribunal is on the lower side and Rs. 20,000 (rupees twenty thousand) would be reasonable compensation. Accordingly, this appeal is allowed in part and amount of compensation awarded by the Claims Tribunal is enhanced to Rs. 20,000 (rupees twenty thousand) along with interest at the rate of 6 per cent per annum on the enhanced amount from the date of appeal till payment.
8. In Misc. Appeal No. 328 of 2000, claim was filed by injured Seema Jain. Due to accident she suffered simple injuries and the Claims Tribunal considering the same awarded a sum of Rs. 3,000 towards compensation. The learned Counsel for the appellant submitted that the compensation awarded by the Claims Tribunal is on the lower side. He drew my attention to paras 28 and 43 of the award. Claimant Seema Jain, AW 2, in her statement stated that she was travelling in the offending jeep and due to accident she received several injuries and she was admitted at Government Hospital, Morena, thereafter she was shifted to J.A. Group of Hospitals, Gwalior, where she was admitted for seven to eight days. She filed medical certificate, Exh. PI94. As per the said medical certificate no fracture was found nor she filed any other document to show that due to injury she suffered any type of disability. Tribunal held that the injuries received by claimant are simple in nature. No document or bill was filed regarding medical treatment and as such the learned Tribunal disallowed the compensation on the said head and she was awarded Rs. 3,000 towards compensation. The injuries received by the claimant Seema Jain are simple in nature but she was hospitalized at Morena and Gwalior and as such compensation of Rs. 10,000 for such injury is proper. Appeal is allowed in part. The compensation is enhanced from Rs. 3,000 to Rs. 10,000 with interest at the rate of 6 per cent per annum from the date of filing of appeal till realisation.
9. In Misc. Appeal No. 337 of 2000, claim was filed by the claimant Padam Chand Jain. It was pleaded by claimant that due to accident he was seriously injured and knee of his left leg was completely smashed and he also received injuries on the other parts of the body. Earlier he was admitted at Morena Hospital, thereafter he was referred to J.A. Group of Hospitals, Gwalior and there he was admitted for 15 days. During that period his left knee was operated three to four times and thereafter he was admitted for a period of 3 months at Shreeram Nursing Home, Agra and was treated by Dr. Ashok Saxena. In Agra he was operated six to seven times and he was consulted and treated by Dr. Anil Vash-nava, Dr. K.P. Shrivastava and Dr. Ravish Agarwal and thereafter he was treated by Dr. P.K. Seth at Jaipur and he was also treated at A.I.I.M.S., New Delhi and at Morena, he was treated by Dr. Suresh Ban-dil and Dr. R.C. Bandil. Due to the injury on left knee he cannot sit or move properly and his left leg was shortened. Dr. R.C. Bandil, AW 1, after examining the X-ray plates and report, Exhs. P2 to P17, issued a certificate of permanent disability vide Exh. PI and stated that his left leg was shortened by 5 cm and patella of the left leg was removed. With the above evidence Claims Tribunal came to the conclusion that due to accident the appellant suffered permanent disability on his left leg. Padam Chand Jain, AW 2, in his deposition stated that before accident he was doing utensils business and due to accident his shop was closed for a period of two years. From utensils business his income was Rs. 6,000 per month and now after the accident he cannot sit continuously in shop and hence his income was reduced to Rs. 2,000 per month. But, in the cross-examination this witness very specifically admitted that he has not filed any document regarding his income from the utensils business nor he is maintaining the account properly. The Claims Tribunal came to the conclusion that his income was Rs. 2,000 per month and due to the permanent disability his loss of income is 20 per cent, i.e., Rs. 400 per month, which comes to Rs. 4,800 per annum and at the time of accident injured was 32 years of age and as such lump sum amount of Rs. 55,000 was awarded for loss of earnings, Rs. 40,000 was awarded towards medical treatment, special diet, etc. and Rs. 90,000 was awarded towards loss of income on account of permanent disability and thus Claims Tribunal awarded total compensation of Rs. 1,30,000. Dr. R.C. Bandil was not the treating doctor of claimant and issued a certificate regarding permanent disability, on the basis of medical report and X-ray plates. Dr. Bandil himself admitted this fact in para 3 of his statement. learned Counsel for appellant contended that he submitted number of bills towards medical and travelling expenses, but the same has not been awarded by the Claims Tribunal. The said contention of the appellant is not correct. The Claims Tribunal awarded Rs. 40,000 in para 51 of this award towards medical expenses and special diet. The learned Counsel for the appellant placed reliance on the decisions in the cases of National Insurance Co. Ltd. v. Kans Ram ; Union of India v. Bhola Ram and United India Insurance Co. Ltd. v. Veluchamy and submitted that compensation awarded by the Claims Tribunal is on the lower side. On the other hand, learned Counsel for the insurance company placed reliance on the Full Bench decision of this Court in the case of Kamal Kumar Jain and submitted that in the case of permanent disability, certificate can be issued after performing the scientific tests and if no scientific tests are conducted, then the court may safely record the percentage of disability from Schedule I of Workmen’s Compensation Act. He further submitted that in the present case Dr. R.C. Bandil without performing the scientific test gave a certificate which is inadmissible in evidence and the said opinion of the doctor has no evidentiary value. The Tribunal after considering the evidence on record awarded the compensation of Rs. 1,30,000. learned Counsel for the appellant lastly submitted that Claims Tribunal assessed the loss of income at the rate of Rs. 4,800 per annum. But, committed error in not awarding the compensation as per Second Schedule to Motor Vehicles Act. On the other hand, learned Counsel for insurance company submitted that this accident had occurred on 28.3.1994, whereas the Second Schedule to the Motor Vehicles Act came into force on 14.11.1994 which is after the accident. Considering the age of appellant and the disability received by the appellant the compensation amount is enhanced from Rs. 1,30,000 to Rs. 1,75,000. Appellant will be entitled for a further sum of Rs. 10,000 towards damages under various heads. Total compensation is determined as Rs. 1,85,000 (rupees one lakh eighty-five thousand). The claimant will also be entitled to interest at the rate of 6 per cent per annum on the enhanced amount of compensation from the date of filing of appeal.
