IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.846 of 1992 (O&M) Date of decision:10.03.2011 The State of Haryana and another ....Appellants versus Shanti Kumar Jain and another ....Respondents & II. FAO Nos.853 to 862 of 1992 (O&M) CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Present: Mr. Kunal Garg, AAG, Haryana. Mr. Hitesh Pandit, Advocate, for Mr.Rajesh Garg, Advocate, for the respondents. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? No. 2. To be referred to the reporters or not ? No. 3. Whether the judgment should be reported in the digest ? No. ---- K.Kannan, J. 1. All these appeals are connected and they are at the instance of the State. The accident had taken place by a collision of the appellants' vehicles namely, a police truck with a matador van which was carrying several judicial officers of Madhya Pradesh. It was a head-on collision and all the claimants had stated that it was the driver of the State police truck who was responsible for the accident. The driver of the truck had been examined as RW1. He had stated that the case had been registered by the police only against him and not against the driver of the FAO No.846 of 1992 (O&M) - 2 - matador van because of the fact that the passengers in the van were all judicial officers and they had ensured that no case was registered against their own driver. The Tribunal found that the negligence had been established by the fact that a complaint had been lodged with the police only against the driver of the police truck and also spoken to by the claimants. As far as all the claimants were concerned, they were passengers in the matador van and the claims arose on account of composite negligence of the driver of the police truck and the matador van. It will a futile exercise to examine the extent of culpability of the matador van in a situation where the driver and the owner in the matador van had not been impleaded. It should have been possible for the State to have caused an impleadment of the owner and the driver of the matador van and seek for an adjudication of an inter se dispute as to who was responsible for the accident and the extent of culpability between the respective drivers of the police truck and the matador van. This has not been done, but, in my view, no claim of the claimants can suffer any abatement even if the negligence of a matador van's driver were to be taken as established. The claimants had a right to sue anyone of the tort feasors in law and the petitions filed against only one of them was also competent. I will not, therefore, make any abatement of a claim or attempt to make apportionment of liability between the driver of the truck and the driver of the matador van in the absence of the impleadment of the driver of the matador van. The issue of negligence of the driver of matador van was dealt with in the case of claim for damages to the matador van. There were adequate reasons for finding FAO No.846 of 1992 (O&M) - 3 - that the police truck driver alone was responsible. There are reiterated hereunder while dealing with FAO No.860 of 1992. In all these appeals, there are cross-objections by the claimants for enhancement of compensation. They are discussed seriatim hereunder. 2. In the subject matter in FAO No.846 of 1992, the Tribunal had awarded Rs.81,500/-. The injuries suffered by the claimant had been spoken to by Dr. Suresh Arora, Dr.Rakesh Kumar Gupta and Dr. A.K.Dubey. Dr. A.K.Dubey, who was an Assistant Surgeon in J.A. Group of Hospitals, Gwalior, had stated that he had found fractures on the 4th, 5th and 6th ribs on the right side and fracture of pelvic and also fracture of nasal bone. The doctor had stated that he would have had difficulty in walking due to pelvic injury and he had proved the fractures by with reference to the x-rays and the reports filed therefor. The claimant himself gave evidence to substantiate various injuries that had been noted by the doctor. He had been confined to bed for 1 ½ months and had availed of 1 ½ months' earned leave. The Tribunal determined a compensation of Rs.81,500/- that included Rs.30,000/- towards permanent disability, Rs.30,000/- for pain and suffering, Rs.4,500/- for special diet and Rs.5,000/- on account of loss of amenities. The overall compensation determined was Rs.81,500/-. 