IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1394 of 1991 (O&M) Date of decision:31.01.2011 Shamsher Singh ....Appellant versus Gurnam Singh (deceased) through his LRs and another ....Respondents II. FAO No.883 of 1992 (O&M) Shamsher Singh ....Appellant versus Tej Kaur and others ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. O.P.Hoshiarpuri, Advocate, for the appellant. Ms. Vandana Malhotra, Advocate, for the Insurance Company. ---- 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 ? Yes. ---- K.Kannan, J.(Oral) 1. Both the appeals arise out the same accident. FAO No.1394 of 1991 relates to claim for damages for injuries suffered as well as for damage to the vehicle which he owned. FAO No.883 of 1992 is against an award passed in favour of the claimant by the owner of the vehicle in FAO No.1394 of 1991 (O&M) - 2 - which the deceased was travelling. The owner was made to contribute 20% of the compensation determined on a finding that the driver of the tempo had contributed to the accident to the said extent. 2. As regards the issue relating to the contributory negligence, the complaint had been lodged against a truck which had dashed against the tempo at the instance of one of the passengers in the truck. The allegation was that the truck was responsible for the accident, but it was also brought out in evidence that there were 15 to 20 persons in the tempo when the seating capacity was only 7. The accident was said to have taken place when the truck dashed against a tempo and the tempo turned turtle and fell into a ditch. It was in evidence that the size of the tempo had been increased to accommodate more passengers and the Tribunal entered a finding that the enormity of damage was only on account of tempo being stacked beyond capacity and to that extent, the driver of the tempo must take responsibility for 20% and the driver and owner of the truck must take a larger slice of liability to the extent of 80%. I will not make any interference on the issue of apportionment of liability. 3. The driver/owner of the truck, while contending that he had not been sufficiently compensated, points out that the Tribunal had awarded only the damage to the tempo to the extent of Rs.4,116/- but had denied to him wholly any claim for damages to personal injuries. The doctor, who had been examined, gave evidence to the effect that he had been admitted from 14.02.1988 to 11.03.1988 and that he had 5 injuries and one of the injuries was grievous. I do not have the benefit of records FAO No.1394 of 1991 (O&M) - 3 - as the same having been burnt in fire that had broken out earlier in the last decade and the learned counsel for the appellant is unable to give to me the details of injuries which he had suffered. The doctor had stated that no permanent disability had resulted but it could not have meant that case deserved a dismissal on all counts, for, compensation is awarded not merely for permanent disability but several other heads of claim that would include pain and suffering, medical expenses, hospital charges, etc. In the absence of any documentary proof, I would still take the doctor's evidence that the claimant would have incurred about Rs.5,000/-, as credible enough to accede to such a claim and also add another Rs.5,000/- for pain and suffering for a near month long hospitalization. Out of the total Rs.10,000/-, there has to be an abatement of the claim to the extent of Rs.2,000/- and the claimant shall be entitled to Rs.8,000/- over and above the damage to the vehicle already assessed with interest at 6% from the date of petition till date of payment. The appeal in FAO No.1394 of 1991 is allowed to the above extent. 4. As regards the appeal against the assessment of compensation for the accident resulting in death, the Tribunal has apportioned 20% liability on the owner, his vehicle having been found to have contributed to the accident. The owner had not even taken care to effect a valid insurance in a case where he was using it as a transport vehicle. The owner has exposed his own passengers to risk without adequate cover for insurance and he shall not be entitled to any indulgence to seek for reversal of finding that there had been no negligence on his part. I have already held that there is no scope for FAO No.1394 of 1991 (O&M) - 4 - interference with reference to the apportionment of liability in the manner determined by the Tribunal. Consequently, the appeal in FAO No.883 of 1992 would require to be dismissed and is, accordingly, dismissed. (K.KANNAN) JUDGE 31.01.2011 sanjeev