Punjab-Haryana High Court
Smt. Charan Kaur vs Ved Parkash And Another on 9 April, 2014
Author: K. Kannan
Bench: K. Kannan
FAO No.1137 of 2004 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.1137 of 2004
Date of Decision.09.04.2014
Smt. Charan Kaur ......Appellant
Versus
Ved Parkash and another ......Respondents
2. FAO No.1138 of 2004
Salvinder Singh ......Appellant
Versus
Ved Parkash and another ......Respondents
Present: Mr. Atul Gaur, Advocate for
Mr. Sumeet Goel, Advocate
for the appellant.
Mr. Pardeep Goyal, Advocate
for the insurance company.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
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?
-.-
K. KANNAN J.(ORAL)
1. Both the appeals are connected and they relate to claim for compensation for husband and wife both of whom were injured in a motor accident. It was a collision of the scooter in which the claimants were travelling with the insured's truck. The accident had taken place in a road junction and DDR recorded soon after the accident was that the accident took place which was a chance and that nobody was responsible for the accident. The claim petitions were, however, presented on a plea that the claimant Salvinder Singh had been compelled to sign in the DDR and in the evidence, he had stated that he Kamboj Pankaj Kumar 2014.04.25 17:00 I attest to the accuracy and integrity of this document Chandigarh FAO No.1137 of 2004 -2- was pressurized not to lodge the FIR and they were prevailed on to accept an offer for expenses for medical treatment and that was the reason why they did not escalate the issue to prosecution of the driver of the truck. The Tribunal found that if the claimant had himself admitted that there was no negligence on the part of any one of them, he cannot resile from the same.
2. In my view, the Tribunal was not setting out the law correctly that a statement to the police could be used against him as binding even as regards a claim against a third party. If the claimant had stated in the petition that he had been pressurized to make such a statement, there was no presumption to be drawn that the statement must all times be taken as correct. It, at least, put the respondent on notice of the fact that the claimant was not prepared to stand by the statement said to have been made to the police and he was driven to bring his own evidence by examination of the witness who was examined and set out the circumstances which was not vitiating in any sense to allow for a claimant to make a statement resiling from the alleged statement made earlier. The accident had taken place at the road junction and an appropriate care of driving both by the motor cycle and truck driver could have averted the accident. I would see this to be an incidence of contributory negligence as far as the driver of the motor cycle is concerned and a case of composite negligence in the case of the pillion rider wife.
3. For a claim by the wife or compensation, the amount was determined as ` 63,000/-. The injuries were fracture of right leg and she had been taken treatment from 09.05.2001 to 25.05.2001. The Kamboj Pankaj Kumar 2014.04.25 17:00 I attest to the accuracy and integrity of this document Chandigarh FAO No.1137 of 2004 -3- doctor's evidence showed that the external fixaturs had been put in place to reduce the fracture and this must have resulted in a fair amount of discomfort and inconvenience. The Tribunal has provided for a compensation of ` 5,000/- for pain and suffering which I think is slightly on the lower side for a fracture and for external fixaturs and the inconvenience of having to put up with it. I will raise it to ` 17,000/-. Before the Tribunal, expenses had been shown to be ` 15,000/- but it provided for ` 18,000/-. For other heads of expenses such as attendant charges, special etc., the Tribunal had provided appropriate compensation. For a 15% disability for the whole body as assessed, it has assessed ` 30,000/- as going towards loss of amenities. I find the entire approach for appraising each one of the heads which are relevant have been appropriate except on the issue relating to pain and suffering where I have found adequate reason for enhancing it to another ` 12,000/- to make the claim as possible for ` 75,000/-.
4. In FAO No.1138 of 2004, the husband had a fracture of the left clavicle and he had been hospitalized from 09.05.2001 to 16.05.2001. He was said to be an agriculturist and he claimed that he had lost his income and he had also incurred expenses of more than ` 15,000/-. There had been no bills produced but the Tribunal provided for modest compensation under each one of the heads namely ` 2,000/- for medicines, ` 1,000/- each for attendant charges, special diet and transportation. The Tribunal provided ` 2,000/- towards pain and suffering. I find this to be a little inadequate and I will raise it to ` 10,000/-. For each one of the heads of claim for attendant charges, special diet and transportation, I will increase it to ` 2,000/-. For loss Kamboj Pankaj Kumar 2014.04.25 17:00 I attest to the accuracy and integrity of this document Chandigarh FAO No.1137 of 2004 -4- of income, I will increase the amount from ` 3,000/- to ` 5,000/-. The whole amount will aggregate to ` 23,000/-. For easy comprehension for respective sums awarded by the Tribunal and by this Court for both the husband and wife, I tabulate the same as under:-
INJURY CASE in FAO No.1137 of 2004 Age Period of Hospitalization 09.05.2001 to 25.05.2001 Occupation householder Heads of claim Tribunal High Court Sl. No. Amount Amount (Rs.) (Rs) 1 Loss of income 2 Medical expenses
(i) Medicines 8000 8000
(ii) Hospital Charges
(iii) Attendant Charges 3000 3000
(iv) Special Diet 5000 5000
(v) Transport 2000 2000 3 Pain & Suffering-per fracture/per 5000 17000 surgery 4 Disability 15% 15% 5 Loss of earning capacity income Multiplier % of loss of earning capacity
6. Loss of amenities 30,000 30,000 7 Reduction in life expectancy 8 Loss of prospect of marriage Total 63,000 75,000 INJURY CASE in FAO No.1138 of 2004 Age Period of Hospitalization 09.05.2001 to 16.05.2001 Occupation Agriculturist Heads of claim Tribunal High Court Sl. No. Amount Amount (Rs.) (Rs) 1 Loss of income 3000 5000 2 Medical expenses Kamboj Pankaj Kumar 2014.04.25 17:00 I attest to the accuracy and integrity of this document Chandigarh FAO No.1137 of 2004 -5- INJURY CASE in FAO No.1138 of 2004
(i) Medicines 2000 2000
(ii) Hospital Charges
(iii) Attendant Charges 1000 2000
(iv) Special Diet 1000 2000
(v) Transport 1000 2000 3 Pain & Suffering-per fracture/per 2000 10000 surgery 4 Disability 5 Loss of earning capacity income Multiplier % of loss of earning capacity
6. Loss of amenities 7 Reduction in life expectancy 8 Loss of prospect of marriage Total 10,000 23,000
5. I have observed that the compensation assessed for the wife is as regards composite negligence and the claimant would be entitled to exercise the right of recovery against any one of the tort feasors.
The amount of ` 75,000/- as determined with interest @7.5% from the date of petition till the date of payment could be recovered by the claimant against the insurer and the insurer will also have a right of recovery upto 50% from the husband who is the appellant in the case which is subject matter in FAO No.1138 of 2004. In another way, the claimant is at liberty to enforce only 50% of the amount against the insurer and spare her husband of a right of recovery by the insurer against her husband. I would leave that to the wife to decide the course of action which is appropriate to her.
6. As regards the claim for the husband, the additional amount of compensation still stand abated to 50% and he will be entitled to ` 11,500/- with interest @7.5% from the date of petition till the date of Kamboj Pankaj Kumar 2014.04.25 17:00 I attest to the accuracy and integrity of this document Chandigarh FAO No.1137 of 2004 -6- payment against the insurance company. The awards of dismissal are set aside and the appeals by the claimants are allowed to the above extent.
(K. KANNAN) JUDGE April 09, 2014 Pankaj* Kamboj Pankaj Kumar 2014.04.25 17:00 I attest to the accuracy and integrity of this document Chandigarh