Punjab-Haryana High Court
Sunil Kumar vs Ramveer Singh And Others on 29 January, 2013
Author: K. Kannan
Bench: K. Kannan
FAO No.5399 of 2013 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
FAO No.5399 of 2013
Date of decision January 29, 2013
Sunil Kumar ....... Petitioner
Vs.
Ramveer Singh and others
........ Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
Present:- Mr. Rajiv Sharma, Advocate
for the petitioner.
Mr. Banni Thomas, Advocate
for respondent No.3.
None for respondent Nos. 1 and 2.
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K. Kannan, J (oral).
1. The appeal is for enhancement for claim of compensation on the ground that the Tribunal was in error in finding contributory negligence against the petitioner who was a boy aged 10 years. It is further contended that he had lost one middle toe of the right foot. It was surgically amputated and the doctor had assessed the loss to be 7%. Learned counsel for the appellant argues that although the medical expenses had been incurred to the extent of about `2.5 lacs, the Tribunal has provided for compensation at `1,60,000/- only. The Court provided for an additional amount of `20,000/- towards pain and suffering and assessed the total loss to be `1,80,000/-. However, finding that he was guilty of contributory negligence it had made a 50% deduction and awarded `90,000/- FAO No.5399 of 2013 2 only.
2. Counsel also argues that the Court has not provided for the attendant charges, special diet and transportation. These are invariably pecuniary heads for which proof has to be given and I find no evidence therefor. However, I take note of the fact that he had been admitted in the hospital from 19.11.2006 to 25.11.2006 and therefore there ought to be provision for special diet and attendant charges and I will also allow for transportation expenses There ought to be a provision also for the loss of amenities of life for the disability resulting in amputation of toe and I will provide for `5,000/- towards the same. A loss of toe is a schedule injury and I will assume that the amputation was metatarsal phalengeal which allows for maximum percentage of 3%. I would take also that to result in loss of earning capacity taking a notional income for a child at `15,000/-. I will apply a 3% loss as resulting in `450/- annually. I apply a multiplier of 16 and take the loss to be `7200/-. I tabulate hereunder the total compensation payable:
Heads of Claim Tribunal High Court S No Amount ` Amount ` 1 Loss of Income from to ` ` 2 Medical Expenses: (i) Medicines 1,60,000/- 1,80,000/- (ii) Hosptial Charges (iii) Attendent Charges - 5,000/- (iv) Special Diet - 2,500/- (v) Future medical expenses 3 Transport - 2,500/- 4 Pain & Suffering - per fracture / per surgery - 20,000/- 5 Disability in percentage 7% 3%
Reduction in life expectancy/ Loss of 6 - 5,000/-
amenities 7 Loss of earning power in percentage -
FAO No.5399 of 2013 3
Income x % of loss of earning power x 8 - 7,200/-
multiplier Loss of prospect of marriage / Special 9 -
damages 10 Total 1,80,000/- 2,22,200/-
3. Out of this amount, in my view, nothing shall be deducted for I shall not find contributory negligence for a child who was crossing the road. The burden shall be on the driver who was driving a motor vehicle to exercise caution and ensure that a child who was crossing the road came to no harm. The onus shall always be on the driver of the motor vehicle and no contributory negligence could ever be attributed to the child. I vacate the finding and the entire amount shall become payable to the claimant.
4. Counsel for the Insurance Company argues that there had been no valid permit or fitness certificate. These are no defences which shall be allowed for exclusion of liability under the terms of Section 149 of the Motor Vehicles Act. The user of the vehicle against the terms of permit under Section 66 will give rise to other consequences of cancellation of permit but shall not avail to the insurer a right to be exonerated, unless there are any specific exclusions under the terms of policy. The Court's finding that the liability shall be only on respondent Nos. 1 and 2 is erroneous. The liability shall be therefore borne by the Insurance Company.
5. The award is modified and the appeal is allowed to the above extent.
(K. KANNAN) JUDGE January 29, 2013 archana