FAO No. 3186 of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 3186 of 2002 Date of decision 10 .2.2010. Ishwar Singh ...... Appellant. versus Diwan Singh and others ...... Respondents. Present : Mr. Surinder Gandhi, Advocate for the appellant. Mr. V.Chaudhari, Advocate for Insurance Company. K.C.PURI. J. This is an appeal preferred by the appellant for enhancement of the compensation amount awarded by the Motor Accident Claims Tribunal, Sirsa vide Award dated 3.2.1990. Case of the complainant, in brief, is that on 16.10.1998, petitioner alongwith Ashok Kumar had hired canter No. HR-39/3820 and at about 11.00 P.M. Abovesaid vehicle was loaded with cauliflower for sale at Pilli Bagga (Rajastahn). On return journey i.e. On 17.10.1998, respondent No.1 drove the canter at fast speed and in a rash and negligent manner, despite the fact that he was warned by the petitioner in this regard and about 2.30 P.M., when the canter was at a distance of 4 kms from Fatehabad towards Sirsa, respondent No.1 tried to overtake tractor trolly and during FAO No. 3186 of 2002 2 that process truck No. RJ-14-G/1526 being driven by respondent No. 4 came from the opposite side and on seeing the said vehicle, respondent No.1 took the canter on the wrong side but on account of excessive speed, he could not control his vehicle and struck against the truck and due to heavy impact the petitioner suffered multiple injuries on his person and he was taken to General Hospital, Fatehabad. After getting first aid, the petitioner was referred to Medical College and Hospital, Rohtak, for further treatment. Since, accident had occurred solely due to rash and negligent driving of respondent No.1 on the statement of Ashok Kumar, FIR No. 424 on 18.10.1998 was recorded. In the accident in question due to multiple injuries left leg of the petitioner has been amputated whereas right leg got fractured. On account of injuries suffered by the petitioner, the petitioner has already incurred a sum of Rs.1,00,000/- on treatment and further it is likely that he has to incur heavy expenditure on account of permanent disability. It is, therefore, prayed that instant claim petition may be accepted with costs and the petitioner is entitled to get compensation amounting to Rs.10,00,000 under Sections 166 and 140 of the Motor Vehicles Act 1988 (hereinafter referred as Act), in respect of injuries sustained by him in a motor vehicular accident due to rash and negligent driving of respondent No.1. Further it is prayed that even though respondent No.4, truck driver was not at fault in causing the accident, but in any case if he is also found negligent in causing the accident, in that event all the respondents be held jointly and severally liable to pay compensation to the petitioners. On notice, respondents No. 1 and 2 appeared in the Court and filed written statement wherein preliminary objections inter alia of wrong FAO No. 3186 of 2002 3 facts, maintainability, estoppel, cause of action, suppression or material facts from the Court and un-necessary harassment of the answering respondents, have been taken. On merits, it is contended that in fact accident had taken place due to sole negligence of respondent No.4 i.e. Driver of truck No. RJ-14-G/1526 who was driving the said truck in rash and negligent manner and he without blowing any horn had hit the canter which was coming on its appropriate side of the road. In such like factual position, answering respondents have categorically denied the claim of the petitioner and prayer for dismissal of petition with costs. On notice, respondent No.3, the New India Assurance Company Limited, insurer of canter No. HR-39/3820, appeared in Court and filed written statement wherein preliminary objections inter-alia of wrong facts, locus standi, cause of action, collusion between the petitioner and respondents No. 1, 2,4 and 5, breach and violation of terms and conditions of insurance policy, non-possession of valid and effective driving licence by respondent No.1 and no privacy of contract between the petitioner and answering respondent, have been taken. On merits, it is contended the answering respondent did not receive any intimation of the alleged accident from the owner of the canter. It is contended that petitioner at the relevant time was travelling in a goods vehicle and thus respondent No.1 has violated the express condition of policy of insurance and therefore, no liability can be fastened upon the answering respondent. Even though, involvement of canter No. HR-39/3820 in the alleged accident has been totally denied and moreover, if it is found and proved on record that any such accident has taken place then undoubtedly it is a case of contributory negligence and the FAO No. 3186 of 2002 4 driver of truck No. RJ-14-G/1526 was more responsible for the alleged accident and in fact canter No. HR-39/3820 has been involved on false and frivolous grounds to help the claimants to get compensation. On the quantum of compensation, it is contended that is is wrong to plead that petitioner has been earning Rs.10,000 per month. Even though, claimants is not entitled to any compensation and even otherwise compensation sought is too excessive, imaginary and without any basis. In such like factual position, answering respondent has categorically denied the claim of petitioner and prayed for dismissal of petition with costs. On notice, respondents No. 4 and 5 appeared in Court and filed written statement wherein preliminary objections inter alia of wrong facts, maintainability. Locus standi, estoppel and misjoinder of parties, cause of action and incomplete particulars in the petition, have been taken. On merits, it is contended that since respondent No.4 was not at fault for the accident in question, therefore the answering respondents are not liable to pay any compensation to the petitioner. Even otherwise, if