Punjab-Haryana High Court
Chandeep Sahani vs Ashok Kumar And Ors on 16 December, 2014
Author: Fateh Deep Singh
Bench: Fateh Deep Singh
F.A.O Nos. 1716 of 2012 & 6994 of 2011 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
F.A.O No. 1716 of 2012
Date of decision: December 16, 2014
Chandeep Sahani ....Appellant
Versus
Ashok Kumar and others ....Respondents
F.A.O No. 6994 of 2011
Reliance General Insurance Co. Ltd. ....Appellant
Versus
Chandeep Sahani and others ....Respondents
Coram: Hon'ble Mr. Justice Fateh Deep Singh
Present: Mr. Ram Tilak Redhu, Advocate for the claimant
Mr. T.K. Joshi, Advocate for Insurance Company
None for Owner and Driver
Fateh Deep Singh, J.
Appeal FAO No. 1716 of 2012 is by the claimant seeking DALBIR SINGH TIWANA 2015.05.04 15:32 I attest to the accuracy and authenticity of this document High Court, Chandigarh F.A.O Nos. 1716 of 2012 & 6994 of 2011 -2- enhancement of the compensation and FAO No. 6994 of 2011 is by the insurer challenging award and having arising out of a common findings dated 21.9.2011 of learned Motor Accident Claims Tribunal, Hisar are thus being disposed of together.
Heard Mr. Ram Tilak Redhu, Advocate for the claimant and Mr. T.K. Joshi, Advocate for Insurance Company whereas none has appeared for Owner and Driver and perused the records.
The fact that it was on 14.5.2009 the claimant Chandeep Sahani who was employed by a Fish Contractor was returning on TATA-407 bearing registration No. HR-39A-1272 after delivery of fish along with contractor and due to rash and negligent driving by the driver of the vehicle Ashok Kumar respondent around 6.30 PM in the area of village Ahrawan, the driver lost control of the vehicle and hit against a road side tree resulting in injuries to the claimant on the right hand. The Tribunal in its conclusion though allowed the petition awarding Rs 1,72,700/- as compensation and thus giving recovery rights to the insurer and which is subject matter of these two assailments.
Neither the driver nor the owner have come up to challenge the findings on issue no. 1 qua fault of the driver and thus has attained finality. The bone of contention in the first leg of submissions is over the quantum. It is not disputed that the claimant at the time of accident was aged around DALBIR SINGH TIWANA 2015.05.04 15:32 I attest to the accuracy and authenticity of this document High Court, Chandigarh F.A.O Nos. 1716 of 2012 & 6994 of 2011 -3- 35 years and has a crush injury to his right hand and was operated twice on 16.5.2009 and 20.5.2009 and the bills Ex. P3 to P4 treatment record Ex. P5 to P6 towards expenses to the tune of Rs 18200/- and Rs 5490/- rounded off to Rs 24,000/- and further PW3 Sajjan Verma has proved another set of bills Ex. P7 to P13 of Jindal Hospital, Hisar regarding readmission and rectification of the crushed injury. The disability certificate brought on the record Ex. P31 establishes that the claimant has suffered 50% permanent disability of the right hand. Though the claimant has sought to show his earnings on a much higher side, however, the learned Tribunal in view of the lack of documentary proof has taken him to be pure labourer earning Rs 2000/- per month which is certainly on the lower side in view of then notified minimum wages which were around Rs 3500/- per month. It has been argued on behalf of the claimant that the learned Tribunal has failed to consider award of compensation under various heads which is a natural outcome of such an injury and which argument could not be controverted on behalf of the contesting respondents. Certainly being a labourer it would have its repercussions on his earning capacity and this physical deformity would bring about psychological impact besides acting as a hindrance in his day to day activity and pleasures of life besides loss of beauty. As a patient he would have lost mandays in his earnings considering 50% functional disability of the right hand and thus by applying multiplier DALBIR SINGH TIWANA 2015.05.04 15:32 I attest to the accuracy and authenticity of this document High Court, Chandigarh F.A.O Nos. 1716 of 2012 & 6994 of 2011 -4- method, he is entitled to a sum of Rs 3,27,000/- on that score and by applying law laid down in R.D. Hattangadi vs. Pest Control (India) Private Limited 1995 (2) PLR 298 SC , the claimant is certainly entitled to following compensation:-
