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JAGDISH SINGH versus MOHAN LAL & ORS

High Court of Punjab and Haryana, Chandigarh

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Jagdish Singh v. Mohan Lal & Ors - FAO-627-1987 [2006] RD-P&H 5255 (5 August 2006)

F.A.O. No. 627 of 1987 [1]

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

F.A.O. No. 627 of 1987

Date of Decision: August 9, 2006

Jagdish Singh

.....Appellant

Vs.

Mohan Lal and others

.....Respondents

CORAM: HON'BLE MR. JUSTICE M.M. KUMAR.
Present:- Mrs. Radhika Suri, Advocate

for the appellant.

Mr. Munishwar Puri, Advocate

for respondent No.1.

Mr. M.S. Joshi, DAG, Punjab,

for respondent No.3.

-.-

M.M. KUMAR, J.

This is claimant's appeal filed under Section 110-D of the Motor Vehicles Act, 1939 (for brevity `the Act'), challenging the award passed by the Motor Accident Claims Tribunal, Ropar, (for brevity `the Tribunal). The Tribunal has awarded an amount of Rs.36,000/- as F.A.O. No. 627 of 1987 [2]

compensation on account of the injuries sustained by the claimant- appellant.

The Tribunal has recorded a categoric finding that on 29.1.1985 when the claimant- Jagdish Singh along-with Balwinder Kumar were traveling on Scooter No. PAM 2380 which was being driven by Balwant Kumar. At that time Bus No. PJG 1952 driven by Driver- respondent Mohan Lal, by virtue of his rash and negligent driving had caused the accident, as the Bus had hit the Scooter at its back. Apart from the statements of various witnesses, the Tribunal has also placed reliance on the judgment dated 26.4.1986 passed by the Tribunal in the case of Nanak Chand v. Mohan Lal, where the dependent of Balwinder Kumar scootrist had claimed compensation on account o loss of his life who was killed in the accident. The Tribunal has also recorded categoric finding that the claimant- appellant was a pillion rider who had received injuries on the right side of his body which include legs and arms. The aforementioned injuries have been proved by the statement made by Dr. D.P. Bhushan who had medically examined the claimant- appellant Jagdeep Singh, in the emergency ward of PGI at 4.51 p.m. on the fateful day.

On the crucial issue concerning the nature of injury and the compensation to be awarded, the Tribunal has held that the claimant- appellant was a Carpenter by profession and he had lost his right arm, although the arm has not been amputated. The accident had taken place on 29.11.1985 and the claimant- appellant remained admitted in the Hospital upto 30.12.1985. Thereafter, he kept on attending the OPD for follow- up F.A.O. No. 627 of 1987 [3]

treatment. As per the evidence placed on record, he had attended the OPD on 7.1.1986, 14.1.1986, 28.1.1986, and 18.2.1986. The claimant- appellant was required to attend OPD for follow-up action and further management of wound by skin grafting. According to the statement of Dr. D.P. Bhushan, even on 6.12.1986, the claimant- appellant was still had a wound on the lateral side of his right elbow fixed to the under-lying structure, and he also suffered from radial nerve deficit. The discussion of evidence leading to the assessment of his income and the disability suffered by the claimant- appellant is available in paras 10, 11 and 12 which are extracted below for facility of reference:-

"10. The accident took place on 29.11.1985. the claimant remained admitted upto 30.12.1985 besides he continued attending the O.P.D. towards follow up treatment and it is on the record that he had attended the O.P.D. on 7.1.1986, 14.1.1986, 28.1.1986 and 18.2.1986 as he was required to attend the O.P.D. for follow up and further management of wound by skin grafting. The claimant appeared as a witness in this case on 6.12.1986 and as per his statement as the statement made by Dr. D.P.Bhushan on that day i.e.

6.12.1986 the claimant still has a wound on the lateral side of his right elbow fixed to the under lying structure. He also suffered from radial nerve F.A.O. No. 627 of 1987 [4]

deficit. The doctor observed that the attempt of passive movement at elbow joint caused paid indicating sign of infection and fibrous ankylosis of right elbow joint. It is also proved that the claimant is unable to straighten his right arm and according to the doctor, the patient shows fixed flexion deformity at 80 degrees.

11. The claimant stated that he was a carpenter employee on daily wages with Delhi Furniture House at Khanna besides he used to do work else where as well and thereby he used to earn Rs.40/- per day. According to him he is unable to do the work of carpentry any more because of residual disability of his right arm after the accident and he is unable to do any work. The very fact that the wound is still not healed and the observation of the doctor that the claimant is unable to do any manual work with his right arm proves sufficiently that the claimant has suffered disability of his right arm permanently and he is unable to do any manual work with the same like lifting of weight etc. It has been contended that the claimant has not produced any supporting evidence that he was working with any furniture firm or was earning F.A.O. No. 627 of 1987 [5]

