F.A.O. No. 4140 of 2001 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 4140 of 2001 Date of Decision: December 15th, 2011 Devinder Kumar .... Appellant Versus Sardar Sawinder Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? Present Ms. Seema Pasricha, Advocate, for the appellant. Mr. R.N.Singhal, Advocate, for respondent No.3-Insurance Company. VIJENDER SINGH MALIK, J. This is an appeal brought by the claimant for enhancement of compensation awarded to him by the Motor Accidents Claims Tribunal, Karnal (for short, "the Tribunal") in a sum of ` 51,000/- vide award dated 25.7.2001. The claim petition had been brought by the appellant under section 166 of the Motor Vehicles Act, 1988 (for short, “the Act”) seeking compensation in a sum of ` 10,00,000/-. The facts necessary to decide this appeal are as under: F.A.O. No. 4140 of 2001 2 .. On 24.07.1999, the claimant was coming from Taraori on his motorcycle bearing registration No. HR-05E-7585. When he was near NDRI gate, a canter bearing registration No.HNQ- 7507 came from the side of Liberty Chowk in a rash and negligent manner and it had hit the claimant at the back of his motorcycle when he was trying to take turn. On account of this, the claimant suffered injuries. He was driving the motorcycle at normal speed and was observing the traffic rules. The speed of the canter was so high that the driver could not control the said vehicle and had caused the accident. Though, a report was lodged with the police, yet he could not mention the number of the vehicle as well as name of the driver in the FIR and on account of the same, the police did not take any action in the matter. The respondents resisted the claim petition. One of the pleas which is common to them is that no such accident took place due to rash and negligent driving of the canter in question. It was claimed that the accident was due to the negligence of the claimant himself. It is further claimed by them that the claimant took turn suddenly on account of which, he suffered minor injuries. The claimant is, therefore, denied to deserve any compensation. Respondent no. 3, the insurer, has pleaded in addition to the aforesaid pleas that respondent no.1 did not inform the Insurance Company about the accident. It is claimed that the F.A.O. No. 4140 of 2001 3 .. claimant and the insured are in collusion with each other and the present petition has been brought just to grab compensation from the insurer. It was also pleaded that respondent No.1 was not holding a valid driving licence at the time of the accident and, therefore, the insured had violated the terms and conditions of the insurance policy. On the pleadings of the parties, the following issues were framed by learned Tribunal. i). Whether the accident in question resulting into injuries was caused due to rash and negligent driving of vehicle No.HNQ-7507 by respondent No.1 ? OPP. ii). If issue No.1 is proved, whether the claimants are entitled for compensation, if so to what amount and from whom? OPP. iii). Whether the present petition is not maintainable? OPR iv). Whether respondent No.1 was not holding a valid driving licence if so to what effect? OPR v). Whether there is any collusion between the petitioner and respondent No.1 and 2? OPR vi). Relief. Parties led their respective evidence. Hearing learned counsel representing them, learned Tribunal found that the accident had occurred due to rash and negligent driving of F.A.O. No. 4140 of 2001 4 .. canter bearing No.HNQ-7507 driven by Sawinder Singh, but has simultaneously held that the claimant was also negligent in driving the motorcycle and the accident is an outcome of contributory negligence of both the claimant and respondent No.1. Assessing compensation in favour of the claimant in a sum of ` 1,02,000/-, learned Tribunal has held the claimant entitled to 50% of the same because he had also contributed his negligence towards the cause of the accident. Aggrieved by the award in more than one way, the claimant has brought this appeal. I have heard Ms. Seema Pasricha, learned counsel for the appellant and Mr. R.N.Singhal, learned counsel for respondent No.3-Insurance Company. I have gone through the record carefully. Learned counsel for the appellants has submitted that learned Tribunal has, although, found that the accident has occurred on account of the involvement of canter bearing No. HNQ-7507, yet it has also found that the claimant was also negligent. According to her, there was no material on the record for the Tribunal to have come to the conclusion of contributory negligence. She has further submitted that learned Tribunal has ignored the bills, Ex. P7 to Ex. P65, which had been in a sum of ` 1,00,000/- for the only reason that the claimant could not prove the prescriptions of the medicines purchased vide them. She has submitted that in all, the claimant suffered F.A.O. No. 4140 of 2001 5 .. 11 injuries and even after treatment in the hospital, the claimant required medicines and learned Tribunal was not justified in ignoring these bills. She has further submitted that even learned Tribunal assessed compensation for the disability of 63% in a very meagre amount of ` 30,000/-. She has, therefore, prayed for suitably enhancing the compensation. Learned counsel for respondent No. 3 has submitted, on the other hand, that the claimant met with the accident while taking turn near NDRI gate. According to him, he was hit by the canter, which was coming from his back side. According to him, the accident occurred because he did not see towards his back while taking the turn. He has further submitted that the disability of 63% is on account of chopping of some fingers of right hand and the disability of 63% cannot be termed as functional disability for the appellant. According to him, the