F.A.O. No. 4219 of 2010 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 4219 of 2010 (O&M) Date of Decision: September 21,2011 Akash .... Appellant Versus Baljit Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. Ranjit Saini, Advocate, for the Appellant. Mr. Abhishekh Jain, Advocate, for Mr. Pritam Saini, Advocate, for respondent No.2. Ms. Vandana Malhotra, Advocate, for respondent no.3. VIJENDER SINGH MALIK, J. This is an appeal of the claimants for enhancement of compensation. The claimant-appellant is a minor, who has brought this appeal, through his father, Naresh Kumar. He has suffered 100% permanent disability and in his petition filed under Section 166 of the Motor Vehicles Act, 1988 (for short, "the Act"), learned Motor Accidents Claims Tribunal, Yamunanagar has awarded compensation in a sum of Rs.3,43,000/- vide award dated 2.2.2010. The claim of the appellant is as under :- On 15.6.2008, Suresh Kumar was going to his shop on his F.A.O. No. 4219 of 2010 2 .. motor cycle driven by him on his correct left side of the road at a moderate speed. He was holding his nephew – Akash in his lap. At about 6.00/6.15 PM, he was near his shop in Radaur. In the meanwhile, a car bearing registration No. HR-11C-5555, driven by respondent No.1, came from his opposite side. It was driven in a rash and negligent manner. Its driver tried to over-take a truck moving ahead of it and in the process, the car had struck against the motor cycle of Suresh Kumar at the kacha berm of the road. On account of the accident, Akash flew into air and fell on the ground suffering injuries. Naresh Kumar, who saw the accident, took Suresh Kumar and Akash to Gaba Hospital, Yamuna Nagar on 15.6.2008 itself. They were referred to PGI, Chandigarh, where Suresh Kumar died on 17.6.2008. The matter was reported to the police at Police Station Radaur vide FIR No. 91 dated 16.6.2008 for an offence punishable under sections 279, 337 and 304-A IPC. From Gaba Hospital, Yamuna Nagar, Akash was taken to Government Medical College, Chandigarh, where he remained admitted upto 24.6.2008, from where he was taken to Saini Children Hospital, Ladwa where he remained admitted upto 26.6.2008 and then he was taken to PGI, Chandigarh, where he remained admitted for one month. He was also referred to PGI, Rohtak where he remained admitted for 11 days. A sum of Rs.3.00 lacs was spent on his treatment including special diet, transportation and attendant. A sum of Rs. 10.00 lacs has been claimed as compensation. The claim petition is resisted by the respondents. The F.A.O. No. 4219 of 2010 3 .. driver and owner in their joint written statement have denied any accident to have taken place while driving the car in question at the place mentioned in the petition. The claim petition is said to have been filed with malafide intention. The Insurance Company – respondent No.3, has denied the accident to have taken place with the car in question on the given date, time and place. FIR lodged about the accident is claimed to have been false. It has been alleged that the deceased was driving the motor vehicle with a child in his lap and he fell down on the road by losing the balance of the motor cycle. The amount claimed as compensation is said to be highly excessive. Respondent No.1 is denied to have a valid and effective driving license and it is claimed that the vehicle was being driven in violation of terms and conditions of the Insurance policy. On the pleadings of the parties, following issues were framed:- 1. Whether the death of Suresh Kumar took place and Aakash claimant sustained injuries due to rash and negligent driving of car No. HR-11C-5555 by respondent No.1? OPP 2. Whether the claimants in claim petition No. 134 of 2008 are the only legal heirs of deceased Suresh Kumar and the claimants in both the claim petitions are entitled to compensation? If so, how much and from whom?OPP 3. Whether the claim petitions are bad for non-joinder of necessary parties, as alleged? OPR 3 4. Whether the claim petitions have been filed by the claimants in collusion with respondent No.1 and 2? OPR3. F.A.O. No. 4219 of 2010 4 .. 5. Whether respondent No.1 was not holding a valid driving licence at the time of accident? If so, its effect? OPR3 6. Relief Dissatisfied with the award, the claimant has filed the present appeal. I have heard Mr. Ranjit Saini, Advocate, for the appellant- claimant, Mr. Abhishekh Jain, Advocate, for respondent No.2 and Ms. Vandana Malhotra, Advocate, for respondent no.3-Insurance Company and have gone through the records. Learned counsel for the appellant has submitted that a meagre amount has been allowed as compensation in this case. According to him, it is a case of 100% disability suffered by a child at the age of 3 years and a sum of Rs.2.00 lacs only has been awarded as compensation for the permanent disability. According to him, the life of the appellant is a saga of miseries and the amount assessed for pain and suffering at Rs.40,000/- is also on a lower side. It is also claimed that the amount of Rs. 9,000/- , 9,000/- and 10,000/- assessed for nutritious diet, attendant charges and transportation respectively are also not adequately compensating the loss. He has submitted that the peculiar circumstances of the case should have been taken into account to award adequate compensation, which has not been done in this case. Learned counsel for the respondents have submitted that the amount of Rs.2.00 lacs as compensation for the disability is quite F.A.O. No. 4219 of 2010 5 .. reasonable. According to them, there is no evidence of the complainant's suffering any pain at the time of his treatment. They have also submitted that the amount of Rs.9,000/- allowed as compensation for nutritious diet has been assessed taking Rs.1,500/- per month for six months and it is also adequate. They have, thus, submitted that there is no scope for enhancement of compensation in this case. Learned counsel for respondent No. 3 has also submitted that the disability of 100% is not proved to be permanent in this case. According to her, this disability may improve. According to her, it is also not certain as to for how long, the claimant would survive this disability. The submission that the claimant may not survive for long with this disability is hypothetical. At present, there is no threat to his life. At least there is no evidence to prove any such danger to his life. He is to live with the disability throughout his life. Dr. Vikas Pal (PW-6) was examined from the Board, which assessed the disability of the claimant. The disability is assessed at 100% on account of poly trauma and spinal injury with paraplegia with bladder and bowel involvement. In case of disability involving bladder and bowel, the life turns out to be a nightmare. Such a person would require attendant throughout the life because, he would have no control over the bladder and bowel. In such a case, the compensation assessed by learned Tribunal is abysmally low. This special fact requires assessment of higher compensation for the F.A.O. No. 4219 of 2010 6 .. disability. Along with it, the expenses on the attendant cannot be ignored. The claimant would require transportation throughout his life and in these circumstances, enhancement of compensation by Rs. 2.00 lacs appears to be required to make the compensation commensurate with the loss suffered by the claimant. In these circumstances, I allow the appeal and enhance the compensation by a sum of Rs.2,00,000/-. Now, the claimant would be entitled to Rs.5,43,000/- as compensation. The other terms of the award shall remain the same. (VIJENDER SINGH MALIK) JUDGE September 21st, 2011 som