FAO No.5458 of 2010 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.5458 of 2010 Date of decision : 29.07.2011 Dharam Singh Rana ….Appellant Versus Dharmender Kadian and another ….Respondents Present: Shri B.S. Rana, Advocate, for the appellant; Shri Gopal Mittal, Advocate, for Insurance Company; and Shri Bhim Singh, Advocate, for respondent no.1. Jitendera Chauhan, J. CM No.23859 of 2010 CM is allowed. Delay of 70 days in filing the appeal is condoned. FAO No.5458 of 2010 This appeal has been filed by Dharam Singh Rana, injured, against the impugned award dated 24.10.2009 of the Motor Accident Claims Tribuanal, Rohtak ( herein referred to as ‘the tribunal’) with a prayer to enhance the amount of compensation. Brief facts, as set out in the Claim Petition No.8 of 2006, are that Dharam Singh Rana, appellant-claimant, was returning after completing his duty from M.D.University, Rohtak, on 10.2.2005 at 1 FAO No.5458 of 2010 about 5.00 PM. When he reached near Rose Garden, motor cyclist Dharmender Kadian, driver-cum-owner, while driving his motor cycle No.HR 12 F- 6534, in a rash and negligent manner, without observing traffic rules, hit the claimant appellant. Due to impact of the accident, the claimant appellant sustained multiple injuries. An FIR Ex.P.2 was registered against the driver of the offending motor cycle. Respondent no.1 Driver cum Owner contested the claim petition on the grounds that the vehicle in question has been falsely involved in the criminal case; that he possessed a valid driving license at the time of the accident; and the motor cycle is fully insured with the National Insurance Company Ltd. Respondent no.2 Insurance Company contested the claim petition stating that the driver cum owner was not having a valid and effective driving license and the insurer wilfully violated the terms and conditions of the insurance policy. The Insurance company denied its liability to pay the compensation. The learned tribunal held that the accident in question took place due to rash and negligent act of driving of respondent; the Insurance company was liable to pay the compensation and the claimant appellant is entitled to compensation of ` 70,000/-, payable by the respondents jointly and severally. The appellant-claimant, dissatisfied with the amount of compensation, preferred this FAO for enhancement of the compensation. Learned counsel for the appellant argued that the learned Tribunal has awarded inadequate compensation. He argued that the 2 FAO No.5458 of 2010 appellant claimant remained admitted in the PGI Hospital, Rohtak from 10.2.2005 to 15.5.2005, incurred a sum of ` 1,06,678/- on his treatment and only a sum of ` 95,388/- was reimbursed by the department. He further argued that only a sum of ` 70,000/- has been awarded on account of 35% permanent disability in view of Piara Singh and others vs Kumar and others reported as 2007(2) Punjab Law Reporter (P&H) 143. The appellant remained on earned leave for seven months, due to the injuries suffered by him in this accident. The appellant claimant is entitled to more compensation towards the equivalent amount of seven months salary, special diet, transportation and attendant charges. On the other hand, the learned counsel for the respondents argued that adequate and reasonable compensation has been awarded by the learned Tribunal and no other amount could have been granted. I have heard the learned counsel for the parties and carefully gone through the records with their able assistance. The only point to be decided in this case as to what amount of compensation the injured appellant is entitled to? So far as the grant of a sum of Rs.70000 towards permanent disability to the extent of 35% is concerned the learned Tribunal has rightly awarded this compensation. There is no scope to increase this amount under this head. PW3 Jagdish Lal proved that the appellant claimant had submitted medical reimbursement bill amounting to ` 1,06,678/-, but only a sum of ` 95,388/- was paid to him for which amount he was actually entitled to reimbursement. Therefore, the appellant is entitled 3 FAO No.5458 of 2010 to the increase of ` 12,000/- on account of less payment of reimbursement of medical bill by the department. The next point raised by the counsel for the appellant is about the encashment of the unutilized earned leave. A Government employee is entitled to encashment of unutilised earned leave (subject to a maximum of 300 days) due becoming payable to a Government servant at the time of his retirement. PW1 Kanwar Singh proves that carry home salary of the claimant is ` 10,470/- per month after deductions. The claimant PW2 proved that he availed of seven months earned leave. There is no evidence on record as for what period he availed of earned leave with full pay; medical leave with half pay and leave without pay. Presuming that he has availed of medical leave with full pay, certainly he is entitled to the leave amount for seven months at the rate of his carry home salary. The appellant claimant should have proved his leave account by summoning his service record. But that was withheld. This court cannot reach to an exact figure but approximately, the appellant claimant is entitled to an approximate amount of ` 73,000/- equivalent to the actual availed of medical leave on full pay for seven months. In the opinion of this court, the Tribunal omitted to grant a just and reasonable amount towards the heads : Attendant charges, Transportation charges, and Pain and Sufferings. The claimant while appearing as PW2 has stated that he had to employ two attendants, one at his house and the other at the hospital for which he had paid ` 6,000/-; he attended the OPD, PGIMS, Rohtak for follow up treatment and spent ` 10,000/- on transportation. So, he is entitled to ` 4 FAO No.5458 of 2010 16,000/- under both these heads as claimed by him. The claimant appellant was operated upon fracture of both bone leg left side for nailing tibia and dislocation right knee infected for knee arthrodesis as proved from discharge card Ex.P.6. PW5-Dr Rajan Sahu proved that at the time of admission, the patient was in shock and had multiple injuries including head injury and in altered sensorium. The detail of the treatment is Ex.P.4 and copy of the MLR is Ex.P.5. Permanent disability certificate Ex.P3 proves his permanent disability to the extent of 35%. There is mild limitation of movements of right ankle and left wrist. During this treatment, he remained bed ridden for seven months including three months in the hospital as an indoor patient. He must have remained under great pain and suffering during all this period for which he is entitled to get compensation of ` 25,000/-. Keeping in view the above discussion, the appellant claimant is entitled to more compensation as under over and above the already granted by the tribunal. i) Non Reimbursement of medical bill. ` 12,000.00 ii) Salary of seven months ` 73,000.00 iii) Attendant charges ` 6,000.00 iv) Transportation charges ` 10,000.00 v) Pain and suffering ` 25,000.00 Total ` 1,26,000.00 Accordingly, this appeal is allowed partly and the award dated 24.10.2009 is modified to the above extent. The enhanced amount of ` 1,26,000/- shall be deposited by the respondents within 45 days from the receipt of certified copy of this 5 FAO No.5458 of 2010 judgment, failing with the claimant shall be entitled to 7.5% interest per annum from the date of filing of this appeal, till its payment. ( JITENDRA CHAUHAN ) July 29,2011 JUDGE *Sharma*/atulsethi Note: Whether to be referred to reporter ? Yes/No 6