FAO No. 1094 of 1991 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH FAO No. 1094 of 1991 (O&M) Date of decision : 13.5.2010 ... Ranjit Singh minor through Smt. Sukhwant Kaur ................Appellant vs. Kartar Singh and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Ms. Deepali Puri, Advocate and Sh. Rohit Verma, Advocate for the appellant Sh. B.S. Saini, Advocate for Sh. G.S. Nagra, Advocate for respondent No.1. Sh. Neeraj Khanna, Advocate for Sh. Ravinder Arora, Advocate for respondent No.3. ... K.C. Puri, J. (Oral) This is an appeal filed by Ranjit Singh against award dated 17.5.1991 passed by Sh. Harjit Singh, Motor Accident Claims Tribunal, Kapurthala, vide which the claim petition preferred by the claimant was accepted to the extent of no fault liability only. Briefly stated, the case of the claimant as set forth in the claim petition is that on 2.2.1990 at about 9.30 A.M. Ranjit Singh – claimant was going from Chabatia Chowk side on a cycle alongwith Jaspal Singh. When they reached opposite Civil Hospital Kapurthala, a tractor trailor bearing registration No. PUJ 645 driven by Kartar Singh owned by Punjab State Electricity Board, came. The driver of the tractor trailor was driving it rashly and negligently. He did not FAO No. 1094 of 1991 -2- blow any horn and the tractor tralior hit the cycle of Ranjit Singh by going on wrong side. Ranjit Singh fell down on the road and the wheel of the tractor trailor ran over his left leg and as a result of which portion of his left leg blow knee was chopped off . The claimant also received other injuries. The occurrence was witnessed by Jaspal Singh and Harjinder Pal Singh. It is alleged that claimant was a very shining and intelligent student and he was to appear in the entrance test of Sainik School and he wanted to be an army officer. A claim of Rs.10 lacs has been sought. The claim petition was contested by respondent no.1. It is alleged that there was no negligence on his part. Respondent No. 1 has pleaded that tractor trailor was loaded in its full capacity upto 15- 20 tonnes. When the tractor trailor reached near Civil Hospital, Kapurthala, after turning the road near State Gurdawara, Kapurthala and had travelled a distance of about 50 yard on the main Sultanpur Road, two children came from the opposite direction, who were playing with each other and did not care to see the road. Both the children were on one cycle and suddenly on account of their mischief, carelessness, the person who was driving the cycle could not control the same and struck against the rickshaw which was going ahead of that. Both fell down on the road. Ranjit Singh fell down in the middle of road and stuck with tractor trailor. Respondent No.1 applied brakes but the leg of Ranjit Singh came under the rear wheel of the tractor trailor and there was no fault of the driver. Respondent No.2 contested the claim petition on the same grounds as alleged by FAO No. 1094 of 1991 -3- respondent No.1. Respondent No.3 contested the claim petition taking the same pleadings. It is alleged that respondent No.1 was not holding a valid driving licence. From the pleadings of the parties, the following issues were framed:- 1. Whether Kartar Singh driver caused the injuries to Ranjit Singh by driving big truck No. PUJ 645 rashly and negligently on 2.2.1990 in the area of City Kapurthala? OPA 2. Whether the claimant is entitled to get the compensation. If so to what amount? OPA 3. From which of the respondents the claimant is entitled to get the compensation? OPA 4. Relief. Claimant-Ranjit Singh appeared as PW-1 and he examined Dr. R.P. Bhola PW-2, Jaspal Singh PW-3, Bachittar Singh PW-4,Dr. Amartej Singh Sohal PW-5, Iqbal Singh Padda, Advocate PW-6 and closed the evidence. In rebuttal, Kartar Singh -respondent No.1 has appeared as RW-1, Karam Singh appeared as RW-2. MHC Harbhajan Singh appeared as RW-3 and Sandeep Kumar appeared as RW-4. Learned Tribunal after appraisal of the evidence, returned the finding on issue No.1 against the claimant and has held that the claimant has failed to prove that accident has taken place due to negligence of driver of the offending vehicle. It is further held that Ranjit Singh - claimant was himself negligent. So, in view of finding on issue No.1, the amount of Rs.12,000/- was granted to the claimant FAO No. 1094 of 1991 -4- under no fault liability. It was ordered to be paid by all the respondents, jointly and severally. Feeling dissatisfied with the abovesaid award, the claimant has preferred the present appeal. The crucial issue for determination in this appeal is whether the finding on issue No.1 that accident has taken place due to negligence of Ranjit Singh and not on account of rash and negligent driving of offending vehicle by Kartar Singh, sustains the test of legal scrutiny. The answer to that question is in negative. The Tribunal has taken a hyper technical view while deciding issue No.1. Much weightage has been given to the testimony of the claimant when in the examination-in-chief he has stated that his left leg was run over by front wheel, whereas in the cross examination, he has stated that his left leg was crushed by the rear wheel. The learned Tribunal has not appreciated the fact that the claimant is a minor child of 11 years. The trauma of a young minor person at the age of 11 can be well imagined. It