CORAM : HON'BLE MR.JUSTiCE AJAY TEWARi Vs. State of Haryana and others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1130000
CourtPunjab and Haryana High Court
Decided OnFeb-11-2014
AppellantCORAM : HON'BLE MR.JUSTiCE AJAY TEWARi
RespondentState of Haryana and others
Excerpt:
fao no.2447 of 2003 (o&m) -1- in the high court of punjab and haryana at chandigarh f.a.o.no.2447 of 2003 (o&m) date of decision : 11.02.2014 devi dayal .....appellant versus state of haryana and others .....respondents coram : hon'ble mr.justice ajay tewari *** present : mr.p.s.rana, advocate for the appellant. ms.hem lata balhara, a.a.g., haryana for respondents no.1 to 3. mr.d.p.gupta, advocate for the respondent no.4-insurance company. *** 1. whether reporters of local papers may be allowed to see the judgment?. 2. to be referred to the reporters or not?. 3. whether the judgment should be reported in the digest?. ajay tewari, j. (oral) this appeal has been filed by the claimant in an injury case for the enhancement of compensation and to modify the award dated 13.11.2002 passed by the motor accident claims tribunal, karnal awarding total compensation of rs.2 lac i.e.rs.5000/- for pain and suffering, rs.25,000/- for medical expenses, rs.1,50,000/- for loss of earning capacity and disability of 40%, rs.5000/- for attendant and special diet etc.and sharma ashish 2014.02.28 15:42 i attest to the accuracy and integrity of this document chandigarh fao no.2447 of 2003 (o&m) -2- rs.15,000/- for loss of income and unforeseen expenses in the hospital alongwith interest @ 9% p.a.the driver of the three-wheeler in which the claimant was travelling was held to be equally responsible to the extent of 50% for causing the accident and only an amount of rs.1 lac has been awarded to the claimant. brief facts are that on 16.08.2001 the appellant was going to karnal from his village uchana in a three wheeler bearing no.hr-58-81. one another passenger namely jagdip was also sitting in the three wheeler. when the three wheeler reached near balri bye-pass, karnal a bus bearing no.hr-02-pa-0158, beaing driven in a rash and negligent manner, came from karnal side and dashed with the three wheeler. as a result of the collision, the occupants of the three-wheeler received multiple injuries on various parts of the body. the appellant also sustained multiple serious injuries particularly on his left leg. dr. rakesh girdhar, pw4, deposed that the appellant sustained 80% disability on account of amputation of left leg above the knee which was 40% qua the whole body. the firs.argument of learned counsel for the appellant is that in a case of composite negligence like the present the tribunal erred in reducing the compensation to the extent of 50% on the ground that the owner/driver of the other vehicle involved had not been impleaded as parties. in this connection he has relied upon the judgment of the hon'ble supreme court in the matter of pawan kumar and another v. m/s harkishan dass mohan lal and others.passed in civil appeal no.5906 of 2008, decided on 29.01.2014. in this case also the victims were travelling sharma ashish 2014.02.28 15:42 i attest to the accuracy and integrity of this document chandigarh fao no.2447 of 2003 (o&m) -3- in a jeep which met with an accident with a truck. in the claim for compensation the owner/driver and insurer of the truck were not impleaded. the tribunal held that the accident was caused because of the negligence of the truck driver and, since the owner/driver/insurer of the truck were not impleaded as a party dismissed the claim. in appeal this court apportioned the negligence at 70:30 for the truck and the jeep and held the claimants entitled to only 30% from the jeep's owner/driver/insurer, again on the ground that the owner/driver/insurer had not been impleaded as a party. the hon'ble supreme court while allowing the appeal of the claimants held as follows:- “9. we, accordingly, hold that the drivers/owners of both the vehicles are jointly and severally liable to pay compensation and it is open to the claimants to enforce the award against both or any of them.”. in this view of the matter, the appellant-claimant in the present case would be entitled to full compensation. the second argument of learned counsel for the appellant is on the question of quantum. he has argued that the appellant claimed to be a mason but even if he is considered daily-wage labourer the functional disability would be 100% (full body disbability is 40%) since now with the amputation of the left leg above knee the appellant can not do any labour work. learned counsel for the respondent no.4-insurance company has argued that even though the left leg of the appellant has been amputated above knee yet it cannot be held that the appellant is not capable to do any sharma ashish 2014.02.28 15:42 i attest to the accuracy and integrity of this document chandigarh fao no.2447 of 2003 (o&m) -4- work. i find some merit in the argument of learned counsel for the respondent no.4-insurance company too. keeping in view the entire conspectus of facts, i hold the functional disability of the appellant to be 80%. at the relevant time, the minimum wage for an unskilled labourer as per the minimum wages act was rs.2000/- p.m.50% has to be added for future prospects in such cases in view of the observations made by this court in f.a.o.no.2990 of 2011, titled as manjit kaur and others versus ramesh kumar and others.decided on 08.01.2014. the loss of earning i.e.80% thereof is rs.2400/- p.m.since the appellant was 21/22 years old the multiplier would be 18. for pain and suffering, i award rs.45,000/- more and for loss of marriage prospects and loss of amenities of life i award another amount of rs.50,000/-. under the head (iv) i.e.compensation for expenses on attendant, conveyance and special diet etc.i grant an amount of rs.15,000/- more. it is made clear that the enhanced amount shall be given along with the same rate of interest as awarded by the tribunal from the date of filing of the claim petition till the date of realization. the appeal is disposed of in the above terms and the award is modified accordingly. since the main case has been decided, the pending civil miscellaneous application, if any, also stands disposed of. ( ajay tewari ) february 11, 2014 judge ashish sharma ashish 2014.02.28 15:42 i attest to the accuracy and integrity of this document chandigarh
Judgment:

FAO No.2447 of 2003 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.No.2447 of 2003 (O&M) Date of decision : 11.02.2014 Devi Dayal .....Appellant versus State of Haryana and others .....Respondents CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr.P.S.Rana, Advocate for the appellant.

