F.A.O.No. 797 of 2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 797 of 2000 Date of Decision : 19.8.2008 Sunny ....Appellant Versus The State of Punjab & Anr. ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. Vipul Dharmani, Advocate for the appellant. MAHESH GROVER.J.(Oral) The claimant is in appeal against the award of the Motor Accident Claims Tribunal dated 22.12.1999. The claimant, who was injured in the accident, which took place on 17.11.1996, suffered an amputation of his right arm resulting in 55% permanent disability which was duly established before the Tribunal. The claimant was travelling in a bus bearing registration No.PB-12A-8753 while going from Ludhiana to Chandigarh. The bus was being driven by Balbir Singh, respondent No.2 and belonged to the Punjab Roadways. The accident occurred when the driver of the bus was in the process of overtaking a truck at a high speed and as a result the left side of the bus struck against the right side of another bus bearing registration No.PB-23-4797 which was coming from the opposite direction. F.A.O.No. 797 of 2000 -2- Respondents No.1 and 2 contested the petition and stated that the injured himself was at fault as he had extended his arm outside the window exposing it to the other vehicular traffic on the road. The Tribunal held that the drivers of both the buses i.e. bus No.PB-12A-8753 and PB-23-4797 were equally at fault, as due care and caution was cast upon them when they were approaching each other. However, the plea regarding the appellant himself being guilty of any negligence was not accepted. The drivers of both the buses were held guilty of contributory negligence to the extent of 50% each. While assessing the compensation, the Tribunal assessed the income of the appellant at Rs.1,500/- per month and assessed the future loss of income at Rs.1,20,000/-. Apart from this, the compensation assessed under various heads and determined by the Tribunal is as follows : i) Medicines & medical expenses Rs.5,000/- ii)Pain & suffering Rs.30,000/- iii)Adverse effect on marriage prospects Rs.50,000/- iv)Special diet Rs.2,000/- v) Compensation for loss of future income Rs.1,20,000/- vi)Compensation for loss of actual amount Rs.4,500/- about 3 months. A total amount of compensation to the tune of Rs.2,11,500/- was assessed but was slashed by 50% on account of the contributory negligence of the drivers of the vehicles involved. F.A.O.No. 797 of 2000 -3- Admitting a compensation of Rs.1,05,750/- to the appellant, it was directed to be paid to him along with interest @ 12% per annum from the date of filing of the petition till the date of realisation. Assailing the aforesaid award, learned counsel for the appellant contended that there was no pleading by the respondents to the effect that the bus which was coming from the opposite direction was negligent. Besides, it was contended that there is no evidence to this effect also. In any eventuality, the only plea taken up by the respondents was that the appellant was guilty of extending his arm outside the window of the bus in which he was travelling, but that plea has been discarded by the Tribunal and therefore the only conclusion which ought to have been rightly derived by the Tribunal ought to have been that the accident had occurred because of the rash and negligent driving of the bus by respondent No.2 - Balbir Singh. On the strength of this, it was contended that the finding recorded qua contributory negligence is erroneous. In so far as the assessment of compensation is concerned, it was contended that the same is inadequate as the Tribunal has wrongly assessed the income at Rs.1,500/- per month and has given no cogent reason for assessing the loss of future income at Rs.1,20,000/-. Besides, it was contended that an amount of Rs.5,000/- which has been awarded for medical treatment is also inadequate and similarly the amount for special diet and pain and suffering is also grossly on the lower side. No one has appeared on behalf of the respondents. I have heard the learned counsel for the appellant. F.A.O.No. 797 of 2000 -4- A perusal of the award shows that there is no pleading to the effect that any other vehicle except the bus in which the appellant was travelling was being driven rashly or negligently. The appellant to substantiate the plea that the bus in question was being driven rashly and negligently, produced himself as a witness as also PW2 who testified before the Tribunal that the bus was being driven rashly and negligently and the accident occurred when the driver of the bus was trying to overtake a truck and in the process it came dangerously close to another vehicle which struck against the bus. In view of this overwhelming evidence, the finding recorded by the Tribunal appears to be in the realm of conjectures. Merely because two vehicles were approaching each other from opposite direction would not imply that in the event of an accident they were guilty of contributory negligence especially when a plea has been taken that one of the buses was trying to overtake a truck and in the process came within an unavoidable distance of the second bus coming from the opposite side. The finding of the Tribunal on this issue is therefore accordingly set aside and it is held that it was the driver of bus No.PB-12A-8753 who was guilty of driving the bus rashly and negligently, which resulted in the accident. In so far as the amount of compensation awarded to the claimant is concerned, it is to be noticed that there is no denial to the fact that the claimant was 17-1/2 years of age when the accident took place, in which his right arm was amputated. He was working as a waiter in a tent house and even if there is no proof of his income, which he claims to be Rs.3,500/- per month, yet even by a F.A.O.No. 797 of 2000 -5- conservative estimate in the year 1996 an able bodied person would be earning at least Rs.2,000/- per month. Therefore, the income assessed by the Tribunal at Rs.1,500/- is inadequate and the same is assessed at Rs.24,000/- per annum i.e. @ Rs.2,000/- per month. Since the appellant has suffered 55% permanent disability of the whole body, the annual loss of income would be Rs.13,200/-. The appellant was also a young man of 17-1/2 years and he lost his arm, as a result of which his earning capability would have been seriously impaired. The future loss of income is therefore assessed at Rs.1,58,400/-. That apart, under the medical expenses Rs.5,000/- have been awarded which seems to be inadequate. Even though there is no conclusive evidence to this effect, as the vouchers and medical bills have not been proved in accordance with law, yet I think the ends of justice would adequately be met if the amount under this head is enhanced to Rs.10,000/-. The amount of compensation under the heads 'Pain and suffering', 'special diet' and 'compensation for loss of actual amount for three months' is also enhanced to Rs.40,000/-, Rs.5,000/- and Rs.6,000/-, respectively. Compensation of Rs.50,000/- awarded under the head 'adverse effect on marriage prospects' will remain the same. Resultantly, the appellant-claimant shall be entitled to the compensation computed as Rs.2,69,400/-.The enhanced compensation shall be paid to him alongwith interest @ 9% per annum from the date of filing of the claim petition till the date of realisation. F.A.O.No. 797 of 2000 -6- Appeal is disposed of accordingly. 19.8.2008 (MAHESH GROVER) JUDGE dss