FAO No.542 of 1994 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.542 of 1994 Date of Decision. 24.03.2011 Capt. Suresh Chaudhary s/o Sh. Roop Chand Advocate resident of A- 56/3, S.F. Saket, New Delhi-110 017 ......Appellant Versus Dev Raj son of Shri Partap Ram and another .....Respondents Present: Mr. L.M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for the appellant. Mr. Ajai Saini, Advocate for respondent No.1. Mr. Tejinderpal Singh, Advocate for respondent No.2. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J. 1. The appeal is against the award dismissing the petition filed by the claimant for injury suffered in a motor accident. The accident had been result of a collision between the maruti car, which the claimant was driving and a truck that belonged to the insured. The evidence of claimant was that the collision had resulted by the rash and negligent driving of the truck driver while the truck driver contended that he had parked the vehicle on the left side of the road and the claimant was attempting to overtake yet another vehicle, lost his control and dashed against the stationary vehicle. The Tribunal made some conjectures saying that the accident had taken place in the evening around 6.30 in the month of December and therefore, there ought to have been fog and FAO No.542 of 1994 -2- the visibility must have been poor. It also held that the fact that the only driver of the car had suffered injuries and there was no injury for the truck driver to mean that the truck must have been stationary and the vehicle must have been driven fast by the claimant. He also stated that it was a general practice of all maruti drivers to attempt to overtake every vehicle going in front and therefore, he must have caused an accident by overtaking it at a fast speed and rammed his car against another vehicle. 2. The additional reason why the Tribunal did not agree with the evidence given on the side of the claimant was that the police had taken a statement on following day after the accident from the wife of the claimant, when the claimant himself was not in a fit condition to give a statement to the police. She was reported to have stated that the accident had taken place due to poor visibility and no negligence could be attributed to the driver of the truck. The wife of the claimant was, however, not examined to explain the statement. I will not take a statement from wife immediately after the accident that the accident had taken place with no negligence of either of the driver as conclusive. She ought to have been in a state of anxiety herself and if any person is giving statement disowning negligence of either party, it must be only understood as an attempt to save oneself from the arm of law for being proceeded against for negligence and rash driving. I will again not take the issue of non-examination of the wife as going to completely exclude the liability on the part of the driver of the truck. On the other hand, I will accord an equal responsibility for the accident to both persons and take the claimant to have contributed to the accident to 50% and the negligence of the truck driver to be 50%. FAO No.542 of 1994 -3- 3. The claimant was a Master Mariner and supposed to have undergone training at Dufferin from 1960 to 1962 and joined the Shipping Corporation in the year 1962. He had started on an initial pay of Rs.90/- in the year 1978 to climb to position as high as the one when he was earning $ 3600 per month. He had actually an order of appointment on a contract basis before the accident but he did not join on account of the injuries that he had sustained. The Tribunal had already assessed a compensation of Rs.25,00,000/- but did not award the same on account of the finding regarding the negligence. The disability claimed by him was that he was in constant pain and that he could not walk on account of disability arising out of the accident. He said that he could not climb the stairs or squat. He had also expressed difficulty in sitting for a long time and that he was unable to use Indian toilets. He could not walk without a stick. He was unable to perform any duties as a Mariner. He gave evidence to the effect that he had spent Rs.75,000/- for his medical expenses. 4. The Orthopaedician who was treating the petitioner was examined as PW4. He stated that he had examined the claimant in March, 1991 and he found the claimant to suffer from severe osteoarthrits with limitation of movements of limbs. He also certified that the claimant could not do any job which required strain on his right hip and that he would not be able to claim rope ladder. PW1 had been examined to say that before the accident he had examined him and had certified him to be in a fit state of health to undertake the job as a Mariner to secure his contract with M/s Oriental Associates Pvt. Ltd. His evidence was to secure proof of his fit state to undertake arduous tasks as an officer of a ship. PW-2 was an ex-Captain in Merchant Navy who FAO No.542 of 1994 -4- spoke generally about the prospect of a Mariner and high levels of income that he could have earned. He stated that normally contract could be entered into for a period of six months and it could also be extended. He stated that just before the accident, the claimant was contracted to serve in a shipping company in Nigeria and the pay package included boarding, lodging and medicines from the date of departure from Delhi and back. PW-3 was a Captain in Merchant Navy, who gave evidence to the effect that salary of a Captain was between U.S. $ 4000 to $ 7000 and it differed from ship to ship. He stated that the employment would be invariably on contract basis and it would be renewed, sometimes every 9 months or even a longer period. He said that his basic wage was $ 1790 per month and and salary drawn was completely tax free. However, he did not have any documentary proof for his income and that the income earned by him was tax free. 7. The medical certificate which was exhibited as P-21 was to the effect that the claimant had sciatic nerve palsy which generated to osteoarthrits where the function of the hip was restricted and painful. The department of Orthopaedic Surgery had issued a certificate that determined the disability at 40%. The certificate had also indicated that he would require another operation for joint replacement. 8. I will not take the disability to completely deprive him of all his earning skills though he was found not fit to be a Captain of the Ship which duties would have required a good physique, I will take the disability as resulting in 25% loss in earning capacity. The evidence was that he had contract to be employed at $ 4000. I would assume that he would have been gainfully employed for at least six months and take the yearly income to be $ 24,000. Taking the loss to be 25% earning FAO No.542 of 1994 -5- capacity and taking his age of 46, I would adopt a multiplier of 7, having regard to the fact that it is not very clear that he could sustain at the same employment on the same basis till 58 years of age. The application of relatively lower value of multiplier is only on account of uncertainties of such employment and the engagement is invariably only on contractual basis. I would take the rupees equivalent to a dollar at the rate mentioned in the award at the relevant year 1993 and take that to be Rs.16/-. The total amount of compensation that will become payable would be Rs.13,44,000/-. The other components of compensation would be for pain and suffering at Rs.25,000/-, for medical expenses Rs.80,000/- and towards loss of amenities in life for the disability suffered by him that resulted in 40% disability with severe impairment in movement of his leg at Rs.50,000/-. In sum, the total amount of the compensation would be Rs.14,99,000/- and I will take 50% out of the same for his contributory negligence and take the loss of earning at Rs.7,49,500/- rounded off to Rs.7,50,000/-. This amount will also carry interest @7.5% from the date of petition till the date of payment. The liability shall be on the respondents and the claimant shall be entitled to recover the same against the insurance company. 9. The award is set aside and the appeal is allowed to the above extent. (K. KANNAN) JUDGE March 24, 2011 Pankaj*