High Court Punjab-Haryana High Court

Radhey Shyam vs Prem Kumar And Others on 24 December, 2008

Punjab-Haryana High Court
Radhey Shyam vs Prem Kumar And Others on 24 December, 2008
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.

FAO No.3824 of 2002 -3-

“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