3. This Court has attempted to standardize the compensation for injuries on reasonable scales in the decision in Madan Lal Papneja Versus State of Haryana and others in FAO No.422 of 1993, decided on 12.11.2010, having in mind the compensation provided in Schedule-II under various heads and the decision of the Hon’ble Supreme Court FAO No.846 of 1992 (O&M) - 4 - particularly in the decision in Raj Kumar Versus Ajay Kumar and another-2010 12 SCALE 265 . As regards the loss of income, the Tribunal has considered the fact that he was on 1 ½ months leave, thereby incurring loss of Rs.12,000/- pay of leave encashment for 1 ½ months. The whole of the amount has been provided to him. As regards the medical expenses, the Tribunal has found that he had medical reimbursement and, therefore, it did not provide any charges. As regards special diet, considering the fact that he was nursing the injury for nearly 3 months, the Tribunal has provided for special diet @ Rs.50/- per day. He has 5 fractures and the Tribunal has provided Rs.30,000/- for compensation, which again, in my view, is proper and just. For all the difficulties which the claimant would have for the rest of his life such as his alleged propensity to get cold, the Tribunal had assessed Rs.30,000/- as going towards disability. This again, in my view, is appropriate. He has also been awarded additional amount of Rs.5,000/- on account of loss of amenities of life. The overall compensation assessed is just and I find no scope for enhancement under various heads. The cross objection in FAO No.846 of 1992 is, consequently, dismissed. 4. The cross objection in FAO No.853 of 1992 addresses the claim for compensation for Rashid Khan, who was working as a driver in the judicial department. There were 7 injuries noted immediately after the accident and for 5 injuries namely of the right leg, left thigh, right side forehead, left side forehead and the collarbone, he had been advised x-rays and they had revealed fractures in each one of these bones. Dr. A.K. Dubey, Assistant Surgeon, J.A. Group of Hospitals, Gwalior, had FAO No.846 of 1992 (O&M) - 5 - stated that there was shortening of the right lower limb by 1 ½ inches with adduction, deformity of right hip and that he was not able to lift right lower limb by himself. He also stated that he had stiffness of right knee and he would not be able to stand or walk, squat or sit with cross legs and that the disability was permanent at 60%. He had been discharged by the hospital on 28.08.1989 and later he was taking treatment at J.A. Group of Hospital at Gwalior. He had been operated upon 5 times and steel rods were fitted in his thigh and leg and that his patella was removed by doctor Kakkar. The doctor has noticed that there was non union of right femur and an operation was necessary for removal of the lower 1/3 bone. The claimant contended that he had spent about Rs.10,000/- to Rs.12,000/- for his treatment and that he was still under treatment. 5. The Tribunal had noted that the driver had suffered extensive injuries and after observing the discomfort and difficulties which he was having, it assessed Rs.20,000/- for pain and suffering and Rs.20,000/- for loss of amenities of life. For 5 fractures which he had, I would provide for Rs.25,000/- and for 5 surgeries that he had, I would provide for another Rs.12,500/- that would count to Rs.37,500/- but the Tribunal has awarded Rs.40,000/- for pain and suffering and for amenities of life put together. I will take that as appropriate and make no reduction under the said head. Taking note of the evidence that two more operations were to be performed that it would cost about Rs.10,000/- to Rs.12,000/- the Tribunal had provided for Rs.20,000/- for medicines, treatment and special diet. This also, I would think is proper assessment. FAO No.846 of 1992 (O&M) - 6 - For a 60% disability of the lower limb with fractures in the hip, the Tribunal took the loss of earning capacity at 60% and taking the salary at Rs.1,000/- per month and assessed the loss of capacity at Rs.7,200/-. It adopted a multiplier of 13 and granted a compensation of Rs.93,600/- for loss of future income. This, in my view, is appropriate assessment. The Tribunal also referred to the decision of this Court in Pepsu Road Transport Corporation Versus Satinder Sharma-1984 ACJ 316, that it assessed a compensation of Rs.1 lakh for a person, who had a hip injury and other fractures and who had undergone a surgery and who had difficulty in walking. I find that the Tribunal has assessed the compensation correctly in the above case also and would find no scope for intervention. The cross objection in FAO No.853 of 1992 is, consequently, dismissed. 