F.A.O. No. 4161 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 4161 of 2009 Date of decision: 9-12-2009 CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Shri Arun Yadav, Advocate, for the appellant Shri Ravinder Arora, Advocate, for the Insurance Company HARBANS LAL, J. This appeal is directed by Birender Singh claimant against the award dated 17.4.2009 passed by the Motor Accident Claims Tribunal, Rewari whereby he awarded an amount to the tune of Rs.5,80,000/- as compensation alongwith interest @ 7.5% per annum from the date of petition till realization against Diwan Singh owner-cum-driver respondent, as well as the respondent insurance company. The brief facts are that on 8.1.2007 Birender Singh claimant alongwith Ram Kishore was going on scooter No. HR-36H/5021 from Dharuhera chowk to village Khalilpuri being driven by him, while Ram Kishore was riding the pillion. When they neared Ram Jiwan Tractor Agency at about 8/8.30 p.m. meanwhile tanker No. HR-47/6655, being driven in a rash and negligent manner and at high speed by Diwan Singh respondent came from the opposite direction and hit the scooter. As a result of its impact, Birender Singh as well as the aforesaid pillion rider sustained grievous injuries. Diwan Singh in his written statement has inter alia pleaded that the tanker was insured with the respondent insurance company. He prayed for dismissal of the claim petition. The respondent insurance company in the F.A.O. No. 4161 of 2009 2 written statement has inter alia pleaded that Diwan Singh respondent was not holding a valid and effective driving licence and that he acted in violation of the terms and conditions of the insurance policy. On the pleadings of the parties, the following issues were framed by the learned Tribunal:- 1. Whether Birender son of Amar Singh sustained injuries in a motor vehicular accident caused due to rash and negligent driving of vehicle being No. HR-47/6655 by respondent No.1? OPP 2. If issue No.1 is proved, to what amount of compensation, the claimant is entitled to claim and from whom? OPP 3. Whether the respondent No.1 was not holding a valid and effective driving licence at the time of alleged accident, if so its effect? OPR 4. Whether the vehicle bearing No. HR-47/6655 was being driven contrary to the terms of policy?OPR 5. Whether the vehicle No. HR-47/6655 was being driven without route permit, as alleged in para No.9 of the written statement, if so its effect? OPR 6. Relief After hearing the learned counsel for the parties and examining the evidence on record, the learned Tribunal passed the impugned award in the terms as noticed at the outset. Feeling that the awarded amount is insufficient and inadequate, the claimant has filed this appeal. I have heard the learned counsel for the appellant as well learned counsel for the respondent insurance company, besides perusing the record with due care and circumspection. On behalf of the appellant, it has been strenuously urged that as is borne out from the evidence on record initially the appellant was taken to General Hospital, Rewari but due to his serious condition, he was referred to P.G.I. Rohtak. He was removed to Lifeline Hospital, Gurgaon on F.A.O. No. 4161 of 2009 3 11.1.2007 and he remained admitted till 25.1.2007 where three operations were conducted on neck, hand and foot. Thereafter, he remained admitted in Birendra Hospital from 10.8.2007 to 27.11.2007. Due to accident, there was loss of normal curvature of cervical spine: C2 to C4 vertebra were fused together with reduced disc spaces at C3-C4 and C2-C3 levels. In a nutshell, he suffered 75% permanent disability. Thus, palpably the amount awarded by the learned Tribunal is on the lower side. As against this, the learned counsel for the respondent insurance company urged with great eloquence that amount already awarded by the learned Tribunal is on the higher side and that being so, there is no scope for enhancement of the same. I have well considered the rival contentions. Dr. Deepak Bhatia, Radiologist, Modern Diagnostic and Research Centre (PW-3) has solemnly affirmed that on 11.1.2007 Birender was treated by me; that I had conducted MRI of Cervical spine; that there was loss of normal curvature of cervical spine; that C2 to C4 vertebra were fused together with reduced disc spaces at C3-C4 and C2-C3 levels; that Osteophytes were present at the vertebral margins; that there was suspicious break in the inter spinous ligament at C34 levels with injury in the posterior para spiral muscle; that diffuse disc bulges were noted at C45, C56 and C67 levels comprising the-cal sac and spinal cord, that there was mild contusion odema in the spinal cord at C2 to C6 levels; that Pre and para vertebral haematoma were seen from C2 to C6 levels; that MRI report is Ex.PW.3/1 and receipt in the sum of Rs.5000/- is Ex.PW.3/2. Dr. Birender Yadav, Birendra Hospital, Rewari (PW-4) has deposed that on 10.8.2007 he admitted Birender Singh with infected implant right femur; that he operated F.A.O. No. 4161 of 2009 4 him for implant removal and wound; that he remained admitted till 2.7.8.2007; that he had charged Rs.37,010/- for total indoor management through receipt Ex.PW.4/1. Dr. Ashok Saini, Orthopaedician, G.H. Rewari (PW-2) has testified that on 21.11.2007 he was member of Medical Board for assessment of disability; that after examination, permanent disability of Birender Singh was assessed at 75% on account of right sided severe hemiplegic type of weakness with inability to walk and use upper limb properly and that original disability certificate is Ex.PW.2/A. In view of the above discussed medical evidence, I am of the considered view that the amount awarded by the learned Tribunal is inadequate. To my mind, the ends of justice shall be met, if an amount of Rs.50,000/- more is awarded as compensation. Thus taking into consideration the cumulative facts and circumstances of the case, the impugned award is modified to the extent that the appellant is entitled to claim Rs.50,000/- more as compensation over and above the awarded amount. The enhanced amount shall be deposited by the respondent insurance company within 45 days, failing which this amount shall carry interest at the rate of 7.5% per anuum from the date of filing the claim petition till the date of realization. Accordingly this appeal stands disposed of. (HARBANS LAL) JUDGE December 9, 2009 RSK F.A.O. No. 4161 of 2009 5 NOTE: Whether to be referred to the Reporter or not? Yes/No