FAO No.244 of 1994 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.244 of 1994 (O&M) Date of Decision. 05.04.2011 Yash Pal son of Shri Chaman Lal resident of 780/7, G.T. Road, Panipat, District Panipat. ......Appellant Versus Shri Sanjiv Jain son of Sh. K.C. Jain and others .....Respondents Present: Ms. Deepali Puri, Advocate for the appellant. Mr. Rahul Wadehra, Advocate for respondent Nos.1 and 2. Mr. R.C. Gupta, Advocate for respondent No.3. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J.(ORAL) 1. The appeal is against the dismissal of the petitioner for compensation in a case where the claimant, who was a passenger in a car suffered a privation of his hand when the vehicle dashed against a truck. The petition had been filed only against the owner, driver and insurer of the vehicle in which the claimant was travelling. He had not impleaded the owner of the truck or the insurer. The petition was dismissed on a finding that the truck owner had not been impleaded and the petitioner had not been able to establish a wholesale negligence on the part of the driver of the car. FAO No.244 of 1994 (O&M) -2- 2. In a case where two vehicles were involved and a passenger in a car suffers privation of a hand by yet another vehicle coming in contact with the vehicle in which he was travelling, it would be taken as case of composite negligence. In such a situation, a person, who was aggrieved, is entitled to file a case against any one of them and the Tribunal could not have been dismissed the petition for non-joinder of the truck owner or the insurer. The petition filed against the owner of the car, driver and the insurance company shall perfectly and legally be tenable. The accident could not have taken place without a modicum of negligence on the part of the driver of the car, if he had provided for sufficient gap between his car and the truck, which was coming from the opposite direction. If there was, therefore, some negligence on the part of the driver that could be sufficient to make the owner of the car and driver responsible and for the same reason, the insurer also to be responsible if the terms of policy provides for such a course. In this case, I find that it was a comprehensive policy where a premium of Rs.3,704/- had been paid and the terms of the policy specifically provided for a coverage of passenger in the vehicle on the following terms:- “death or bodily injury to any person including occupants carried in the motor car (provided such occupants are not carried for hire or reward) but except so far as is necessary to meet the requirements of Motor Vehicles Act, the company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured.” FAO No.244 of 1994 (O&M) -3- The liability of the insurance company cannot, therefore, be denied at all. 3. The Tribunal had not dealt with the compensation that the claimant was entitled to. Under normal circumstances, I would have remitted the case to the Tribunal for consideration but having regard to the fact that the case is of the year 1994, I have examined the case on the basis of records which are available and assessed the compensation. 4. He was an income tax assessee and he was said to be engaged in a business in Handloom Bleaching and Processing. The income tax return showed that he had an annual income of Rs.25,000/- after several deductions. I take the income to be Rs.25,000/- and adopt the compensation by applying a multiplier of 16 after reducing the loss of earning capacity at 80%. In assessing the loss of earning capacity, I have followed the scheme of Workmen's Compensation Act where the amputation of the hand below shoulder and above elbow is taken as constituting 80% loss of earning capacity. In this case, the Medical Board had been constituted and the disability had been assessed at 90% for a serious loss of amenity for the rest of his life for person, who was young in age at 32 years. I provide for Rs.50,000/- as loss of amenities to life and I would also provide for Rs.25,000/- for pain and suffering for the injury suffered. The other heads of claim on the basis of evidence led in before the Court including the costs of proceedings, which had been produced by the petitioner and for which bills had been produced before the Tribunal shall deserve the compensation that is tabulated as follows:- FAO No.244 of 1994 (O&M) -4- INJURY CASE Age 32 years Period of Hospitalization Occupation business Heads of claim Sl. No. Amount (Rs) Amount (Rs.) 1 Loss of income 5000 2 Medical expenses (i) Medicines 40000 (ii) Hospital Charges (iii) Attendant Charges 2500 (iv) Special Diet 5000 3 Transport 2500 4 Pain & Suffering-per fracture/per surgery 25000 5 Disability in percentage 90'% 6 Loss of earning capacity 7 Income x % of loss of earning power x multiplier 80'% 3,20,000 8 Reduction in life expectancy/loss of amenities 50000 9 Loss of prospect of marriage Total 4,50,000 5. The amount awarded shall be borne by the respondents jointly and severally. The insurance company is liable to indemnify respondent Nos.1 and 2. The award shall also carry interest @7.5% from the date of petition till the date of payment. 6. The award is set aside and the appeal is allowed to the above extent. (K. KANNAN) JUDGE April 05, 2011 Pankaj*