FAO No.1000 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.1000 of 2004 Date of decision 3. 5.2010. J.D.Kothiala ...... Appellant. versus B.S.Dhanju and another ...... Respondents. Present : Mr. Amit Jain, Advocate for the appellant. Mr. Ajay Mehra, Advocate for the respondents. FAO No. 2402 of 2004 B.S.Dhanju ...... Appellant. versus Prithvi Singh and and another ...... Respondents. Present : Mr. Ajay Mehra, Advocate for the appellant. Mr. Amit Jain, Advocate for the respondents. CORAM : HON'BLE MR.JUSTICE K.C.PURI. K.C.PURI. J. FAO No.1000 of 2004 2 By this common order I intend to dispose of FAO No.1000 of 2004 titled as J.D.Kothiala versus B.S.Dhanju and another for setting aside the impugned Award and FAO No. 2402 of 2004 titled as B.S.Dhanju versus Prithvi Singh and and another for enhancement of the compensation amount, as both these appeals arise out of the same award and accident. For convenience facts are being taken from FAO No.1000 of 2004. The brief facts of this case are that on 05.04.1999 claimant B.S.Dhanju was coming on motorcycle No.CH-01H-3869 from State Bank of India, Sector-17, Chandigarh and was going to his home. At about 2:30 P.M when he reached near Jail Road Barrier on the dividing road of Sector-44 and Colony No.5, Chandigarh, Matador bearing No.CH-01-F-9399 came from behind at a fast speed in a rash and negligent manner, which hit the motorcycle of the claimant from the back side. As a result of which, the claimant fell down and sustained injuries and became unconscious. He was removed to the Hospital. The accident was witnessed by many people including Rajesh Kumar son of Bhola Nath, who lodged the complaint with the police. On the basis of which formal FIR was registered against respondent No.1. The claimant has claimed Rs.10 lacs as compensation on account of disablement, pain and suffering, medical expenses etc. On the other hand, the petition was contested by the respondents. In his written statement, respondent No.1 took the stand that the accident took place due to the rash and negligent driving of the FAO No.1000 of 2004 3 claimant and he himself was at fault and hit the vehicle driven by the answering respondent from behind and therefore the claimant is not entitled to claim any compensation. All other averments pleaded in the petition were denied and finally it was prayed that the claim petition deserves dismissal. Respondent No.2 in his written statement while admitting the factum of accident and pleaded that accident took place between Matador No.CH-01-F-9399 and motorcycle No.CH-01-H-3869 and the same was caused due to the rash and negligent driving of the claimant who hit the Matador from behind and therefore he is not entitled to any claim. While denying all other assertions contained in the petition finally it was prayed that the claim petition is liable to be dismissed. The following issues were framed : 1. Whether the claimant sustained multiple fractures and injuries in a motor vehicle accident which took place due to the rash and negligent driving of respondent No.1 while he was driving vehicle on CH-01-F-9399. If so, its effect ? OPP 2. If Issue No.1 is proved, to what amount of compensation the claimant is entitled to and from whom ? OPP 3. Whether respondent No.1 was not holding a valid driving licence ? OPR 4. Relief. In order to succeed, claimant B.S.Dhanju himself stepped into the witness box as PW2 and examined Dr.M.K.Tiwari as PW1, Rajesh as PW3, Dr. Vipin Kumar as PW4 and when he failed to produce any other witness despite the fact that nine effective opportunities were granted to him, the evidence of the claimant was FAO No.1000 of 2004 4 closed by order. On the other hand, respondent No.1 Prithvi Singh himself stepped into the witness box as RW1 and closed the evidence. The Tribunal, after appraisal of the evidence and after hearing learned counsel for the parties, awarded Rs.5,00,000/- as compensation to the claimants along with interest @ 9% per annum from the date of award till its realization. The respondents were held liable to pay the compensation amount jointly and severally. Feeling dis-satisfied with the aforesaid award, appellant J.D. Kothiala preferred FAO No.1000 of 2004 for setting aside the impugned Award and and appellant B.S.Dhanju preferred FAO No. 2402 of 2004 for enhancement of the compensation amount. I have heard the learned counsel for the parties and have gone thorough the records of the case. Aggrieved by the above said judgment J.D.Kothiala, the owner of the offending vehicle has preferred FAO No.1000 of 2004 for dismissing the claim petition and in the alternative for reduction of the amount of compensation. Mr.B.S.Dhanju-injured-claimant has preferred FAO No.2402 of 2004 for enhancement of compensation. Since both these appeals have arisen out of the same Award and as such these are being disposed of with the common order. Learned counsel for the owner-appellant has submitted that finding of the Tribunal on issue No.1 that accident has taken place due to rash and negligent driving of the respondent No.1 is wrong. In FAO No.1000 of 2004 5 