IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.2226 of 2010 (O&M) Date of decision : 30.04.2010 Rajasthan Rajya Path Parivahan Nigam, District Jaipur. … Appellant Versus Bachan Ram and another …Respondents CORAM : HON’BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.Anil Kumar Gahlawat, Advocate for the appellant. Vinod K.Sharma, J. (Oral) CM No.10938 CII of 2010 For the reasons stated therein, the application is allowed. Delay of 66 days in refiling the appeal is condoned. FAO No.2226 of 2010 This appeal by the owner of the offending vehicle is directed against the award passed by the learned Motor Accident Claims Tribunal, Chandigarh. Claimant-respondents filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 ( for short the ‘Act’) seeking compensation for the injuries suffered by him in a motor vehicular accident. It was pleaded by the claimant-respondent that on 7.11.2006, he was going from Chandigarh to Village Hallo Majra on bicycle. At about 5.30 pm., when he reached near small chowk of village Hallo Majra and was on his correct left side, then a bus bearing registration No.RJ-14-IP/5143, which was being driven by respondent No.2 herein at a high speed and in a rash and negligent manner, came and struck against the claimant and dragged him to some distance. As a result of this accident had, claimant suffered multiple injuries including head FAO No.2226 of 2010 injury. The case set up by the claimant was that accident occurred due to rash and negligent driving of respondent No.2. Claimant was 54 years of age at the time of accident and was employed as Foreman with India Auto, 136-140/91, Industrial Area, Phase-I, Chandigarh. The injured-claimant was getting a monthly salary of Rs.5,000/- (Rupees five thousand only) from his employer at the time of accident. FIR No.244 dated 8.11.2006 under Sections 279 and 337 IPC regarding this accident was registered with Police Station-Sector 31, Chandigarh. It was pleaded case that in spite of treatment, the injured- claimant did not recover fully and ultimately, suffered permanent disability to the extent of 35%. The claimant also claimed that a sum of Rs.50,000/- (Rupees Fifty thousand only) was spent on his medical treatment and medicines. The claim petition was contested by the driver of the offending vehicle by raising plea that the accident had occurred due to the rash and negligence act of the claimant. Other averments on merits were denied. The similar pleas were also taken by the appellant alleging negligence on the part of the injured/claimant being caused in the accident. The learned Tribunal on the basis of the evidence, however, held that the claimant had sustained multiple injuries on his person on account of road-side vehicular accident which had occurred on 7.11.2006 near Small Chowk, Hallo Majra, U.T., Chandigarh due to rash and negligent driving of bus No.RJ-14-1P/5143 by respondent No.2. Learned Tribunal held that the claimant was entitled to compensation to the tune of Rs.4,49,035/- (Rupees Four lacks forty nine thousand and thirty five only) alongwith interest @ 7.5% per annum alongwith costs. The Court also took note of the fact that due to the mental condition of the injured being unstable and further as he was suffering from loss of memory, he had appointed his son as General 2 FAO No.2226 of 2010 Power of Attorney to appear in the Court. The attorney of the injured/claimant appeared in the witness box as PW-1 and supported the case set up in the claim petition. The learned Tribunal keeping in view the evidence led, granted a sum of Rs.10,000/- (Rupees Ten thousand only) on account of hospitalisation, attendant, transportation and special diet. On account of the permanent disability, another sum of Rs.1, 50,000/- (Rupees One Lac and fifty thousand only) was granted as compensation. Though it was claimed that injured was earning Rs.5000/- (Rupees five thousand only) per month, learned Tribunal took the income to be Rs.4,300/- (Rupees four thousand and three hundred only). Keeping in view the fact that the claimant was unable to work for the remaining tenure of his service an amount of Rs.2,23,600/- (Rupees two lacs twenty three thousand and six hundred only) was assessed as compensation under this head. On the basis of proved bills of treatment, the leaned Tribunal granted a sum of Rs.65,435/- (Rupees sixty five thousand, four hundred and thirty five only) under this head. Thus, the total compensation awarded was Rs.4,490,35/- (Rupees four lacs forty nine thousand and thirty five only) as referred to above. Mr.Anil Kumar Gahlawat, learned counsel appearing on behalf the appellant, has challenged the finding of the learned Tribunal on Issue No.1 by contending that the learned Tribunal had wrongly held respondent No.2 to be negligent, even though, the injured/claimant has chosen not to appear in the witness box to support the version set up in the claim petition. It is also the contention of the learned counsel for the appellant that even the FIR, on which reliance was placed, was not got registered by the claimant or PW-1, and therefore, learned Tribunal committed an error in law in accepting that as a piece of evidence to hold respondent No.2 negligent. 3 FAO No.2226 of 2010 However, on consideration, I find no force in the contentions of the learned counsel for the appellant. PW-1 in examination-in-chief recorded by way of affidavit had specifically pleaded therein that the injured because of head injury was unable to walk, stand and therefore, was unable to depose in the court. This assertion of PW-1 was not even challenged in the cross -examination. Therefore, the first contention of the learned counsel for the appellant that the claim petition was liable to be rejected for want of claimant appearing in the witness box, cannot be sustained. The second contention of the learned counsel for the appellant also cannot be accepted. The FIR was duly proved on record though not by the author of the FIR. Therefore, no error was committed by the learned Tribunal in taking look at it specially when the finding by the learned Tribunal has not been recorded merely on the basis of the FIR but also in view of the evidence led by eye witness PW-2, who deposed regarding the accident, in terms stated in the claim petition. The factum of accident was not even disputed by the appellant in the written statement. It was pleaded that it was due to rash and negligent act of the injured that accident had taken place but no evidence was led by the appellant to support this version and therefore, the finding recorded by the learned Tribunal on this issue, cannot be faulted with. Learned counsel for the appellant, thereafter, challenged the finding of the learned Tribunal on Issue No.2 by contending therein that the disability was 35% and therefore, at best the claimant could have been awarded compensation at the rate of Rs.2000/- (Rupees two thousand only) per 1% disability in view of the law laid down in the case of Piara Singh and others Vs. Satpal Kumar and others, 2007(2), PLR, 143. 4 FAO No.2226 of 2010 This contention also can not be accepted as it cannot be mathematically concluded that the compensation for the injury suffered, has to be calculated on the basis of the disability suffered. The compensation for the disability, pain and suffering has to be decided on the facts and circumstances of each case. In the case in hand, the injured besides suffering multiple injuries on body has mental disability of 35%. The disability in fact has resulted in making the injured uncapable of performing any duty for which the compensation was granted to him for remaining tenure of service. The compensation of Rs.1,50,000/- ( One lac and fifty thousand only) on account of mental disability of 35%, therefore, cannot be said to be excessive. The second contention of the learned counsel for the appellant is, therefore, also rejected. No other contention was raised. For the reasons stated above, finding no merit in this appeal, it is ordered to be dismissed. [ Vinod K.Sharma ] Judge 30.04.2010 sd 5