Raj Kumar v. The Hon(cid:146)ble Mr

Mr.Rajeev Jiwan, Advocate. For Respondent-2: Mr.B.M. Chauhan, Advocate. Dev Darshan Sud,J.(Oral). The appellant has claimed for enhancement against the award passed by the learned Motor Accident Claims Tribunal and has also prayed for interest on the awarded amount. The learned Motor Accident Claims Tribunal, on a conspectus of the evidence before it awarded a sum of Rs.1,50,000/- to the appellant herein. He had claimed his income to be Rs.6,000/- per month, but considering the proved fact that he belongs to the IRDP family, which as per norms is below the poverty line, the learned Motor Accident 1 Whether the reporters of Local Papers may be allowed to see the judgement? 2 Claims Tribunal held that his income could not be Rs.6,000/- per month, as claimed. On the basis of the evidence of PW-2 Dr.R.S. Yadav, Professor and Head, Orthopedics Department, Indira Gandhi Medical College and Hospital, Shimla and considering the nature of the injury, a lump sum of Rs.1,50,000/- was awarded for loss of income, future income, loss of exception of life, loss of amenities of life etc.

The assessment was made by the doctor on the basis of medical report Ex.PB which is discharge slip showing admission of the appellant in hospital for the period of more than a month and that he had suffered from crush injury of right hand and forearm and dislocation of the hip. His right upper limb below elbow joint was amputated and hip dislocation resulting in shortening of his leg. Dr.Yadav stated that the appellant had suffered from permanent disability of 40% of the right arm and 30% of the lower limb which has been certified by him in Ex.PF. He is categorical in his statement stating that appellant has been operated upon a number of times by Dr.Manoj Thakur and Dr.Pawan Thakur, Assistant Professor(s) in the Department of Orthopedics, Indira Gandhi Medical College and Hospital, Shimla. In cross examination by the Insurance Company, he reaffirms this by stating : 3 (cid:147)Un-doubtedly, there is reduction in future and present earning of the petitioner since his right upper arm below elbow joint had been amputated and he has also suffered permanent injury to left hip joint and reduction in size of the lower left limb.

(cid:148) The medical record consists of Ex.PB, Ex.PC and Ex.PE which conclusively proves the irreversible damage caused to the limbs of the appellant namely shortening of the left leg and amputation of right arm below the elbow joint. There is no doubt that having sustained these injuries the appellant will be crippled throughout life and unable to earn a normal living. Learned counsel appearing Insurance Company submitted that the petition under Section 163-A of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act(cid:146)) is not maintainable as the income of the injured was Rs.6,000/- per month as claimed. This submission cannot be accepted as no such plea was raised before the Motor Accident Claims Tribunal and the maintainability of the petition itself has not been challenged in appeal. The jurisdictional fact required for determination was not raised before the Tribunal nor challenged in appeal cannot be urged now.

(See: Secy. Akola Taluka Education vs. Society 4 and Another vs. Shivaji and others, (2007)9 SCC 564). In para-16, it has been held: (cid:147)16. It is true that in the light interpretation clause contained in the said Act, a (cid:147)private school(cid:148) was required to be recognized by the authorities specified therein. The Tribunal had found that it was recognized by the Central Government. The State counter- affidavit contended that it is recognized by the State. The appellant herein did not raise a contention before the Tribunal that the institute in question was not recognized by the authorities specified under sub-section (21) of Section 2 of the Act. The said contention was required to be specifically raised so as to enable the respondents herein to same. As jurisdictional fact required for determining the jurisdiction of the Tribunal had not been stated by the appellants, we are of the opinion that such a contention cannot be allowed to be raised before us for the first time.

(cid:148) Secondly, the record shows that the appellant belongs to the IRDP family i.e. family living below the poverty line, as held by the learned Motor Accident Claims Tribunal. The medical 5 record also shows an endorsement by the Pradhan of the Gram Panchayat stating that the appellant is a poor person and he should be helped. This also shows that his income cannot be above the limit as prescribed by Section 163-A supra. In any event, the learned Motor Accident Claims Tribunal found as a fact that the income was not Rs.6,000/- as claimed, but the award has been made in lump sum for loss of income, loss of future income, loss of exception of life, loss of amenities of life, pain and suffering from injury etc. In the facts and circumstances, this argument needs to be rejected. Learned counsel appearing appellant then urges that the amount awarded is less. Considering the totality of the evidence on the record, I do not think that the award is on the lesser side as claimed by the appellant. I find it reasonable in case the award is modified to the extent that the amount shall carry simple interest at the rate of 11% per annum from the date of institution of the petition i.e. 26.7.2001 till its realization. This appeal disposed accordingly. June 3, 2008. (aks) (Dev Darshan Sud) Judge.