appellant is a patwari in government service and there is no loss to his service on account of the disability. It is further submitted by him that there is no loss caused by the disability so far as his salary is concerned. He has, thus, submitted that compensation in a sum of ` 30,000/- on account of the disability is adequate. It had been a case where report lodged with the police was silent about the number of the offending vehicle as well as name of its driver. But for the statement of the investigator of respondent No.3, the appellant would have been at loss to prove that the accident has been caused by the driver of the F.A.O. No. 4140 of 2001 6 .. canter bearing No. HNQ-7507. It is the investigator, who found Sawinder Singh, respondent No.1, to have been involved in this accident while driving canter No. HNQ-7507. Therefore, to the good-luck of the claimant, the respondents led the evidence to prove the involvement of the canter in question in this accident. Once it is proved that the accident has the involvement of the canter in question, the aspect that the police did not file challan against any one, stands explained and it cannot come in the way of allowing the claim petition. However, the question arises as to whether the claimant had also been negligent in driving his motorcycle and his negligence also had been a cause of the accident. Learned Tribunal has failed to assess the percentage of negligence of the claimant and respondent no.1, although it is concluded that there was contributory negligence of the two as the cause of the accident. First of all, the reason given by learned Tribunal for reaching this conclusion is to be noticed. It has come in paragraph No. 9 of the award as under :- “9.. . . . It has come on record that Devinder petitioner was on his motorcycle at the time of accident and there is a turning point in front of NDRI gate where the accident took place. Had there been no negligence on the part of claimant then he might have been saved himself after seeing the canter. From this it is to be presumed that he was not vigilant about trafffic. So, F.A.O. No. 4140 of 2001 7 .. keeping in view the report of investigator and other circumstances of the case I feel that accident might have occurred due to negligence of both drivers of the vehicles and that is why policy had not taken any action against respondent No.1.. . . .” A perusal of the reasons appearing above would show that the finding of learned Tribunal on this aspect is presumptive. He has not taken care of the facts and has concluded that in the circumstances, the accident might have occurred due to contributory negligence of the claimant also. It is a fact that the claimant was there at the NDRI gate, Karnal and the canter had come from his back side. The canter must have been at a very high speed because when the claimant tried to take turn, he could not stop the vehicle and had hit the claimant. In my opinion, there is no requirement of law on the part of the claimant to have seen backward before taking the turn. He is at the most required to give signal for taking the turn and there is nothing on the record to suggest that he did not give the required signal. The facts appearing on the record, therefore, speak for themselves and clearly prove that it is a case of accident resulting from rash and negligent driving of canter no. HNQ-7507 only. The Tribunal has ignored the amount of bills Ex. P7 to P65 for the reason that the claimant has not placed prescription slips with these bills. In my opinion, this is not a good reason to F.A.O. No. 4140 of 2001 8 .. discard the bills. The prescriptions are mostly given by the doctors on small pieces of papers and they are mostly not preserved by the patients. There is nothing on the record to suggest that the claimant has got the bills issued fictitiously. The claimant has not been challenged in his cross-examination about the genuineness of the expenses shown incurred vide these bills. Therefore, I find no reason for discarding these bills and not taking the amount spent vide these bills into account while computing compensation in favour of the appellant. The claimant has availed 190 days' earned leave during his treatment. Earned leave is an asset with an employee, the equivalent salary of which is required to be given to him, if the same is spent in his treatment. The claimant is a government employee and his salary could not be taken as ` 5,000/- per month. Taking the same at ` 8,000/- per month, I assess a sum of ` 50,000/- as compensation for loss of his income. The disability at 63% is on account of loss of some of the fingers of right hand and in case of the claimant, this would not amount to functional disability. As there is no evidence of any loss suffered by the claimant in his service on account of this disability, the claimant is entitled to compensation only on account of loss of facilities and future enjoyment of life on account of the disability, for which a sum of ` 30,000/- has been rightly assessed. F.A.O. No. 4140 of 2001 9 .. In view of my foregoing discussion, I assess the following compensation as payable to the claimant :- As allowed by learned Tribunal in `) As enhanced by this court in `. 1. Expenses on treatment 40,000-00 1,25,000-00 2. Loss of income during treatment. 32,000-00 50,000-00 3 Loss of future enjoyment of life on account of disability 30,000-00 30,000-00 4. Pain and suffering - 10,000-00 5. Special diet, Transportation and attendant - 20,000-00 Total 2,35,000-00 Consequently, the appeal is allowed enhancing the compensation awarded to the claimant by the Tribunal from ` 51,000/- to ` 2,35,000/- with other terms regarding rate of interest etc. appearing in the award of the Tribunal remaining the same. (VIJENDER SINGH MALIK) JUDGE December 15th, 2011 som