FAO No. 4874 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH FAO No. 4874 of 2009 Date of decision January 12 , 2011 Mukesh Kumar ....... Appellant Versus Lakhwinder Singh and others ........Respondents CORAM: HON'BLE MR. JUSTICE K. KANNAN Present:- Ms. Aparna Jain , Advocate for the appellant. Mr. Gopal Mittal , Advocate for the respondents. **** 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 appeal is for enhancement of compensation for injury suffered in a motor accident by a passenger in a bus whose hand was amputated from the shoulder and his disability assessed at 90%. The Tribunal awarded a compensation of Rs.2,47,050/- and deducted 1/3rd for the alleged contributory negligence of the claimant for getting his hand cut and awarded a compensation of Rs.1,64,700/-. 2. The case had been registered on a complaint by the complainant himself where he had alleged that the truck coming from the opposite direction was responsible for the accident. The Tribunal found that the accident had been caused by the negligence of both the vehicles FAO No. 4874 of 2009 2 and therefore held the respondents jointly and severely responsible for the damages. While the joint responsibility in a case made by the Tribunal cannot be assailed under such a situation, the counsel appearing for the appellant strongly contests the reduction of the award by 1/3rd amount for alleged contributory negligence. The counsel points out that even the observation of the Tribunal that the truck and the bus did not touch each other but only the claimant had suffered an injury by keeping his hand out is not correct, since the driver of the bus had admitted in his evidence as RW-3 that other passengers in the bus also received minor injuries but he could not recall the names. It was further elicited in the evidence that the driver had never asked the passenger to keep his arm inside and he could not also recall whether the conductor had cautioned any passenger to keep his arm inside. These aspects of evidence, in my view, are very important for it cannot be stated as a rule of thumb that whenever an amputation is suffered by a passenger by keeping his hand out, it must be taken that he was guilty of contributory negligence. It shall be duty of the driver and conductor to enforce rules of safety to passengers and the admission elicited from the driver's evidence that neither he nor the conductor cautioned any passenger to keep his arm inside ought to have been a fact for a trial court to consider to find that the driver of the bus must be certainly responsible for not providing sufficient space between his vehicle and other vehicle coming from the opposite side. This issue has been considered by this Court in State of Haryana Vs. Ram Pal reported in AIR 1989 (Punjab) 137, when the Court held that there is no rule of law which bars passengers from putting their arms on the window and indeed the common experience is that this was often seen to be incumbent upon the driver to ensure that while going fast or crossing a vehicle, building or other object, there is sufficient margin left to avoid any mishap to any passenger on account of his or her arm, while on the window, protruding FAO No. 4874 of 2009 3 out. This I would understand is a statement of what is most exigent and what should govern safety driving of a driver of a vehicle which shall be observed more by a driver than by a passenger. I will therefore vacate the finding of contributory negligence and hold both the driver of the bus and truck to be responsible for the accident. Since the accident has resulted involving two vehicles it should mean that there was a composite negligence of both the drivers of the respective vehicles and it shall be open to the claimant to claim the amount against any one of the tort feasors and the person against whom recovery is made shall be at liberty to seek for contribution of the owner of other vehicle. 3. While assessing compensation the Tribunal has determined Rs.10,000/- as going towards pain and suffering and I will increase the same to Rs.25,000/-. The loss of amenities of life for a person who was a goldsmith must also be properly compensated, I would provide for additional sum of Rs.25,000/- towards loss of maintenance. He was an income tax assesses and for the year 2004-05 he had been assessed to income for Rs.71500/- and for the year 2005-06, that was immediately before the accident he was assessed to income at Rs.1,03,500/-. After payment of tax, he was earning total income of Rs.90,000/-, I would take the yearly income at Rs.90,000/- and would take 90% disability as resulting in 90% loss of earning capacity, having regard to the peculiar situation of claimant being a goldsmith and his own nimble fingers and skills would have contributed to his earning and amputation should have resulted a substantial loss to the earning capacity. The Tribunal has assessed his age at 44 years which I would retain. The appropriate multiplier therefore would be 14. The loss of earning capacity would be Rs.90,000/- x 90% x 14 . It would come to Rs.11,34,000/-. The total compensation would therefore be 13,14,000/- and the amount in excess of the amount awarded by the Tribunal shall carry interest at the rate of 6% from the date of petition till the FAO No. 4874 of 2009 4 date of payment. The claimant shall be entitled to enforce award against any one of the respondents and the person who had been owner or insurer of one vehicle shall be at liberty to seek for contribution from the owner of the other vehicle taking both the bus and the truck to be equally responsible for the accident. (K. KANNAN) JUDGE Jaunary 12, 2011 archana