F.A.O.No.1968 of 1996. -1- In the High Court of Punjab and Haryana at Chandigarh. F.A.O.No.1968 of 1996. Date of decision:8-5-2008 Rattan Singh. ...Appellant. Versus Vijay Singh and another. ...Respondents. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present: Mr.Jagdish Manchanda Advocate for the appellant. None for respondent No.1. Mr. Mahabir Sindhu, DAG Haryana for respondent No.2. ... K. C. Puri, J. Judgment. Terming the compensation awarded to Rattan Singh, claimant for the injuries suffered by him in the accident in question as inadequate, he has filed this appeal before this Court which is being disposed of by this judgment. Rattan Singh claimant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation for the F.A.O.No.1968 of 1996. -2- injuries suffered by him on the averments that on 29.8.1994 at about 1.15/1.30 P.M, he was travelling on his cycle and when he reached near village Teora after crossing Shahbad town, a bus of Haryana Roadways, bearing registration No.HR-37-1162, came from Delhi side. It was being driven in a rash and negligent manner and it struck against the cycle of the claimant who was crossing the road and in the process, right foot of the claimant was crushed under the wheel of the bus who fell on the road. He was brought to Civil Hospital, Shahbad by his neighbourer Parkash, from where he was referred to Civil Hospital, Ambala and the delinquent driver of the bus sped away from the spot. Regarding this accident, a case was registered. It is further averred that the claimant was a seller of bangles by going to various villages on his cycle and his monthly income was Rs.3,000/-. As a result of injuries on the right foot, which had to be amputated partly, the claimant will not be able to sell bangles. So, the claimant has claimed a sum of Rs.5,00,000/- as compensation. Respondent No.1, driver of the offending vehicle denied the accident in question in toto. Respondent No.2, General Manager, Haryana Roadways, Chandigarh averred that on the date of accident, the respondent No.1 was driving the aforesaid bus bound from Delhi to Chandigarh and as the bus was near village Teora, a cyclist suddenly tried to cross the road from left side to right side and the driver of the bus drove the same F.A.O.No.1968 of 1996. -3- towards one side in order to avoid any accident but the cyclist lost control of the cycle and struck against the rear tyre of the bus and had received minor injuries. Due to alertness of the driver, a fateful accident was avoided and the passengers of the bus who had seen the accident gave a writing to the said effect to the driver of the bus. On the pleadings of the parties, the following issues were framed by the learned Tribunal: 1. Whether the accident took place because of rash and negligent driving of bus No.HR-37/1162 being driven by respondent No.1 on 29.8.1994 at about 1.30 P.M. in the area of Shahbad in which the petitioner suffered injuries?OPP. 2. To what amount of compensation, the petitioner is entitled to and from whom? OPP. 3. Relief. Under issue No.1, the learned Tribunal held that it was a case of contributory negligence on the part of the claimant and that of respondent No.2 and apportioned the same on 50%:50% basis. Under issue No.2, the learned Tribunal assessed compensation of Rs.50,000/- but since it was a case of contributory negligence to the extent of 50%, so the amount of compensation was whittled down to Rs.25,000/-. The learned Tribunal eventually awarded Rs.25,000/- as compensation to the claimant. The respondents were held jointly and severally liable to F.A.O.No.1968 of 1996. -4- pay the said amount along with interest at the rate of 12% per annum from the date of filing the petition till the date of payment. Being aggrieved against the award of the learned Tribunal, the claimant has preferred the instant appeal. I have heard arguments of counsel for respondent No.2 and have gone through the record of the case. This is an appeal for enhancement of compensation. Learned counsel for the appellant has attacked the award of the Tribunal on two grounds. Firstly, the Tribunal has wrongly held that the claimant is contributory negligent to the extent of 50%. The other ground raised for attacking the award, during the course of arguments, is that the amount of compensation, as assessed by the Tribunal, is on the lower side. First, I will take up point No.1, as to whether the Tribunal has rightly held that the accident has taken place due to contributory negligence of the claimant and the driver of the offending vehicle. On re-appraisal of evidence on the file, the answer to that question is in the positive. The claimant has himself examined PW-3 Parkash Singh, an eye witness. This witness has stated in the examination-in-chief itself that he and the claimant were on separate bicycles on 29.8.1994. At about 1.45 PM, on that day, a bus came from Delhi side. Rattan Singh had crossed the road and, in that process, left front wheel of the bus ran over the right foot of the claimant. In the cross-examination, this F.A.O.No.1968 of 1996. -5- witness has stated that the bus driver tried his utmost to avoid the accident but even then the accident has taken place. He has further stated that they have taken a turn towards village Teora towards right side. He further stated that the claimant got scared on seeing the in- coming bus but he cannot tell whether the claimant lost control of his cycle. So, from the analysis of statement of PW-3 Parkash Singh, it can be safely inferred that the claimant was also himself negligent. The Tribunal has assessed contributory negligence to the extent of 50%. Therefore, that aspect of the case does not call for any interference and the finding of the learned Tribunal on issue No.1 stands affirmed. The other ground for challenging the award by the claimant is that the amount of compensation as assessed is on the lower side. The learned counsel for the claimant has submitted that the claimant/appellant has suffered 40% disability on account of amputation at the level of right side of mid foot. It is submitted that the Tribunal has assessed the amount of Rs.50,000/- as under:- (i) For mental and physical agony Rs.10,000/-. (ii) For expenses already incurred on treatment. Rs.30,000/-. (iii) Provision for future treatment Rs.10,000/-. It is submitted that no amount has been granted on account of loss of future earnings. The Tribunal has allowed the amount of Rs.25,000/- out of Rs.50,000/- on account of 50% contributory F.A.O.No.1968 of 1996. -6- negligence. Keeping in view 40% permanent disability, the Tribunal should have granted amount on account of loss of future earnings. There was amputation at the level of mid right foot. So, an amount of Rs.one lac more has been demanded on account of loss of future earnings. On the other hand, the learned counsel for the respondent No.2 has submitted that an amount of Rs.50,000/- also include the loss of future earnings. Disability certificate states that the disability of Rattan Singh is to the extent of 40% which is attributed to the amputation at the level of mid foot. The learned Tribunal has assessed the amount of Rs.10,000/- on account of mental and physical agony, Rs.30,000/- for expenses already incurred on treatment and Rs.10,000/- on account of future treatment but no amount has been assessed in respect of loss of future earnings. I am of the considered view that the claimant should also have been awarded compensation on account of future earnings. Taking in view the disability and over-all circumstances of the case, it is held that the claimant is entitled to claim Rs.50,000/- more in respect of future earnings. Since the negligence of the claimant /appellant is assessed to the extent of 50%, so, in these circumstances, the claimant is held entitled to Rs.25,000/- more i.e. one half of the amount of Rs.50,000/- in addition to the amount granted by the learned Tribunal. F.A.O.No.1968 of 1996. -7- Therefore, in view of the above circumstances, the appeal is partly accepted. The claimant is held entitled to the total amount of Rs.50,000/- i.e. Rs.25,000/- more in addition to the amount of Rs.25,000/- already granted. However, taking into consideration the present Bank rate and the trend of various authorities,the claimant is granted interest at the rate of 9% per annum on the enhanced amount of compensation from the date of application till realization of enhanced amount of compensation. The amount of Rs.25,000/- is stated to have been paid to the claimant. In case, the said amount is not paid to the claimant, in that case, the claimant shall be entitled to get that amount as per award along with interest awarded by the Tribunal. The liability as assessed by the Tribunal, is maintained regarding the enhanced amount of compensation. May 8 ,2008. ( K. C. Puri ) Jaggi Judge