6. FAO No.854 of 1992 addresses the claim for compensation for Purshottam Bhatt. The injuries noted down were: abrasion on lateral side of abdomen and pain and swelling on the left scapular region. No medical bills had been produced and there was no disability. He was 35 years of age and he had but 2 simple injuries. The Tribunal awarded Rs.10,000/- that included Rs.1,000/- for medication and special diet, Rs.5,000/- for pain and suffering and Rs.4,000/- for mental pain and shock. The award is maintained as fair and just and consequently, the award and cross-objection are dismissed. 7. FAO No.855 of 1992 and Cross objection for the injuries sustained by I.S.Shrivastava, aged 39 years. He remained admitted in the hospital from 27.08.1989 to 23.09.1989. He had laceration on the face, FAO No.846 of 1992 (O&M) -7 - abrasion on left wrist and right hand and left knee. X-rays revealed fracture of angle of left side of the mandible. He had a history of spondylosis and he complained that it had got aggravated. The Tribunal awarded Rs.40,000/- that included Rs.3,000/- for medication. Rs.20,000/- for pain and suffering and Rs.17,000/- for permanent disability. The assessment to permanent disability was perhaps without basis but I would not make any modification of this award. 8. FAO No.856 of 1992 and Cross Objection relate to compensation for injuries to Shri Baboo Lal Singhal, aged 56 years. He had suffered fracture of the 8th rib, fracture of left toe and finger and multiple lacerated wounds and abrasions. He had bleeding from nose. I would assess Rs.20,000/- for pain and suffering. Rs.5,000/- for medicines, Rs.5,000/- for transportation and special diet. The Tribunal had assessed Rs.50,000/-. I shall retain the award all the same and dismiss the appeal and the cross objection. 9. FAO No.857 of 1992 and cross objection relate to determination of compensation for Mr. A.K.Tiwari, aged 28 years, posted as Judicial Magistrate on a salary of Rs.3,375/- per month. There was said to be diminution of vision on account of injury that caused mascular scaring on the right eye and corneal opacity in the corneal area of right eye. The Tribunal assessed a compensation of Rs.1,00,000/- that included Rs.7,000/- for medication and special diet, Rs.35,000/- for pain and suffering, Rs.13,000/- for disfigurement and Rs.45,000/- for slight impairment in vision. The award is just and the counsel for the State would also affirm that the award is fair. The appeal and the cross FAO No.846 of 1992 (O&M) - 8 - objection are consequently dismissed. 10. FAO No.858 of 1992 and cross objection relate to compensation for injuries sustained by A.K. Saxena, who had depressed fracture of the frontal region, a cut on the tip of the tongue, two teeth broken, lower jaw damaged. The assessment was Rs.96,100/-. There is arithmetical error in calculation and the amount, if added, total up to Rs.1,03,100/- but I do not think it makes any difference. I will let the amount remain by reducing the amount of Rs.7,000/- from the amount determined at Rs.20,000/- towards loss of amenities. There is no scope for enhancement. The appeal and the cross objection are dismissed. 11. FAO No.859 of 1992 and cross objection for compensation assessed to D.S.Jain, aged 48 years, an Additional Sessions Judge. He had a swelling of left foot and tenderness. There had been no hospitalization or any disability proved. The Tribunal took note of the fact adduced at the trial that the Court was at the 3rd floor and he had no left facility and granted compensation at Rs.35,000/-. A Court at the 3rd floor could not have been permanent fixture. There was simply no basis for granting Rs.35,000/- as compensation. For trauma of accident and for temporary inconvenience for the swelling in his left, a compensation of Rs.15,000/- ought to have been just. I shall not, however, make any modification through a reduction by a small amount at this length of time. 12. FAO No.860 of 1992 is for damage to the vehicle. The Tribunal had awarded