HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No.: 291 of 2008 With FAO No.: 210 of 2008 Reserved on: 13.5.2010 Decided on: 31.5.2010 FAO No.291 of 2008 Madan Mohan Gupta ………Appellant. Versus M/s Jammu Casting (P) Ltd. and another ………Respondents. For the appellant: Mr.Dalip K. Sharma, Advocate. For the respondents: Mr.Dinesh Bhanot, Advocate. FAO No.210 of 2008 M/s Jammu Casting (P) Ltd. and another ………Appellants. Versus Madan Mohan Gupta ………Respondent. For the appellants: Mr.Dinesh Bhanot, Advocate. For the respondent: Mr.Dalip K. Sharama, Advocate. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. V.K. Ahuja, J.: This judgment shall dispose of the aforesaid two appeals, one filed by Madan Mohan Gupta, claimant, for enhancement of the compensation amount and the other filed by the respondents M/s Jammu Castings (P) Ltd. and another, alleging that the compensation has been assessed on higher side and, therefore, the award amount deserves to be set aside. This judgment shall also dispose of CMP No.390 of ______________________________________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - 2008 filed in FAO No.291 of 2008 by Madan Mohan Gupta appellant under Order 41 Rule 27 of the CPC for leading additional evidence. The appeals have been preferred by the appellants against the award passed by the learned Motor Accident Claims Tribunal, Solan camp at Nalagarh, dated 18.1.2008. 2. Briefly stated the facts of the case are that the petitioner Madan Mohan Gupta filed a claim petition as against M/s Jammu Castings (P) Ltd. and Nursingh Dayal, who were impleaded as respondents No.1 and 2 and the petition was filed under Section 166 of the Motor Vehicles Act for the grant of compensation. The petitioner alleged that he is aged about 45 years, is serving as DPE in Education Department and has been earning Rs.16,000/- as monthly salary, Rs.2,000/- per month as pension from Army and Rs.4,000/- as agricultural income. In all, he was earning Rs.22,000/- per month. The petitioner alleged that an accident took place on Nalagarh-Kalka road on 15.7.2004 at about 8.00 a.m. for which an FIR was registered. He alleged that he sustained grievous injuries and fractures. He was firstly taken to the CHC, Nalagarh and then he remained admitted in a clinic at Panchkula and is still undergoing treatment. He had allegedly spent more than Rs.1,50,000/- on his treatment and alleged that respondent No.1 was the owner of Maruti Car No.JK-02M-7576. It was further alleged that the accident took place due to the rash and negligent driving of respondent NO.2. He alleged that he was going alongwith his daughter, namely, Ekta - 3 - Gupta, (now deceased), on Scooter bearing No.HP-12-1202, which was being driven by him on a slow speed and as a result of the accident, he suffered injuries. The respondents denied the allegations. They pleaded that the petitioner being in government service was entitled to medical reimbursement of his treatment and there has been no loss in the earning capacity of the petitioner. Therefore, he was not entitled to any compensation. 3. On the pleadings of the parties, the following issues were settled by the learned Tribunal: i) Whether on 15.7.2004 at about 8 A.M. at Bagbania respondent No.2 was driving the vehicle No.JK-02M-7576 rashly and negligently and as such caused multiple injuries to the petitioner? OPP ii) If issue No.1 is proved to what amount of compensation is petitioner is entitled to and from whom? OPP iii) Whether petitioner was driving the scooter No.HP-12-1202 rashly and negligently and as such caused the accident? OPD iv) Relief. 4. The parties led their evidence and the learned Tribunal, vide its impugned award, granted a sum of Rs.49,000/- as compensation, which was payable by respondents. Being aggrieved by the award passed by the learned Tribunal, the petitioner Madan Mohan Gupta has filed the appeal under Section 173 of the Motor Vehicles Act for enhancement of the amount and the appeal has also been filed by the respondents M/s Jammu Castings Pvt. Ltd. and another for setting aside the award being on higher side. - 4 - 5. I have heard the learned counsel for the parties and have gone through the record of the case. 6. In so far as the findings of the learned Tribunal are concerned that the petitioner suffered injuries as a result of rash and negligent driving of respondent No.2, there are findings of the learned Tribunal under issue No.1 that the petitioner suffered the injuries as a result of the rash and negligent driving of respondent No.2, which have not been specifically challenged by the respondent M/s Jammu Castings Private Ltd. etc. and no infirmity was pointed in the findings recorded under Issue No.1 to this effect, which are affirmed accordingly. 