IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 843 of 1990 and Cross-Objection No.39-CII of 1991 Date of Decision : March 11, 2010 The National Insurance Company Limited and another ....Appellants Versus Davinder Singh and another .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Deepak Suri, Advocate for the appellants. None for the respondents. T.P.S. MANN, J. Petition under Section 110-A of the Motor Vehicles Act, 1939 was filed by Davinder Singh, minor son of Balbir Singh, through his father and natural guardian, wherein he claimed an amount of Rs.8,00,000/- as compensation. It was alleged therein that on 25.2.1988 at about 9.30 A.M., he was sitting on the pillion seat of motorcycle No. PCL-678 driven by one Balbir Singh and proceeding towards Gill Road, Ludhiana. When they reached opposite Bedi Telly Shop, a truck bearing registration No. PAT-7928 came from behind and struck the motorcycle as a result whereof both its occupants received injuries. The accident occurred due to rash and negligent driving of truck No. PAT- 7928 by its driver Teja Singh, who came at a very high speed and struck F.A.O. No. 843 of 1990 and -2- Cross-Objection No.39-CII of 1991 the motorcycle. Teja Singh, driver of the truck, managed to run away from the place of accident. Davinder Singh was removed to the Nursing Home of Dr. N.D. Awasthi, but keeping in view his serious condition, he was removed to CMC and Hospital, Ludhiana. He also received treatment from Dr. A.S. Kumar of Jalandhar. Despite getting best medical aid and special diet, he remained confined to bed and was not able to walk. Pleading that he had suffered permanent disability, he prayed for compensation of Rs.8,00,000/-, to be paid by Prem Singh- owner of the truck, Teja Singh-driver of the truck and the National Insurance Company Limited-insurer of the aforementioned truck. It was also stated in the claim petition that the claimant, namely, Davinder Singh was about 18 years of age and a student of 10+2. Upon notice, Prem Singh denied any accident taking place with the truck owned by him. Teja Singh admitted the fact that the accident had taken place with the truck driven by him. However, according to him, the accident occurred on account of the rashness and negligence on the part of the motorcyclist. Similarly, the Insurance Company sought to exclude its liability on the grounds that neither the truck driver was in possession of a valid driving licence nor did he possess the fitness certificate of the truck. It was also pleaded that the liability of the truck was limited. After going through the pleadings of the parties, learned Tribunal framed the following issues :- F.A.O. No. 843 of 1990 and -3- Cross-Objection No.39-CII of 1991 1. Whether the accident resulting in injuries to the claimant occurred due to rash or negligent driving of truck No. PAT-7928 by respondent No.2? OPA. 2. If issue No.1 is proved, to what amount of compensation the claimant is entitled to and from which of the respondents? OPA. 3. Relief. In support of his case, Davinder Singh claimant examined PW1 Dr. George T. Abraham, PW2 Samul Mal, Bill Clerk, CMC, Ludhiana, PW4 Surjit Singh, PW5 Taranjit Singh, Proprietor, Gurmel Medical Centre, besides himself stepping into the witness box as PW3. On the other hand, the respondents in the claim petition examined RW1 Constable Krishan Kumar and RW2 Teja Singh. Besides, the Insurance Company tendered in evidence insurance policy Ex.R1. After hearing learned counsel for the parties and going through the evidence brought on the record, learned Tribunal held that the accident occurred on account of negligent, rash and faulty driving of the truck by Teja Singh. Therefore, Davinder Singh claimant was held entitled to an amount of Rs.4,00,000/- as compensation, which included Rs.1,00,000/- as expenses on medical treatment, Rs.5,400/- for the special diet, Rs.12,600/- as charges for engaging the services of two F.A.O. No. 843 of 1990 and -4- Cross-Objection No.39-CII of 1991 attendants, Rs.72,000/- towards conveyance charges as he was practically crippled for all times to come, Rs.60,000/- as loss of wages and prospects of life in various matters and Rs.1,50,000/- as general damages, including those for pain and suffering, loss of limb and disability. As the offending truck was covered by comprehensive insurance, it was held that the question of the liability being limited did not arise. Moreover, there was nothing on the record to absolve the Insurance Company of its liability. Accordingly, all the respondents in the claim petition were held liable jointly as well as severely to pay Rs.4,00,000/- as compensation. The claimant was also held entitled to interest at the rate of 12% per annum on the aforesaid amount from the date of filing of the claim petition till its realisation. The aforementioned award passed by Motor Accidents Claims Tribunal, Ludhiana on 20.4.1990 has been challenged by the Insurance Company and Teja Singh-driver of the offending truck, by filing F.A.O. No.843 of 1990. Davinder Singh claimant, who stands arrayed as respondent No.1 in the appeal, has filed Cross-Objections No.39-CII of 1991, wherein he has sought enhancement of the compensation. I have heard learned counsel for the appellants and perused the evidence with his able assistance. F.A.O. No. 843 of 1990 and -5- Cross-Objection No.39-CII of 1991 With a view to establishing that the accident in question had taken place on account of rash and negligent driving of truck No. PAT- 7928 by its driver, the claimant appeared as PW3. He deposed that he was going from his house to Miller Ganj