Rs.26,592/-. The ground urged, inter alia, that the driver of the vehicle was guilty of contributory negligence of the driver FAO No.846 of 1992 (O&M) - 9 - of the matador. While the issue is irrelevant for the claim for passengers, since it could a base of composite negligence, it is still relevant for a claim for damages to the matador. The further grievance is that the evidence of RW, was not properly considered. Although it was a head- on collision, the accident had taken place only when the driver of the State police truck was overtaking a stationary truck. The negligence must be therefore attributed to the driver of the police truck. The claim shall not therefore suffer any abatement and the same is maintained. 13. The cross objection in FAO No.861 of 1992 is for assessment of compensation for Smt. Meena Bhatt, who was 36 years of age and was posted as IInd Grade Additional Chief Judicial Magistrate, Gwalior at the time of accident. She had a fracture of clavicle and the difficulty expressed by her at the time of trial was that she become permanently disabled as she was not able to lift her left shoulder as its external rotation movement was limited by 10 degree. Her injury had been immediately noted in the MLR and entered by the doctor P.S.Parihar. Dr.A.K Dubey had examined her later and has also issued a certificate (Ex.P8). He was of the view that the patient might develop pariarthritis and judging from the restriction of her movement on rotation, the Tribunal had assessed Rs.23,000/- for permanent disability and Rs.20,000/- for pain and suffering. The Tribunal had also provided for Rs.2,000/- for medical expenses. She was said to be on leave from 29.08.1989 to 11.09.1989. The Tribunal had assessed a compensation of Rs.45,000/- which again, in my view, was appropriately decided. I will not make an issue out of the fact that she had not been provided any FAO No.846 of 1992 (O&M) - 10 - amount for 15 days leave even if she had exhausted her earned leave and lost on her ability to encash the leave. At the relevant time, her salary was said to be Rs.4,000/- and this must have meant about Rs.2,000/-. Considering the fact that the Tribunal was assessing Rs.23,000/- for permanent disability, I will take the said amount as absorbing the loss of earning also. Consequently, the cross objection in FAO No.861 of 1992 is also dismissed. 14. The cross objection in FAO No.862 of 1992 addresses the claim for compensation for injuries suffered by R.P.Sharma. He was 26 years of age and he was a judicial magistrate at Gwalior. He was said to have suffered a head injury and injury on the left leg. He had been suggested x-rays and he was advised to take CAT scanning. He had been on leave from 29.08.1989 to 16.09.1989, 23.09.1989 to 28.09.1989, 04.10.1989 to 06.10.1989 and from 25.10.1989 to 26.10.1989. He stated in his evidence that his mental condition was disturbed and he was having a headache for all 24 hours. He had suffered a scar on his face and disfigurement. 15. While assessing the compensation, the Tribunal provided for all the medical bills which had been submitted to the extent of Rs.5,000/- for a disfigurement in the face with the scar. He had been awarded Rs.13,000/-. For the inconvenience that he had suffered with recurrent headache, he had awarded compensation for Rs.20,000/- and a further sum of Rs.5,000/- for mental shock. He had been on leave for 31 days and the entire extent of leave had been sanctioned. The grievance of the appellant is that the Tribunal has omitted to see the loss of future FAO No.846 of 1992 (O&M) - 11 - prospects and his avenues on promotion and the failure of the Tribunal to provide for loss of leave for the salary for 31 days, which he could not later encash since he had exhausted them. I do not find any basis for his assumption that the injury had in any way impaired the prospect for promotion. The assessment of Rs.20,000/- for pain and suffering and an additional amount for mental shock and further award for disfigurement adequately compensated for the months leave which was exhausted. The award of the Rs.43,000/- also, in my view, is adequate and is not required to be enhanced. 16. In the result, the awards in the respective cases by the Tribunal are maintained and the appeals and cross objections are dismissed. (K.KANNAN) JUDGE 10.03.2011 sanjeev