FAO No. 642 of 1988 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision: 17.2.2010. (1) FAO No. 642 of 1988 (O&M) Satish Kumar ....Appellant Versus Rattan Lal and others ...Respondents (2) FAO No. 601 of 1988 (O&M) The State of Haryana and another ....Appellants Versus Satish Kumar and another ...Respondents CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Mr. Sanjay Mittal, Advocate for appellant-claimant Satish Kumar. Mr. Ashish Gupta, AAG Haryana. RAJESH BINDAL, J **** This order will dispose of two appeals bearing F.A.O. Nos. 642 and 601 of 1988. Aggrieved against the award of Motor Accident Claims Tribunal, Narnaul, both the claimant as well as the State are in appeal before this Court. The facts have been extracted from F.A.O. No. 642 of 1988. As noticed by the Tribunal in the impugned award, on July 10, 1986 the appellant was travelling in a Haryana Roadways Bus No. HYM-2513 from Narnaul to Chandigarh. Om Parkash Saini and Suresh Kumar, Advocates, were also accompanying him. He was sitting on window side. The bus was being driven by Rattan Lal, in a rash and negligent manner from the very beginning. The appellant as well as other passengers requested the driver to drive the bus slowly, however, he did not pay any heed to that. At about 10:00 p.m. when the bus reached near village Hasaka (close to Rewari) a truck came from the opposite side. Though the bus driver was able to save his own side from the truck but rest of the portion of the bus struck against the truck. As a result of which the appellant received serious injuries on his right arm. The appellant became unconscious and was removed to Rewari Hospital by Om FAO No. 642 of 1988 (O&M) 2 Parkash Saini, Advocate, who was accompanying him. From there he was shifted to Safdarjang Hospital, New Delhi where his arm was ultimately amputated. Claim petition was filed stating that the appellant was B.A. B.Ed. L.L.B. and was holding diploma in Personal Management and Labour Laws. He was a distributor of Bharat Gas at Narnaul and was earning Rs. 5000/- per month. On account of the accident he was unable to follow his daily pursuits of life properly. He had to engage an attendant. Because of inferiority complex he was hesitant to move in society. He spent Rs. 30,000/- on his treatment and Rs. 2,000/- on travelling. After considering the material brought on record by the parties learned Tribunal assessed Rs. 53,500/- as compensation payable to the appellant vide award dated March 18, 1988. It is this award against which both the parties are aggrieved and are in appeal before this Court. Learned counsel for the appellant submitted that the amount of compensation as has been assessed by the Tribunal is highly inadequate considering the fact that the appellant in the present case had suffered grievous injury and ultimately had to lose his right arm which resulted in 70% disability. Initially he was treated at Civil Hospital, Rewari, but ultimately had to be shifted to Safdarjang Hospital, New Delhi, where he was operated upon. He remained in hospital for about two months. The compensation awarded on account of medical expenses of Rs. 1,000/- as against Rs. 30,000/- spent by the appellant is quite meager. Even after spending Rs. 30,000/- the appellant had to regularly take extra care of his amputated arm. Merely Rs. 500/- has been awarded on account of conveyance whereas the appellant is resident of Narnaul he met with an accident near Rewari. Thereafter he had to be shifted to New Delhi for treatment where he remained admitted for about two months. Even after his discharge from the hospital he had to visit the hospital at Delhi many times for follow up. Similarly Rs. 40,000/- granted on account of pain and suffering and Rs. 10,000/- on account of loss of income also call for further enhancement. Considering the fact that right arm of the appellant had to be amputated, throughout the life he will have to take help from others either in carrying on his day today domestic affairs or even the business. He will not be able to drive a motor vehicle and will have to engage a driver through out his life which will certainly affect his mobility and result in extra expenditure. As a result of the accident he suffered great set back in his career and future earning. Reliance was placed on Balbir Singh Vs. Rameshwar Dass and others 1992 ACJ 676 and Harbhagwant Singh Dhillon Vs. Haryana Roadways and others 1995 ACJ 1278. On the other hand learned counsel for the State submitted that the award of the Tribunal in the present case infact deserves to be set aside and the appellant is not entitled to any compensation what to talk of further enhancement. The appellant in the present case was himself negligent. Inspite FAO No. 642 of 1988 (O&M) 3 of the clear warning, he kept his right arm outside the window as a result of which it hit the incoming truck and suffered injury. There was no fault of the bus driver as the bus did not have even a scratch. Further defending the appeal filed by the claimant it was submitted that even if it is assumed that there was fault of the bus driver still considering the fact that the accident took place way back on July 10, 1986 sufficient amount of compensation has been granted by the Tribunal which does not call for any interference. In response to the appeal filed by the State learned counsel for the claimant submitted that the evidence brought on record by the State to prove that the bus driver was not negligent was not trust worthy. In fact two of the co- passengers who were travelling with the appellant have fully supported his case which could not be demolished even in cross-examination. The report was recorded by the police on the statement of driver and conductor of the bus as all other passengers left the place as they had to reach Chandigarh and it was already quite late. Heard learned counsel for the parties and perused the relevant referred record. Regarding F.A.O. No. 601 of 1988 As far as appeal filed by the State is concerned I do not find any merit therein. The case set up by the claimant as regards negligent driving of the bus was fully corroborated by two of the co-passengers travelling in the bus who incidentally were known to the claimants, since all the passengers some time are not known and may not be available for producing them as witness in the Court. In their cross-examination the State counsel