FAO No. 401 of 1992 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No. 401 of 1992
Decided on : 17-12-2008
Sh. Sanjeev Kumar Mittal
....Appellant
VERSUS
Joginder Singh and another
....Respondents
CORAM:- HON’BLE MR. JUSTICE MAHESH GROVER
Present:- Mr. O.P.Goyal, Senior Advocate
with Ms. Priya Khurana, Advocate
for the appellant.
MAHESH GROVER, J
This appeal is directed against the award of the Motor Accident
Claims Tribunal, Ambala dated 26.11.1991.
The claim petition preferred by the appellant on account of the
injuries that he had suffered in an accident which took place on 8.5.89 was
declined as the Tribunal came to the conclusion that the appellant had been
unable to prove the negligence which he attributed to the driver of the bus.
Dis-satisfied with the award the appellant is in appeal.
It was contended by the learned counsel for the appellant that
the evidence on record conclusively shows that the accident had been
caused on account of the rash and negligent driving of the bus. He refers to
the testimony of the appellant PW1 and another witness whom he had
produced to substantiate his pleadings.
I have heard learned counsel for the appellant and have
FAO No. 401 of 1992 2
perused the record. A perusal of the testimony of PW1, the appellant
himself is revealing to an extent. He has stated that he was proceeding on
his scooter near the divider of the road and the bus was in the process of
over-taking from the left side of his scooter and in that process bus hit his
scooter on the left side causing injuries to him. The Court need not to travel
to any other evidence to understand the manner in which the accident had
taken place. According to the case of the appellant himself he was driving
towards the right side near the divider of the road which is not expected
from the driver of the scooter and is contrary to the traffic rules. Slow
moving traffic has to be on the left side of the road to give path to the fast
moving traffic like bus. From this it can be inferred that the appellant
himself was also guilty of having caused the accident. In so far as the
negligence of the bus driver is concerned, it can also be inferred that he was
negligent that he took the bus so close to the scooter so as to strike against
it. There is evidence in the shape of testimony of the driver of the bus who
stated that he shifted towards the right side because of the sudden arrival of
the stray cattle on the road. When all these pieces of evidence are taken into
consideration cumulatively it appears that both the drivers are partially
responsible for causing the accident. Therefore, there is little hesitation to
hold that the driver of both the vehicles i.e bus and the scooter have
contributed to the accident. In so far as the apportionment of the liability
regarding negligence is concerned prima facie it appears that the appellant
was driving vehicle on the side which was not meant for him. Therefore,
the inter se liability is determined as 70% to the appellant and 30% to the
driver of the bus.
Now coming to the question of compensation, the details of the
FAO No. 401 of 1992 3
injuries have come in the testimony of PW4 Dr.S.N. Mathuria, Associate
Professor, Neresurgery, PGI, Chandigarh who has stated as follows:-
“He has a sutured would in the left parietal region and
had depressed fracture in the left frontal region. He underwent
craniectomy and dural repair with the help of neuro-surgeon and
plastic surgeons on 10.5.89. The OPD card (photo-stat) 28617
belongs to Sanjeev Mittal which is Ex. C.W.4/1. I have also seen its
original. The bone fregments which have been removed at the time of
surgery performed on 10.5.89, have produced a bone defect in the
frontal region which is to be bridged in by cranieplasty surgery. I
have seen the original of another card which bears the No. as 30198.
It is Ex.CW 4/2. It is correct copy of the original. The previous
operation was major operation. The operation to be performed now is
comparatively minor. In case the patient is not subjected to
crenieplasty surgery, the bone defect (cosmatically bad) continues in
addition the patient is exposed to the direct injury to the underlying
brain which does not have a bone cover.”
It is apparent that the appellant had suffered injuries on his
head which required one major and the other minor surgery. There is no
proof of the expenses that the appellant incurred on his treatment. There is
no permanent disability which has been established on record.
The Court is therefore left with no option but to travel to realm
of conjectures to determine the quantum of compensation.
The appellant was aged 23 to 24 years at the time of accident.
He was engaged in the business. Apparently he had suffered damage to his
skull which required immediate surgery. It would thus be safe to assess the
FAO No. 401 of 1992 4
amount spent on medical treatment as Rs.15,000/-. Being a young man, the
injuries are going to haunt him for the entire life and there is a trace of a
suggestion in the testimony of PW4 that it is likely to dis-figure his face.
Therefore, in this eventuality, the amount for pain and suffering is assessed
as Rs.75,000/-. Rs. 5,000/- is awarded for loss of income which he would
have suffered on account of hospitalisation and another amount of
Rs.5,000/- for special diet etc. In this manner, compensation comes to Rs. 1
lakh. Since the appellant had been held guilty of contributing to the
accident to the extent of 70%, therefore, he is entitled to 30% of the
awarded amount i.e. Rs.30,000/-.
The enhanced amount of compensation shall be paid alongwith
interest at the rate of 9 % per annum from the date of filing of petition till
the date of its realisation.
The liability to pay the amount shall be of the respondents
shall be joint and several.
I am of the considered opinion that dismissal of the claim
petition by the Tribunal on the issue of limitation is also erroneous as
considering it from any angle there is only a marginal delay in preferring the
petition and the proceedings before the Tribunal are a result of a beneficial
legislation which should be interpreted liberally.
The appeal stands disposed of in the aforesaid terms and the
award of the Tribunal is modified accordingly.
December 17 , 2008 (Mahesh Grover) rekha Judge