Rs.40/- per day and he should not be believed regarding his earning capacity earlier to the accident. Be that as it may the claimant at least was a skilled worker. There is no suggestion that he was not a carpenter earlier to the accident. He was not a regular employee but a daily wager. It does without saying that the small firms like the furniture firms do not keep regular record of the labour working with them to avoid the Labour Laws regarding payment of wages etc. and possibly for that matter none has come forward to support the claimant by admitting that he was working with the firm as a carpenter. Even a manual labourer these days earns Rs.20/- a day as his wages and a carpenter in any case cannot earn less than that amount. In the circumstances even not relying upon the sworn testimony of the claimant that he was a carpenter earner Rs.40/- per day, his earning capacity can be accepted as Rs.20/- per day i.e. Rs.600/- per month. In view of the disability suffered by the claimant, his earning capacity has been impaired and he is unable to earn even Rs.20/- per day like a labourer because he is unable to lift any weight etc. with his F.A.O. No. 627 of 1987 [6]

dominant limb i.e. the right arm. Keeping his disability into account the compensation payable to him on account of these injures is to be assessed. ....

12. Claimant Jagdish Singh has stated that he spent Rs.5,000/- on his treatment although he has not produced any bill of medicines purchased by him.

He remained admitted for a month in the P.G.I., hospital where he must have been attended to by any of his relations besides he attended the O.P.D.

during the follow up treatment four times by coming from Khanna to Chandigarh. All these expenses have been incurred by the claimant towards his treatment and simply because he has not produced any account of the expenses on his treatment is not ground to reject his claim for expenses on treatment. ....... In the instant case it is well established that Jagdish Singh sustained injuries in the accident and remained indoor patient as well as attended the Out Door Patient Department. Taking into account all the incidental expenses which the claimant must have incurred during his hospitalization as well as during his F.A.O. No. 627 of 1987 [7]

follow up treatment, he is allowed Rs.1,000/- towards expenses on his treatment."

The Tribunal had awarded Rs.25,000/- lumpsum as damages on account of disability in his earning capacity and Rs.10,000/- for pain and sufferings. The Tribunal also awarded Rs.1,000/- for medical expenses and the total amount came to Rs.36,000/-, which was payable along with interest at the rate of 10% per annum, from the date of presenting the petition.

Mrs. Radhika Suri, learned counsel for the claimant- appellant has argued that the injured has been a skilled worker and use to work as a Carpenter. According to the learned counsel, the wages of an ordinary Labour could be Rs.20 as assessed by the Tribunal but the wages of a skilled worker like the Carpenter could not be assessed less than R.40/-.

Learned counsel has referred to the detailed statement made by Dr.D.P.Bhushan, showing that the claimant- appellant has virtually lost his right arm and his earning capacity as a Carpenter. The claimant- appellant has lost earning capacity for whole of his life, and therefore, he deserves to be given at least a sum of Rs. 1 lac.

Mr. Munishwar Puri, Advocate and Mr. M.S. Joshi, Deputy Advocate General, Punjab, have vehemently argued that the Tribunal has rightly calculated the loss of earning by granting him lumpsum of Rs.36,000/- and there is no further possibility of enhancing the same, because the aforementioned amount has taken care of compensation for pain and suffering plus medical expenses.

F.A.O. No. 627 of 1987 [8]

After hearing learned counsel for the parties, I am of the considered view that this appeal deserves to be allowed by enhancing the amount of compensation awarded by the Tribunal. If the medical evidence, the nature of injury, the period of admission in the hospital and physical impairment suffered by the claimant- appellant are kept in view, then the award of Rs.25,000/- on account of physical impairment is grossly on lower side. It has been accepted by Dr. D.P. Bhushan in his statement before the Tribunal that the claimant- appellant had virtually lost his right arm and his earning capacity has been permanently impaired. In the instant case, the claimant- appellant is 22 year of age, his right arm has been rendered useless and even after a lapse of a period of more than 16 months his wound is still raw. In the case of Anil Kumar Jain v. General Manager, Punjab Roadways, (999) SCC Criminal 143, the injured was 29 year old and his income as found to be Rs.1500/-. He had suffered 65% of physical impairment and loss of vehicle functioning of the lower limb, the compensation of Rs.50,000/- given by the Courts below was enhanced to Rs.80,000/- by Hon'ble the Supreme Court and interest at the rate of 6% per annum was also awarded. It is further appropriate to mention that the aforementioned claim has also arisen under 1939 Act. In the present case, it is admitted position that the claimant- appellant was a skilled labour being a Carpenter and it could not be concluded that he was earning less than Rs.40 per day. He would have advanced his future prospects. Accordingly, I increase the amount of compensation to Rs.60,000/- on account of damages and loss in his earning capacity. On account of pain, suffering, loss of F.A.O. No. 627 of 1987 [9]

amenities of life as well as the medical expenses, he deserves to be awarded Rs.12,000/-. Accordingly, a sum of Rs.72,000/- is awarded to the claimant- appellant which shall be payable along with interest at the rate of 10% per annum.

For the aforementioned reasons, a total sum of Rs.72,000/- as per the detail given above is awarded to the claimant- appellant on account of injuries sustained by him in the motor vehicle accident in question with costs. The claimant- appellant is also allowed interest at the rate of 10% per annum on this amount from the date of the petition till the date of payment.

Disposed of in the above terms.

August 9, 2006 (M.M. KUMAR)

sanjay JUDGE

FIT FOR INDEXING


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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