FAO No.64 of 1992 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.64 of 1992 DATE OF DECISION: January 20, 2011 KULDEEP SINGH ...APPELLANT VERSUS BAGICHA SINGH AND OTHERS ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement? Yes/No 2. To be referred to the reporters or not? Yes/No 3. Whether the judgement should be reported in the digest? Yes/No ---- PRESENT: MR. L.M. SURI, SENIOR ADVOCATE WITH MR. NEERAJ KHANNA, ADVOCATE FOR THE APPELLANT. MR. D.P.S. KAHLON, ADVOCATE FOR RESPONDENT NO.1. MR. H.S. GILL, DAG, PUNJAB FOR RESPONDENTS NO.2 AND 3. NONE FOR RESPONDENS NO.4, 5 AND 6. K.KANNAN, J.(ORAL) 1. The appeal is at the instance of the insurer and the owner of the truck. Learned counsel seeks for transposition of the insurer as respondent and seeks for permission to prosecute the appeal at the instance of the owner of the truck. I accord the permission and proceed to examine the case on the issue of quantum and negligence. 2. Learned senior counsel appearing on behalf of the owner states that it was a case of collision between two vehicles and if at all, the bus in which the claimant was travelling must have also been taken as equally FAO No.64 of 1992 -2- responsible for the accident. Learned counsel relies on the evidence of witness, namely, Nachhattar Singh PW4 and Bagicha Singh, PW5, other passengers in the bus to say that both the driver of the bus and the truck were driving at a fast speed and therefore, there must be finding of equal negligence of both the persons in a case where two vehicles are involved. The case of negligence cannot be apprised merely on the basis of what the claimant or his witnesses say. It is invariably a multi cornered fight, if more than 2 vehicles are involved. Their representatives will have to be sifted to come to a proper conclusion. It was a case where the claimant was sitting in the last row of the bus and the truck had hit against the rear side of the bus chopping his hand off. It was also suggested that the passenger had got his hand out and the hand got chopped-off. In the manner in which the accident had taken place with only one passenger suffering a privation of his arm, I would only take this to be negligence of the driver of the truck and I find no part of negligence on the driver of the bus. I would hold the truck responsible for the accident, also by the fact that while the driver of the bus explained the accident from his perspective, the driver of the truck did not take courage to face the witness stand. The non-examination of the driver of the truck,, in my view, is significant to explain his own conduct. I maintain the issue of negligence as determined by the Tribunal. 3. As regards the quantum of compensation determined by the Tribunal, it was stated that the claimant was earning `1100/- and the Tribunal took the disability due to amputation to have resulted in 100% loss of earning capacity. The loss of arm from the shoulder would work out to 90% loss of earning capacity as per the Schedule of the Workmen's Compensation Act and I would take the loss of earning capacity as FAO No.64 of 1992 -3- `11,880/- and adopt a multiplier of 18 and take the loss of earning capacity at `2,13,840/-. I would provide for loss of amenities to life for a person who was suffering amputation of his hand at `75,000/- and provide a further sum of `25,000/- towards pain and suffering. The Tribunal has provided for medical expenses at `10,000/- which I would retain. The amount of compensation shall, therefore, stand scaled down to `3,23,840/- to what has been already determined by the Tribunal. I am constrained to make this reduction, albeit with much reluctance for the sake of consistency in approach and adopt the scales of compensation on definite tools of arriving at the just compensation, instead of adopting a populist approach. However, if the amount has been recovered by the claimant, having regard to the fact that the case has come up for trial after nearly 20 years and the claimant would have also had the benefit of the claim. I will not suffer the claimant for any refund of the same. 4. The award is modified and the appeal is ordered as above. The liability shall be on the insurance company for the vehicle which is being held responsible for the accident. January 20, 2011 (K.KANNAN) Gulati JUDGE