F.A.O. No. 2596 of 2007 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 2596 of 2007 Date of Decision: October 13th ,2011 Deva Nand .... Appellant Versus Jasbir Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. Ashit Malik, Advocate, for the appellant. Mr. R.N.Singal, Advocate, for respondent No.3-Insurance Company. VIJENDER SINGH MALIK, J. This is an appeal brought by the claimant for enhancement of compensation awarded to him by the Motor Accidents Claims Tribunal, Sonepat (for short, "the Tribunal") vide award dated 3.3.2007 in a sum of ` 1,42,050/- on account of the injuries he received in a road side accident that took place on 28.5.2004. The case brought by the claimant under the provisions of section 163-A of Motor Vehicles Act, 1988 (for short, “the Act”) is as under. The claimant was a conductor on truck bearing registration No. UP-14H-1677 owned by respondent No.2. Respondent No.1 was driver over the same. On 28.5.2004, the truck was loaded with LG Refrigerators from Kundli and was F.A.O. No. 2596 of 2007 2 .. going towards Sirsa. It was driven by respondent No.1. When it was in front of Gupta Saw Mills Rai, some stray cattle came in front of the truck, on account of which the truck in question collided with another vehicle going ahead of it. Respondent No.1 tried his level best to avoid the accident but failed. The claimant suffered multiple injuries in the accident including fracture of bone of right leg. He was taken to the hospital of Dr. D.N.Sharma, Sector 14, Sonepat, where he remained admitted from 28.5.2004 to 3.7.2004 as indoor patient. He was operated there for ruptured intestine besides for fixing the bone of right leg. The matter was reported to the police at Police Station, Rai, where an entry was made about the same in the daily diary on 2.6.2004. The claimant spent a sum of ` 1,00,000/- in his treatment. He has claimed himself to be still under treatment, where he is likely to spend some more amount in the same. He has added that he was 38 years of age when the accident took place. He has claimed his salary to be ` 3,000/- per month. Adding that he has become permanently disabled, he has sought compensation in a sum of ` 5,00,000/-. The claim petition is resisted by the respondents. Respondents No. 1 and 2 have admitted the claim of the petitioner. However, they have pleaded that the liability to pay the compensation would be of the insurer. The New India Assurance Company Limited – respondent no. 3 has denied respondent no.1 to be holding a valid and effective driving licence to drive the truck at the time of the alleged accident. It F.A.O. No. 2596 of 2007 3 .. is, therefore, claimed that the truck was being driven in contravention of the conditions of the insurance policy. The accident is denied to have occurred in the manner stated by the claimant. It is denied that the claimant has spent a sum of ` 1,00,000/- in his treatment. The fact of the claimant being a conductor on the truck in question is also denied. The amount claimed as compensation is said to be highly excessive. On the pleadings of the parties, the following issues were framed by the Tribunal. 1.Whether the claimant sustained injuries in the accident, which is out of the use of motor vehicles? OPP 2.If issue no.1 is proved, to what amount of compensation, the claimant is entitled to and from whom? OPP 3.Whether there is violation of the terms and conditions of the insurance policy, as alleged OPR-3 4.Relief. Taking evidence of the parties and hearing learned counsel representing them, learned Tribunal awarded compensation in a sum of ` 1,42,050/- to the claimant vide the impugned award. Dissatisfied with the award, the claimant has brought this appeal. I have heard Mr. Ashit Malik, learned counsel for the appellant and Mr. R.N.Singal, learned counsel for respondent No.3-Insurance Company and have gone through the record. F.A.O. No. 2596 of 2007 4 .. Learned counsel for the appellant has submitted that learned Tribunal has awarded a sum of ` 79,450/- as compensation for medical expenses. According to him, a sum of ` 5,000/- has been awarded for pain and suffering and a sum of ` 57,600/- has been awarded for permanent disability, which was assessed at 10% by the Disability Board. He has submitted that the appellant remained hospitalized from 28.5.2004 to 3.7.2004 and for this hospitalization of 35 days, where the appellant underwent two operations, the compensation for pain and suffering has been awarded in a meagre sum of ` 5,000/-. He has further submitted that no amount had been awarded as compensation for expenses on transportation and attendants. He has submitted that in case of hospitalization of 35 days, the appellant would have required the services of the attendant not only in the hospital but also thereafter for considerable time. He has submitted that the appellant would also have required exclusive transportation for him during the said period and learned Tribunal has failed to award any amount as compensation under those heads. Learned counsel for respondent No. 3 has submitted that the claim petition had been filed under the provisions of section 163-A of the Act and the compensation for pain and suffering has to be granted as per the second schedule, which lays down a sum of ` 5,000/- to be allowed for pain and suffering in case of grievous injuries. He has submitted that some amount may, however, be allowed for expenses incurred F.A.O. No. 2596 of 2007 5 .. on transportation and attendant. It is true that the second schedule appended to the Act provides a sum of ` 5,000/- as compensation for pain and suffering in case of grievous injuries, however, this schedule is not exhaustive. Befoe me is a case where the claimant had not only suffered grievous injuries by way of fracture to right lower leg bone but also ruptured his intestine and had undergone surgeries for that. The period of hospitalization has to be kept in mind for assessing the compensation for pain and suffering. Therefore, any sum below ` 20,000/- would have been inadequate compensation for pain and suffering in this case. A sum of ` 5,000/- each was required to be awarded as compensation for expenses on transportation and attendant. So, a sum of ` 25,000/- is absolutely required to be enhanced in the compensation awarded to the appellant. Resultantly, the appeal is allowed, enhancing the compensation awarded by learned Tribunal in a sum of ` 1,42,050/- by ` 25,000/-, which will be payable to the appellant by respondent No. 3 with interest at the rate of 7.5% per annum from today till the date of realization. (VIJENDER SINGH MALIK) JUDGE October 13th, 2011 som