F.A.O.NO. 3351 OF 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 3351 OF 1999 Date of decision:13th October, 2010 Mohinder Singh son of Shri Arjun Singh, r/o Prem Nagar, Karnal, Tehsil and District Karnal. .......Appellant Versus Jai Narain and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Ms. Manisha Setia, Advocate, for Mr. Ashit Malik, Advocate, for the appellant. Mr. Neeraj Khanna, Advocate, formula Mr. Ravinder Arora, Advocate, for the respondents. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) 1. The Insurance Company is in appeal, seeking for enhancement of compensation for injuries suffered in an accident. The contention of the claimant was that he had received lacerated wounds and deep injuries on the left side skull of parietal region and there was defused swelling around the right knee of upper part of the leg. The injury to his leg was compound fracture of tibia with a fracture patella on the same side. He had the first spell of treatment in regard to which medical expenses incurred were Rs. 1,310/-. His F.A.O.NO. 3351 OF 1999 2 evidence was that he had remained admitted in the hospital for 10 to 15 days and the doctor treating him, Dr. K.C.Sachdeva gave evidence as PW-4 that the patient was in his care as an in patient for seven days. 2. The Tribunal awarded compensation of Rs. 5,000/- for pain and suffering for a person who had two fractures, one at the knee and another at the tibia and who was an in patient for not less than a week. I would award to him compensation of Rs. 7,500/- for each fracture and increase the claim for pain and suffering at Rs. 15000/- instead of Rs. 5000/-. Towards medical expenses, the evidence was that he had incurred Rs. 60,000/- as expense but he produced bills to the tune of Rs. 6,638/- through P5 to P-11 and another Rs. 1,310/- for his first period of treatment which was evidenced through Mark A-2. The Tribunal had awarded Rs. 6,638/- only, I would take the medical expenses to be 10,000/- for the period when he had been in hospital. He had a fracture of the knee which ultimately resulted in shortening of the limb by 1½ inches. The Tribunal had evidence of the doctor and the evidence through a certificate issued as P-12 that showed that he had 3% disability for which the Tribunal awarded Rs. 10,000/-. I will retain the same. I will add towards claim for attendance, transportation an additional amount of Rs. 10,000/-. The Tribunal found that due to the injury, he could not even worked for some time and took his income as Rs. 10,000/- as loss of earning. I will retain the same. On an over all consideration and various heads the amount of compensation that will become payable would be Rs. 70,000/-. The F.A.O.NO. 3351 OF 1999 3 Tribunal had already awarded Rs. 32,948/- as compensation. The amount in excess of what has already been awarded shall attract interest 6% from the date of the petition till the date of payment. 3. The Tribunal had already exonerated the Insurance Company on account of statement made by the driver that the driver did not have a valid driving licence. The want of driving licence would only show that there had been a violation of terms of the policy that could enable an Insurer to recover the amount determined as payable by the Insurer from the Insured. As far as third party is concerned, the violation of terms of the policy such as invalidity of the driving licence cannot make possible a complete exoneration of liability by the Insurer. This has been stated to be so by the decision of the Hon'ble Supreme court in New India Assurance Co., Shimla v. Kamla,(2001) 4 SCC 342 and also followed in National Insurance Co. v Swaran Singh (2004) 3 SCC 297. Even while enhancing the claim for compensation, the right of enforcement and the award for the claim shall avail against the insurer as well. The insurer will have a right of recovery against the insured/owner. The award of the Tribunal is modified and the appeal in allowed to the above extent. [K.KANNAN] JUDGE 13th October, 2010 Shivani Kaushik