F.A.O. No. 4545 of 2009 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O. No. 4545 of 2009 Date of Decision: November 23, 2011 Mahavir .... Appellant Versus Ashik and others .... Respondents CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? Present Mr. Ashish Gupta, Advocate, for the appellant. Ms. Shamsher Kaur, Advocate, for respondent No.3-Insurance Company. VIJENDER SINGH MALIK, J. This is an appeal brought by the claimant for enhancement of compensation granted to him in a sum of ` 80,400/- but limited to the extent of 75% of the same by the Motor Accidents Claims Tribunal, Gurgaon (for short, "the Tribunal") vide award dated 16.3.2009. The claim petition brought by the claimant, Mahabir, under the provisions of section 166 of the Motor Vehicles Act, 1988 (for short "the Act") is based on the following averments of facts: On 27.6.2008, Mahabir was returning from Government F.A.O. No. 4545 of 2009 2 .. Hospital, Mandikhera in a three wheeler. At about 11.00 a.m. the three wheeler was at Badkali Chowk. In the meanwhile, a dumper bearing registration No.HR-47A-7799 driven by respondent No.1 in a rash and negligent manner came from the opposite side and had hit the three wheeler on account of which, the claimant fell down and suffered injuries. People gathered at the spot and shifted the petitioner to General Hospital, Mandikhera. Claiming that the accident had occurred on account of rash and negligent driving of the dumper in question, a sum of ` 4.00 lacs is claimed as compensation. The claim petition is resisted by the respondents. Respondents No. 1 and 2 in their joint written statement have denied the personal particulars of the claimant. They have denied the accident to have occurred involving the dumper in question. Registration of a case about this accident at Police Station, Nagina is claimed to have been done to extract money from the answering respondents. The averments regarding the injuries suffered by the claimant and the amount spent in his treatment are also denied. The amount claimed as compensation is stated to be highly exaggerated. The Oriental Insurance Company Limited, respondent No.3 has questioned the cause of action and locus standi of the petitioner to bring this petition. It is denied that respondent No.1 was holding a valid and effective driving licence at the time of the alleged accident. The petition is claimed to be bad for non- joinder of necessary parties. Respondent No.2 is claimed to F.A.O. No. 4545 of 2009 3 .. have violated the terms and conditions of the insurance policy as he was not having a valid route permit to ply the vehicle. The FIR lodged after two months of the accident is claimed to be false and frivolous and lodged in collusion with respondents No.1 and 2. It was averred by way of additional objection that the answering respondent had every right under section 170 of the Act to contest the case. On the pleadings of the parties, the following issues were framed by the Tribunal. 1. Whether the accident took place on account of rash and negligent driving of vehicle bearing No. HR-47A-7799 by respondent No.1, as alleged? OPP 2. If issue No.1 is proved whether the claimant sustained injuries in the accident in question and the petitioner is entitled to get compensation. If so to what amount and from whom? OPP 3. Whether the petitioner has no cause of action and locus standi to file the present petition? OPR 4. Whether the petition is bad for mis-joinder of the parties? OPR 5. Whether the respondent No.1 was not holding valid and effective driving licence on the date of accident and the insured violated the terms and conditions of insurance policy, as alleged. If so to what effect? OPR3 6. Relief. Parties led their respective evidence. Hearing learned F.A.O. No. 4545 of 2009 4 .. counsel representing them, learned Tribunal awarded compensation in a sum of ` 80,400/- to the claimant vide the impugned award. The negligence of respondent No.1 for causing this accident was held at 75% whereas the negligence of the driver of the three wheeler was held at 25% and, therefore, the compensation awarded to the claimant was limited to 75% of the above said amount. Dissatisfied with the award, the claimant has brought this appeal. I have heard Mr.Ashish Gupta, learned for the appellant and Ms. Shamsher Kaur, learned counsel for respondent No.3- Insurance company. I have gone through the record carefully. Learned counsel for the appellant has submitted that it is a case of 20% disability. According to him, the Tribunal has assessed compensation in a sum of ` 20,000/- on account of the disability. He has further submitted that learned Tribunal has held the bills, Ex. P17 to P58 as having been procured falsely and has, consequently, not allowed the said amount. He has further submitted that a sum of ` 5,000/- alone is allowed as loss of income during the treatment taking the income of the claimant at ` 2500/- per month. He has further submitted that the compensation in a sum of ` 10,000/- is allowed for mental and physical agony, pain and suffering, transportation charges, attendant charges, special diet etc. He has submitted that this is also on a lower side. He has further submitted that the amount of ` 80,400/- has further been reduced by 25% and the F.A.O. No. 4545 of 2009 5 .. claimant is held entitled to get 75% of this amount of ` 80,400/-. He has submitted that even if it is taken as head-on collision and the negligence having been