FAO No.3824 of 2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No.3824 of 2002
Date of decision 24.12.2008
Radhey Shyam .....Appellant
versus
Prem Kumar and others .....Respondents
Coram:- Hon'ble Mr. Justice K. Kannan.
Present: Mr. Namit Sharma, Advocate,
for the appellant.
Mr. R. C. Gupta, Advocate,
for Insurance Company.
K. Kannan, J.
1. The claim for compensation for injuries suffered in an accident
was dismissed on the ground that the petitioner had not proved that the
injuries were on account of an accident involving a motor vehicle. The
claimant before the Tribunal is the appellant before this Court.
2. The essential ground on which the Tribunal dismissed the
petition was that the petitioner had not given any complaint to the Police
and there is no acceptable evidence that there was a nexus between the
injuries and the motor accident. The petitioner had a cogent case to narrate
in his oral evidence:-
The petitioner was one of the Loadmen working in the truck
bearing registration No.HR-05GA-0218. According to him he had got
down from the truck just at the place where the truck was to be weighed on
the weigh-bridge. After getting the empty truck weighed the petitioner got
FAO No.3824 of 2002 -2-
into truck again and at that time the driver started the truck suddenly, when
the petitioner fell down and the truck ran over his right foot crushing his
leg. According to him, the accident had arisen only on account of the
negligent conduct of the driver in starting the vehicle even before petitioner
had fully gotten into the truck. The petitioner stated in his evidence that he
did not inform the Police, because the owner of the truck, who was his
employer assured him to pay for the medical expenses and further that he
had to work and he did not want to take the risk of giving a complaint
against him. This portion of evidence is most natural one and one cannot
expect the daily rated a loadman to lodge a complaint against the driver of
his own employer, if only he wanted to continue in his employment. One
Sham Sunder had been examined as PW-3, who was the person who
accompanied the petitioner at the time when the scrap was being loaded into
the truck and he has stated that the petitioner slipped under the front wheel
of the offending truck and the petitioner got his injuries over his right knee.
The accident in question took place only due to the negligent driving of the
offending vehicle driver. He has also stated that he was taken into the
hospital from there and but they did not report the matter to the Police. In
the cross-examination it has been elicited as follows:-
“I was sitting inside the cabin of the truck and the other 4
or 5 persons of the labourer (Sic) were sitting in the body of the
truck, when Radhey Sham slipped, I was inside the cabin of the
truck”.
3. The driver of the truck himself has been examined as RW-1.
He has admitted the incident but only explains the accident as having arisen
in the following words.
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“Before unloading the truck I had gone to check the
weightage of the loaded truck but when I had gone at that time
one Radhey Sham are also accompany me in the truck (Sic).
After noting the weight of truck by Radhey Sham, he was also
to sit in the truck and before sitting in the truck, Radhey Sham
due impact of sudden and starting of the offending truck by me
he fell down and his right leg went under the front wheel of the
conductor side of the truck”.(sic)
4. It is no where suggested to the driver that the accident itself had
not taken place. On the other hand, the specific suggestion is that the
accident in question took place due to the sole negligence attributed to the
driver. It is precisely on occasion like this where the owner shall bear
vicarious liability and the Insurance Company will also become liable as an
insurer. If the Tribunal had properly analyzed the case, it could not have
dismissed the petition. It got carried away by the fact that since the accident
had not been reported to the Police Station, the accident itself could not be
true. Although an averment of collusion has made in the written statement
of the insurer, it was not so suggested at the time of trial and especially at
the time when the driver had been examined. I have already pointed out that
the petitioner had a strong reason why he did not give a complaint to the
Police namely that he was Loadmen in the vehicle and he believed that the
owner would pay all his medical expenses. Under the circumstances I
accept the evidence as credible and worthy of acceptance. I accordingly
find that the accident arose only due to the rash and negligent act of the
driver in starting the vehicle even before the Loadmen had got into the cabin
and the petitioner is entitled to make the claim under the Motor Vehicles
FAO No.3824 of 2002 -4-
Act.
4. The nature of injuries suffered in the accident had been spoken
by the petitioner himself. He has stated that his right leg had been put in
plaster-cast for a period of one month and he had spent about Rs.25,000/-
for his treatment. Dr. Sachdeva has been examined PW-1 and states that he
remained admitted in the hospital between 29.11.1999 to 2.12.1999 and that
he had charged Rs.2,870/- towards hospital treatment. The doctor stated
that there had been no fracture but there was some internal injuries near the
knee and that was the reason for applying plaster of paris upon his leg. The
Tribunal itself had noted that the claimant certainly remained in bed for a
period of more than 20 days. The Tribunal had considered the relevant
evidence and rendered a finding that the petitioner would have incurred an
additional amount of Rs.5000/- as medical expenses. The Tribunal also
stated that the petitioner would have been put to a loss of income of at least
Rs.2,000/- . The Loadmen who has to carry weight on his back and walk
could not have been expected to done his work with his painful knee that
had been injured. Having regard to the nature of injury spoken by PW-1, I
assess the fact that the petitioner would not have been able to work for 3
months and would have been put to a loss of income of Rs.6,000/- ; I award
Rs.2500/- as special diet, estimate an amount of Rs.5000/- for pain and
suffering and also allow Rs.2500/- towards transportation. The value of the
services of the attendant is estimated at Rs.2000/-. In all the petitioner
would be entitled to Rs.23,000/-
5. In the circumstances the petitioner shall be entitled to an award
of Rs.23,000/- with interest at the rate of 7.5 % from the date of petition till
the date of payment against the Insurance Company.
FAO No.3824 of 2002 -5-
6. The appeal is allowed in part on the above terms.
24.12.2008 ( K. KANNAN ) A. KAUNDAL JUDGE