FAO No. 534 of 1987 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH FAO No. 534 of 1987 (O&M) Date of decision : 10.5.2010 ... Ram Niwas ................Appellant vs. Balwan Singh and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. S.S. Kharb, Advocate for the appellant Sh. Manav Bajaj, Advocate for Sh. Sumeet Goel, Advocate for respondent No.3. ... K.C. Puri, J. (Oral) This is an appeal directed by Ram Niwas-injuired against award dated 17.3.1987 passed by Sh. Babu Ram Gupta, Motor Accident Claims Tribunal, Karnal, vide which the claim petitions preferred by him and other co-injured Shamsher Singh, were dismissed. Briefly stated, the claimant filed claim petition No. 58 of 1986 titled Ram Niwas vs. Balwan Singh and others, alleging that he is aged about 18 years, claiming compensation to the extent of Rs. 2 lacs on account of injuries suffered by him in a motor vehicular accident. It is alleged that on 16.4.1986, Jit Singh resident of village Khotpura had come to Panipat for some work. At about 9.00 P.M. said Jit Singh was returning to his village on Vicky (Moped ) driven by Dharamvir. Ahead of that Vicky (Moped), another Vicky (Moped) FAO No. 534 of 1987 -2- being driven by Shamsher Singh was moving and Ram Niwas was pillion rider. Both these Mopeds were moving towards Nala bridge on Panipat-Khotpura road, a truck No.HYL 6963 being driven by respondent No.1 -Balwan Singh, came from opposite side. That truck came on the wrong side of the road. On seeing the manner in which the truck was coming, Shamsher Singh brought his Vicky (Moped), to the extreme left side of the road and Jit Singh advised Dharamvir also to take his vehicle to the Kacha portion of the road. The truck was being driven by Balwan Singh rashly and negligently and dashed against the Vicky (Moped) being driven by Shamsher Singh and as a result of which Shamsher Singh and Ram Niwas suffered multiple injuries. Dharamvir stopped his moped near the place of accident and he and Jit Singh managed to shift Shamsher Singh and Ram Niwas to Civil Hospital, Panipat. The truck was found to be loaded with sand. The driver of the truck sped away the truck towards Panipat. Moped No. HYO 1514 being driven by Shamsher Singh was badly damaged. The accident took place at about 9.15 P.M. in the area of village Azzizulapur and FIR in regard to the occurrence was lodged. The claim petition was resisted by the respondents. Respondents No. 1 and 2 in their joint written statement have stated that claim petition was not maintainable; that the claimant was estopped by his own act and conduct to file the present petition; that the claim petition was bad for mis-joinder of parties; that the claim petition was bad for non-joinder of necessary parties and that the claimant had no locus standi to file the present petition. The factum of FAO No. 534 of 1987 -3- accident was totally denied. Respondent No.3-Insurance company filed separate written statement and took the pleas almost identical to those taken by respondents No. 1 and 2. It has also taken the objection that no notice of the accident was given to the Insurance company, by the owner of the truck and the driver was not holding a valid driving licence. Consequently, the Insurance company is not liable. From the pleadings of the parties, following issues were framed:- 1. Whether Ram Niwas sustained injuries because of the rash and negligent driving of truck No. HYL 6963 by respondent Balwan Singh as alleged? OPP. 2. To what amount of compensation, if any, is the claimant entitled and from whom ? OPP. 3. Whether the petition is not maintainable in the present form? OPR 4. Whether the claimant is stopped by his own act and conduct from filing the petition? OPR. 5. Whether the petition is bad for mis-joinder of parties? OPR 6. Whether the petition is bad for non-joinder of parties? OPR 7. Whether the driver of the offending truck was not having any valid driving licence as alleged ? OPR 8. Relief. Another claim petition No. 59 of 1986 was filed by Shamsher Singh. Identical issues were also framed in that case and FAO No. 534 of 1987 -4- ultimately, while determining issue No.1, it is held that claimant has not suffered injury on account of rash and negligent driving of offending truck No. HYL 6963 by Balwan Singh-respondent. Issue No.2 was not decided in view of finding on issue No. 1. Issues No. 3, 4, 5 and 6 in both the claim petitions were decided against the claimants, in view of finding on issue No.1. Consequently, the claim petition was dismissed. Feeling dissatisfied with the above said award, Ram Niwas, one of the claimants has preferred the present appeal. Learned counsel for the appellant has submitted that findings on issue No.1 are wrong on the face of it. It is contended that Ram Niwas claimant has supported his case on all material particulars. Shamsher Singh another witness also supported the case of the claimant. Jit Singh, the author of the FIR, has also supported the case of the claimant. RW-1 Balwan Singh has also impliedly admitted the factum of accident. But inspite of that, finding on issue No. 1 has been returned against the claimants. The reasoning given by the Tribunal for returning finding on issue No.1 are imaginary. One of the reasoning given is that since Shamsher Singh and Ram Niwas – injured have received injury on the different legs and as such the manner of accident deposed by witness is wrong. The other reasoning given by the Tribunal that mechanical report has not been produced. That is also not a good reasoning. Both the stamp witnesses have supported the case of the claimants. So, in these circumstances, the report of the mechanic is wrong on the face of it. So, prayer has been FAO No. 534 of 1987 -5- made for reversing the finding on issue No.1. On the other hand, counsel for the Insurance company has supported the judgment of the Tribunal on issue No.1 It is contended that Dharamvir has not been examined. The normal practice that both the injured should receive injury on one side, is also not there. There is contradiction in