contributed in the ratio assessed by the Tribunal, it is a case of composite negligence for the claimant, who was travelling in the three wheeler and he can recover the entire amount of compensation from the driver, owner and insurer of dumper or the three wheeler. According to him, the amount could not be restricted in any manner by learned Tribunal. Learned counsel for respondent no. 3 has submitted that the disability in this case is likely to improve. According to her, the disability was also qua a particular limb and not qua the whole body. She has submitted that the hospitalization of the appellant is only for a period of 9 days and the amount awarded as compensation on these facts is more than justified. Learned Tribunal has allowed a sum of ` 15,000/- from the amount of ` 22,009/-, which is the amount for which bills, Ex. P17 to P58 are there on the record. For not allowing the entire amount of compensation, the reason with the Tribunal is that bills seem to have been procured as the medicines prescribed in the said bills did not match with the prescription slips issued by the doctor. The material before the Tribunal shows that there were prescription slips issued by the doctor. There was nothing preventing the petitioner to have purchased the prescribed medicines. The Tribunal was not the medical man who could compare the prescription and the bills. Some F.A.O. No. 4545 of 2009 6 .. times, the medicines with the same salt are sold with different names in the market and the medicines prescribed may be with one name while the medicines available with the chemist may be having the same constituents but marketed with different names. If such thing had happened, the medicines in the prescription slips and the bills would certainly not match. If the medicines purchased vide bills Ex. P17 to P58 did not match with the prescription slips then the Tribunal should not have allowed a sum of ` 15,000/- even from the said amount. No criteria has been disclosed by the Tribunal for allowing a sum of ` 15,000/- from the amount of ` 22,009/- of these bills. For the aforesaid reason, I do not agree with learned Tribunal and hold that the amount of ` 22,009/- was also spent by the claimant on his treatment. In these circumstances, the claimant had spent ` 52,459/- by way of bills, Ex. P8, P11 and P17 to P58 on purchase of medicines and his treatment. However, it cannot be lost sight of that some amount is spent in such cases without obtaining the bills. Therefore, a marginal increase should be allowed over the amount proved by vouchers while assessing compensation for amount spent in the treatment. Therefore, I assess a sum of ` 55,000/- as compensation in favour of the appellant for the expenses on his treatment. Though, the disability of the claimant is 20% and it is qua a particular limb, yet there is nothing on the record to suggest that it will improve or would be reduced with the passage of time or by any medication or physiotherapy. The F.A.O. No. 4545 of 2009 7 .. amount of ` 20,000/- alone is awarded by the Tribunal for loss of future income and future enjoyment of life, which is grossly inadequate. The same amount is required to be enhanced to ` 40,000/-. Similarly, the amount of ` 5,000/- awarded as compensation for loss of income during treatment is on a lower side. A person with such type of injuries on knee joints, restricting his movements would keep the victim confined to bed for more than a couple of months and in these circumstances, a sum of ` 10,000/- is necessary to be allowed as compensation for loss of income during treatment. Learned Tribunal has clubbed various other heads and had awarded ` 10,000/- as compensation. This amount is said to cover pain and suffering, transportation charges, attendant charges, special diet etc. While the claimant is required to be compensated under each head with an amount of ` 10,000/-, learned Tribunal has awarded ` 10,000/- under all these heads. In my opinion, a sum of ` 25,000/- at least is required to compensate the petitioner under all these heads. In these circumstances, the claimant-appellant is found entitled to ` 1,30,000/- as compensation for the injuries and the disability he suffered on account of the same. The question that remains for determination now is as to whether the amount of compensation can be reduced in any manner on account of the finding of the Tribunal that it was a case of contributory negligence. Since the claimant has been travelling in the three wheeler, which was driven by some other F.A.O. No. 4545 of 2009 8 .. person, it is a case of composite negligence where the claimant is entitled to recover the entire amount and he can enforce the award against either the owner, driver and insurer of dumper or the three wheeler. So, no cut can be imposed on the aforesaid amount in the name of contributory negligence. The entire amount is to be paid by respondent Nos. 1 to 3 and without disturbing the finding of learned Tribunal that the negligence was 75% of the driver of the dumper and 25% of the driver of the three wheeler, 25% of the amount payable under the award may be recovered by respondent No. 3 from the owner, driver and insurer of the three wheeler in question. Consequently, the appeal is allowed enhancing the compensation to ` 1,30,000. The other terms regarding rate of interest etc., as mentioned in the award of the Tribunal, shall remain the same. (VIJENDER SINGH MALIK) JUDGE November 23, 2011 som