FAO No. 401 of 1992 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 401 of 1992 Decided on : 17-12-2008 Sh. Sanjeev Kumar Mittal ....Appellant VERSUS Joginder Singh and another ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. O.P.Goyal, Senior Advocate with Ms. Priya Khurana, Advocate for the appellant. MAHESH GROVER, J This appeal is directed against the award of the Motor Accident Claims Tribunal, Ambala dated 26.11.1991. The claim petition preferred by the appellant on account of the injuries that he had suffered in an accident which took place on 8.5.89 was declined as the Tribunal came to the conclusion that the appellant had been unable to prove the negligence which he attributed to the driver of the bus. Dis-satisfied with the award the appellant is in appeal. It was contended by the learned counsel for the appellant that the evidence on record conclusively shows that the accident had been caused on account of the rash and negligent driving of the bus. He refers to the testimony of the appellant PW1 and another witness whom he had produced to substantiate his pleadings. I have heard learned counsel for the appellant and have FAO No. 401 of 1992 2 perused the record. A perusal of the testimony of PW1, the appellant himself is revealing to an extent. He has stated that he was proceeding on his scooter near the divider of the road and the bus was in the process of over-taking from the left side of his scooter and in that process bus hit his scooter on the left side causing injuries to him. The Court need not to travel to any other evidence to understand the manner in which the accident had taken place. According to the case of the appellant himself he was driving towards the right side near the divider of the road which is not expected from the driver of the scooter and is contrary to the traffic rules. Slow moving traffic has to be on the left side of the road to give path to the fast moving traffic like bus. From this it can be inferred that the appellant himself was also guilty of having caused the accident. In so far as the negligence of the bus driver is concerned, it can also be inferred that he was negligent that he took the bus so close to the scooter so as to strike against it. There is evidence in the shape of testimony of the driver of the bus who stated that he shifted towards the right side because of the sudden arrival of the stray cattle on the road. When all these pieces of evidence are taken into consideration cumulatively it appears that both the drivers are partially responsible for causing the accident. Therefore, there is little hesitation to hold that the driver of both the vehicles i.e bus and the scooter have contributed to the accident. In so far as the apportionment of the liability regarding negligence is concerned prima facie it appears that the appellant was driving vehicle on the side which was not meant for him. Therefore, the inter se liability is determined as 70% to the appellant and 30% to the driver of the bus. Now coming to the question of compensation, the details of the FAO No. 401 of 1992 3 injuries have come in the testimony of PW4 Dr.S.N. Mathuria, Associate Professor, Neresurgery, PGI, Chandigarh who has stated as follows:- “He has a sutured would in the left parietal region and had depressed fracture in the left frontal region. He underwent craniectomy and dural repair with the help of neuro-surgeon and plastic surgeons on 10.5.89. The OPD card (photo-stat) 28617 belongs to Sanjeev Mittal which is Ex. C.W.4/1. I have also seen its original. The bone fregments which have been removed at the time of surgery performed on 10.5.89, have produced a bone defect in the frontal region which is to be bridged in by cranieplasty surgery. I have seen the original of another card which bears the No. as 30198. It is Ex.CW 4/2. It is correct copy of the original. The previous operation was major operation. The operation to be performed now is comparatively minor. In case the patient is not subjected to crenieplasty surgery, the bone defect (cosmatically bad) continues in addition the patient is exposed to the direct injury to the underlying brain which does not have a bone cover.” It is apparent that the appellant had suffered injuries on his head which required one major and the other minor surgery. There is no proof of the expenses that the appellant incurred on his treatment. There is no permanent disability which has been established on record. The Court is therefore left with no option but to travel to realm of conjectures to determine the quantum of compensation. The appellant was aged 23 to 24 years at the time of accident. He was engaged in the business. Apparently he had suffered damage to his skull which required immediate surgery. It would thus be safe to assess the FAO No. 401 of 1992 4 amount spent on medical treatment as Rs.15,000/-. Being a young man, the injuries are going to haunt him for the entire life and there is a trace of a suggestion in the testimony of PW4 that it is likely to dis-figure his face. Therefore, in this eventuality, the amount for pain and suffering is assessed as Rs.75,000/-. Rs. 5,000/- is awarded for loss of income which he would have suffered on account of hospitalisation and another amount of Rs.5,000/- for special diet etc. In this manner, compensation comes to Rs. 1 lakh. Since the appellant had been held guilty of contributing to the accident to the extent of 70%, therefore, he is entitled to 30% of the awarded amount i.e. Rs.30,000/-. The enhanced amount of compensation shall be paid alongwith interest at the rate of 9 % per annum from the date of filing of petition till the date of its realisation. The liability to pay the amount shall be of the respondents shall be joint and several. I am of the considered opinion that dismissal of the claim petition by the Tribunal on the issue of limitation is also erroneous as considering it from any angle there is only a marginal delay in preferring the petition and the proceedings before the Tribunal are a result of a beneficial legislation which should be interpreted liberally. The appeal stands disposed of in the aforesaid terms and the award of the Tribunal is modified accordingly. December 17 , 2008 (Mahesh Grover) rekha Judge