FAO No. 1246 of 1992 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 1246 of 1992 Date of decision .2.2010. Sanwar Khan son of Jamaludin ...... Appellant. versus Ashwani Kumar and others ...... Respondents. Present : Ms. Kiran Bala Jain, Advocate for the appellant. Mr. Himanshu Raj, AAG, Haryana. Mr. S.P.Soi, Advocate K.C.PURI. J. This is an appeal preferred by the appellant for enhancement of the compensation amount awarded by the Accident Claims Tribunal, Ambala vide Award dated 9.5.1992. Case of the claimant, in brief, is that on 11.11.1989, he along with Ram Saran was going on Scooter No.HNE-5348 from Yamuna Nagar to village Kail. Ram Saran was driving the scooter. The claimant was sitting on the rear seat. When the scooter reached near N.C.C. Office, Yamuna Nagar at about 8.30 p.m., a bus of Haryana Roadways No.HYE- 9212 came from the opposite side. It was being driven rashly, negligently and at a very high speed by respondent No.1. He did not blow any horn FAO No. 1246 of 1992 2 and struck the bus against the scooter. The complainant as well as the driver of the scooter fell on the road and became unconscious. The scooter was badly damaged. Both the injured were got admitted in Subha Hospital by respondent. On the next day, on the basis of statement of Ram Saran driver formal FIR was recorded in the Police Station at Yamuna Nagar. At the time of accident, the claimant was allegedly 55 years of age and was running his own private mechanic workshop repairing diesel engine etc. He was getting Rs.1000/- from the brick-kiln of Dev Raj for repairing engine and earning Rs.1500/- per month by repairing the engine of other persons. His right leg was fractured in the accident resulting into permanent disability. He remained admitted in Gauba Hospital for nine days and the plaster remained on his leg till January 1990. He claimed Rs.4,00,000/- as compensation. On notice, respondents No. 1 did not put in appearance in spite of his due service and was accordingly proceeded against ex-parte vide order dated 17.5.1990. Respondent No. 2- State of Haryana filed written statement through General Manager, Haryana Roadways Yamuna Nagar. Besides, denying the correctness of other averments made in the petition, the respondent-State took the stand regarding the accident that on 11.11.1989 bus No.HYE-9212 was on its way from Kapalmchan to Yamuna Nagar and when this bus was reached Sarojini colony, respondent No.1 stopped his bus there on the kucha path on the left side of the road in order to drop a passenger at his request. When the bus was in a stationed position, a truck followed by a scooterist came from the opposite directions. All of a sudden FAO No. 1246 of 1992 3 the scooterist without caring for the traffic rule tried to over take the truck and while in the process of over taking he became nervous and struck his scooter into stationed bus on its front side. Respondent No.3, National Insurance Company besides denying the correctness of the manner of accident, alleged in the petition that the claimant could not work on a brick-kiln as an employee while running his own workshop and he was simply a labourer and he had highly exaggerated his claim. On the pleadings of the parties, following issues were framed :- 1. Whether the claimant received injuries due to rash and negligent driving of Bus No.HYE-9212 by respondent No.1, as alleged? OPP 2. Whether the claimant is entitled for compensation, if so, how much and from whom? OPP 3. Relief. The parties had led their respective evidence. After appreciation of the evidence, the learned Tribunal passed the award awarding Rs.12,000/- to the claimant along with interest at the rate of 12% per annum from the date of filing of the claim petition till realization of the awarded amount while holding respondent Nos 1 to 3 to pay the same jointly and severally. Feeling dis-satisfied with the aforesaid amount, the claimant- appellant preferred this appeal. I have heard the learned counsel for the parties and have gone thorough the records of the case. FAO No. 1246 of 1992 4 Learned counsel for the appellant has submitted that finding of the Tribunal on issue No.1 is based upon conjectures and surmises. It is a civil case and the same has to be decided on the basis of evidence. The claimants examined Ram Saran, driver of the scooter, who has categorically stated that the accident has taken place due to rash and negligent driving of bus driver. The claimant-Jamaludin himself appeared as PW-2 and has stated that accident has taken place due to rash and negligent driving of offending bus. The testimony of both these witnesses go unrebutted as the driver of the offending bus has not come into the witness box to state that the accident has not taken place due to his negligence. The tribunal should have drawn the adverse inference against the driver of the offending vehicle. So, in the presence of testimonies of Ram Saran (PW-1) and Jamaludin (PW-2), the learned tribunal has wrongly returned the finding on issue No.1 against the claimant. The principles of res