R.S.A.No.1537 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.1537 of 2005 Date of Decision : 10.09.2009 Surender Singh ...Appellant Versus Mahesh Kumar ...Respondent CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Arun Yadav, Advocate, for the appellant. Mr. Sanjay Mittal, Advocate, for the respondent. HEMANT GUPTA, J. (ORAL) The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for recovery of Rs.1 lac as damages on account of injuries suffered by the plaintiff, was decreed. The plaintiff, a child of 4 years, was struck by the cycle of the defendant on 7.1.1995. Such accident led to fracture of right femur. Because of the fracture, the plaintiff became permanent disabled qua his four limbs including whole body upto 40% and, thus, the plaintiff claimed Rs.50,000/- incurred on his treatment, nourish diet, transportation and other expenses and Rs.50,000/- as compensation. The learned trial Court decreed the suit and the first Appellate Court dismissed the appeal. Still aggrieved, the defendant is in second appeal. Learned counsel for the appellant has vehemently argued that an FIR in respect of accident was lodged on 17.3.1995 i.e. more than 2 R.S.A.No.1537 of 2005 2 months and 10 days of the accident. Still further, the witnesses produced by the plaintiff are discrepant in their testimonies, which make them unreliable witnesses. Still further, the plaintiff has not produced the best evidence to prove his disability. The plaintiff was not examined by the Board of Doctors, but by a General Surgeon, who has given a report about the physical disability, therefore, such evidence is not sufficient to pass a liability of Rs.1 lac upon the appellant. To prove the manner of accident, the plaintiff has examined his mother Saroj as PW-4, Rakesh as PW-5 and Sadhu Singh as PW-6. All the witnesses have deposed in respect of accident. Though there is some discrepancy in respect of direction, from which the appellant came, but the fact remains that none of the witnesses are proved to have any enmity with the appellant. The discrepancy in respect of direction, from which the appellant came is not substantial, keeping in view the time between the incident and their examination in Court. In respect of examination of disability, the plaintiff has examined PW-1 Dr.S.C.Goyal, who has proved Medico Legal Report Ex.P-1 and x-ray report Ex.P-2. PW-9 Dr. Dinesh Podar, a Medical Officer from General Hospital, Narnaul, has proved the disability certificate Ex.PW-9/A issued by Dr. Subhash Aggarwal, who has left the Government service and shifted to Kota. The disability certificate reflects the permanent disability of four limbs of the plaintiff including whole body upto 40%. The witness examined is from a Government Hospital. It has also come on record that the whereabouts of the Doctor, who issued the certificate, are not known as he has shifted to Kota. The plaintiff cannot be blamed for non-examining of such Doctor, when the R.S.A.No.1537 of 2005 3 other Doctor, who has brought the official record has been examined to prove the disability of the plaintiff. The grant of compensation of Rs.1 lac on account of injuries suffered by the plaintiff at the tender age, the permanent disability staring him throughout his life, cannot be said to be unjust or unfair. In view of the above, I do not find that any substantial question of law arises for consideration by this Court in second appeal. Dismissed. 10.09.2009 (HEMANT GUPTA) Vimal JUDGE