IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.438 of 1987 (O&M) Date of decision:05.01.2011 Shamsher Singh ....Appellant versus Balwan Singh and others ..Respondents CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: None. ---- K.Kannan, J.(Oral) 1. In the present appeal, service is complete but there is no representation for either side. The case is of the year 1987 and one of the oldest cases on board. I proceed to therefore dispose of the case on the basis of facts available through the documents. 2. The appellant is the claimant who sought for damages for injuries suffered in a motor accident. The contention of the claimant was that he was travelling in his moped with one Ram Niwas as his pillion and the accident took place on 16.04.1986. When he had crossed the ganda nala bridge on Panipat-Khotpura road, a truck bearing registration No.HYL-6963 was coming from the opposite side in a rash and negligent manner and dashed against the moped injuring both the rider and the pillion rider. A police complaint had been given by one Jit Singh, who was said to be following the moped and it had been registered in FIR No.144, at Police Station Sadar, Panipat on the following day. The FAO No.438 of 1987 (O&M) - 2 - Tribunal rejected the evidence of the claimant on the ground that the police complaint had not been immediately registered. Although there was explanation from Jit Singh that he had taken both the persons to the hospital immediately and he had to go to his own agriculture fields for watering his wheat crops and that he gave the complaint on his return from the fields. I do not find that there was any undue delay and if there existed any delay, it was duly explained. 3. The Tribunal chose to accept the evidence of the driver of the truck, who said that the moped fell on its own while coming down a slope and his vehicle did not dash against the moped. This evidence is at least a definite admission of the fact that the truck was there at the spot and the driver of the truck had known that there was a motor accident. The Tribunal reasoned that while the right leg of the pillion rider was fractured, the claimant's left leg had been fractured and if an accident had taken place by a collision, the fractures ought to have been on the same side for both the passengers. This again, in my view, is wholly erroneous for a collision may not result in the injuries at the same place. It all depends on how the passengers were seated and what the point of impact was. It is also likely that the truck hit one of the passengers physically while the other person thrown of the vehicle could have come by injuries on the side on which he was landing on the surface of the road. To discredit the testimony of a collision by the fact that two passengers did not have homogenous injuries on the same side of the respective bodies is a poor way of appreciation of fact. It is an admitted case that the driver was also prosecuted by the police for the negligent act. The FAO No.438 of 1987 (O&M) - 3 - version of the claimant was also supported by Jit Singh, who had given a complaint and the rejection of all the evidence of three persons and the preference given to the evidence of the driver of the truck is, therefore, not justified at all. I set aside the finding that the accident had not been shown to be on account of negligent driving of the truck bearing registration No.HYL-6963. On the other hand, I find that it was only the driver of the truck Balwan Singh, who was responsible for the accident and consequently, the owner is vicariously liable for the same. It is also an admitted fact that the vehicle had been insured with the third respondent. 4. While discussing the issue of quantum of compensation, the evidence was that the claimant was an electrician and he was also doing farming work and earning Rs.3,000/- per month from farming and Rs.2,000/- from his electrical job. He had suffered fracture of left leg and some injuries on the right calf muscle and other parts of the body. He gave evidence to the effect that he had spent Rs.10,000/- for the medicines and Rs.1,000/- for travelling expenses. As regards the injuries, the doctor R.S.Dahiya, who was treating him, had certified that the claimant had 5 to 10% disability and he had restriction of movement of the joint. The doctor also gave evidence to the effect that the disability could be reduced by passage of time and that it could become totally all-right in course of time by exercise. From the evidence, I will, therefore, gather that the claimant could not have suffered any loss of earning capacity and that if there was any disability, it was temporary. For the inconvenience suffered by him which the doctor had assessed as FAO No.438 of 1987 (O&M) - 4 - 5 to 10% disability, I would provide for Rs.5,000/-. He had a fracture of the leg and since the accident pertained to the year 1986, I will provide another Rs.5,000/- towards pain and suffering for the fracture. I will take the evidence as given by him for transport expenses at Rs.1,000/- as recoverable and would provide for a further sum of Rs.5,000/- as medical expenses. The total amount would come to Rs.16,000/-. 5. In the course of trial, the judgment records the fact that the Tribunal had called upon the driver of the truck to produce the driving licence and he did not produce the same, the Court, therefore, made an adverse inference that the driver could not have had a valid driving licence. I do not find any error in the approach but all the same even if there was any violation of terms of policy, it will provide to the claimant a right of recovery against the insurer and the insurer in turn may claim recovery from the owner and the driver. 6. The award of the Tribunal is set aside and the appeal is allowed granting a compensation of Rs.16,000/- with interest at 7.5% from the date of petition till date of payment. The liability shall be on the third respondent and the third respondent in turn shall have a right of recovery against the owner/insured. 7. The appeal is allowed to the above extent. (K.KANNAN) JUDGE 05.01.2011 sanjeev