IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.873 of 1997 (O&M) Date of decision:03.06.2011 Dashyant Kumar ...Appellant versus Parvesh Kumar Gupta and others ....Respondents II. FAO No.1570 of 1997 (O&M) Neelam Kumari and others ...Appellants versus Nayab Singh and others ....Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Vishwajit Bedi, Advocate, for the appellant in FAO No.873 of 1997. Mrs. Gurnam Kaur Turka, Advocate, for the appellants in FAO No.1570 of 1997. Mr. Deepak Suri, Advocate, for the New India Assurance 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 ? No. ---- K.Kannan, J. 1. Both the cases are connected, the former is in relation to a case of injury and the latter relates to a case of death. In both the cases, the Tribunal assessed the compensation, and made a 50% deduction FAO No.873 of 1997 (O&M) - 2 - going towards contributory negligence. Both the appeals address the issue that the case of contributory negligence was nobody's version and seek for reversion of the finding to hold that the accident was on account of rash and negligent driving of the driver of the truck only. 2. The accident was said to have taken place when the deceased Ashwani Kumar, who was a Constable, was investigating a case on Ambala-Chandigarh road near Lalru, when he was run over by a truck being driven by the first respondent. The Constable succumbed to his injuries at PGI on the intervening night of 25.10.1995 and 26.10.1995. The offending vehicle also knocked down a scooterist Dashyant Kumar, who sustained grievous injuries. The injured is the appellant in FAO No.873 of 1997. The respondents, on being given notices, filed the reply contending that there was no accident at all involving the respondent's vehicle. The petitioner relied on the evidence of one Kasturi Lal, who was said to be on duty along with the deceased, the claimant in FAO No.873 of 1997, as PW6 himself stated that the deceased was standing on the kacha portion of the road when he was run over by the respondent in a negligent manner. The Court found that the accident had taken place only by careless manner in which the deceased came on the road and attributed some kind of carelessness on the part of the scooterist for the cause for the accident. I hold this finding to be erroneous, for, in a case where the respondents were taking up a false plea of non-involvement of the vehicle, the Court ought not to have to introduced a case of contributory negligence which was not even pleaded by the respondents. In a case where the respondents were contending FAO No.873 of 1997 (O&M) - 3 - that the petitioner had been wholly negligent, it would have become possible for the Tribunal to scale down the version and find a case of contributory negligence. Such a finding cannot, however, arise in a case where the respondent was pleading for non-involvement of the vehicle in an accident. I, therefore, set aside the finding and hold that the first respondent was responsible for the accident. 3. As regards the claim for compensation for injuries which is the subject matter in FAO No.873 of 1997, the evidence was that the claimant had multiple injuries that required hospitalization for about 1 ½ months. He had a 100% disability. He had developed serious urinary infection and had become totally impotent. He had been treated in the Rajindera Hospital for three months, CMC hospital for a month and surgeries were done when two rods were inserted in his leg. He is confined to wheelchair and still requires an attendant. He was a Chemist, aged 25 years, having passed diploma in pharmacy and had lost his livelihood. 4. At the trial, evidence was given to the effect that he was earning about Rs.10,000/- per month. He had, however, stated that he was paying a fixed income tax of Rs.1,400/-. The petitioner admitted that as a proprietor of the pharmacy, he had maintained accounts of the shop and also admitted that he had bank accounts. He had not produced any of those documents. In the absence of documentary proof of which it was definitely possible, I would hold that he would have earned on an average at least Rs.5,000/- even if the pharmacy shop is being run. The managerial skills cannot be anything less than Rs.5,000/-, I will take the FAO No.873 of 1997 (O&M) - 4 - same to be the resultant loss per month since he has suffered spine injury and render immobile and certified to have 100% disability. I will, therefore, assess the loss of earning capacity at Rs.10,20,000/- (Rs.5,000 x 12 x17). The claimant has suffered prolonged hospitalization and serious fractures requiring implants for reduction of fractures. I will provide Rs.25,000/- as damages for pain and suffering. He would require attendant for the rest of his life to bring mobility in his wheelchair and take care of other needs. The claimant has given evidence to the effect that he is spending Rs.800/- for his attendant. The evidence was given in the year 1997 and I would imagine that there will be a gradual escalation of cost since I am deciding now after so many years and he may have to live through his life for some more years with the disability and when the help of attendant. I will estimate the likely expenses for such damage at Rs.2,500/- per month and provide for a corpus which can yield the return equivalent to Rs.5,10,000/- (2,500 x12x17). The doctor had certified that he had become impotent and with 100% disability, the loss of amenities to life, I would estimate at Rs.1 lakh. For hospital and other charges, the evidence was that he was originally treated at the Civil Hospital, Dera Bassi and later taken to the PGI, Chandigarh. There is no clear evidence on record about the medical expenses which he had stated as Rs.2 lakhs on medicines. The Tribunal had already assessed an amount of Rs.54,778/- towards medical expenses. This includes some medical aids for his leg and support for his back. Against Rs.54,778/-, I will raise to Rs.1 lakh. FAO No.873 of 1997 (O&M) - 5 - 5. The Tribunal has not granted any amount towards transportation charges, for which I would provide for an addition provision for Rs.10,000/-. For extra diet, I would provide for another Rs.10,000/-. On the whole, the total amount of compensation would come to Rs.17,75,000/-. The Tribunal has already assessed the compensation at Rs.3,43,000/-, but reduced it to 50% on his finding of contributory negligence. Since I have vacated the finding, the entire amount of what is determined shall become payable by the respondents and the amount in excess over what was determined already by the Tribunal will attract interest at 6% per annum. 6. The appeal in FAO No.873 of 1997 is allowed to the above extent. 7. In FAO No.1570 of 1997, the deceased was a Constable, earning Rs.3,445/-. He was 25 years of age and in terms of the decision of the Hon'ble Supreme Court in Sarla Verma Versus Delhi Transport Corporation and another 2009(6) SCC 121 , I will make a provision for 50% increase and taken the average income to be Rs.5,167/-. The claimants were widow, a six months old child and mother. I will make a provision for 1/3rd deduction for personal expenses and take the contribution to the family at Rs.3,445/-. He was 25 years of age and I will adopt a multiplier of 18 to hold the loss of dependency at Rs.7,44,120/-. I will make a further addition of Rs.5,000/- towards loss of consortium and another Rs.5,000/- for loss of love and affection for the child. I will make a further provision of Rs.5,000/- towards loss to estate and another Rs.2,500/- towards funeral expenses. The total FAO No.873 of 1997 (O&M) - 6 - amount of compensation would come to Rs.7,61,620/-. The amount in excess over what has been determined already by the Tribunal will attract interest at 6% per annum from the date of petition till date of payment. The amount will be distributed in the ratio of 2:2:1 between the widow, child and the mother. 8. The appeal in FAO No.1570 of 1997 is also allowed to the above extent. (K. KANNAN) JUDGE 03.06.2011 sanjeev