FAO No.635 of 1990 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.635 of 1990 DATE OF DECISION: February 1, 2011 COL. BALWINDER SINGH (RETD.) ...APPELLANT VERSUS SAMUNDARI ROADWAYS (PVT.) LTD. ...RESPONDENTS MUKTSAR AND OTHERS PRESENT: MR. H.S. GILL, SR.ADVOCATE WITH MR. DHARMENDER SHARMA, ADVOCATE FOR THE APPELLANTS. NONE FOR RESPONDENTS NO.1 AND 3 MR. INDERJIT SHARMA, ADVOATE AND MR. PARDEEP BEDI, ADVOCATE FOR THE RESPONDENT NO.2 2. FAO No.563 of 1990 PARMA DEVI AND OTHERS ...APPELLANTS VERSUS SAMUNDARI ROADWAYS ETC. ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE K.KANNAN. 1. Whether reporters of local papers may be allowed to see the judgement? No 2. To be referred to the reporters or not? No 3. Whether the judgement should be reported in the digest? No ---- PRESENT: MR. ASHOK SINGLA, ADVOCATE FOR THE APPELLANTS. NONE FOR RESPONDENTS NO.1 AND 3 MR. INDERJIT SHARMA, ADVOATE AND MR. PARDEEP BEDI, ADVOCATE FOR THE RESPONDENT NO.2. K.KANNAN, J.(ORAL) 1. The appeal is for enhancement of claim of compensation for the FAO No.635 of 1990 -2- injuries sustained in an accident to a passenger of the bus that was involved in the accident. The accident is said to have resulted when the driver of the bus was overtaking a tractor and the driver lost control and dashed against the tree. The claimant is reported to have given a statement before the Police that the driver was not responsible for the accident. I will take this as not binding this Court in any way, although the Tribunal found this to be the basis for rejecting the plea that the driver was not responsible for the accident and had awarded only `7500/- on No-fault basis under Section 92A of the Motor Vehicles Act, 1939. 2. The bus dashing against the tree literally results in a res ipsa loquitor situation and I will not permit the owner of the driver of the bus to contend that the accident took place without reference to any negligence on the part of the driver. Even if a negligence of the driver is not to be seen in a case of any mechanical fault, such mechanical failure shall be taken as a poor upkeep of the vehicle unless the log-sheet relating to repairs to prove otherwise has been brought out. I would not allow the owner to contend that no negligence could be attributed either to him or the driver. The exoneration of liability for the accident by the Tribunal was wholly untenable and I set aside the finding. I would find, on the other hand, that the owner of the vehicle is responsible for the accident. 3. The claimants' injuries had been recorded by Dr. R.K.Arora. The Doctor had stated that the claimant was walking with a limp and his leg and hip joints were totally disorganized and that is a source of pain and limp. It was stated that he had been confined to bed for a long time and the pain and the limp of the left hip joint would remain permanently and he would be able to walk only with the help of stick. The Doctor also opined FAO No.635 of 1990 -3- that the claimant would have difficulty in driving any vehicle because of non-union of fracture of the left forearm. He also stated in the course of cross-examination that even at the time when he discharged the patient, he had not still fully recovered. 4. The claimant who at the time of trial was 60 years of age and his evidence was that he was removed from the spot in a truck of PSEB to the Civil Hospital at Malout where he was given first aid and later taken to the Medical College & Hospital at Faridkot where he remained admitted for 20 days. He claimed that he had been operated twice and traction was also given to him for the dislocation of right leg and hip. He stated that he remained confined to bed for about 3 months at Faridkot and he used to have a Doctor coming regularly to have a check-up. He stated that he had further taken treatment at Military Hospital at Dehradun and on account of the injuries he was not able to supervise his agricultural land and he claimed that he had spent about `20,000/--`25,000/- for his treatment and was also taking a special diet. He stated that he had suffered a huge loss on account of his injuries, but strangely he gave no evidence of what the financial loss was. PW6 was examined who stated that he was cultivating the land of the claimant. 5. The quality of evidence relating to pecuniary heads of claim are too skeletal to make any meaningful calculation. I would, therefore, make some modifications to what I think are appropriate for a person who has taken treatment at three places, firstly at Malout and then later at Faridkot and still later at Dehradun. I would assume that the medical expenses for three months would have been `20,000/- in the manner in which he has spoken. I will provide for an additional amount of `5000/- towards FAO No.635 of 1990 -4- transportation expenses. I will make a further addition of `5000/- towards special diet and yet another `5000/- for attendant charges. As regards the loss of income during the period of his treatment, I will provide for `25,000/- and as regards the future loss of income having regard to the fact that he was himself aged 60 years,I would take the 40% disability to have resulted in 25% loss of earning capacity and would take the loss of his managerial skills for the land that was to an extent of about 25 acres and take the same to be `3000/- at the relevant time of the accident. This would mean the loss of earning power as having resulted at `81,000/-. For the three fractures which he suffered and for two surgeries he had undergone, I would provide for a compensation of `20,000/-. In all the total compensation will be `1,61,000/-. The amount in addition over what has been already determined by the Tribunal shall attract interest @ 6% from the date of petition till the date of payment. 6. As regards the liability, the insurance company would claim restriction of liability on the ground that he was a passenger in a bus and the limit of liability for anyone accident as per requirements of the Act at the relevant time was only `15,000/-, as per Section 95(2)(b) of the Act. The liability of the insurance company will, therefore, be restricted only to `15,000/- with interest and the amount in excess shall be borne by the owner of the bus, namely, Samundari Roadways. 7. The appeal is allowed to the above extent. 8. FAO No.563 of 1990 relates to death of a passenger in the bus. The Tribunal had provided only for a compensation of `15,000/- under No- fault basis liability. Having regard to the fact that I have found that the FAO No.635 of 1990 -5- driver of the bus was responsible for the accident, I proceed to examine the entitlement under Section 110 of the Motor Vehicles Act of 1939. The deceased was earning `2200/- per month and having regard to the fact that he was supporting a large family of his widow, minor son and daughter, I will provide for 1/3rd deduction and take the contribution to the family at `800/-. I will adopt a multiplier of 13 and find the loss of dependency at `1,24,800/-. I will make further addition towards loss of consortium and loss of love and affection at `5000/- for the wife and at `2500/- each for the children. I will also add sums towards loss to estate and funeral expenses to round of the entire amount to 2,50,000/-. There was an evidence to the effect that that the claimants have spent about 10,000/- on transportation the person from Malout to the hospital at Faridkot and after death to the village. I will provide an additional amount of 10,000/- for the same. The total amount of compensation that will become payable will be `2,60,000/-. The increase amount of compensation will be distributed equally. Consistent with the finding rendered already that the liability of the insurance company is restricted to `15,000/-, the amount in excess shall be borne by the owner of the bus, namely, Samundari Roadways through his owner. The appeal is allowed on the above terms. February 1, 2011 (K.KANNAN) Gulati JUDGE