the statement of Jit Singh, as he has stated that he has reported the matter on the same day, but in fact he has reported the matter on the next date. So, prayer has been made for conforming the finding on issue No.1. I have considered the submissions made by counsel for both the sides and have also gone through the record of the case. In this case, the Tribunal has become hyper technical. Both the injured witnesses whose presence cannot be disputed, have supported the case of the claimants on all material particulars. They have been cross examined at length but nothing could be brought on the file to discard their sworn testimony. Jit Singh, the author of the FIR and independent witness, has also supported the case of the claimants. Inspite of that the Tribunal has returned the finding on issue No.1 against the claimants. The presence of respondent at the spot has not been disputed by him while appearing as RW-1. In the cross examination, Balwan Singh has stated that on 16.4.1986 he was driving truck No. HYL 6963 from Panipat to Village Garh. He started his return journey from Garh at 8.30 P.M. When he reached the Nala near village Azizullapur, he saw a scooter coming from the front side at a rash speed. That scooter was Vicky (Moped) and the FAO No. 534 of 1987 -6- same went to the kacha portion of the road. The Moped was being driven by the driver in a state of intoxication. Although he has denied the factum of accident, but he impliedly has admitted that he was present at the time of accident. In the cross examination, he has stated that light of Vicky (Moped) was on. He had seen that Vicky (Moped) from a distance of 40 feet. So, mere fact that Jit Singh has stated that he has recorded the FIR on the same day, whereas the FIR was recorded on next day, does not make the case of the claimant un-trustworthy. It is a civil case and the same has to be decided on preponderance of evidence. The testimony of Ram Niwas – appellant, Shamsher Singh – injured, eye witness and Jit Singh, coupled with FIR, proves the fact that accident has taken place due to rash and negligent driving of offending truck by Balwan Singh. There was no reason for the complainants to falsely implicate Balwan Singh and to allow the actual culprit to go scot free. Even a suggestion has not been given to any of the eyewitnesses, why Balwan Singh has been falsely implicated. In view of the above discussion, I have no hesitation in holding that accident has taken place due to rash and negligent driving of truck No. HYL 6963, by Balwan Singh. So, the finding on issue No.1 stands reversed and this issue stands decided in favour of the claimants. The Tribunal has returned the finding on issues No. 3, 4, 5 and 6 against the claimants and in favour of respondents, only on the ground that issue No.1 has been determined against the claimants. FAO No. 534 of 1987 -7- The driving licence of Balwan Singh RW-1 has been placed on the file. So, in these circumstances, the finding on issues No. 3, 4, 5 and 6 also stands determined against the respondents and in favour of the claimants. The Tribunal has not returned the finding on issue No.2. The accident has taken place in the year 1986. It would not be in the consonance of justice to remand the case for determining the amount of compensation to the Tribunal. So, I opt to decide this issue No.2 here. The claimants had examined PW-1 Dr. R.M. Singh, who has stated that on 16.4.1986 he examined Ram Niwas and found the following injuries:- 1) Lacerated wound 6.9 X 2.2 cms upper end and front right leg. Fracture of under lying bone. Freshly bleeding. 2) Lacerated wound 4.3 X 1.8 cms medial and end of right leg with deformity. Freshly bleeding with clotted blood around. Advised X-ray. 3) Contusion 3.2 X 1.5 cms right chek with diffused swelling. 4) Diffused swelling of right eye with ecchymosis. Advised X-ray. 5) Abrasion 3 X 2 cms behind the nail big toe left side. 6) Contusion right shoulder joint 5.2 X 3.1 cms red in colour. Injury No. 1 was declared grievous, whereas injuries No. 3, 5 and 6 were declared simple and injuries No. 2 and 4 were subjected to X-Ray. The claimants also examined PW-2 Dr. R.S. Dahiya, who has FAO No. 534 of 1987 -8- stated that Ram Niwas was admitted vide MLR Exhibit PB on 16.4.1986 at 11.00 P.M. and was referred to Medical College, Rohtak on 17.4.1986 at 8.30 A.M. Ram Niwas was having deformity in his right leg, osteomyelites of right tibia discharging sinus and deformity of the leg as well as of the knee and shortening of the limb about ¾ inch and he was having permanent disability between 30 to 40%. Ram Niwas after discharge from Rohtak Medical College, came to Civil Hospital, Panipat and he was admitted here. Ram Niwas was attending the hospital as an out door patient. His statement was recorded on 21.1.1987. He has further stated that disability of Ram Niwas cannot reduce by the passage of time. The claimant has also produced on file the discharge slip of PGI Rohtak and from the perusal of the same, it is revealed that claimant remained admitted in the said hospital from 17.4.1986 to 2.5.1986. As per discharge slip, the claimant has fracture on both bones of right leg, double pain of right tibial and calcaul and plaster of paris was applied. So, in view of the evidence discussed above, the amount of compensation is assessed as under:- 1. On account of medical expenses - Rs. 10,000/- 2. Special diet - Rs. 5,000/- 3. On account of permanent disability - Rs.60,000/- To the extent of 30-40% 4. On account of pain and sufferings - Rs.25,000/- __________ Total Rs.1,00,000/- ___________ FAO No. 534 of 1987 -9- So, in view of the above, the appeal stands accepted, the award of the Tribunal stands set aside and claim petition stands accepted. All the respondents are jointly and severally held liable to pay the amount of Rs. 1 lac to the claimant-appellant, alongwith interest @ 7% per annum from the date of filing of claim petition till payment. A copy of this order be sent to the Tribunal for strict compliance. ( K.C. Puri ) 10.5.2010 Judge chugh