on a motorcycle driven by one Balbir Singh while he himself was a pillion rider. At about 9.30 A.M., when they reached near Bedi Telly Shop on Gill Road, offending truck came from behind at a rash speed. The truck was driven by Teja Singh and hit the motorcycle which made him and Balbir fall on the ground and sustained injuries on various parts of his body. In cross- examination he stated that Balbir Singh did not receive injuries as a result of the accident. However, it was Balbir Singh who alongwith another person had removed him to the hospital. He denied that the accident had occurred on account of rash and negligent driving of the motorcycle by Balbir Singh and the truck driver was not to be blamed for that. He also denied that the motorcycle came from the backside of the truck and hit its left hind wheel. Surjit Singh, while appearing as PW4, stated that he was resident of Gill Road and on 25.2.1988 at about 9.20 A.M. he was going from Gill Road towards Campa Cola Chowk. Truck No. PAT- 7928 overtook him at a high speed and when it reached in front of Bedi Telly Shop it hit the motorcycle from behind as a result whereof the motorcycle fell down and so also its two riders. He, later on, learnt the name of the riders as Davinder Singh and Balbir Singh. Davinder Singh had sustained injuries. He then took the assistance of F.A.O. No. 843 of 1990 and -6- Cross-Objection No.39-CII of 1991 some one to extricate Davinder Singh from below the truck and removed him to the Nursing Home of Dr Awasthi. The relatives of the injured arrived at the hospital and thereafter he left from there. According to this witness, the accident occurred due to negligent and rash driving of the truck by its driver. After causing the accident, the driver gave up the truck and ran away from the spot. In cross- examination, he stated that he did not report the matter to the police since he became busy in taking the injured to the hospital. He denied the suggestion that the accident occurred due to rash and negligent driving of Balbir Singh and the truck driver was not to be blamed for the same. On the other hand, RW2 Teja Singh testified that he was driving the offending truck at the time of the accident. When he was little ahead of Police Post Miller Ganj towards Gill Road and going at a slow speed of 10/15 kilometers per hour on the left side of the road. Balbir Singh came at a fast speed on a motorcycle with the claimant as the pillion rider, and, while he was in the process of overtaking the truck from the wrong side, the motorcycle struck left hind wheel of the truck. He came down and found that Davinder Singh had sustained injuries with the foot rest of his motorcycle. The accident occurred on account of negligence and rashness of the motorcycle driver. Moreover, no criminal case was registered against him by the police. In cross-examination, the F.A.O. No. 843 of 1990 and -7- Cross-Objection No.39-CII of 1991 witness stated that a brother of Prem Singh, owner of the truck, was Deputy Inspector General of Police but he denied that with his intervention the police hushed up the matter. He also denied that the motorcycle was going at a slow speed on its right side and it was only on account of his own rashness and negligence that the truck hit the motorcycle from behind. Apart from the statement of RW2 Teja Singh, the respondents in the claim petition also examined Constable Krishan Kumar as RW1, who proved DDR No.22 dated 26.2.1988 recorded at the instance of Balbir Singh, driver of the motorcycle. As per the aforementioned DDR Ex.R2, Balbir Singh while driving the motorcycle on which Davinder Singh was sitting on the pillion seat, was following truck No. PAT-7928 which was being driven at a slow speed. After blowing horn, he tried to overtake the truck but in the meanwhile a piglet came in front of the motorcycle. As a result, both the riders of the motorcycle fell down. The right hind tyre of the truck passed over the motorcycle. None was responsible for the accident which had taken place on account of a piglet suddenly coming in front of the motorcycle. It was stated by Balbir Singh that he did not want to proceed against anyone. There is a ring of truth in the testimonies of PW3 Davinder Singh and PW4 Surjit Singh. On the other hand, apparently an attempt had been made by the police right in the beginning to absolve Teja F.A.O. No. 843 of 1990 and -8- Cross-Objection No.39-CII of 1991 Singh of his role in driving the offending truck in a rash and negligent manner as brother of Prem Singh, who was owner of the said truck, was a DIG of the police at the relevant time. Had the accident taken place on account of rash and negligent driving of the motorcycle by Balbir Singh, Teja Singh, driver of the offending truck, ought to have rushed Davinder Singh injured to the hospital. Instead, Teja Singh while appearing as RW2 stated that he did not know as to who had taken Davinder Singh to the hospital. That showed the guilt in the mind of Teja Singh at the time of the accident as it had come in the statements of PW4 Surjit Singh that after causing the accident, the driver of the truck stopped it and ran away. Moreover, there is no independent corroboration to the testimony of RW2 Teja Singh whereas that of PW3 Davinder Singh-claimant is supported by PW4 Surjit Singh. Both Davinder Singh and Surjit Singh stated in unequivocal terms that the accident had occurred on account of rash and negligent driving of the truck by its driver. In view of the above, the findings arrived at by the learned Tribunal on issue No.1 are affirmed. As per the statement of PW1 Dr. George