hardly makes any difference, whether the crush injuries was by the front wheel or the rear wheel. Ranjit Singh is the injured witness and his presence at the spot cannot be doubted. Besides the claimant, Jaspal Singh has supported the case of the claimant on all material particulars. The factum of accident has not been denied by the respondents. Kartar Singh appeared as witness for the respondent and has stated that Ranjit Singh claimant received injury while he was driving the tractor trailor on the day of accident. The Tribunal has given much weightage to the testimony of Kartar Singh. So far as, photostat copy of Compromise, Exhibit R-2, produced by the FAO No. 1094 of 1991 -5- respondent is concerned, that does not help the respondents. Exhibit R-2, is merely a photostat copy, in which Sukhdev Singh has mentioned that compromise has been got effected. It is nowhere mentioned in Exhibit R-2 that accident has not taken place due to rash and negligent driving of Kartar Singh. MHC Harbhajan Singh RW-3 was summoned by the respondent, who has stated that he was not having any compromise in the police custody. Inspite of the fact that original of Exhibit R-2 has not been produced, much weightage has been given by the Tribunal to Exhibit R-2, which also does not advance the case of the respondents. Kartar Singh is an employee of the Electricity Board. RW-2 Karam Singh is the colleague of Kartar Singh and has come forward simply to help Kartar Singh. RW-4 Sandeep Kumar SDO, is not an eye witness and as such his testimony is not of much relevance. He has stated about the compromise only. But as discussed above, in the compromise it is nowhere mentioned that Kartar Singh is not negligent. So, in view of the above, I have no hesitation in accepting the testimony of claimant, as well as, of Jaspal Singh. So, in these circumstances, the finding of the Tribunal on issue No.1 stands reversed and it stands determined in favour of the claimant-appellant. The Tribunal has not assessed the amount of compensation. The occurrence took place in the year 1990. It would not be in consonance of justice to remand the case for deciding the amount of compensation. So, the amount of compensation is being assessed on the evidence on the file. FAO No. 1094 of 1991 -6- From the testimony of PW-1 Ranjit Singh-claimant, it is revealed that his left leg has been amputated. PW-2 Dr. R.P. Bhola, who has conducted the operation, has stated that on 2.2.1990, he operated the left leg of claimant, which was amputated above the knee joint. He was discharged from the hospital on 16.2.1990. He has further stated that Ranjit Singh has become a permanent disabled person. He cannot walk without crèches. From the testimony of PW- 4 Bachittar Singh – Clerk, it is revealed that Ranjit Singh -claimant was to appear in the Sanik School for examination and he was injured on the same day. PW-5 Dr. Amartej Singh Sohal, has given the detail of injuries sustained by the claimant, which are as under:- 1. Crush injury on the left let present just below the knee. Laceration of skin and underlying blood vessels muscles and soft tissue present. Underlying bones broken and crushed. Complete separation of the left leg was present just below the knee due to crush injury. Fresh bleeding present in the wound. Margins of the wound irregular and lacerated. 2. Abrasion 6 cm X 3 cm reddish present on the right leg on its front surface. Painful. According to Dr. Amartej Singh Sohal, PW-5, injury No. 1 was grievous in nature, whereas injury No.2 was simple in nature. PW-6 Iqbal Singh Padda, Advocate has stated that he retired from Army as Major. He has further stated that a person who is recruited as Second Lieutenant direct, can go up to the post of Chief of the Army. He was getting Rs.4,000/- as pay in the rank of Major. Now, FAO No. 1094 of 1991 -7- Major gets Rs.6,000/- besides other perks. So, from the evidence, it emerges out that left leg above knee of the claimant has been amputated. So, if loss of income is taken as Rs.1,000/- P.M. by applying the multiplier of 18, the amount of future loss comes to Rs.2,16,000/-. The state of mind of a person whose left leg has been amputated could be well imagined. He would repent whole of his life whenever he would see towards his body. So, in these circumstances, a sum of Rs. 1,00,000/- stands granted on account of mental pain and sufferings. He has suffered trauma on account of permanent disability. Another amount of Rs.5,000/- stands allowed on account of special diet. Although no medical bills have been produced on the file, but keeping in view the nature of injury, the claimant is allowed a sum of Rs.10,000/- on account of medical expenses. Another sum of Rs.25,000/- stands allowed on account of attendant's charges. So, in this manner, the claimant is held entitled to claim Rs.3,56,000/- (2,16,000 + 1,00,000 + 5,000 + 10,000 + 25,000). The said amount shall carry interest @ 7% per annum from the date of filing of petition till realisation. The amount of Rs.12,000/- awarded by the Tribunal on account of no fault liability, shall be adjusted, if already paid. The said amount shall be paid by all the respondents jointly and severally. The appeal stands disposed of. A copy of this order be sent to the Tribunal for strict compliance. ( K.C. Puri ) 13.5.2010 Judge chugh FAO No. 1094 of 1991 -8-