7. The only dispute is in regard to the amount of compensation as to whether it was on the higher side or it deserves to be increased, as prayed by the appellant Madan Mohan Gupta. The learned Tribunal has granted a sum of Rs.20,000/- for pain and suffering. It is in evidence that the petitioner had suffered permanent disability to the extent of 20%. According to the allegations made by the petitioner in the claim petition, he remained admitted in CHC, Nalagarh and then in a private clinic for 3 days. He also alleged that the treatment is still continuing. In regard to the permanent disability, the disability certificate Ext.PW-4/A has been proved in evidence from the statement of PW-4 Dr.Asheesh Sharma, Orthopedics Surgeon, who was one of the members of the Medical Board. A perusal of Ext.PW-4/A shows that the category of disability has been shown as “Loco motor impaired”. The disability - 5 - mentioned was permanent and the percentage of disability was 20%. 8. In view of the above facts, it is clear that a sum of Rs.20,000/- granted for pain and suffering for this injury and for the period during which the petitioner was under treatment cannot be said to be inadequate and calls for no interference. 9. In regard to the expenses incurred on treatment, the learned Tribunal has observed that the petitioner has not placed on record cash memos and receipts regarding the purchase of medicines and observed that since the petitioner was a government servant, he may have got reimbursement from his department and as such the bills were not produced. Keeping in view the fact that no bills were produced and there was no statement made by the petitioner that he has not claimed the reimbursement of the said amount from his Department, those findings are also liable to be affirmed, which are affirmed accordingly. 10. In regard to the absence from duty, the learned Tribunal has observed that there is nothing to show that for how much time, the petitioner remained in bed and could not attend his duties. I have already mentioned above that the petitioner claimed in the claim petition that he remained admitted in a private clinic at Panchkula for 3 days. He did not allege in his affidavit the period during which he remained absent from duty and, therefore, there was no loss of earnings and as such the findings in - 6 - this regard also are liable to be affirmed that there was no loss of earning during this period. 11. In regard to the loss of future earning, the learned Tribunal has observed that there is nothing to show that due to the disability, he has been ousted from service or was being paid less salary. There was nothing on the record to show that the petitioner has been denied promotion due to this disability and there is no evidence on record to show that for future promotion, he will not be considered due to this injury. The petitioner was a government employee and was getting pay as usual. The learned Tribunal has, thus, rightly granted a sum of Rs.9,000/- as loss for future earnings and it had also granted a sum of Rs.20,000/- for loss of amenities to life. 12. The appellant Madan Mohan Gupta has also sought to prove, by way of filing an application under Order 41 Rule 27, a certificate in regard to the fact that he had not claimed any medical reimbursement from his department. However, the said certificate will only prove that he has not claimed any medical reimbursement from the Department to which he was legally entitled, but it will not show as to how much expenses were incurred by the petitioner for his medical treatment and as such the evidence sought to be led will not further substantiate the case of the petitioner in any manner and as such the application filed by the appellant Madan Mohan Gupta to prove the certificate in this regard is dismissed being devoid of any merit. - 7 - 13. In view of the above discussion, the findings recorded by the learned Tribunal granting a sum of Rs.49,000/-, calculated under different heads, call for no interference by this Court. The appeal filed by the appellant M/s Jammu Castings Pvt. Ltd. and another i.e. FAO No.210 of 2008 is dismissed with costs assessed at Rs.3,000/- to be paid by the appellants to the respondent Madan Mohan Gupta. As far as the appeal filed by appellant Madan Mohan Gupta i.e. 291 of 2008 is concerned, the parties are left to bear their own costs. 14. Both the appeals and the application stand disposed of accordingly. May 31, 2010. (V.K. Ahuja), (TILAK) Judge.