ipsa liquitor has been wrongly applied on the facts of the present case. Ram Saran (PW-1) has categorically stated that accident has taken place when the scooter was behind the tractor-trolley. He has nowhere stated that the accident has taken place when he was overtaking the tractor-trolley. Jamaludin has also stated that accident has taken place when the bus struck against his right leg. In reply to above noted submissions learned counsel for the state as well as Insurance Company have supported the judgment of the Tribunal. It is submitted that since Ram Saran driver of the scooter has not received the injuries and as such the claimants and Ram Saran have concealed genesis of occurrence. It is submitted that principles of res ipsa liquitor has rightly been applied by the Tribunal. So, the prayer has been FAO No. 1246 of 1992 5 made for confirming the finding on issue No.1. I have considered the submissions made by both the sides and have gone through the records of the case. The claimant examined Ram Saran driver of scooter on which he was a pillion rider. This witness has categorically stated that Haryana Roadways Bus No.HYE-9212 was coming from the opposite side at a very high speed. He took the scooter on the extreme left side of the road. The bus driver brought his bus on the wrong side and hit his scooter resulting in sustaining injuries. He has further stated that he became unconscious and was taken to Gauba Hospital, Yamunanagar. Needless to state that Jamaludin-claimant has deposed on the same line that of Ram Saran. The testimony of both these witnesses remained unrebutted as the driver of the offending bus has not come into the witness box to depose that accident has not taken place in the manner stated by these witnesses. The principle of res ipsa liquitor has been wrongly applied by the Tribunal. The principle of res ipsa liquitor would apply only if the existing circumstances leads to the only conclusion that is regarding the negligence of a specific driver of the vehicle. How that principle is attracted has not been explained by the Tribunal. The Tribunal has mis-interpreted the testimony of Ram Saran (PW-1). He has simply stated that tractor-trolley was ahead of him when the bus brought to the extreme left side and struck against with their scooter. Mere fact that injury report of Ram Saran has not been placed on file does not reach to the conclusion that he has not received any injury. The impact of accident cannot be forecasted. In the presence of testimony of Ram Saran (PW-1) and Jamaludin (PW-2), the Tribunal has wrongly FAO No. 1246 of 1992 6 returned the finding on issue No.1 against the claimants. More so, when the driver of offending vehicle has not come into the witness box, the learned Tribunal should have drawn adverse inference against the driver of the offending vehicle for not appearing in the witness box. Consequently, the findings of the Tribunal are reversed and it is held that the accident has taken place due to rash and negligent driving of bus No.HYE-9212 by the respondent No.1. Now returning to issue No.1. The Tribunal has granted an amount of Rs.12,000/- under no fault liability. Jamaludin, according to Dr.R.K.Mahajan sustained injuries in motor vehicular accident. There was a multiple fracture of right leg upper one third. There was wound 1x½ inch muscle deep right leg. Besides other mark of injuries on the person of claimant. The medico-legal report has been proved as Ex.P5. The claimant- appellant remained under treatment for a period of fifteen days as indoor patient and after applying the plaster he was discharged. He received Rs.1500/- as per receipt Ex.P-6. He has further stated that he again changed the plaster. The claimant remained under treatment for six months and he was advised rich diet. The claimant was limping and there was shortage of leg. His disability is 30% on account of loss of function of right leg lower limb. The claimant has also produced bills Ex.P-2 and P-3 regarding purchase of medicines amounting to Rs.645.80ps. So, the claimant is held entitled to claim Rs.2500/- on account of his treatment. He is also held entitled to claim Rs.30,000/- on account of permanent disability i.e. on account of pain and suffering, loss of income during the period of treatment and his future loss of income. The claimant is also held entitled to claim FAO No. 1246 of 1992 7 Rs.2500/- on account of special diet. So, in this manner the claimant is held entitled to Rs.35,000/- in all on account of injuries sustained by him in motor vehicular accident. The legal representatives of the claimant shall be entitled to the enhanced amount ofRs.23,000/- along with interest @7% per annum from the date of appeal till the date of realization. Consequently, the appeal stands partly accepted and respondents are jointly and severally held liable to pay Rs.23,000/- in addition to the amount awarded by the Tribunal along with interest @7% p.a. from the date of appeal till realization. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE February , 2010 sv