IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1305 of 1992 (O&M) Date of decision:27.01.2011 Sukhjit Singh ....Appellant versus Dharampal and another ...Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. R.P.Dhir, Advocate, for the appellant. None for respondent No.1. Mr. Raj Kumar Bashamboo, Advocate, for respondent No.2. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J.(Oral) 1. The appeal is against the determination of compensation for injuries suffered by the claimant when there was a fracture of the mandible and loss of teeth. The claimant was said to be travelling on his moped when the insured's tractor dashed against it, causing the claimant extensive injuries. 2. The claimant had contended that he had lost his six teeth and this was also corroborated by the evidence of PW3-Dr.Swaran Ahuja, who was the Chief Medical Officer at the Dental Hospital, Hoshiarpur. He had stated that the patient had lost left lower central and lateral FAO No.1305 of 1992 (O&M) - 2 - incisor, right lower central lateral incisor and canine and left lower first molar. There was also loss of alveolar bone in the corresponding area. He had carried out stitches in the lower lip and there was a minor disfigurement. There was a scarring of the lower lip near the angle of the mouth which caused to the claimant a difficulty in opening the mouth. The doctor had also noticed slurring of speech attributed to the loss of teeth. He had, however, observed that by the use of artificial dentures, he could have some relief. In the cross-examination, he was asked as to why he had not noticed the loss of six teeth initially in the MLR, to which, the doctor replied that, at that time the patient was bleeding profusely and there was a depression of the fractured segment of the mandible and he had only stated that stitching had been done at the site of the right mandible. 3. In my view, the Tribunal has not properly considered the issue of negligence. There were two witnesses, who spoke about the nature of accident and the fact that the driver of the tractor was negligent in his driving. It is also an admitted fact that a criminal case was registered for rash and negligent driving of the driver of the tractor. In the cross-examination of the witnesses, nothing was elicited of the alleged attempt of the claimant attempting to overtake a Swaraj Mazda truck and dashing against the tractor, but this was spoken to by the driver RW1 and was also accepted by the Tribunal. The learned counsel for the appellant would contest such a finding and point out that what was not stated in defence and suggestion to the witness ought not to have been taken as substantive evidence and must be taken to be an FAO No.1305 of 1992 (O&M) - 3 - improvement in the version at the time of trial. I find that in the written statement, it has been stated that the claimant was attempting to overtake the truck, but it is an essential rule of evidence that a statement in defence of vital aspects at least must be specifically suggested to the adversary in the course of trial. The Calcutta High Court observed in A.E.G. Carapiet Versus A.Y. Derderian-AIR 1961 Calcutta 359 as follows: “......The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examination that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiff's account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated......” FAO No.1305 of 1992 (O&M) - 4 - 4. I will hold, therefore, the driver of the tractor to be responsible for the accident and the case would require to be examined for quantum based on the evidence and not peg down a claim to what is statutorily provided at Rs.7,500/- under no fault basis. He had the fracture of mandible and stitching had been done and the doctor was also of the view that there was difficulty in opening his mouth and there was slurring of speech. For loss of six teeth, I will provide for a compensation of Rs.30,000/- @ Rs.5,000/- for each tooth and also provide for the fracture of the mandible at Rs.5,000/- towards pain and suffering and for the medical expenses, I will provide for Rs.2,500/-. I will add for the inconvenience and loss of amenities for the claimant a further sum of Rs.10,000/- and for the facial disfigurement with his inability to open his mouth, I will provide for an additional amount of Rs.5,000/-. On the whole, the total amount would come to Rs.52,500/-. The amount in excess over what has been determined by the Tribunal already shall attract interest at 6% from the date of petition till date of payment. 5. The appeal is allowed to the above terms and the liability shall be in the same manner as determined by the Tribunal. (K.KANNAN) JUDGE 27.01.2011 sanjeev