T. Abraham, the claimant was admitted in CMC and Hospital, Ludhiana on 2.3.1988 and discharged on 20.5.1988. At the time of his discharge, the claimant was still under plaster cast. He was advised to come regularly for follow up treatment. His last visit was on 11.11.1988 and at that time he was F.A.O. No. 843 of 1990 and -9- Cross-Objection No.39-CII of 1991 walking with the help of crutches. At the time of his initial admission, the claimant had fracture of left femur and fracture of both bones left leg with eschar over lower medial aspect of the ankle. First surgery was performed on 22.3.1988, second on 13.4.1988 and the third on 10.5.1988. Even on 15.9.1989, when PW1 Dr. George T. Abraham deposed before the learned trial Court, he examined the claimant, who was present in the Court. He found that his condition was the same as was in November, 1988. The claimant had incurred permanent disability and he was not likely to recover later on. He would not be able to run. As per the certificate Ex.A1 issued by him on 30.8.1988, the claimant had permanent disability of 59% on his left ankle, (i.e. mobility component 50%, pain 3% and loss of sensation 6%) as per the Manual for Doctors to Evaluate Permanent Physical Impairment. Bills Exs.A2 to A4 issued by CMC and Hospital, Ludhiana for an amount of Rs.36,945/- besides, Exs.A5/1-6, A6/1-8 and A7 towards OPD expenses were proved by PW2 Samul Mal, Bill Clerk of CMC and Hospital, Ludhiana while bills Exs.PW5/1 to PW5/20 issued by Gurmel Medical Centre, opposite C.M.C. and Hospital, Ludhiana in respect of the amounts spent by the claimant on his medical treatment have been proved by PW5 Taranjit Singh, Proprietor of the aforementioned firm. These bills were for an amount of Rs.10,706.50p. Apart from the same, the claimant had also spent an amount of F.A.O. No. 843 of 1990 and -10- Cross-Objection No.39-CII of 1991 Rs.70,000/- in the hospital and Rs.30,000/- to Rs.40,000/- on his medical treatment. Therefore, learned Tribunal granted an amount of Rs.1,00,000/- by way of fair estimation of the expenses incurred by the claimant on his treatment. The claimant had been prescribed special diet. Considering that Rs.30/- must have been spent by the claimant everyday, learned Tribunal granted him an amount of Rs.5,400/- for the period of six months for which he was required to take special diet. Even after six months of the accident, the claimant had remained on crutches. According to the claimant, he had to engage services of two attendants during the said period. Therefore, an amount of Rs.12,600/- was granted on the said count. Further, an amount of Rs.72,000/- was granted as conveyance charges as the claimant was practically crippled for all times to come and though the expectancy of life was 70 years, he was held entitled to be paid Rs.20/- per day as conveyance charges for a period of ten years so as to grant him an amount of Rs.72,000/-. At the time of accident, the claimant was a student of 10+1. However, on account of his hospitalisation since 2.3.1988 till 20.5.1988, he could not appear in the final examination. Thus, his career making process got delayed. Even his life prospects stood postponed. Taking all the factors into consideration, learned Tribunal awarded the claimant an amount of Rs.60,000/- as loss of wages and diminishing of prospects F.A.O. No. 843 of 1990 and -11- Cross-Objection No.39-CII of 1991 of life. Learned Tribunal also awarded an amount of Rs.1,50,000/- to the claimant as general damages including those for pain and suffering, loss of limb and disability. The claimant was about 18 years of age at the time of the accident. As per certificate Ex.A1, he was having a permanent disability of 59% on his left ankle. He had remained admitted in the hospital for 2½ months initially. Even thereafter, he had to repeatedly visit the hospital for follow up treatment. During his stay in the hospital, he had to be operated upon thrice. According to PW1 Dr. George T. Abraham, the permanent disability of the claimant was such that he would not recover later on. In his cross-examination, he had deposed that nothing more could possibly be done to improve the condition of the claimant. The claimant also stated in his examination- in-chief that he had to discontinue his studies due to the injuries on account of pain and suffering and weakness. Moreover, he could not sit properly or perform daily routines of life. So much so that he could not even walk, except at a slow speed. When cross-examined on behalf of the Insurance Company, he stated that he could not appear in 10+1 examination on account of accident but he intended to continue his studies after his condition improves. Taking the totality of the aforementioned circumstances into consideration, this Court is of the view that the sum of Rs.1,50,000/- awarded to the claimant as general F.A.O. No. 843 of 1990 and -12- Cross-Objection No.39-CII of 1991 damages was on the lower side. Instead, he was entitled to receive an amount of Rs.2,00,000/- under the said head. Resultantly, the claimant is held entitled to Rs.4,50,000/- in all as compensation. He shall also be entitled to interest on the enhanced amount of Rs.50,000/- @ 9% per annum from the date of filing of the claim petition till its realisation. All the respondents shall be liable jointly as well as severely to pay the aforesaid amount. The appeal, i.e. FA.O.No.843 of 1990 is, accordingly, dismissed, whereas Cross-Objections No.39-CII of 1991 are accepted to the extent of enhancing the amount of compensation, as indicated above. ( T.P.S.MANN ) March 11, 2010 JUDGE satish