FAO No. 4166 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 4166 of 2009 Date of decision: 9-12-2009 Hari Singh ...Appellant Versus Pala Ram and others ...Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Shri J.S.Jaidka, Advocate, for Shri I.P.S.Kohli, Advocate, for the appellant Shri Ravinder Arora, Advocate, for respondent No.3 HARBANS LAL, J. This appeal is directed by Hari Singh claimant against the award dated 7.3.2009 passed by the learned Motor Accident Claims Tribunal, Kurukshetra whereby he partly allowed his petition titled as Hari Singh Vs. Pala Ram etc. and awarded an amount of Rs.2,25,000/- as compensation alongwith interest @ 9% per annum from the date of filing the claim petition till date of realization. The brief facts are that on 25.12.2006 at 11.30 a.m., the claimant was going towards Ladwa on his motor-cycle bearing registration No. HR-07D-7501 belonging to his son Mahinder Singh. When he reached in front of generator factory of one Sukhwinder Singh on the Ladwa-Pipli road, meanwhile, a truck bearing registration No. HR-38-2258 came from FAO No. 4166 of 2009 2 the Ladwa side being driven by Pala Ram, respondent in a rash and negligent manner. The same hit against the motor-cycle of the claimant by coming to the wrong side and thereby caused grievous injuries. The motor- cycle was badly damaged. The driver of the offending truck fled away from the spot leaving behind the truck. In their joint written statement, Pala Ram respondent driver and Raj Pal owner-respondent have inter alia pleaded that a false FIR was got registered and that Pala Ram had a valid driving licence and the offending truck was insured with the respondent insurance company. While denying other facts embodied in the petition, it was prayed that the same may be dismissed. The respondent insurance company in its written statement denied the accident for want of knowledge. It has been pleaded that the driver respondent was not holding a valid and effective driving licence on the date of the alleged accident and there was violation of the terms of the insurance policy and therefore, answering respondent insurance company is not liable to pay any compensation. On the pleadings of the parties, the following issues were framed:- 1. Whether the accident took place on 25.12.2006 was because of rash and negligent driving of Pala Ram, respondent No.1, while driving truck No. HR-38-2258, if so, its effect? OPP 2. If issue No.1 is proved in affirmative, whether Hari Singh, petitioner is entitled to receive compensation on account of injuries, if so, how much and from whom and whether Mahinder Singh, petitioner is entitled to receive compensation on account of damage of his motor cycle bearing No. HR-07D-7501, if so, how much and from whom? OPP 3. Whether claim petitions are not maintainable in the present FAO No. 4166 of 2009 3 form?OPR 4. Whether respondent No.1 was not having a valid and effective driving licence at the time of accident, if so, its effect? OPR 5. Whether the petitions are bad for mis-joinder and non-joinder of necessary parties, if so, its effect? OPR 6. Relief After hearing the learned counsel for the parties and examining the evidence on record, the learned Tribunal awarded an amount of Rs.2,25,000/- as compensation as stated at the outset in favour of Hari Singh claimant-appellant. Feeling that the awarded amount is insufficient and inadequate Hari Singh has preferred this appeal. I have heard the learned counsel for the appellant as well as the learned counsel for the respondent insurance company, besides perusing the record with due care and circumspection. The learned counsel for the appellant canvassed at the bar that after the accident, the appellant was admitted in Primary Health Centre, Ladwa from where he was referred to P.G.I. Chandigarh, where he remained admitted for his treatment. A sum of Rs.2.0 lacs was spent on his treatment. He was 55 years of age at the time of accident. While he was receiving the treatment, a fixator was applied to the right leg and right hand. He also remained admitted in Command Hospital, Panchkula for one week, where plaster of Paris was applied which was removed after 45 days. Thereafter, he remained hospitalized in Anand Nursing Home, Kurukshetra for one month, where he was operated upon and rod was affixed in his body. In all, he suffered a fracture in his right side femur. Besides this, he also sustained fracture of proximal phalanx right little finger. These injuries led to 41% disability in his body. The learned Tribunal has erred in law by FAO No. 4166 of 2009 4 miscalculating loss of earning suffered by the appellant. In these premises, the awarded amount is liable to be enhanced to the extent of Rs.5.0 lacs. To tide over these submissions, the learned counsel for the respondent Insurance Company maintained that the learned Tribunal has already awarded sufficient amount and that being so, there is no scope for enhancement of the same. I have well considered the rival contentions. Dr. Bimla Gouri, Medical Officer, L.N.J.P. Hospital, Kurukshetra PW-2 has solemnly affirmed that claimant Hari Singh (referred to the appellant) was examined for assessing his disability; he was a case of fracture lower end femur right side with fracture proximal phalanx right little finger; on examination by a Board of Doctors, headed by Civil Surgeon, Kurukshetra, he was found to be having disablement of 41%; there was moderate restriction of movement at right ankle joint with external deviation of right foot and shortening by 1-1/2'' and mal-united deformity right little finger with restriction of movement; the disability certificate is Ex.P-2. Dr. Himanshu Anand (PW-5) has testified that claimant Hari Singh was admitted in his hospital on 20.2.2007 as a case of fracture lower end femur right with infection; he operated upon Hari Singh on 26.2.2007 and he was discharged on 14.3.2007; he had charged Rs. 26,350/- vide bill Ex.P-4; the claimant came up for follow up treatment in the OPD and paid the OPD visit charges vide bills Ex.P-5 to Ex.P-9. The other medical bills tendered by Hari Singh are on the file which are of Rs.55,000/- and that transportation bills are of Rs.20,000/- approximately. As observed by the learned Tribunal, there is no rebuttal to the aforesaid evidence. Taking into consideration the above discussed medical FAO No. 4166 of 2009 5 evidence, I am of the view that the awarded amount is liable to be enhanced. To my mind, the ends of justice shall be adequately met if an amount of Rs.40,000/- more is awarded as compensation. Resultantly, the impugned award is modified to the extent that the appellant shall be entitled to claim Rs.40,000/- as enhanced amount of compensation over and above the awarded amount. The enhanced amount shall be deposited by the respondent company within 45 days, failing which, this amount shall carry interest @ 9% per annum from the date of filing the claim petition till the date of realization. Accordingly this appeal stands disposed of. (HARBANS LAL) JUDGE December 9, 2009 RSK NOTE: Whether to be referred to the Reporter or not? Yes/No