1. The owner M.P.S.R.T.C. has filed this appeal for reduction of compensation amount awarded to the claimant by Additional Motor Accidents Claims Tribunal, Barwaha, in Claim Case No. 11 of 1994 passed on 28.11.1997 whereby compensation of Rs. 2,74,905 was awarded.
2. The claimant's case was that on 16.8.1993, he boarded bus No. MBH 843 belonging to M.P.S.R.T.C. and driven by non-applicant No. 2 at Barwaha. When this bus stopped at Sanawad for payment of octroi, claimant also alighted from it. When the conductor came after paying octroi and the claimant was boarding the bus, the driver all of a sudden moved the bus. The gate of this bus dashed against the back portion of other bus which was standing nearby and the claimant fell down from the bus and sustained injuries on his head, finger and pelvis. He was taken to Sanawad Hospital and from there he was shifted to Gokuldas Nursing Home, Indore and thereafter to Bombay. It was revealed that he had comminuted fracture of the supra acetabulum ileum and anterior rim of acetabulum with posteriomedial rotation of fracture fragment and minimal lateral subluxation of femoral head on left side. His pelvis bone was operated. He had to undergo three-four operations of urethra at Bombay. He was required to go to Bombay 15-16 times for treatment. He sustained 30 per cent permanent disability of left leg. He will be required to take treatment in future also. He filed claim case seeking compensation of Rs. 4,00,000. The appellants resisted the claim and, inter alia, pleaded that the accident occurred due to negligence of the claimant himself. The Tribunal after appreciation of evidence held that the accident occurred due to rash and negligent driving of the offending vehicle by non-applicant No. 2 and awarded compensation of Rs. 2,74,905 as under:
3. Mr. Kemkar, learned counsel for the appellants, submitted that the amount of compensation awarded by the Tribunal is on higher side. This court is awarding Rs. 60,000, Rs. 70,000 in leg amputation cases, therefore, the amount be reduced. On the other hand, Mr. Dave, the learned counsel for the respondent-claimant, has supported the award.
4. We considered the arguments advanced by counsel for both sides and perused the record. From the evidence of Priyank, CW 3, his father Dr. Mehendra Kumar Jain, CW 4 and Dr. T.S. Sodi, CW 1, it is clear that the claimant suffered fracture of hip bone in accident. He was treated at Sanawad and thereafter, he was taken to Gokuldas Nursing Home where Dr. Bandi treated him. Urine was passed by supra pubic catheter. Seeing complications, the claimant was taken to Bombay where Dr. N.K. Lad, the Orthopaedic Surgeon found multiple pelvic fracture with left acetabulum fracture and operated the same on 30.8.1993 at Sushrusha Hospital, Bombay. Internal screw plate fixation of left acetabulum was done and claimant was discharged on 26.9.1993. There was urinary track infection, therefore, he was referred to Dr. O.H. Tilak, the Urologist who operated on 26.10.1993 in Charak Nursing Home and did supra pubic dilatation. He placed supra pubic catheter for passing of urine and thereafter on 30.11.93 performed Badenoctis pull through operation of urethra. He also did cystoscopy on 22.2.1994 in P.D. Hinduja Hospital. The claimant had complaint of urine blockade, therefore, urethrogram was done by Dr. Tilak in Dhanwantri Hospital, Bombay. Again cystoscopy-fulguration was done in Charak Nursing Home on 8.6.1994 and urethrogram on 10.8.1994. Dr. Lad stated that he examined the claimant on 17.12.93, 21.2.94,9.6.1994, 11.8.1994, 13.9.94 and 23.11.1994. The Tribunal considered the evidence of the claimant's witnesses and examined the cash-memos and vouchers Exhs. P-110 to P-255 produced by the claimant and held that it was proved that the claimant had spent Rs. 1,01,449 on his treatment and we see no reason to disagree with the finding of the Tribunal. It is true that the claimant was not entitled to air fare. He got himself treated in expensive hospitals, but at the same time the amount granted for mental and physical agony is on lower side. If we raise this amount and reduce the amount of medical treatment, the result would be same. We, therefore, hold that the sum of Rs. 1,01,449 is not excessive. However, the sum of Rs. 1,22,400 granted for physical disability and future loss is on higher side. It is true that Dr. Lad examined the claimant on 13.9.1996 and found restriction of abductions external and internal rotation and flexion and leg had been shortened by two inches, assessed permanent disability at 30 per cent but it is also proved from the record that the fractured bones had properly healed and united and urethra became normal. The claimant after one year completed his diploma course in First Division. It is, therefore, clear that the assertion that the claimant could not do degree course due to this accident, is not acceptable. It has not been shown as to how much and in what manner the future earnings of the claimant were affected. Under such circumstances, the claimant is not entitled to Rs. 1,22,400 for physical disability. National Insurance Co. Ltd. v. Ramanbhai Fulabhai Bhoi 1983 ACJ 779 (Gujarat), relied by Mr. Dave, wherein Rs. 75,000 were allowed under the head of pain and suffering, does not support the claimant. In the case on hand, the fractured bone had been properly united and urinary problem removed. While in the case of Ramanbhai (supra), the claimant was required to pull on with supra-pubic catheter throughout his life and was rendered permanently unfit to enjoy sex. The decision of Apex Court in case of Shashendra Lahiri v. UNICEF 1998 ACJ 859 (SC), also does not help him as there shortening of leg was 3" and the claimant was a brilliant student. Looking to all the facts and circumstances, we think it just and reasonable to allow Rs. 50,000 for physical disability instead of Rs. 1,22,400. The amounts awarded under other heads do not call for interference. In our opinion, the claimant is entitled to Rs. 50,000 for physical disability, Rs. 15,000 for mental and physical agony, Rs. 1,01,449 for medical expenses, Rs. 11,056 for the travelling expenses, Rs. 5,000 for special diet, Rs. 10,000 for loss of study for one year and Rs. 10,000 for loss of income of father, totalling Rs. 2,02,505 and it is rounded off to Rs. 2,02,500. It is just and reasonable compensation for the injuries sustained by the claimant.
5. The argument of Mr. Kemkar, the learned counsel for the appellants, that the claimant received about Rs. 65,000 from the insurance company for medical treatment and disability, it should be adjusted against the claim amount, is not acceptable. Admittedly, the claimant had received Rs. 40,700 as medical claim and Rs. 24,750 for disability from insurance company, but this amount could not be deducted as it was paid to the claimant under contract of insurance, for which he had paid premium [See Full Bench decision of this court in case of Kashiram Mathur v. Rajendra Singh 1983 ACJ 152 (MP)].
6. In the result, the appeal is partly allowed. The impugned award stands modified as indicated above. No order as to costs.
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