FAO No.1138 of 1989 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. FAO No.1138 of 1989 DATE OF DECISION: January 14, 2011 GIAN SINGH & ANOTHER ...APPELLANTS VERSUS PADAMJIT PAUL SINGH AND ANOTHER ...RESPONDENTS 2. FAO No.1137 of 1989 GIAN SINGH AND ANOTHER ...APPELLANTS VERSUS MOHINDER SINGH AND OTHERS ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement. No 2. To be referred to the reporters or not? No 3. Whether the judgement should be reported in the digest? No ---- PRESENT: NONE FOR THE APPELLANTS. MR. ANIMESH SHARMA, ADVOCATE FOR THE RESPONDENTS NO.1 AND 2. MR. L.M. SURI, SR. ADVOCATE WITH MR. NEERAJ KHANNA, ADVOCATE FOR THE RESPONDENT NO.3-INSURANCE COMPANY. K.KANNAN, J.(ORAL) 1. The appeal is filed jointly by the owner-insured and the insurer. Learned counsel appearing on behalf of the appellants seeks for transposition of the insurer as a respondent and seeks for permission to prosecute the appeal on behalf of the insured. I accord the sanction and direct transposition of the insurer as a party respondent alongwith the FAO No.1138 of 1989 -2- claimants. The Registry is directed to carry out the memo of parties. 2. The issue in appeal is only on the question of quantum and learned counsel appearing for the appellant restricts his argument, therefore, on the issue of quantum and urge that the assessment made is on the higher side. On dealing the nature of injury suffered by the claimant in the case which is subject matter of appeal in FAO No.1138 of 1989, the injuries were to the leg by a fracture. Dr.R.K.Mittal, Professor and Head of Department of Orthopaedics, Rajindra Hospital, Patiala had been examined who stated that he was admitted on 18.11.1987. The fracture was reduced by closed method and he was readmitted again after few days on 11.4.1988 and discharged on the following day after removal of wires. The fracture of the ankle had united, but both the bones in leg did not unite and bone grafting was done and the movement of knee as well as the ankle had been restricted, resulting in disability to the tune of 5% for the knee and disability for the movement of the ankle was 10%. Dr. N.D.Aggarwal who had done the bone grafting stated that the claimant had remained admitted in hospital from 1.7.1988 and he found that injured could bend his knee upto 138 degrees and could straighten it fully. He found the upper movements of the ankle restricted. He had cautioned the claimant to walk carefully. The claimant himself had given the evidence that due to the injuries suffered by him, he suffered shortening in the retirement age and he was posted as Depot Incharge, Unit II, FCI, Patiala. He had submitted about the fact that he taken leave for three months and that he was walking at the time of evidence with the help of clutches and he had employed attendants. He said that he spent about `55,000/- towards medical treatment, medicines, etc. While assessing the compensation, the Tribunal had awarded 1,41,800/- FAO No.1138 of 1989 -3- under the following heads:- “i) Medical expenses `20,000/- ii) Loss of earning capacity `36,000/- iii) Damages on account of permanent disability, `50,000/- pains and suffering iv) On account of attendants `28,800/- v) Transportation ` 7,000/- Total:- ` 1,41,800/- ” 3. Learned senior counsel appearing for the appellant-insurance company has very serious reservations particularly about the heads of claims, namely, loss of earning capacity determined at `36,000/- which the Tribunal took as a loss which would occur to him after his retirement, for, under normal considerations he would not have remained idle but due to disability which he had incurred would be definitely losing `350/- per month for at least 10 years after retirement. There could be no such projection of loss after the retirement and I cannot take the loss of earning capacity to have resulted in `36,000/- in the manner that was done. I would, on the other hand, create impairment which the person had by his inability to flex his leg and his restriction of movement as constituting 5% of loss of earning capacity and for a person who was aged 38 years and who was earning 1800/- per month, I would take loss of earning capacity at 5% of his earning and take the total loss at `16,200/-. The assumption of loss of `36,000/- shall, therefore, stand reduced to `16,200/-. Even as regards the claim of attendant at `28,800/-, I would provide for the attendant charges at `10,000/- against `28,800/- that had been assessed by the Tribunal. The other heads of claim which have not been answered shall be retained as FAO No.1138 of 1989 -4- above. 4. The total over all compensation shall, therefore, stands reduced to `1,03,200/-. 5. As regards the appeal against the award granted in favour of Mohinder Singh which is subject matter of appeal in FAO No.1137 of 1989, the Tribunal had awarded `1,40,000/- and that includes assessment of `36,000/- towards loss of earning and `50,000/- towards pain and suffering, `30,000/- towards attendants. The evidence was that he had a fracture of multiple ribs, fracture of right clavicle and fracture of left thumb. He had stated that deformity remained in the left thumb and the functional capacity of the hand had been less than 30% and the Doctor had corroborated the statement and stated that through the fracture of ribs he could not carry heavy weight even to a moderate extent. However, the Doctor stated that the patient was otherwise normal. The claimant was supposed to have undergone two operations. I would provide for three fractures at the relevant time at `5000/- for each fracture and take the pain content to be 15,000/- and add also another `10,000/- for two surgeries said to have been conducted on him. I will, therefore, provide for `25,000/- as going towards pain and suffering, for that would mean reduction from `50,000/- to `25,000/-. As regards the loss of earning at `36,000/-, it was simply unjustified and an inability to carry heavy weight cannot result in loss of earning capacity. I would discard the entire amount awarded as loss of earning and instead provide for loss of amenities that had come about by his inability to carry heavy weight at `10,000/-. Even as regards, the attendants' charges, the amount awarded is on higher side. Counsel appearing for the FAO No.1138 of 1989 -5- claimant states that he was hospitalized and was having under prolonged treatment for a period of 5 months and he had the benefit of attendants for the period of hospitalization. I would reduce the amount for attendant charges from `30,000/- to `10,000/-. The over all compensation shall, therefore, be `45,000/-. 6. The appeals are allowed to the above extent. January 14, 2011 (K.KANNAN) Gulati JUDGE