FAO No. 1213 of 1991 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH FAO No. 1213 of 1991 (O&M) Date of decision : 29.4.2010 ... Hanuman Parshad ................Appellant vs. Ved Parkash and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Ashok Gupta, Advocate for the appellant Sh. Inderjeet Sharma, Advocate for the Insurance company. ... K.C. Puri, J. (Oral) This is an appeal directed by injured-claimant against the award dated 30.7.1991, passed by Motor Accident Claims Tribunal, Ambala, vide which the claim petition was dismissed, being time barred. However, the amount of compensation was assessed to the extent of Rs.48,000/-. Briefly, the facts gathered from the petition are that on 9.11.1988, the claimant was assigned the duty to carry utensils in Tempo No. HNE-3708 for delivering the same at Jagadhri. While coming back the claimant was sitting on the front seat alongwith FAO No. 1213 of 1991 -2- driver of the Tempo. The driver of the Tempo was driving the Tempo at a very high speed in a rash and negligent manner as he was drunk. The claimant asked the driver to drive the vehicle at slow speed, but the driver refused to slow the vehicle. When the vehicle reached near the factory, there was a road which was in bad shape having big ditches. The claimant again asked the driver to slow down the vehicle, but the driver kept on driving the vehicle rashly and negligently and ultimately, the claimant was thrown out of the Tempo and the vehicle turned turtle. As a consequence, the claimant suffered multiple injuries. Respondents No. 1 to 5 have not contested the claim petition and they were proceeded against ex parte. The claim petition was contested by the Insurance company. It was pleaded that claim petition is time barred. The driver of the Tempo was driving the Tempo under the influence of liquor. Thus no liability can be fastened upon the answering respondent. The driver of the vehicle was driving the vehicle without a valid driving licence and the Insurance company is not liable to pay the compensation. On merits, factum of accident was denied. Replication was filed denying the averments made in the written statement and reiterating the stand taken in the claim petition. The Tribunal framed the following issues:- 1. Whether the claimant suffered multiple injuries in a vehicular accident on account of the rash and negligent driving of the vehicle No. HNE-3708 by respondent No.5, if so, its effect? OPP. FAO No. 1213 of 1991 -3- 2. Whether the claimant is entitled to any compensation if so to what amount and from whom? OPP. 3. Whether the claim petition is time barred? OPR. 4. Relief. Learned Tribunal after appraisal of the evidence, decided issue No. 1 in favour of the claimant. Issue No. 2 was also decided in favour of the claimant and it was held that claimant is entitled to claim Rs.48,000/- on account of injuries sustained by him in the accident and it was further held that respondents No. 1 to 6 are jointly and severally liable to pay the amount. So, issue No. 2 was also decided in favour of the claimant. But issue No.3, regarding limitation, was decided against the claimant and consequently, the petition was dismissed being time barred. In this case accident has taken place on 9.11.1988 and the claim petition was preferred on 2.2.1990. Learned counsel for the appellant has submitted that petition cannot be dismissed on the ground of limitation. To support this contention, he has relied upon authorities reported as The New India Assurance Co. Ltd. vs. C. Padma and another 2003 (3) PLR 774, Darshan vs. Devinder Singh and another 2006 (4) RCR (Civil) 749 (P&H) (DB), Jagir Kaur and another vs. Zora Singh and others 2007 (1) RCR (Civil) 354 and Sadiq vs. Jangsher Singh 1997 (3) PLR 799. Learned counsel for the Insurance company has disputed the said argument. I have considered the submissions made by learned counsel FAO No. 1213 of 1991 -4- for both the sides. In Darshan's case (Supra), the Division Bench of this Court has held that amendment made on 14.11.1994 deleting the period of limitation will have retrospective effect except in respect of the claim petition which has been dismissed as time barred and the order has attained finality. The matter is still sub judice in the present case. In Jagir Kaur's case (Supra) and Sadiq's case (Supra), also the same principal was laid down. In The New India Assurance Co. Ltd. vs. C. Padma's case (Supra), the Hon'ble Apex Court has moved one step further by holding that if the claim petition has not been filed upto 14.11.1994, in respect of accident occurred earlier, by deleting the clause of limitation, the claimant can file the claim petition even after 14.11.1994. So, in view of above discussion, the finding of Tribunal on issue No. 3 does not sustain the test of legal scrutiny and consequently, the said finding stands reversed. Learned counsel for the appellant has also challenged the award on the ground that amount of compensation assessed by the Tribunal is on lower side. Learned counsel for the appellant has submitted that claimant suffered 10% permanent disability and as such he is rendered permanently disabled and there is shortening of leg also. The amount of Rs.48,000/- granted, is on lower side. Learned counsel for the Insurance company has supported the judgment of the Tribunal in this regard. I have considered the submissions made by both counsel for the parties and have also gone through the record of the case. FAO No. 1213 of 1991 -5- Learned Tribunal has granted the amount to the claimant as under:- 1. Pain and sufferings - Rs. 4,000/- 2. Medical treatment - Rs. 7,000/- 3. Amount on account of - Rs.30,000 permanent disability to the extent of 10% 4. Conveyance - Rs. 5,000/- 5. Injuries suffered by the claimant - Rs. 2,000/- on his face and other parts of body. ________________ Total - Rs.48,000/- ________________ The claimant has examined PW-2 Dr. Mahavir Goel, who has stated that claimant came to his hospital on 11.11.1988 at 3.30 p.m. Traction was applied on 12.11.1988 and he was operated upon on 29.11.1988. Plaster was applied on 31.12.1988 and the patient was discharged on 4.1.1989. He was treated as out door patient from 4.1.1989 to 5.4.1989. At that time he had malunited fracture of the left femur bone with spiky projection and an operation was conducted on 11.4.1989. A nail in the femur was applied. Post operatively, patient had no complication and he was discharged on 1.5.1989. Claimant also examined PW-3, Dr.Ashok Sarwal, who has stated that claimant suffered permanent disability to the extent of 10% and nailing was done with shortening of 1 inch and there was slight limitation of movement of hip joint and knee joint. Previous disability of the claimant was 20% and now after a lapse of 2 years, the disability has been reduced to 10% with the passage of time. He has FAO No. 1213 of 1991 -6- further stated that permanent disability cannot be cured with the passage of time. In this case, the claimant has been allowed only Rs.4,000/- in respect of pain and suffering. In my view, that amount is on lower side. So, the amount on account of pain and suffering stands enhanced to Rs.15,000/- in view of nature of injuries. From the perusal of the evidence on the file, it is revealed that nailing was done and that has to be removed in future. So, no amount in respect of future expenses has been awarded to the claimant. So, another sum of Rs.10,000/- stands allowed on account of future expenses. So, in this manner, the claimant is held entitled to claim Rs.69,000/-. The said amount shall be paid to the claimant alongwith interest @ 7% per annum from the date of filing of claim petition till payment. Liability to pay the said amount shall be the same as ordered by the Tribunal. The appeal stands disposed of. ( K.C. Puri ) 29.4.2010 Judge chugh