F.A.O. No. 758 of 2011 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 758 of 2011 Date of Decision: September 28th,2011 Des Raj .... Appellant Versus Ishwar Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK Present Mr. Ram Tilak Redhu, Advocate, for the appellant. Mr. M.B.Jain, Advocate, for respondent No.3-Insurance Company. VIJENDER SINGH MALIK, J. This is an appeal brought by Des Raj, claimant for enhancement of compensation awarded to him in a sum of ` 54,500/- vide award dated 25.8.2010 by the Motor Accidents Claims Tribunal, Hisar (for short, "the Tribunal") in his claim petition brought under Section 166 of Motor Vehicles Act, 1988 (for short, “the Act”). The case of the parties is as under :- On 17.6.2009, the claimant was coming from Sector 16-17, Hisar on his motor cycle bearing registration No. HR-20P- 9053 and was coming to his house. When he was near Chiti Mandri, the offending car came in a rash and negligent manner and had hit the motor cycle, on account of which he fell down F.A.O. No. 758 of 2011 2 .. and suffered injuries on his right leg below the knee joint. He was taken to Chawla Nursing Home, Hisar for treatment where he remained admitted upto 20.6.2009. He was operated upon there and a rod was inserted in his leg. He had spent a sum of ` 1,50,000/- in his treatment. Respondents No.1 and 2 have denied the accident They have denied their liability to satisfy the award. They have taken numerous preliminary objections regarding maintainability of the petition, the claimant not coming to the Tribunal with clean hands etc. Respondent no. 3 – United India Insurance company has claimed collusion between the claimant and respondents No.1 and 2. It was further claimed that the offending vehicle was not driven by a person holding a valid and effective driving licence. The claim petition was prayed to be dismissed. On the pleadings of the parties, the following issues were framed by the Tribunal. 1.Whether accident resulting into injuries to Des Raj took place on 17.6.2009 at about 8.15 AM in the area of Sector 16, 17, Hisar on account of rash and negligent driving of respondent No.1 Ishwar Singh while driving vehicle bearing registration No. HR- 26AB-8613? OPP 2.If issue No.1 is proved whether the petitioner is entitled to claim compensation, if so, to what amount and from whom?OPP 3.Whether the petitioner has no cause of action locus standi to file the present petition? OPR F.A.O. No. 758 of 2011 3 .. 4.Whether the petition is not maintainable in present form? OPR 5.Whether the vehicle was being driven in violation of the terms and conditions of insurance policy? OPR-3 6.Relief. Taking evidence of the parties and hearing learned counsel representing them, learned Tribunal awarded compensation in a sum of ` 54,500/- to the claimant vide the impugned award. Dissatisfied with the aforesaid award, the claimant has brought this appeal. I have heard Shri Ram Tilak Redhu, learned counsel for the appellant and Shri M.B.Jain, learned counsel for respondent No.3 and have gone through the record. The first submission of learned counsel for the appellant is that Dr. Parveen Chawla has clearly stated in his statement recorded as PW2 that the injured would be required to undergo another operation for removal of the plate. According to him, the plate would require removal in future when expenses on the treatment would further go high. Learned counsel for the appellant has submitted that learned Tribunal has awarded a sum of ` 5,000/- for future operation. According to him, for permanent disability at 9%, a sum of ` 18,000/- has been awarded as compensation. He has submitted that practically no amount has been awarded for pain and suffering and nothing has been awarded for the expenses on F.A.O. No. 758 of 2011 4 .. special diet, attendants and transportation. He has submitted that in these circumstances, the Tribunal has not awarded adequate compensation to the claimant for his injuries. Learned counsel for respondent No. 3 has submitted, on the other hand, that Dr. Parveen Chawla (PW2) has stated in his cross examination that the plate was only recommended to be removed and it was for the patient to get it removed or not. According to him, this statement shows that the plate would not require removal in all circumstances. He has submitted that there is no necessity to undergo the second operation. He has further submitted that the claimant had been adequately compensated by awarding compensation in the sum of ` 54,400/- and the same does not require any enhancement. Dr. Parveen Chawla (PW2) has stated that the plate needs to be removed. It is the doctor, who would be knowing better about the quality of the plate and it is Dr. Parveen Chawla, as an expert, who could tell that the plate would be required to be removed or not. By saying that it is upto the patient to get it removed or not, Dr. Praveen Chawla cannot be taken to mean that removal of the plate would not be in the interest of the claimant. Therefore, the patient may require an operation in future for removal of the plate. When for inserting a plate, the doctor has charged a sum of ` 15,000/- from the patient, the amount to be charged for the next operation would be higher than that. No amount has been awarded for the expenses of F.A.O. No. 758 of 2011 5 .. attendants, special diet and transportation. In case of road side accidents, patient requires exclusive transportation and good amount of money now a days is spent on the same. Pain and suffering in such a case cannot be held to be adequately compensated by assessing a sum of ` 5,000/- as compensation. Keeping in view the age of the claimant of 45 years at the time of accident and his disability of the leg, though at 9%, as also the expenses that may be required in future operation of the claimant and the expenses of special diet, transportation and attendants, I hold that a sum of ` 80,000/- would be adequate to compensate the petitioner. Hence, the appeal is allowed and the compensation awarded to the claimant by the Tribunal is enhanced from ` 54,500/- to ` 80,000/- with other terms regarding rate of interest etc. remaining the same. (VIJENDER SINGH MALIK) JUDGE September 28th , 2011 som