JUDGMENT
R.D. Shukla, J.
1. This appeal is directed against the judgment and award dated 5.10.1981 of Motor Accidents Claims Tribunal, Dhar passed in Claim Case No. 102/80 whereby the respondent-claimant has been awarded a compensation of Rs. 13,662/- for the injuries sustained by him in the motor accident.
2. The brief history of the case is that on 8.6.80 claimant Sagirath was going from Bodhwachha to Tirla. Meanwhile, a motor-jeep No. MPZ-3379 came from the side of Dhar. It was being driven at an excessive speed. It dashed against Sagirath who was thrown away and sustained injuries on his left leg including a compound fracture thereon. The vehicle was being driven by one Kanhaiyalal (appellant No. 2 here). The matter was reported to police. The injured was taken to hospital. He was treated. X-ray examination was done. Since he had a compound fracture, a plaster after nailing was applied. It took sufficiently long time in the treatment and even on the date of examination of this witness before the Tribunal i.e. on 24.9.81, the claimant was having pain at the spot of injury and there was discharge from the place of injury and pus was also coming out The claimant, therefore, filed a petition for grant of compensation to the tune of Rs. 47,000/- in all.
3. The appellants/non-applicants disputed the claim and pleaded that the incident was a pure accident. The Propeller Shaft of the vehicle was broken and, therefore, the vehicle became out of contrail and it hit the pedestrian Sagirath.
4. Learned Tribunal has found that the accident has occurred because of the rash and negligent driving of the vehicle by driver (appellant No. 2 here). The fact of repairs of the vehicle and the last inspection of the vehicle by a mechanic was also not found proved.
5. It has also been found that the compound fracture was opened and operated thrice but it had not cured even at the time of the evidence of the claimant. Taking the income of the claimant as Rs. 125/- per month and the age of the claimant as 40 years at the time of accident, learned Tribunal has awarded Rs. 12,500/- as compensation for the loss of the future earning and the rest of the amount has been awarded as a compensation for the treatment and the expenses for diet during the treatment. Hence this appeal.
6. The contention of the learned Counsel for the appellant is that the fact of rash and negligent driving has not been proved and that the permanent disability partial or total, has not been proved by an expert and, therefore, the award of compensation is not proper.
7. The third and last contention of the learned Counsel for the appellant is that the compensation for the loss of whole of the income could not be awarded as has been done in this case.
8. As against it learned Counsel for the respondents has submitted that learned Tribunal has taken into consideration the loss of the future earning and has rightly awarded the amount referred above.
9. So far as the fact of rash and negligent driving is concerned, the burden of proving inevitable accident lies on the non-applicants (appellants here) or else the principle of res ipsa loquitur (incident speaks itself) would apply in this case.
10. N.A.W. 1 Kanhaiyalal and N.A.W. 2 Abdul Rashid have tried to prove that, joint cross of Propeller Shaft was broken and, therefore, the vehicle became out of control but none of these witnesses have proved as to how the vehicle was at the time of accident and when it was inspected and repaired last. Using an old delapidated vehicle on a road without proper repairs thereof itself would be a negligent act.
11. As against it claimant C.W.1 Sagirath C.W.2 Gabbu and C.W.6 Madan have stated that the vehicle came with a high speed and it dashed against Sagirath who was walking on the side of the road. Thus, the fact of rash and negligent driving has rightly been found proved by the Tribunal and calls for no interference.
12. A.W. 2 Dr. Raghunath Thakkar, A.W.3 Dr. R.C. Agarwal and A.W.54 Dr. Rameshchandra Mandlik have stated about the injuries and fracture caused in the left leg of the claimant. It was a compound fracture; nailing had to be done, the claimant remained under treatment for about six months and even thereafter that it was not cured and discharge with pus was coming out.
This shows that the injuries were serious and it must have affected the working capacity of the claimant.
13. From the evidence of the persons referred above i.e. C.W. 1 C.W.4 and C.W.6 it has rightly been found proved that the claimant was working as an agricultural labour.
14. Now so far as the income of the claimant is concerned, while assessing the same learned Tribunal has not applied proper standard. The loss for whole of the period upto the age of 60 years has been calculated and thereafter it has been reduced to ha If. It is not a proper procedure.
15. If the fact of compound fracture in the left leg is accepted as has been done in this case it will be deemed that there was a 20% infirmity and was of permanent nature. Thus, there was a permanent partial infirmity to the tune of 20%. Even if the income of the claimant is taken to be Rs. 8/- to 10/- per day the loss would come to Rs. 60/- per month and Rs. 720/- per year. The claimant was aged about 40 years at the time of accident. He could work up to age of 65 years. Thus, there was a loss of nearly 18,000/- rupees in a period of 25 years. The learned Tribunal has awarded only Rs. 12,500/- for the loss of income as lump-sum amount and, therefore, it. could not be said that the compensation is in any way on higher side. In the opinion of this Court therefore, the Award passed by the Tribunal, so far as the loss for future income is concerned, calls for no interference.
16. Learned Tribunal ought to have awarded some amount for the pain and suffering. The rest of the amount i.e. nearly Rs. 1162/- has been awarded as the cost of medicines and special diet taken by the claimant.
17. In the opinion of this Court, therefore, the compensation awarded by the learned Tribunal cannot be said to be excessive and calls for no interference.
18. The appeal is, therefore, dismissed. In the facts and circumstances of the case the. parties shall bear their own cost.