FAO No. 2304 of 2002 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH * * * * * FAO No. 2304 of 2002 Date of decision : 30.01.2009 * * * * * Rajesh Sharma ............Petitioner Versus M/s. Gati Desk to Desk Cargo Division and others ...........Respondents * * * * * CORAM: HON'BLE MR. JUSTICE JORA SINGH * * * * * Present: Mr. Sudhir Mittal, Advocate for the petitioner. Mr. Gopal Mittal, Advocate for the respondent. * * * * * JORA SINGH, J. Rajesh Sharma filed this appeal against the award dated 19.9.2000 passed by Motor Accidents Claims Tribunal, Hisar in Claim petition No.76 of 1996 to recover compensation on account of injuries suffered in roadside accident whereby, Tribunal had awarded compensation of Rs.1,20,000/- payable by the respondents no. 1, 3 & 4 with interest @ 12% per annum. Case of Rajesh Sharma, appellant is that on 7.2.1996, he was going to Delhi from Gandhi Nagar by driving truck No. HR- FAO No. 2304 of 2002 2 38/3216. At about 1:00 A.M, he was near Gangwara by pass at a distance of approximately four kilometers from Police Station Gogel, district Ajmer. Tuck No. HR-38/3216 was being driven at a moderate speed. In the meantime, truck no. RJ-09/3235 came at a very high speed from the opposite direction. It was being driven rashly and negligently by respondent no.3. Truck was struck against Tata 608 bearing no. HR-38/3216 and in that accident, claimant and the cleaner had received multiple grievous injuries. Injured were shifted to Civil Hospital at Ajmer. When claimant and the cleaner were lying admitted in the hospital then the police of Police station Gogel District Ajmer in collusion with respondent no.3 had registered a false case against the claimant. Accident was due to rash and negligent driving of Truck No. RJ-09/3235 by respondent no.3. Claimant was 30 years old and was a driver. Claimant remained under treatment of different doctors. Respondents no. 1 to 3 despite service did not turn up and they were proceeded against ex parte. Respondent no.4 filed written statement and contested the claim petition inter alia on the ground that driver of truck No.RJ- 09/3235 was not holding a valid and effective driving licence at the time of the alleged accident. FIR was registered and as per FIR accident was due to rash and negligent driving of Vehilce No.HR- 38/3216 driven by the claimant. Vehicle insured with the answering respondent is RJ-19G/3235 and not RJ-9/3235. All the allegation were denied in the written statement. Respondent no.5 filed a separate written statement and contested the claim petition inter alia FAO No. 2304 of 2002 3 on the ground that petition is bad for impleadment of necessary party. Truck No.HR-38/3216 was not insured with the answering respondent. From the pleadings of the parties, following issues were framed: 1. Whether the petitioner received injuries in an accident caused by respondent no.3 by driving truck No.RJ-9/3235 in rash and negligent manner, if so to what effect?OPP 2. Whether the petitioner is entitled to compensation, if so to what amount and from whom? OPP 3. Whether respondent no.3 was not duly licensed driver at the time of accident, if so to what effect?OPP 4. Relief. Evidence was led by both the parties. After hearing learned counsel for the parties and from the perusal of evidence on the file, claim petition was accepted and Rs.1,20,000/- was awarded as compensation payable to Rajesh Sharma. Feeling aggrieved against the award dated 19.9.2000, appeal was preferred by Rajesh Sharma. Notice was issued to the respondents. Learned counsel for the appellant argued that evidence on the file was not correctly appreciated by the learned Tribunal. DW-3, Ashok Arora stated that leg of the appellant was one inch FAO No. 2304 of 2002 4 short before the operation. Dr. J.S Bhatia stated that right lower limb was found shorter by three inches and there was permanent weakness in this limb due to mal union of the tibia and fibula. Ex.P4 is the disability certificate but the same was not honoured by the Tribunal. As per Dr. Gopal Krishan, right eye of the appellant was damaged. There is nothing on the file that damage to eye was due to some other reason. Appellant had spent Rs.3,50,000/- on his treatment. But adequate compensation was not awarded. Learned counsel for the Company argued that medical bills were rightly taken into consideration to calculate the compensation. Disability certificate (Annexure P-4) was rightly ignored. In fact the accident was due to rash and negligent driving of vehicle No. HR-38/3216 by the appellant. Qua accident, criminal case was registered