FAO No.380 of 1992 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.380 of 1992 Date of Decision. 04.02.2011 Jaspal Singh alias Pali son of Sh. Uddham Singh Mann ......Appellant Versus Gurbachan Singh and others .....Respondents Present: None for the appellant. None for respondent No.1 and 2. Mr. V. Chaudhari, 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 ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J.(ORAL) 1. The application is for enhancement of compensation for injury suffered in a motor accident by the claimant. He was a pillion rider in a motor cycle and the accident had resulted by a collision of the motor cycle with the insured's car. The claimant was reported to have suffered a fracture on the left thigh and an operation had been performed by Dr. Mahavir Goyal on 18.2.1991 where a further operation of bone grafting had been done. He found the shortening of limb by 2 inches and non-union of the tibia bone. Doctor also found stiffness in the ankle joint and slight stiffness in the knee joint. He was reported to be earning Rs.3000/- per month for doing the job as a tractor mechanic and due to the impact of the accident, he was unable to do his duty FAO No.380 of 1992 -2- from the date of accident till the date of trial. 2. Based on the evidence given by the claimant regarding the expenses, which he had incurred and pain and suffering that he had suffered on account of the injury, the Tribunal assessed the compensation at Rs.72,000/- that comprised of an assessment of Rs.10,000/- for medical expenses, Rs.5,000/- for pain and suffering, Rs.30,000/- for inconvenience and disability caused by shortening of the limb, Rs.12,000/- for future operation, Rs.10,000/- towards loss of income during the treatment and Rs.5,000/- towards conveyance in future. The overall compensation addresses every possible head of claim and since there was no particular loss of earning capacity that was established, the Tribunal's assessment of Rs.30,000/- for the disability on account of shortening of limb, in my view, was correctly assessed. 3. The Tribunal found that the accident had been resulted by a contributory negligence of the driver of motor cycle contributing in equal measure with the driver of the car. A contributory negligence of a motorcyclist cannot be fastened on the pillion rider as well. At best, it was only a composite negligence and law provides enforcement of the entire claim for compensation against any one of the tort feasors. The abatement of claim made by the Tribunal was, therefore, erroneous and the claimant should be entitled to the entire amount of Rs.72,000/- as determined. The Tribunal had awarded Rs.36,000/- and the additional amount of Rs.36,000/- that comes through this award will also attract interest @6% from the date of the petition till the date of payment and the liability shall be on the insurer of the vehicle. 4. The motorcyclist was himself not made a party and the FAO No.380 of 1992 -3- insurance company shall be at liberty to file an independent suit and seek for contribution, if it can establish that there was a contributory negligence. Any finding of contributory negligence made in these proceedings will not bind to motorcyclist and it will be a matter of independent adjudication. 5. The appeal of enhancement is allowed in the manner referred to above with the liberty to the insurance company as aforesaid. There is no representation for the appellant at the time when the matter is called and for, I have examined this case on merits with the assistance of the learned counsel appearing for the insurance company, the registry shall, therefore, transmit a copy of this order to the party directly. (K. KANNAN) JUDGE February 04, 2011 Pankaj*