fact, the accident has taken place due to rash and negligent driving of the motor cycle and in these circumstances, the appellant/owner is not liable to pay any compensation under Section 166 of the Motor Vehicles Act. In the alternative prayer has also been made for returning the finding that the accident has taken place due to contributory negligence of both the parties. I have carefully considered the said submission. The arguments advanced by the counsel for the appellant/owner are meritless. While determining issue No.1, the trial Court after appreciating the whole evidence reached to the conclusion that accident has taken place due to rash and negligent driving of Matador No. CH- 01F-9399 (hereinafter mentioned as offending vehicle ). The said matador struck against the motor cycle from back side. So, it leaves no doubt that accident has taken place due to rash and negligent driving of offending vehicle by respondent No.1. So, the finding of the Tribunal on issue No.1 stands affirmed. Now reverting to finding on issue No.2. The learned counsel for the appellant/owner has submitted that the amount of compensation awarded by the Tribunal is on higher side. It is contended that the Division Bench of this Court in authority Ram Kiran Goyal vs. Sub Divisional Engineer, Mechanical and others 2008 (2) RCR ( Civil) page 103 allowed Rs.2000/- for permanent disability to the extent of 1%. In the case before the Division Bench, the disability was 55% and on that account, an amount of Rs.1,10,000/- as compensation was allowed. FAO No.1000 of 2004 6 The learned counsel for the appellant has further submitted that where the doctor failed to explain the basis for issuance of disability certificate, in that case this High Court in authority Surjan Bhan vs. Pritam Singh and others 2006(4) RCR (Civil ) page 485 held that disability is not proved. It is submitted that in the present case, the doctor has not given the reason for permanent disability. So, the amount of Rs.5,00,000/- granted by the Tribunal is highly excessive. It is further contended that the claimant is a retired Government employee. He has taken a stand that he was working as Manager with Harbir Car Point but that assertion has not been accepted by the Tribunal. No medical bill has been proved except few for Rs.81,000/- and another three bills of 45 dollar each. Prayer has been made for reduction of amount. The learned counsel for the claimant/appellant has submitted that appellant suffered 95% permanent disability. The claimant examined Dr. Vipin Kumar, Deputy Medical Superintendent, Member Secretary, PGI, Chandigarh as (PW-4), who has proved the disability certificate Ex.P-1. This witness has not been cross-examined by the respondent side. In Ex.P-1 the Board of Doctors of PGI have mentioned that claimant suffered head injury leading to minimal memory impairment and bilateral mild sensory neural loss and he is physically handicapped and his disability is to the extent of 95% in respect of whole body. The claimant has also examined Dr. M.K.Tewari, Department of Neurological Surgery, PGI, Chandigarh, who has stated that claimant B.S.Dhanju remained admitted in the hospital from FAO No.1000 of 2004 7 5.4.1999 to 22.4.1999 on account of head injury. There was right frontal thin acute subdural haemottoma with diffused brain and fracture of fourth and fifth metacarpals of right hand for the latter open reduction and fixation was done in respect of later injury. The patient paid Rs.8100/- vide receipt dated 22.4.1999. So, it is submitted that in fact the claimant is a dead wood and has to depend on the others for whole of his life and an amount of Rs.5,00,000/- is on lower side and prayer has been made for enhancement of the compensation amount. I have considered the submissions made by both the sides and have gone through the records of the case. So far as the authority Ram Kiran Goel 's case (supra) is concerned that authority is distinguishable. In that case disability certificate was obtained from a private doctor, although the injured has taken treatment from the Government Hospital. So, in these circumstances certificate regarding disability was not accepted. In the present case, the disability certificate has been issued by renowned Institution PGI by the Board of Doctors and that cannot be disbelieved. Besides head injury, which resulted into the loss of memory of appellant had also suffered fracture of 4th and 5th metcarepal of right hand and for the latter open reduction and fixation was done. The injured remained in the hospital from 5.4.1999 to 22.4.1999. The Tribunal has assessed the loss on all heads to the extent of Rs.5,00,000/-. Owner and claimant are dissatisfied from the said Award. However, keeping in view the age of the claimant, I am of the view that amount of Rs.5,00,000/- granted by the Tribunal has been correctly assessed. FAO No.1000 of 2004 8 In view of the above discussion, the appeal preferred by the owner as well as the claimant are without any substance and both stand dismissed. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE May 03rd, 2010 sv