against the appellant. When the appellant was found at fault then there is no question of compensation. Evidence on the file shows that there was an accident and in that accident, appellant had received injuries. According to the appellant, accident was due to rash and negligent driving of truck no. No.RJ-09/3235. Evidence further shows that FIR Ex.R1 was registered against the appellant. Copy of report under Section 173 Cr.P.C, Ex. R2 was also tendered in evidence. Appellant was also challaned. Respondent no.3 failed to appear in the Court to state that he was not at fault and that in fact, the accident was due to rash and negligent driving of Truck No No.38/3216. No police official or any employee of the Court was produced by the respondents to state that appellant was convicted in State case or case is pending. Ex.R1 FAO No. 2304 of 2002 5 was registered at the instance of Ghanshyam son of Bhagwan Singh but Ghanshyam was not produced to state that he was a cleaner on vehicle No.38/3216 and the accident was due to rash and negligent driving of vehicle No. 38/3216 by Rajesh Sharma. Rajesh Sharma on cross-examination stated that Ghanshyam son of Bhagwan Singh was not the cleaner of truck HR-38/3216, in fact Dinesh was the cleaner at that time. The question is whether FIR was got registered by the cleaner of truck no. HR-38/3216 or somebody else. Owner of truck No. HR-38/3216 could easily be produced by the respondents to state that Ghanshyam son of Bhagwan Singh was cleaner on truck No. HR-38/3216 with Rajesh Sharma, driver. Against the impugned award, no appeal was filed by the respondents. That means, the finding of the Tribunal that the accident was due to rash and negligent driving of Truck No. RJ- 19G/3235 by respondent no.3 was accepted to be correct one. Next submission of the learned counsel for the appellant was that medical bills on the file were not taken into consideration to calculate compensation. Secondly, disability certificate Ex.R-4 was ignored. Submission of the learned counsel for the appellant carries little weight. Accident was on 7.2.1996. As per doctor Gopal Krishan, PW-5, Rajesh Sharma was admitted in the emergency ward on 7.2.1996 at 4:40 P.M. Patient was discharged on 10.2.1996. he was removed to the hospital of Dr. Ashok Arora. Dr. Ashok Arora stated that patient was examined on 11.2.1996. Leg was found to be shortened by one inch. Dr. J.S Bhatia stated that on 21.7.1999, patient was FAO No. 2304 of 2002 6 examined. Disability was found to be 40%. Right lower limb was found to be shortened by three inches. But report of Dr. J.S Bhatia is contrary to the statement of Dr. Ashok Arora. At the time of accident, leg was found to be short by one inch. Dr. J.S Bhatia had examined the patient on 25.7.1999 i.e after about 2 ½ years at that time, right lower limb was found to be shortened by three inches. In case leg was one inch short on 11.2.1996, then question is how the leg was found to be short by three inches on 21.7.1999. Appellant did not state a word that after the alleged accident on 7.2.1996, there was no other accident damaging his right lower limb. Therefore, disability certificate Ex.P4 issued by Dr. J.S Bhatia seems to be not genuine one. As discussed earlier, appellant remained admitted in JLN hospital, Ajmer for four days and in the hospital of Dr. Ashok Arora from 11.2.1996 to 30.2.1996. As per medical bills Ex.P7 to Ex.P40 and from Ex.P42 to Ex.P127, total amount spent by the appellant was Rs.60,000/-. There are some other bills/receipts issued by the medical stores. But those bills/receipts were not accepted as the same had not been exhibited and proved. That means medical bills were rightly taken into consideration to calculate the compensation. As per doctor, 30% disability of the right eye was noticed. Injury was suffered by the appellant in the accident. After admission in emergency ward, the appellant was shifted to eye ward for treatment of damaged eye. When there is a disability, then at the rate of Rs.2000/- per percent disability, compensation is to be awarded. Learned Tribunal awarded Rs.60,000/- as compensation on account FAO No. 2304 of 2002 7 of loss of income, transportation and pain and suffering. Rs.60,000/- was awarded as per medical bills. Therefore, I am of the opinion that compensation was rightly awarded after appreciating oral/documentary evidence on the file. In view of the all discussed above, there is no infirmity or illegality in the impugned award and the same is upheld, appeal being without merit is hereby dismissed. 30.1.2009 ( JORA SINGH ) ritu JUDGE