FAO No.704 of 1999 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH X Obj No.24-CII of 2000 and FAO No.704 of 1999 Date of Decision. 10.09.2010 Shri Rajiv Kumar s/o late Sh. Krishan Kumar r/o H.No.3462, Sector 27-D, Chandigarh (Owner and driver of car No.CH-01-c-3462). ......Appellant Versus Sh. Bhagwati Parshad Singla, Advocate and others ......Respondents Present: Mr. L.M. Suri, Senior Advocate with Mr. Neeraj Khanna, Advocate for the appellant. None for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? -.- K. KANNAN J.(ORAL) 1. It is a joint appeal by the insurance company as well as the owner. The insurance company complains that its application under Section 170 of the Motor Vehicles Act had not been disposed of by the Tribunal. Section 170 of the Motor Vehicles Act is invariably invoked only when there is a scope of collusion between the claimant and the insurer. In a case where the owner himself has joined along with the insurer, there is hardly a scope for collusion. The joint appeal filed by the insurer and the owner is not maintainable in terms of the judgment of the Hon'ble Supreme Court in Chinnama George and others Vs. N.K. Raju and another 2000 (4) SCC 130 and therefore, I transpose the insurance company as FAO No.704 of 1999 -2- respondent No.3 and take up the case as having been filed by the owner. The registry shall carry out the appropriate amendment to the memo of parties. 2. The averment in the petition was that the claimant was travelling by his car when a police convoy going at break-neck speed signalled to the driver to stave off the road and with no adequate place to drive safely on the road, the driver moved to the extreme left and sought to reduce the speed by applying the brakes. The car skidded and fell into a Khadan and as a result of which he suffered multiple fractures on the left arm. The claimant was an advocate by profession and he has given graphic description of the accident. The 1st respondent, who was the owner-cum-driver was stated to be negligent in his driving and he, therefore, sought for a claim against the owner of the car in which he was travelling and sought to make the insurer liable. Since the accident, in the manner in which it was described, was the result of the police convoy chasing the car literally off the road, the State of Punjab was also made as a party. The learned counsel also argued that if there was any negligence on the part of the police, which caused the accident then the driver could not have been made responsible for the accident. I am afraid and I cannot accept such a plea, for a police convoy that signals a driver to keep vigil by drawing up to the end of the road, a driver is not expected to jam the brakes and brings the vehicle to a situation where he imperils the safety of the passengers. I would hold the driver of the car and the owner to be responsible for the accident and would confirm the finding of the Tribunal that it was the 1st FAO No.704 of 1999 -3- respondent's driving that caused the accident. 3. As regards the quantum of compensation that is payable, the evidence was that the claimant was confined to bed from 31.03.1991 to 7.7.1991 and that the accident resulted in a 25% disability. The doctor has been examined as PW-5, who had stated that it was a case of mal united fracture of the left humerus with various deformity with stiff elbow. He has found the disability to be permanent. While determining the compensation for disability, the attempt of the Tribunal shall be to translate the disability for loss of earning capacity to find out whether the particular disability in any way impacted his earning capacity. This becomes relevant because the Tribunal has taken 25% disability to mean 25% loss of earning capacity. It has taken the income as given by the petitioner as Rs.2,17,000/- and has multiplied Rs.2,17,000x12 and divided it by 4. I cannot fathom the arithmetical jugglery that the Tribunal has indulged in. Evidently, the Tribunal applying the multiplier as 12 and divided it by 4 taking that to be the percentage of disability. Unless it was in evidence that by mal united fracture of the arm, he could not practice as Lawyer or do any other activity, which he was previously doing and that had a bearing to loss of his earning, no amount of compensation could be arrived at on that basis. The claimant himself has given evidence as AW-3. He had stated that his monthly income was more than Rs.25,000/- and stated that due to injuries, he has suffered loss of professional income to the tune of Rs.1,00,000/-. He has merely referred to the loss that was occasioned during the period of treatment and has not given any FAO No.704 of 1999 -4- evidence that his injury has resulted in any loss of earning capacity, I will therefore reject any claim for loss of earning capacity by the injuries, which he has suffered. 4. I would, however, take into account the period of his treatment to ascertain a claim for pain and suffering. He has been admitted at the hospital of Patiala on 13.03.1991 and discharged on 14.03.1991 and thereafter, he was treated as an out patient at PGI Chandigarh and he was advised complete rest and he remained in bed upto 7.7.1991. I would, therefore, grant to the petitioner for the fracture that he has suffered at Rs.10,000/- towards pain and suffering. He has stated that he has spent Rs.20,000/- on medicines and other expenses. There are no bills produced for the same. A Lawyer who was prosecuting his case must have been known the value of documentary evidence and I cannot simply accept that he has spent Rs.20,000/- for one day hospitalization at Patiala and on OPD treatment at PGI. I will award to him Rs.5000/- towards his medical expenses. He had complained that he had not worked from 13.3.1991 to 7.7.1991 for four months. I would assume that when he has said that he lost about Rs.1,00,000/- of his professional income, I would understand that he has referred to the loss @Rs.25,000/- per month. The income tax return, which he has filed shown that his gross income at the relevant time was Rs.2,17,0000/-. It shall not be possible for me to take the entire income as the loss since the absence from attending Court does not always result in loss of full income. I would take 50% of his income to be the loss, which had occasioned to him and @Rs.10,000/- for four months, I would take FAO No.704 of 1999 -5- the loss of income to be Rs.40,000/-. I would provide Rs.5,000/- towards transport expenses during that period and I would also provide for an additional amount of Rs.5,000/- towards dietary and attendance charges. The petitioner has complained that he has not been able to drive the vehicle now with a mal united fracture, when he used to be previously self-driving his car. A fracture with a mal union cannot result in a total disability to drive the car at all times. I would take the loss to have resulted during the entire period of his treatment for having to employ a driver and I will provide for four months salary to a driver @Rs.2500/- and provide another additional amount of Rs.10,000/- for loss of amenities. In all, the total sum that would become payable, would be Rs.75,000/-. The compensation which has been awarded by the Tribunal is scaled down to Rs.75,000/-. 5. The amount shall bear the interest at the rate provided by the Tribunal. The appeal filed by the appellant shall stand allowed to the above extent. 6. There are also a cross objections for enhancement of the claim . There is no representaion for the claimant and the cross objections are dismissed in default of appearance. (K. KANNAN) JUDGE September 10, 2010 Pankaj*