FAO No. 5416 of 2010 1 FAO No. 5417 of 2010 FAO No. 5536 of 2010 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH FAO No. 5416 of 2010 Date of decision February 23, 2011 Jagtar Singh ....... Appellant Versus Rajbinder Kaur ........Respondent FAO No. 5417 of 2010 Jagtar Singh ....... Appellant Versus Jagsir Singh ........Respondent FAO No. 5536 of 2010 Rajbinder Kaur ....... Appellant Versus Jagtar Singh ........Respondent CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Mr. Vikas Kumar, Advocate for the appellant in FAO No.5416 and 5417 of 2010 and Mr. Dheeraj Narula , Advocate in FAO No. 5536 of 2010. Mr. Dheeraj Narula, Advocate for the respondent in FAO No. 5536. **** 1. Whether reporters of local papers may be allowed to see the judgment ?No 2. To be referred to the reporters or not? No 3. Whether the judgment should be reported in the digest?No FAO No. 5416 of 2010 2 FAO No. 5417 of 2010 FAO No. 5536 of 2010 K. Kannan, J (oral). 1. All the above cases are connected. The appeals by the owner and driver are FAO No.5416, 5417 of 2010 and FAO No.5036 of 2010 the appeal by the claimants for enhancement. 2. All the claims arise out of a motor accident involving a common Maruti Car and tractor that belonged to the first appellant. The driver in the Motor Car had been injured in the collision. The case had been registered against the driver of the tractor immediately on a FIR lodged by one Beg Raj on 29.9.2007, that was the same day of the accident. The contention in defence by the driver and owner was that it was a rainy day and due to misty conditions, the visibility was poor and the driver of the Maruti car had no adequate visibility and he had dashed against the tractor by his own negligent driving. It was also contended that the eye witness Beg Raj who had lodged the FIR did not know what it contained and he came to the Court to depose that his signatures were taken on some blank papers and a false FIR came to be registered. Yet another witness who claimed that he was an eye witness, Baldev Singh was examined as RW-2 to state that there had been no negligence on the part of the driver of the tractor. 3. The Tribunal had found that the negligence of the tractor driver had been established by the fact that a criminal case had been registered against the driver of the tractor and that the claimants themselves had given evidence about the negligent driving of the driver of the tractor. Learned counsel for the appellant would contend that the reliance on the registration of complaint by the police was insufficient to hold the issue of negligence against the tractor driver to state that the driver had also lodged a complaint on 2.4.2008 against the driver of the Car. According to me, if the issue of negligence were to be proved before FAO No. 5416 of 2010 3 FAO No. 5417 of 2010 FAO No. 5536 of 2010 the Tribunal, the fact that the case had been registered in a criminal court against the tractor driver ought not to have been a final determining factor for establishing negligence. These arguments are countered by the learned counsel appearing for the claimants by pointing out that the impact was so serious that both the passengers in the Car were very seriously injured and that resulted in disability in excess of 40%. He also point out that the evidence of both Beg Raj and Baldev Singh were truly biased by the fact that the former was a neighbour to the driver and the latter was the uncle of the driver. He would also state that the complaint with the police against the claimant itself was given only subsequent to the institution of the petitions making the claim for compensation. I find that the accident had taken place on 29.9.2007 and the cases had been registered on 31.1.2008. If there was any truth in the contentions of the driver of the tractor, he would have normally lodged a complaint against the driver of the Car immediately and it is patent that he was trying to create an evidence in defence by lodging a complaint only after he was served with notice from the Tribunal. Significantly again, in this case, the owner of the tractor had allowed to the vehicle to be in public without third party insurance which itself is an offence under the Motor Vehicles Act. He had exposed the claimants to risk by his unlawful action. I will therefore take no indulgent approach to the appellant and I find that the appellant's complaint against the driver of the Maruti car was an attempt to create evidence for a defence in the Motor Accident Claims Tribunal and not spirited by any bona fides. I therefore confirm the finding that there had been negligence on the part of the driver of the tractor and hold the driver and owner to be responsible for the claims arising out of the accident. 4. The appeal is for enhancement for a person who suffered a fracture of hip and who had undergone three major operations. FAO No. 5416 of 2010 4 FAO No. 5417 of 2010 FAO No. 5536 of 2010 The Tribunal had awarded `1,60,000/- which included `70,000/- for the five months of leave that she had exhausted as a school teacher, `10,000/- towards pain and suffering, `10,000/- for special diet and transport and `80,000/-towards disability and the loss of amenities occurred to her by such disability. The doctor's evidence is too skeletal to comprehend as to how this injury had impacted her normal activities. The amount of `80,000/- awarded by the Tribunal was appropriate and just. If there is any scope for intervention it is only for the component of pain and suffering for his two month long hospitalization and three surgeries which she had undergone. The assessment of compensation for pain and suffering which is a subjective factor is prone to variations and I will not take that to be the only ground for considering an enhancement. Any shortfall in the assessment is more than compensated by an assessment of `80,000/- provided for disability which was said to have resulted from the injuries. The award is confirmed and the appeal is dismissed. Any amount that has been deposited by the appellant shall be transmitted to the Tribunal at Sirsa to the credit of the case for appropriate directions for withdrawal at the instance of the claimants in satisfaction of the award either in part or full. The award is confirmed and all the appeals are dismissed. (K. KANNAN) JUDGE February 23, 2011 archana