it is found and proved on record that the accident did take place due to rash and negligent driving of respondent No.4, then in that circumstance, respondent No.6 insurer of the truck is liable to pay the compensation to the petitioner. In such like factual position, it is prayed that instant petition being devoid of merits may be dismissed against the answering respondent. On notice, respondent No.6, insurer of truck No. RJ-1G/1526, appeared in Court and filed written statement wherein preliminary objections inter alia of wrong particulars, cause of action, violation of terms and conditions of insurance policy by the insured and no privacy of contract FAO No. 3186 of 2002 5 between the petitioner and answering respondent have been taken. On merits, it is contended that in the instant case, FIR has been lodged against respondent No.1, who was driving canter in question in rash and negligent manner and he is facing a criminal trial with regard to the said accident. It is, therefore, prayed that instant claim petition being devoid of merits is liable to the dismissed qua answering respondents. In replication, petitioner has controverted the contentions of answering respondents and re-affirmed his pleadings as mentioned in the petition. On the pleadings of the parties, following issues were framed on 2.8.1999:- 1. Whether the accident took place in rash and negligent driving of respondent no.1, as alleged? OPA 2. Whether the petitioner is entitled for compensation, if so, what amount and from whom? OPA 3. Whether the present petition is not maintainable in the present form? OPR 4. Relief. The parties had led their respective evidence. After appreciation of the evidence, the learned Tribunal passed the award awarding Rs.3,57,950/- to the claimant while holding respondent Nos. 1 to 3 liable to pay the same jointly and severally along with interest @ 9% per annum from the date of filing of the claim petition till realization of the awarded amount. FAO No. 3186 of 2002 6 Feeling dis-satisfied with the aforesaid amount, the claimant- appellant preferred this appeal. I have heard the learned counsel for the parties and have gone through the records of the case. This is an appeal directed by Ishwar Singh for enhancement of compensation. The learned counsel for the appellant has submitted that left leg has been amputated and there was fracture of right leg. The amount of compensation awarded by the Tribunal amounting to Rs.3,57,950/- is on lower side. It is contended that in authority Oriental Insurance Company vs. Satish Sharma,2008 ACJ 2259, claimant was granted an amount of Rs.10,33,850/- in respect of amputation of right leg below knee where the disability was 60% only. However, the Appellate Court reduced the claim by Rs.1,35,270/- only and kept the remaining claim intact. The Appellate Court assessed the loss of earning capacity as Rs.5,04180/- instead of Rs.6,76,350/- assessed by the Tribunal i.e. (Rs.4175 x 12 x 18 x 60%). Counsel for the Insurance Company has supported the judgment of the Tribunal. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the case. The Tribunal has assessed the age of the claimant as 30 years. His income has been taken as Rs.15,000/- per month. Due to amputation of left leg and fracture of right leg, permanent disability was assessed as 91% and the multiplier applied by the Tribunal was 17 and income was assessed as Rs.13650 x 17 = 2,32,050/-. The amount of compensation was assessed as under :- FAO No. 3186 of 2002 7 1. Loss of income as detailed above : Rs.2,32,050/- 2. Mental, physical shock pain and loss of enjoyment Rs.50,000/- 3. Medicines and transport charges Rs.70,900/- grievous injuries 4. Pain and sufferings Rs.5000/- 5. Total Rs.3,57,100/-. In authority Oriental Insurance Company's case (supra), the amount was awarded as under :- i. Medicial/reimbursement Rs. 25,000/- ii. Pain and sufferings Rs.1,00,000/- iii. Permanent disability/loss of Rs.2,00,000/- amenities iv. Loss of earning capacity Rs.6,76,350/- v. Conveyance/attendant Rs. 7,500/- charges vi. Future treatment/ artifical implant Rs. 1,000/- vii. Loss of marriage prospects Rs. 25,000/- Total Rs.10,34,850 The accident in authority Satish Sharma's case (supra) has taken place on 30.8.2003 whereas the accident in the present case has taken place on 16.10.1998. So, while assessing amount of compensation the price index in the relevant year i.e.1998 has been taken into consideration. So far as the amount of Rs.50,000/- granted in respect of pain and suffering mental agony etc. assessed by the Tribunal is concerned, the same is on the lower side. The state of mind of a person whose left leg has been amputated can be well imaged. Whenever he will see towards his FAO No. 3186 of 2002 8 body then he would feel havoc. So, the amount of compensation in respect of mental pain and suffering is enhanced to Rs.1,00,000/- instead of Rs.50,000/- awarded by the Tribunal. The Tribunal has not assessed any amount in respect of permanent disability/ loss of amenities. So, an amount of Rs.1,00,000/- is granted in respect of permanent disability/loss of amenities. So, in this manner, an amount of Rs.1,50,000/ stands allowed to the claimant in addition to the amount awarded by the Tribunal. The claimant is also held entitled to claim interest @ 7% per annum from the date of appeal till payment, on the above said enhanced amount. Consequently, the appeal stands partly accepted. Respondent Nos.1 to 3 are jointly and severally held liable to pay amount of Rs.1,50,000/- in addition to the amount awarded by the Tribunal along with interest @ 7% per annum from the date of appeal till realization. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE February 10 , 2010 sv FAO No. 3186 of 2002 9 FAO No. 3186 of 2002 10 FAO No. 3186 of 2002 11 A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE February , 2010 sv