FAO No.127 of 1993 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.127 of 1993 DATE OF DECISION: February 2, 2011 SWARAN KAUR ...APPELLANT VERSUS MRS. BALVINDER KAUR AND OTHERS ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement? Yes/No 2. To be referred to the reporters or not? Yes/No 3. Whether the judgement should be reported in the digest? Yes/No ---- PRESENT: MR. ASHIT MALIK, ADVOCATE FOR THE APPELLANT. NONE FOR RESPONDENTS NO.1 AND 2. MR. R.K. BASHAMBOO, ADVOCATE RESPONDENT NO.3. K.KANNAN, J.(ORAL) 1. The appeal is against the award of dismissal in a case where the car in which the claimant was travelling dashed against a stationary truck. She had given the evidence that the truck had been stationed with tail lights on, but the speed of the car was such that accident had taken place and the claimant's evidence was that the accident had taken place only by the negligence of the driver who had been impleaded as respondent No.2. It was quite unnecessary in a situation like that to implead the owner or driver of the truck and the dismissal of the claim was unjustified. The Tribunal ought to have accepted the contention of the petitioner that the driver of the car in which the claimant was travelling was negligent. Learned counsel appearing for the insurance company points out that the claimant had herself FAO No.127 of 1993 -2- stated before the Police, on the basis of which a DDR was recorded, that there was no negligence on part of the driver. I cannot take this to be an estoppel, for, an accident does not takes place with no negligence from the either side, unless it was a case of incidence of 'Act of God'. The negligence ought to be anchored to some person who is a driver of a motor vehicle and particularly so, when he dashes against a stationary vehicle. I will not, therefore, let the DDR entry to prevail and hold the driver to be responsible for the accident. 2. As regards the quantum of compensation, the petitioner claimed that she was an LIC agent and that she used to earn `6000/--`7000/- per month. Her contention was that the agency was terminated because she could not do work and a letter had also been filed in Court to show that the agency stood terminated under such a circumstance. In the Court she has stated that on account of the accident she was unable to do any kitchen work and that she had availed the services of a boy by paying `500/- per month. The extent of injuries had been spoken to by the Doctor who had operated upon her thrice that she had compound fracture of left forearm with a gap in the radius with radial palsy and fracture of the left humeros bone. There was evidence to the effect that she had spent `13,400/- for medical expenses that included the cost of implants, room rent, operation charges, etc. and the Doctor stated that even apart from them, she would have spent about `4000/--`5000/-. He also assessed her disability at 40% and stated that her grip was normal, but the supination of the wrist was restricted. 3. In the manner of assessment of compensation, I will provide for `20,000/- as medical expenses and `12,500/- towards pain and suffering for the two fractures and surgery with an implant, having regard to the fact that FAO No.127 of 1993 -3- the accident took place in the year 1989, @ 2500/- per medical intervention through surgery. For the inconvenience caused to her and for restriction of movement in her arms, I will provide for `20,000/- and for attendant charges, I will provide for an additional amount of `5000/-. I also provide for `5000/- as loss of income that had been occasioned to her by virtue of injury. I cannot provide for any loss of earning capacity as such, since a fracture in the arm cannot restrict the movement of a person in any way to act as an LIC agent. If she had chosen not to do work by virtue of injury, I would take it as a self-imposed restriction. On the whole, the total compensation will be `62,500/- and the same will also attract interest @ 7.5% from the date of petition till the date of payment. 4. The liability shall be on the insurance company for the vehicle who is arrayed as respondent No.3 in the appeal. 5. The appeal is allowed to the above extent. February 2, 2011 (K.KANNAN) Gulati JUDGE