FAO No. 324 of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 324 of 2001 Date of decision 3.3.2010. Kamlesh Khurana alias Kamlesh Rani ...... Appellant. versus Dalip Singh and others ...... Respondents. Present : Mr. Wazir Singh, Advocate for the appellant. Mr. R.K.Bashamboo, Advocate for Insurance Company. K.C.PURI. J. Kamlesh Khurana-claimant/appellant has filed this appeal against the Award dated 25.4.2000 passed by Motor Accident Claims Tribunal, Kurukshetra vide which the claim petition filed by her claiming compensation amounting to Rs.4 lacs on account of injuries sustained by her in the motor vehicular accident, stood dismissed. The facts recapitulated in brief from the records are that on 26.6.1996 claimant along with his nephew Aman Kumar and other passengers was coming in a Matador No.HR-37-3996 from Jhansa to Kurukshetra and other passengers were also travelling in the said Matador. At about 10.00 a.m., when the said Matador reached Dera Waraich, driver FAO No. 324 of 2001 2 of the Matador lost control and struck against a standing tree, resulting in multiple injuries to all the occupants of the Matador. The accident took place due to rash and negligent driving of the vehicle in question by respondent No.1. It has been further alleged that the claimant was shifted to Civil Hospital Kurukshetra and then she was shifted to Kohli Nursing Home Yamuna Nagar where she was operated upon and steel plate was fixed in her right arm and she in this way spent Rs.65,000/- on her treatment and has become permanently disabled. On notice respondent No.1 filed written statement alleging that the petitioners have no locus-standi and that the claim petition is not maintainable. It is also submitted that no accident was caused by the answering-respondent and he was also not driving the vehicle in question. False case was registered against him. Therefore, he is not liable to pay any compensation and the claim petition is liable to be dismissed. Respondent No.2 filed separate written statement alleging that the petitioners have no locus-standi, maintainability and it is pleaded that Anil Kumar claimant was not doing Milk diary, shop and business as alleged. He was un-employed and was not earning anything. The amount claimed is fictitious. False case was registered against respondent No.1 and the claim petition is liable to be dismissed. Insurance Company-respondent No.3 filed separate written statement alleging that the claim petition is not maintainable. It is also submitted that driver of matador in question was not holding any valid driving licence, so insurance company is also not liable to pay any amount of compensation. Respondent No.3 denied other averments and prayed for FAO No. 324 of 2001 3 dismissal of the claim petition. Following issues framed on 20.5.1997 :- (1)Whether the accident occurred due to rash and negligent driving of respondent No.1 ?OPP. (2)If issue No.1 is proved, then to what amount of compensation the petitioners are entitled to receive in their respective claim-petition and from whom ?OPP. (3)Whether respondent respondent No.1was not holding a valid driving licence at the time of accident?OPR-3. (4)Relief. The parties have led their respective evidence. On the basis thereof, the learned Motor Accident Claims Tribunal held that since the claimant herself has not stepped into the witness box in support of her averments mentioned in the claim petition, it is held that she is not entitled for grant of any compensation and dismissed her claim petition. Feeling dis-satisfied with the aforesaid award, the claimant- appellant preferred for grant of compensation. I have heard the learned counsel for the parties and have gone thorough the records of the case. The learned Tribunal after adjudication returned the finding on issue No.1 against the claimant and held that the claimant i.e. appellant and other set of claimant-Anil Kumar have failed to prove that accident has taken place due to rash and negligent driving of Matador No.HR-37-3996 by Dalip Singh-respondent. However, the appellant has placed on record copy of judgment passed in claim petition No.88 of 1996 instituted on 28.9.1996 decided on 19.5.1999 by Shri Dhani Ran, learned Motor Accident Claims Tribunal, vide which issue No.1, which was similar to that of issue FAO No. 324 of 2001 4 No.1 in the present case, was decided in favour of the claimant-Aman Kumar of that case and it was held that accident has taken place due to rash and negligent driving of by Dalip Singh-respondent of Matador No.HR-37- 3996. The said judgment has been produced by way of additional evidence in the appeal by the claimant. Regarding the same incident, since issue No.1 has been decided against the respondent i.e. in favour of the claimant and the respondents were given full opportunity to prove whether the said Award dated 19.5.1999 is under appeal or has been set aside but no documentary evidence has been placed on the file. So, the finding of Tribunal on issue No.1 does not sustain the test of legal scrutiny, and stand reverred. Regarding issue No.2, the Tribunal has stated that since Kamlesh Khurana had not come into the witness box, so she was not entitled to any compensation. The other ground for declining her claim was that issue No.1 regarding negligence of the respondent has not been proved. Since the negligence of respondent No.1 has been proved and amount has been granted in favour of Aman Kumar-claimant, so claimant Kamlesh Khurana is also entitled to receive compensation on the basis of evidence on the file. Claimant has produced Dr.C.R.Khatri, who has stated that on 5.11.1997 Smt.Kamlesh Khurana was assessed for physical disability by a Board of Three Doctors and he was one of the members of the said Board for injuries sustained by her in a road side accident on 26.6.1996. Her physical disability was assessed to be 11%. He has proved the disability certificate Ex.PB. This witness has further stated that the disability was likely to improve with physiotherapy but has further stated that Kamlesh FAO No. 324 of 2001 5 Khurana needs second operation for removal of plates and disability may increase after the second operation for the removal of plate. The claimant has also examined PW- Dr.Sushma Saini, who has proved that there were three injuries on the person of Kamlesh Khurana when she was examined by her on 26.6.1996. The details of which is as under :- (1) Tenderness and swelling and inability to move right upper arm in the middle for which x-ray was advised. (2) She complained of pain in the left hip but there was no mark of injury over it. (3) There was ax-lacerated wound at the back of right ear which was measuring 2 cm x .5cm. Although another application for production of bills has not been moved but the original bills have not been produced in spite of the fact that the same is pending since long. However, from the evidence on the file it is revealed that complainant suffered 11% disability and plate was inserted which was to be removed after second operation. The disability may improve according to Dr.C.R.Khatri but there are chances of increase of her permanent disability while operating second time. So, in these circumstances, the claimant is entitled to claim Rs.22,000/- on account of permanent disability, on account of pain and suffering, loss of income during the period of hospitalization and future loss of income. As per the doctor, the plate was inserted and needs second operation for its removal. Though, she has given the details thereof, but she could not produce any bill for Rs.16,671/- on the records of this case. FAO No. 324 of 2001 6 However, keeping in view the fact that she would have to further undergo another operation for removal of plates inserted and also that she must have spent amount during the period of hospitalization on her treatment, an amount of Rs.20,000/- in all is granted on medical expenses i.e. for past and future. The claimant is also held entitled to claim another amount of Rs.8000/- on account of transportation to hospital and back, special diet during the period of her hospitalization and for gratuitous services. So, in this manner, the claimant is held entitled to Rs.50,000/- in all. The claimant is also held entitled to claim interest @ 7% per annum from the date of filing this petition till realization. The liability to pay the amount on respondent Nos.1 to 3 would be joint as held in MACT No.88 of 28.9.1996 decided on 19.5.1999 titled as Aman Kumar vs. Dalip Singh and others, copy thereof is Annexure P-2 on the file as that judgment, according to the record, has attained finality in the absence of any contrary evidence or document. The appeal stands partly allowed in the aforesaid terms. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE March 3rd, 2010 sv