was not able to put any dent to the case set up by the claimant. After the accident the claimant became unconscious. All other co-passengers in the bus had left the place as it was quite late in the night. Only bus driver, conductor and the police remained in the hospital and at that stage it could not be expected from the driver of the bus to have given a correct version of the accident admitting his fault. In his version he absolved himself fully from the negligence attributed to him. The statements recorded by the police during investigation were not even confronted to the claimant in his cross-examination. Om Parkash Saini, Advocate, was one of the witness produced by the claimant. His presence along with the claimant could not be disputed for the reason that he got the claimant admitted in hospital at Rewari. Even though some details of the other co-passengers were available with the bus driver as contained in Ex.R1 but still neither the police during investigation of criminal case nor before the Tribunal made any effort to examine any of them in support of the plea that the driver of the bus was not negligent. Still further the Tribunal has rightly opined that in the present case as per the medical evidence on record the injury was at the shoulder joint and the arm. In normal circumstances it cannot be expected that a person will keep his entire FAO No. 642 of 1988 (O&M) 4 arm outside the window or the shoulder only will be so much outside the window and the bus and the truck were so close that it hit the shoulder of the claimant, as a result of which he suffered serious injuries on account of which his arm had to be amputated. Still further the fact that both the vehicles crossed each other so closely that it resulted in causing injury to the occupant of the bus itself show rash and negligent driving. Some safe gap is required to be maintained while driving the vehicle on the highway. For the reasons mentioned above, I do not find any merit in the appeal filed by the State and the same is accordingly dismissed. Regarding F.A.O. No. 642 of 1988 As far as appeal filed by the claimant is concerned, in my opinion, considering the kind of injury which result in amputation of his right arm the amount of compensation as has been assessed by the Tribunal is not just and fair. Though the amount of compensation is not meant to result as a wind fall gain to any of the injured or the family members of the deceased but still the same has to be assessed in terms of certain set principles. In the present case on account of amputation of his right arm the claimant proved on record the disability certificate to the extent of 70%. Initially he was treated at Civil Hospital, Rewari but was subsequently shifted to Safdarjang Hospital, New Delhi. He claimed himself to be highly qualified being B.A. B.Ed. L.L.B. and was running a gas agency. It cannot be disputed that after the amputation of his right arm which bears maximum working load of a right handed person, he would need extra support to carry out his day today work may be at home or at business. It will not be possible for him to drive a motor vehicle. He may feel inferiority complex in the society. He may not be able to do many other things and enjoy the life to the extent a normal person with both his arms could. Learned Tribunal granted merely Rs. 1,000/- on account of medical expenses inspite of the fact that initially the appellant was treated at Civil Hospital, Rewari and thereafter had to be shifted to Safdarjang Hospital, New Delhi where he was operated upon and his right arm was also amputated. That will not result in expense of Rs. 1,000/- only. The claim made by the appellant in that regard was Rs. 30,000/- which may be on higher side. Still in my opinion even in the absence of detailed bills Rs. 5000/- will be the adequate compensation for the purpose at the relevant time. Even on account of conveyance also the learned Tribunal granted merely Rs. 500/-. The facts as have been mentioned in detail have not been appreciated. It has also been lost sight off that even after discharge from the hospital one has to follow up and for a person whose right arm has been amputated, will not be able to visit hospital alone. Initially also he was taken to New Delhi from Rewari in an Ambulance. Considering the aforesaid facts in my FAO No. 642 of 1988 (O&M) 5 opinion Rs. 2,000/- would be adequate compensation on account of conveyance. The amount of compensation as has been assessed on account of pain and suffering and special diet by the learned Court below seems to be adequate and does not call for any interference. As regards the claim of the appellant seeking enhancement of compensation granted on account of loss of income is concerned, in my opinion, the appellant has not been adequately compensated on that account. It is not disputed that right arm of the appellant was amputated from the shoulder. No doubt he has been awarded a gas agency being handicapped but that would only result in a steady income. On account of the physical deficiency the appellant will have to loose many opportunities in the life. He is well qualified. He could have explored any other profession or business which he may not on account of his physical disability. Further it also cannot be lost sight off that on account of amputation of right arm he will not be able to drive a motor vehicle. He will remain dependent on someone as well as on family members or on an employee for taking him to any other place or he may have to hire a taxi etc. The amount of compensation merely Rs. 10,000/- on that account is highly inadequate. The same in my opinion deserves to be enhanced to Rs. 40,000/- as against Rs. 10,000/-. In view of my aforesaid discussion, the appellant is entitled to Rs. 5,000/- as compensation on account of medical expenses, Rs. 2,000/- on account of conveyance charges and Rs. 2,000/- on account of special diet and Rs. 40,000/- on account of pain and suffering and Rs. 40,000/- on account of loss of income and extra expenditure to be made by him on account of his being handicapped, making it a total of Rs. 89,000/-. The amount of enhanced compensation shall be payable to the appellant along with interest @ 6% per annum from the date of filing of claim petition till the disbursement of compensation. The appeals are disposed of accordingly. (RAJESH BINDAL) 17.2.2010 JUDGE Reema