Punjab-Haryana High Court
Sompal Alias Bania vs Anil And Others on 2 July, 2014
Author: Kuldip Singh
Bench: Kuldip Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO No. 383 of 2011
Date of Decision : 2.7.2014
Sompal alias Bania ......... Appellant
Versus
Anil and others ....... Respondents
CORAM: HON'BLE MR. JUSTICE KULDIP SINGH
Present:- Mr. Sushil Bhardwaj, Advocate, for the appellant.
None for respondents No. 1 and 2.
Ms. Shamsher Kaur, Advocate,
for respondent No. 3-Insurance Company.
KULDIP SINGH, J.
Appellant has filed this appeal against the Award dated 7.9.2010, passed by the Motor Accident Claim Tribunal, Karnal (in short 'the Tribunal'), vide which his claim petition under Section 166 of the Motor Vehicle Act, 1988 (in short 'the M.V. Act') for grant of compensation was dismissed.
In the claim petition, it was asserted that on 21.2.2008 at about 6:00 PM, claimant Sompal @ Bania alongwith his friend Sandeep was standing on the edge of the road near Pilkhani in front of Dharam Kanta and was waiting for conveyance. In the meantime, a motorcycle bearing registration No. UP-11-U-2151 being driven by respondent No. 1, Anil son of Sahab Singh, came at very high speed in a rash and negligent manner from Sarsawa side and hit the claimant and his friend. As a result of the accident, claimant suffered injuries. First Information Report (in short 'FIR') No. 110, dated 5.5.2008 under Sections 279, 337 and 338 IPC was registered against respondent No. 1. Claimant was treated at S.B.D. District Hospital, Saharanpur and Virk Hospital, Karnal. He was 34 years of age at the time of Sharma Sanjiv Kumar 2014.07.08 13:56 I attest to the accuracy and integrity of this document Chandigarh FAO No. 383 of 2011 -2- accident. He spent Rs. 2 lacs on his treatment, which is still continuing. Claimant claimed Rs. 15 lacs compensation with interest @ 18% per annum.
Respondents No. 1 and 2 in the joint written statement took the plea that injured himself was negligent at the time of accident. False FIR has been registered against respondent No. 1. It was pleaded that if the Tribunal comes to the conclusion that the said motorcycle was driven rashly and negligently by respondent No. 1, then respondent No. 3-Insurer shall be responsible to indemnify the owner. All the allegations on merit were denied.
Respondent No. 3-Insurance Company also contested the petition and it took all the legal objections. It denied that the claimant received injuries in the accident.
From the pleadings, following issues were framed :-
1. Whether the accident in question took place on 21.2.2008 in the area of P.S. Sarsawa, on account of rash and negligent driving of vehicle No. UP 11 U 2151 motorcycle being driven in rash and negligent manner by respondent No. 1 resulting into injuries to Som Pal ? OPP
2. If issue No. 1 is proved whether the claimant is entitled to any compensation and if so how much and from whom ? OPP
3. Whether the respondent No. 1 was not holding valid and effective driving licence at the time of accident ? OPR
4. Whether the present petition is not maintainable ? OPR
5. Whether the claimant has neither any locus standi nor any cause of action to institute the present petition ? OPP
6. Relief.
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While deciding issue No. 1, the Tribunal held that the claimant failed to prove that he had received injury as a result of rash and negligent driving of the said motorcycle by respondent No. 1. Consequently, the petition was dismissed.
I have heard the learned counsel for the claimant-appellant, learned counsel for the Insurance Company and have also carefully gone through the file.
The perusal of the file shows that in this case, accident took place on 21.2.2008. The FIR was registered on 5.5.2008 by Puran, brother of the injured-claimant. The Tribunal has taken into consideration the fact of delay in lodging the FIR and that the amputation of the leg of the claimant took place on 26.3.2008 and that the same was not mentioned in the FIR. It also took adverse view on account of the fact that Sandeep (witness), who was standing near the claimant and that Puran, who lodged the FIR, were not examined by the claimant. Therefore, it took the view that though, claimant received injuries in the accident, but it is not proved that the accident was caused by respondent No. 1 while driving the said motorcycle rashly and negligently. I am of the view that the Tribunal fell in error while recording the said findings. Merely on account of delay in lodging the FIR, the claim petition could not be thrown out. The strict rules of evidence are not applicable to the proceedings under Motor Vehicle Act. There is overwhelming evidence on file that claimant had received injuries on road side accident on 21.2.2008. The Bed Head Ticket (Ex.P3) shows that the claimant was brought to the hospital by one constable. The doctor has recorded the history of the patient as road side accident. Though, the said constable was not examined, but even then it is to be seen as to whether from Sharma Sanjiv Kumar 2014.07.08 13:56 I attest to the accuracy and integrity of this document Chandigarh FAO No. 383 of 2011 -4- the available evidence, the claim of the claimant is proved or not ?
