JUDGMENT
Prafulla C. Pant, J.
1. This appeal, preferred under Section 173 of the Motor Vehicles Act, 1988, is directed against the judgment and award dated 19.5.1999 in Motor Accident Claim Case No. 55 of 1994, passed by learned M.A.C.T./Second Additional District Judge, Nainital, whereby the claim petition of the appellant, is dismissed.
2. Brief facts of the case are that on 16.7.1992, at about 7 p.m., the appellant-claimant was coming from Kichcha to Haldwani in his scooter registration No. UMM 2669. When he reached near Mazar, a truck bearing registration No. UHT 39, owned by respondent No. 1, which was being driven rashly and negligently by its driver, dashed at the scooter. Consequently, the appellant-claimant fell from the scooter and received head injuries. Some people took him immediately to the Base Hospital, Haldwani and got him admitted there. However, next day when his condition did not improve, he was taken to Delhi for further treatment. Due to the injuries received in the accident, the appellant-claimant has lost his hearing power and has become disabled. It is alleged in the claim petition that claimant had to spend Rs. 2,00,000 on his medical treatment. A total sum of Rs. 5,00,000 was claimed as amount of compensation by the claimant. It appears that during the pendency of the claim petition, National Insurance Co. Ltd. was impleaded as respondent No. 2 as the aforesaid truck registration No. UHT 39 was found to have been insured with the said company on the date of accident.
3. The respondents contested the claim petition and filed their separate written statement. In the written statement of the respondent No. 1, it is admitted that he is owner of the truck registration No. UHT 39. It is also stated that the vehicle was insured with National Insurance Co. Ltd. However, it is denied that the accident has taken place due to rash and negligent driving on the part of the driver of the truck. Rather, it is pleaded that the accident took place due to rash and negligent driving on the part of the scooterist. National Insurance Co. Ltd., respondent No. 2, filed its separate written statement in which it is pleaded that no information of the accident was given by the owner of the vehicle to the answering respondent and, as such, provisions of Section 158(6) of the Motor Vehicles Act, 1988 were violated. It is also pleaded that the vehicle was being driven in violation of the provisions of the Motor Vehicles Act and as such National Insurance Co. Ltd. is not liable to make the payment of any amount of compensation.
4. On the basis of the pleadings of the parties, following issues were framed by learned Motor Accidents Claims Tribunal:
(1) Whether, the accident in question was caused due to rash and negligent driving on the part of the driver of the truck No. UHT 39?
(2) To what relief, if any, the claimant is entitled and from whom?
5. After recording the evidence and hearing the parties, the Tribunal found that it is not proved that the truck registration No. UHT 39 was involved in the accident. And with that finding, the claim petition was dismissed. Aggrieved by which, this appeal has been filed by the claimant.
6. We heard learned Counsel for the parties and perused the record.
7. The Tribunal has dismissed the claim petition on the ground that it was not established on the record that truck No. UHT 39, owned by respondent No. 1, insured with respondent No. 2, was involved in the accident. In support of said finding, Motor Accidents Claims Tribunal has given the reason that in the first information report lodged, the truck registration number with whom accident is alleged to have occurred, is not mentioned. It is also observed by the Tribunal that the final report submitted on said first information report by the police was accepted by the Magistrate, after giving due notice to the informant and even then the informant failed to disclose the truck registration number as he did not file any protest claim against the final report. But, we are of the view that what has been ignored by the Tribunal is more significant. Para 8 of the written statement of respondent No. 1 filed before the Tribunal reads as under:
(8) That no accident has occurred due to sole negligence of the driver of the answering O.P. The driver was very seasoned driver. The applicant was driving the scooter very negligently and in a very rash manner and he could not control his scooter and got an accident with the truck.
The above pleading taken by respondent No. 1, in fact, indicates that respondent No. 1 was pleading contributory negligence on the part of the scooterist. The expression ‘the truck’ certainly refers to truck owned by respondent No. 1 in respect of which there is allegation of involvement in the claim petition.
8. Not only this, Promod Kumar, PW 1, is the informant who lodged the F.I.R. and Raj Kapoor, PW 2, is another eyewitness of the accident, while Sudesh Kumar, PW 3, is the claimant himself examined by the Tribunal. It is possible that Promod Kumar, PW 1 and Raj Kapoor, PW 2, might not have seen the accident themselves, but the Tribunal, in our opinion, has committed grave error of law in disbelieving Sudesh Kumar, PW 3. Merely by saying that due to headlights on, he would not have seen registration number of truck, his evidence cannot be brushed aside. His presence at the time of accident cannot be disbelieved. There is evidence on record showing that on the date of accident, i.e., 16.7.1992, the claimant after the accident was taken to Base Hospital, Haldwani where he was admitted. This fact is proved by P.C . Pandey, PW 4, Chief Pharmacist of Soban Singh Jeena Base Hospital, Haldwani.