10. In Misc. Appeal No. 630 of 2000, claim was filed by Mohani Jain. Due to accident she was injured and admitted at District Hospital, Morena and her femur bone of right leg was fractured. The Claims Tribunal awarded Rs. 20,000 with interest at the rate of 12 per cent per annum from the date of application. From the evidence on record it was found by Claims Tribunal that she has not suffered any permanent disability. learned Counsel for the appellant submitted that her father had spent Rs. 30,000 to Rs. 35,000 towards medical treatment whereas Exhs. P75 and P76 bill of Rs. 1,120 was filed. She was admitted in the hospital for a period of 22 days. Considering the above, Claims Tribunal awarded Rs. 2,000 for medical treatment and special diet and Rs. 18,000 for various heads. Thus, awarded a sum of Rs. 20,000 to the appellant. Due to the accident she has not received any permanent disability and only right femur bone was fractured and at the time of the accident she was nine years of age and considering the same Claims Tribunal awarded Rs. 20,000 as compensation. It is true that this girl has suffered fracture, but there is no evidence pertaining to deformity. Thus, it is a case of grievous injury which has caused pain and suffering. On account of suffering fracture in the right leg her leg was plastered for about 8 to 10 weeks. She was admitted in the hospital and considering overall charges of treatment she is entitled for compensation of Rs. 15,000 towards medical expenses and Rs. 5,000 towards pain and suffering on account of grievous injury. Compensation is enhanced from Rs. 20,000 to Rs. 38,000 (rupees thirty-eight thousand). Award of Claims Tribunal is modified. Claimant will also be entitled for interest at the rate of 6 per cent per annum on the enhanced amount of compensation from the date of filing of appeal.
11. In Misc. Appeal No. 631 of 2000, claim was filed by Gaurav Jain who at the time of accident was aged 8 years. Due to accident his two teeth were broken. The Tribunal held that it is not a case of permanent disability and awarded Rs. 6,000 as compensation. learned Counsel for the appellant drew my attention to the decision of this Court in National Insurance Co. Ltd. v. Kans Ram , in which the injured was above 18 years of age and his five teeth were broken and was awarded Rs. 57,000. The claimant Gaurav Jain was aged 8 years and as such the injury received by him does not come within the purview of permanent disability. It is a case of injury which has caused pain and suffering. Looking to his age, he is entitled for compensation of Rs. 12,000 on account of injury and pain and suffering. Compensation is determined at Rs. 12,000 (rupees twelve thousand). Award of the Claims Tribunal is modified. Claimant will also be entitled for interest at the rate of 6 per cent per annum on the enhanced amount of compensation from the date of filing of appeal.
12. In Misc. Appeal No. 632 of 2000, the claim was filed by father and mother of the deceased Chhaya who was aged 5 years and due to accident she had received several injuries and died on the spot. The Tribunal awarded a sum of Rs. 52,000 on account of death of the deceased Chhaya who was aged 5 years. learned Counsel for the appellant drew my attention to the Division Bench decision of this Court in Misc. Appeal No. 263 of 2000 decided on 13.2.2003 in which the deceased was aged six years and was the only child. The Division Bench of this Court assessing the income on the basis of annual notional income of Rs. 15,000 and after deducting l/3rd personal expenses of the deceased held dependency at Rs. 10,000 per annum and applying the multiplier of 15 awarded Rs. 1,50,000 along with other expenses of Rs. 4,500 under different heads; total Rs. 1,54,500 to the claimants. The Division Bench of this Court in another unreported case in Misc. Appeal No. 444 of 2002 decided on 5.2.2003 awarded Rs. 1,50,000 taking notional income of the deceased at Rs. 15,000 per annum assessing dependency at the rate of Rs. 10,000 and applying the multiplier of 15. In the above two cases the deceased were aged 8 years and 6 years. Here the deceased was aged 5 years and as such the compensation awarded by the Claims Tribunal is on the lower side and as such the amount of compensation is enhanced to Rs. 75,000 plus Rs. 15,000 for other expenses on different heads. Thus, the total compensation is enhanced from Rs. 52,000 to Rs. 90,000 (rupees ninety thousand only). In the result the appeal is allowed in part. The award is modified and amount of compensation is enhanced from Rs. 52,000 to Rs. 90,000. The appellants are also entitled for interest at the rate of 6 per cent per annum from the date of filing of the appeal till its realisation. In the result the appeal is allowed.
13. All the seven Misc. Appeal Nos. 312, 327, 328, 337, 630, 631 and 632 of 2000 succeed and are allowed in part and award of the Claims Tribunal is modified. Parties shall bear their own costs.