In this case, the claimant himself entered into witness box and testified as PW3 that respondent No. 1 was driving the said motorcycle rashly and negligently and hit him while he was standing on the edge of the road. He stated that as a result of the accident, his right leg was amputated. Suggestion was put to him that he had not received injuries on account of the said accident. The driver of the offending vehicle did not appear in the witness box to deny his involvement in the accident. Even though the FIR was got registered with delay, but this does not mean that the occurrence had not taken place. The claimant had received serious injuries on his right leg and ultimately his right leg was amputated on 26.3.2008. Naturally, he was not in a position to move. The police was supposed to approach the claimant to record his statement, but the same was not apparently done. Claimant himself was not in a position to approach the police due to his injuries. Therefore, undue importance could not have been given to any delay in lodging FIR. The Tribunal was to see whether the occurrence took place ? FIR is not a pre condition for lodging the claim under Section 166 of the Motor Vehicle Act, 1988. The driver of the offending vehicle did not dare to enter into witness box to deny the accident. His plea in the written statement is evasive. It was pleaded that injured-claimant was himself negligent at the time of occurrence and had caused the present accident. Further plea was taken that if the Court comes to the conclusion that the accident took place due to rash and negligent driving of the said motorcycle by respondent No. 1, then respondent was insured with respondent No. 3, which is liable to indemnify the owner.
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It is the quality and not the quantity, which matters. Even though Sandeep (eye witness), Puran (brother of the claimant, who lodged the FIR) and the police official, who got the claimant admitted in the hospital, were not examined, but in the present case, the solitary statement of claimant that he received injuries as a result of rash and negligent driving of motorcycle by respondent No. 1 is sufficient. Accordingly, findings on issue No. 1 are reversed and this issue is decided in favour of the claimant- appellant.
The Tribunal did not record findings on issues No. 2 and 3, which is again an illegality. Even if, the Tribunal had come to the conclusion that the involvement of respondent No. 1 is not proved, it should have recorded the finding as to whether driver was holding valid driving licence. Before this Court, it has not been disputed that respondent No. 1 was holding a valid driving licence. Accordingly, issued No. 3 is decided in favour of the claimant and so are issues No. 4 and 5.
Now, coming to issue No. 2 regarding compensation, it comes out that after the accident on 21.2.2008, the claimant remained in the hospital and was discharged on 10.3.2008. In this way, he remained admitted in the hospital for about 19 days. Dr. Balbir Singh Virk appeared as PW1 and stated that Sompal was brought in his hospital on 24.2.2008 as a result of road side accident with compound fracture of both bones of right leg. Amputation was done and patient was discharged on 10.3.2008. He charged Rs. 11,000/- as operation and hospitalization charges, vide receipt Ex.P1. Rajneesh Kumar Sharma, Pharmacist, G.H. Saharanpur (UP), appeared as PW2 and stated that claimant was admitted in Government Hospital, Saharanpur on 21.2.2008 with the history of road side accident. The witness proved the Bed Head Ticket and discharge slip, vide which he Sharma Sanjiv Kumar 2014.07.08 13:56 I attest to the accuracy and integrity of this document Chandigarh FAO No. 383 of 2011 -6- was referred to the higher institute on 22.2.2008. The claimant has produced on file medical bills (Ex.P9 to Ex.P14) amounting to Rs. 5,600/-. In this way, the claimant paid the medical bills amounting to Rs. 16,600/-. The claimant was a milk vendor and he must be earning at least Rs. 3,000/- per month in the year 2008. As a result of the operation, he might have suffered loss of income for minimum three months. Therefore, for loss of income for three months, Rs. 9,000/- compensation is allowed. Claimant suffered disability of 80% due to amputation of right leg. Therefore, the loss of earning per month is assessed at Rs. 1,000/- per month. After applying the multiplier of 16, the amount of compensation on account of loss of earning comes to Rs. 1,000x12x16=Rs. 1,92,000/-. Rs. 38,000/- for pain and suffering, special diet and attendant for 19 days are also allowed. Rs. 1 lac for artificial limb are allowed. The total amount of compensation including the medical bills comes to Rs. 3,55,600/-, which shall be paid by the Insurance Company with interest at 7.5% per annum from the date of filing the claim petition till realization.
(KULDIP SINGH) JUDGE 2.7.2014 sjks Sharma Sanjiv Kumar 2014.07.08 13:56 I attest to the accuracy and integrity of this document Chandigarh