9. Learned Counsel for the respondent pointed out that the time mentioned in the statement of P.C . Pandey, PW 4, regarding examination of the injuries on the person of the injured is mentioned to be 5.10 p.m., while according to the claim petition the accident has taken place at 7 p.m. On close scrutiny of paper No. 11-C, which is copy of the injury report, it is clear that the time of recording the medical injuries is 9.10 p.m. and not 5.10 p.m. which probably is inadvertently mentioned in the oral evidence as ‘5.10 p.m.’ P.C. Pandey, PW 4, has proved this document 11-C, which is Exh. 1 in the record of the Tribunal. In the circumstances, the time of accident, i.e., about 7 p.m. cannot be disbelieved. From the additional plea quoted above from the written statement of the owner of the vehicle, read with aforementioned oral evidence, this court is of the view that it is proved on the record that truck registration No. UHT 39 was involved in the accident and its driver was rash and negligent in driving the same.
10. Now, we have to examine the loss in terms of money suffered by the claimant and the compensation to which he is entitled. Claimant has filed in support of the claim petition, not only the copy of the F.I.R., paper No. 10-C; injury report, paper No. 11-C, but also the papers showing his treatment in Sir Ganga Ram Hospital at Delhi. These papers are paper No. 12-C/l, paper No. 12-C/2, medical bills filed per list 35-C, which are paper Nos. 36-C/l to 36-C/18. There are other papers also showing that for certain tests, the claimant had to incur further expenditure. Also he had purchased medicines with regard to which cash memos paper Nos. 36-C/31 to 36-C/ 41 are on the record. Apart from the above documents, there are other papers, viz., paper Nos. 36-C/42 to 36-C/56, which corroborate the fact that the claimant had undergone treatment in Delhi and spent expenditure in other counts also. The medical bills filed by the claimant suggest that he has spent more than Rs. 22,000 for medical expenditure in Delhi. Considering the fare which he would have spent in going with attendant, to Delhi and coming therefrom and other miscellaneous expenses incurred by him, an amount of Rs. 25,000 can be said to have been spent by the appellant-claimant in his medical treatment.
11. From the disability certificate (i.e., paper No. 29-C/3) filed with the claim petition there appears 95 per cent disability in the hearing power. From the evidence on record it appears that the claimant used to run coal depot and he was deprived from doing his business due to the injuries received in the said accident during his medical treatment, and even thereafter, he could not resume his normal work due to hearing loss. The income tax return filed by him shows that his annual income was Rs. 20,000 in the previous year. That suggests that monthly income of the claimant was around Rs. 1,667. The appellant was aged 42 years at the time of the accident. The disability is to the extent of 95 per cent. However, mere loss of hearing power would not have made the appellant completely disable from doing his coal business. In the facts and circumstances, as such, considering the disability, an amount of Rs. 1,000 per month can be said to be financial loss suffered by the appellant. That being so, the annual loss would be Rs. 12,000 per annum. If the multiplier of 10 is applied to it, the financial loss suffered by the appellant-claimant can be said to be Rs. 1,20,000. If amount of Rs. 25,000 spent on medical expenditure is added to it, as assessed above, and further Rs. 5,000 towards pain and agony suffered by him, the total amount of compensation to which the appellant-claimant is entitled, comes out to be Rs. 1,50,000.
12. The paper No. 26-C/2 is the copy of the insurance policy wherefrom it is clear that the truck registration No. UHT 39 was insured on the date of accident, with National Insurance Co. Ltd., respondent No. 2. The registration certificate of the truck is also on record which was filed per list 17-C before the Tribunal. As such, National Insurance Co. Ltd., respondent No. 2, is liable to pay the compensation to the appellant-claimant.
13. In the above circumstances, for the reasons discussed above, the appeal is allowed. The impugned judgment and award dated 19.5.1999 is set aside. National Insurance Co. Ltd., respondent No. 2, shall pay Rs. 1,50,000 as amount of compensation to the appellant-claimant along with interest at the rate of 6 per cent per annum thereon from the date of presentation of the claim petition, i.e., 8.7.1993, till date. If the amount is not paid within one month from today, National Insurance Co. Ltd., respondent No. 2, shall be liable to pay interest at the rate of 9 per cent per annum.