Pecuniary compensation
i) Compensation assessed on account medical expenses past as well as future Rs 60,000/-
ii) Compensation assessed on account
service of attendants, special diet
and conveyance charges Rs 20,000/-
iii) Compensation assessed on account of
loss of income/earnings during
hospitalisation Rs 22,000/-
iv) Loss of income due to permanent
disablement Rs 3,27,000/-
Non-pecuniary compensation
i) Compensation assessed on account
of physical pain, mental agony,
loss of beauty, pleasures of life Rs 80,000/-
Total Rs 5,09,000/-
Thus compensation awarded by the Tribunal is certainly on the lower side and needs to be enhanced. The claimant is thus entitled to total compensation of Rs 5,09,000/- (Rupees Five lacs and nine thousand only).DALBIR SINGH TIWANA 2015.05.04 15:32 I attest to the accuracy and authenticity of this document High Court, Chandigarh F.A.O Nos. 1716 of 2012 & 6994 of 2011 -5-
The claimant is also entitled to interest @ 7.5% per annum on the enhanced compensation from the date of filing the present appeal till realization. Interim compensation paid, if any, shall be adjusted. Rest of the stipulations need not be disturbed.
It has been vehemently argued on behalf of the appellant- insurer that the insurer cannot be fastened with the liability to pay the compensation amount as the learned Tribunal has held him to be a gratuitous passenger and which is controverted on behalf of the claimant. What is apparent from the impugned findings is that the learned Tribunal has lost sight of the pleadings of the claimant wherein he has made a positive averment that he was working with a Fishery Contractor and in the story of accident he has categorically stated that after unloading fish he was returning along with his Fishery contractor from Ratia to Hisar and which fact could not be controverted in the written replies by the insurer and rather they have absolutely denied the accident and it has been well proved by the evidence on the record and if it is so the insurer has not pressed issues no. 3 to 7 as per the impugned award and which further undermines their case. The insurance policy Ex. P33 proved on the record and is not even denied by the insurer is in respect of a commercial vehicle consisting of goods carrying transport vehicle. A close look at this document leaves no scope to doubt that it is a comprehensive package policy issued by the DALBIR SINGH TIWANA 2015.05.04 15:32 I attest to the accuracy and authenticity of this document High Court, Chandigarh F.A.O Nos. 1716 of 2012 & 6994 of 2011 -6- insurer and under the premium details, a premium for personal accident to un-named passengers have also been levied and therefore, being insurance obligations arising out of written contract, it does not suits the insurer to plead on that score and even otherwise since the claimant was coming on the vehicle along with his employer during the course of his employment is itself sufficient to rebut the submissions of the appellant-insurer's counsel. The learned Tribunal has failed to take note of it and even no such suggestion has been put in the cross-examination of the claimant as PW4 and thus is an afterthought for which even no rebuttal evidence has been led. Thus findings qua this aspect of the matter needs to be set aside and rather to the mind of this Court is wrong appreciation of the pleadings and the evidence on the record. Thus, the appeal of the appellant-insurer is meritless.
In view of the foregoing discussions, the impugned award is modified. Appeal of the insurer bearing FAO No. 6994 of 2011 is dismissed and that of the claimant bearing FAO No. 1716 of 2012 is allowed in the aforesaid terms. Both the appeals thus stand disposed off.
(Fateh Deep Singh)
December 16, 2014 Judge
'tiwana'
DALBIR SINGH TIWANA
2015.05.04 15:32
I attest to the accuracy and
authenticity of this document
High Court, Chandigarh