R.S.A.No.1537 of 2005 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A.No.1537 of 2005
Date of Decision : 10.09.2009
Surender Singh ...Appellant
Versus
Mahesh Kumar ...Respondent
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
Present: Mr. Arun Yadav, Advocate,
for the appellant.
Mr. Sanjay Mittal, Advocate,
for the respondent.
HEMANT GUPTA, J. (ORAL)
The defendant is in second appeal aggrieved against the
judgment and decree passed by the Courts below, whereby suit for
recovery of Rs.1 lac as damages on account of injuries suffered by the
plaintiff, was decreed.
The plaintiff, a child of 4 years, was struck by the cycle of the
defendant on 7.1.1995. Such accident led to fracture of right femur.
Because of the fracture, the plaintiff became permanent disabled qua his
four limbs including whole body upto 40% and, thus, the plaintiff
claimed Rs.50,000/- incurred on his treatment, nourish diet,
transportation and other expenses and Rs.50,000/- as compensation. The
learned trial Court decreed the suit and the first Appellate Court
dismissed the appeal. Still aggrieved, the defendant is in second appeal.
Learned counsel for the appellant has vehemently argued that
an FIR in respect of accident was lodged on 17.3.1995 i.e. more than 2
R.S.A.No.1537 of 2005 2
months and 10 days of the accident. Still further, the witnesses produced
by the plaintiff are discrepant in their testimonies, which make them
unreliable witnesses. Still further, the plaintiff has not produced the best
evidence to prove his disability. The plaintiff was not examined by the
Board of Doctors, but by a General Surgeon, who has given a report
about the physical disability, therefore, such evidence is not sufficient to
pass a liability of Rs.1 lac upon the appellant.
To prove the manner of accident, the plaintiff has examined his
mother Saroj as PW-4, Rakesh as PW-5 and Sadhu Singh as PW-6. All
the witnesses have deposed in respect of accident. Though there is some
discrepancy in respect of direction, from which the appellant came, but
the fact remains that none of the witnesses are proved to have any enmity
with the appellant. The discrepancy in respect of direction, from which
the appellant came is not substantial, keeping in view the time between
the incident and their examination in Court.
In respect of examination of disability, the plaintiff has
examined PW-1 Dr.S.C.Goyal, who has proved Medico Legal Report
Ex.P-1 and x-ray report Ex.P-2. PW-9 Dr. Dinesh Podar, a Medical
Officer from General Hospital, Narnaul, has proved the disability
certificate Ex.PW-9/A issued by Dr. Subhash Aggarwal, who has left the
Government service and shifted to Kota. The disability certificate
reflects the permanent disability of four limbs of the plaintiff including
whole body upto 40%. The witness examined is from a Government
Hospital. It has also come on record that the whereabouts of the Doctor,
who issued the certificate, are not known as he has shifted to Kota. The
plaintiff cannot be blamed for non-examining of such Doctor, when the
R.S.A.No.1537 of 2005 3
other Doctor, who has brought the official record has been examined to
prove the disability of the plaintiff.
The grant of compensation of Rs.1 lac on account of injuries
suffered by the plaintiff at the tender age, the permanent disability staring
him throughout his life, cannot be said to be unjust or unfair.
In view of the above, I do not find that any substantial question
of law arises for consideration by this Court in second appeal.
Dismissed.
10.09.2009 (HEMANT GUPTA) Vimal JUDGE