Ms.Hem Lata Balhara, A.A.G., Haryana for respondents No.1 to 3.

Mr.D.P.Gupta, Advocate for the respondent No.4-insurance company.

*** 1.

Whether Reporters of local papers may be allowed to see the judgment?.

2.

To be referred to the Reporters or not?.

3.

Whether the judgment should be reported in the Digest?.

AJAY TEWARI, J.

(Oral) This appeal has been filed by the claimant in an injury case for the enhancement of compensation and to modify the award dated 13.11.2002 passed by the Motor Accident Claims Tribunal, Karnal awarding total compensation of Rs.2 lac i.e.Rs.5000/- for pain and suffering, Rs.25,000/- for medical expenses, Rs.1,50,000/- for loss of earning capacity and disability of 40%, Rs.5000/- for attendant and special diet etc.and Sharma Ashish 2014.02.28 15:42 I attest to the accuracy and integrity of this document Chandigarh FAO No.2447 of 2003 (O&M) -2- Rs.15,000/- for loss of income and unforeseen expenses in the hospital alongwith interest @ 9% p.a.The driver of the three-wheeler in which the claimant was travelling was held to be equally responsible to the extent of 50% for causing the accident and only an amount of Rs.1 lac has been awarded to the claimant.

Brief facts are that on 16.08.2001 the appellant was going to Karnal from his village Uchana in a three wheeler bearing No.HR-58-81.

One another passenger namely Jagdip was also sitting in the three wheeler.

When the three wheeler reached near Balri Bye-pass, Karnal a Bus bearing No.HR-02-PA-0158, beaing driven in a rash and negligent manner, came from Karnal side and dashed with the three wheeler.

As a result of the collision, the occupants of the three-wheeler received multiple injuries on various parts of the body.

The appellant also sustained multiple serious injuries particularly on his left leg.

Dr.

Rakesh Girdhar, PW4, deposed that the appellant sustained 80% disability on account of amputation of left leg above the knee which was 40% qua the whole body.

The fiRs.argument of learned counsel for the appellant is that in a case of composite negligence like the present the Tribunal erred in reducing the compensation to the extent of 50% on the ground that the owner/driver of the other vehicle involved had not been impleaded as parties.

In this connection he has relied upon the judgment of the Hon'ble Supreme Court in the matter of Pawan Kumar and another v.

M/s Harkishan Dass Mohan Lal and otheRs.passed in Civil Appeal No.5906 of 2008, decided on 29.01.2014.

In this case also the victims were travelling Sharma Ashish 2014.02.28 15:42 I attest to the accuracy and integrity of this document Chandigarh FAO No.2447 of 2003 (O&M) -3- in a jeep which met with an accident with a truck.

In the claim for compensation the owner/driver and insurer of the truck were not impleaded.

The Tribunal held that the accident was caused because of the negligence of the truck driver and, since the owner/driver/insurer of the truck were not impleaded as a party dismissed the claim.

In appeal this Court apportioned the negligence at 70:30 for the truck and the jeep and held the claimants entitled to only 30% from the jeep's owner/driver/insurer, again on the ground that the owner/driver/insurer had not been impleaded as a party.

The Hon'ble Supreme Court while allowing the appeal of the claimants held as follows:- “9.

We, accordingly, hold that the drivers/owners of both the vehicles are jointly and severally liable to pay compensation and it is open to the claimants to enforce the award against both or any of them.”

.

In this view of the matter, the appellant-claimant in the present case would be entitled to full compensation.

The second argument of learned counsel for the appellant is on the question of quantum.

He has argued that the appellant claimed to be a Mason but even if he is considered daily-wage labourer the functional disability would be 100% (full body disbability is 40%) since now with the amputation of the left leg above knee the appellant can not do any labour work.

Learned counsel for the respondent No.4-insurance company has argued that even though the left leg of the appellant has been amputated above knee yet it cannot be held that the appellant is not capable to do any Sharma Ashish 2014.02.28 15:42 I attest to the accuracy and integrity of this document Chandigarh FAO No.2447 of 2003 (O&M) -4- work.

I find some merit in the argument of learned counsel for the respondent No.4-insurance company too.

Keeping in view the entire conspectus of facts, I hold the functional disability of the appellant to be 80%.

At the relevant time, the minimum wage for an unskilled labourer as per the Minimum Wages Act was Rs.2000/- p.m.50% has to be added for future prospects in such cases in view of the observations made by this Court in F.A.O.No.2990 of 2011, titled as Manjit Kaur and others versus Ramesh Kumar and otheRs.decided on 08.01.2014.

The loss of earning i.e.80% thereof is Rs.2400/- p.m.Since the appellant was 21/22 years old the multiplier would be 18.

For pain and suffering, I award Rs.45,000/- more and for loss of marriage prospects and loss of amenities of life I award another amount of Rs.50,000/-.

Under the head (iv) i.e.compensation for expenses on attendant, conveyance and special diet etc.I grant an amount of Rs.15,000/- more.

It is made clear that the enhanced amount shall be given along with the same rate of interest as awarded by the Tribunal from the date of filing of the claim petition till the date of realization.

The appeal is disposed of in the above terms and the award is modified accordingly.

Since the main case has been decided, the pending civil miscellaneous application, if any, also stands disposed of.

( AJAY TEWARI ) February 11, 2014 JUDGE ashish Sharma Ashish 2014.02.28 15:42 I attest to the accuracy and integrity of this document Chandigarh