Punjab-Haryana High Court
Bhagwat Sarup vs Lakhpat And Others on 11 July, 2014
Author: K. Kannan
Bench: K. Kannan
Archana arora
FAO No. 2348 and 2844 to 2847 of 1996 1 2014.07.17 10:44
I am the author of this
document
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
FAO No. 2348 of 1996
Date of decision: July 11, 2014
Bhagwat Sarup
....... Appellant
Versus
Lakhpat and others
........ Respondents
FAO No. 2844 of 1996
United India Insurance Co.Ltd.
....... Appellant
Versus
Krishan and others
........ Respondents
FAO No. 2845 of 1996
United India Insurance Co.Ltd.
....... Appellant
Versus
Dharam Pal and others
........ Respondents
FAO No. 2846 of 1996
United India Insurance Co.Ltd.
....... Appellant
Versus
Sumitra and others
........ Respondents
FAO No. 2847 of 1996
United India Insurance Co.Ltd.
....... Appellant
Versus
Bhagat Sarup and others
........ Respondents
FAO No. 2348 and 2844 to 2847 of 1996 2
CORAM: HON'BLE MR. JUSTICE K. KANNAN
Present:- Mr. Ashwani Bhardwaj , Advocate
for the appellant.
Mr. Suvir Deewan, Advocate
for the Insurance Company in
FAO Nos. 2844 to 2847 of 1996.
Mr. Raj Kumar, Advocate
for United India Insurance Co.in
FAO No. 2348 of 1996.
Mr. R. K. Bashamboo, Advocate
****
K. Kannan, J (oral).
1. FAO No. 2348 of 1996 l is for enhancement of claim for compensation for death of a person while the others are at the instance of the Insurance Company on an issue of liability.
2. The claimant in FAO No. 2348 of 1996 was a conductor in the canter-truck who had suffered fracture of both his legs and a fracture of matatasel bone of the right leg. There was evidence to the effect that he had been admitted thrice in the hospital and suffered a prolonged treatment of about 100 days. Surgical interventions had become necessary for reduction of fractures and till the time of trial that was about two years after the accident the bones had still not united. The doctor who gave evidence only stated that he might require another surgery in future for correction of fractures and that it was not possible to assess the disability at the time of trial. The tribunal assessed a compensation of `1 lacs under the various heads that included `50,000/- for future loss of earning capacity and for pain and suffering which was assessed at `15,000/-. In my view the assessment of compensation for pain and suffering is on the FAO No. 2348 and 2844 to 2847 of 1996 3 lower side. This Court has attempted to standardize the scales of pain and suffering for fractures which is quantified at `7500/- per fracture and for surgical intervention an additional amount of `5,000/-. I will therefore find it appropriate to enhance the component of pain and suffering to `47,500/-. I will retain the other heads of claim for special diet, transportation and attendant charges in the manner provided by the tribunal and also retain the medical expenses as assessed by the tribunal to make a further provision of `5,000/- towards future medical expenses. I will consider the fact that he had not resumed his work for nearly 3 years after the accident. I will provide for loss of past income to `50,000/- and assess the loss of future income and loss of amenities at relatively higher sum of `75,000/-. The total compensation payable shall be `2,25,000/-. The amount in excess of what has already been granted by the Tribunal shall attract interest at the rate of 7.5% per annum from the date of petition till the date of payment.
3. As regards the liability the right of enforcement shall be available against the Insurance Company. The liability as regards the other claimants who were said to have been travelling in the canter-truck which was involved in the accident, the contention of the Insurance Company was that they were gratuitous passengers. The evidence was that the claimants had purchased gunny bags and loaded them in the vehicle and were also travelling in the same vehicle. This requirement of having to recover the risk of owners of goods travelling with the goods was brought through amendment to Section 147 Act 54 if 1994 which took effect on 14.11.1994. The FAO No. 2348 and 2844 to 2847 of 1996 4 accident had taken place on 22.10.1993 and consequently even if they were not gratuitous passengers, they could not be travelling in the goods vehicle to make the insurer liable. The liability cast on the Insurance Company was therefore not tenable and it is set aside. The right of enforcement for any of the persons who were travelling in the vehicle other than the driver and cleaner shall be only on the owner of the vehicle. If any portion of the award has been enforced against the insurer, the insurance Company will apply for recoveries only against the owner. To any amount to the extent to which the recoveries had not been effected at the instance of the claimants other than cleaner and driver, it could be enforced only against the owner and not against the insurer.
4. The appeal FAO No. 2348 of 1996 by the claimant is allowed with the modification of the award already granted by the tribunal as mentioned above. As regards the appeals by the Insurance Company FAO Nos. 2844 to 2847 of 1996 they are allowed exonerating the Insurance Company from liability for the reasons stated above.
(K. KANNAN) JUDGE July 11, 2014 archana