Indu Bhushan vs Major Singh

R.L. Anand, J.—By this judgment I dispose of two FAOs - Nos. 2625 of 1998 (Indu Bhushan v. Major Singh and others) and 70 of 1999 (The New India Assurance Company Ltd. v. Indu Bhushan and others),,as both the appeals have arisen from the award dated 22.8.1998 passed by Motor Accident Claims Tribunal, Moga which awarded a sum of Rs. 60,000/- by way of compensation to Indu Bhushan claimant.

I have heard the learned Counsel for the parties and with their assistance have gone through the records of the case.

The Tribunal has assessed the amount of Rs. 60,000/- for the reasons given in paras 11 to 15 of the impugned award, which are reproduced as follows :-

"11. In order to prove this issue, the claimant has produced on record a large number of cash memos regarding the purchase of medicines, the said cash memos are attested by Assistant Accounts Officer, Punjab State Warehousing Corporation, Chandigarh, where these were submitted for reimbursement by the claimant. These cash memos have been carefully seen by me. These are dated 4.2.1993, 5.2.1993, 6.2.1993, 7.2.1993, 8.2.1993, 9.2.1993, 10.2.1993, 11.2.1993, 12.2.1993, 16.2.1993, 18.2.1993, I9.2.1993, 22.2.1993, 23.2.1993 21.2.1993, 24.2.1993, 3.3.1993, 19.4..1993, 16.5.1993, 23.5.1993, 16.11.1993, 17.10.1993 and 22.10.1993. Though these have not been approved by the persons who had issued the memos but in view of the law laid down in 1993(1) PLR 410 these can be considered for the purpose of consideration of quantum of compensation. I do not doubt the authenticity of these bills as these were submitted by the claimant for reimbursement also. It has been admitted that sum of Rs. 13,000/- has been reimbursed to the claimant against 19873-43. Thus deducting the amount reimbursed to the claimant, a sum of Rs. 7,000/- is payable to the claimant on account of medical expenses.

So far as loss of salary to the claimant is concerned, the salary certificate Ex.A2/A of February, 1993 has been produced on record which shows that claimant was getting Rs. 3773-50 per month after deductions but he was paid full salary for 4.2.1993 to 3.6.1993. For 4.6.1993 to 13.6.1993, he was paid 50% of the salary after deduction of 172 salary as special disability pay. Rs. 5158/- were deducted for the said period. Round figure of Rs. 10,000/- is assessed as just compensation for the said salary deducted.

For determining nature of the injury and disability suffered by the claimant, reference to the statement of Dr. Aditya Aggarwal, Consultant Department of Orthopaedics, PGI, Chandigarh is important. He has on the basis of record stated that the claimant was admitted on 4.2.1993 in Department of Orthopaedics, PGI, Chandigarh with fracture of neck of femur right side, fracture shaft of right femur and grade two compound fracture both bones. He stated that permanent disability is about 40% in respect of right lower limb. He was discharged on 23.2.1994 and that he is not in a position to walk without the help of crutches. AW-6 has produced the original disability certificate Ex. PW6/A. He proved that the leg of the claimant was operated upon and fractures were fixed with plate and screws in the femur. There is shortening in the leg. The leg was put in plaster and the claimant was discharged on 23.2.1993 and had been followed in O.P.D. till 25.11.1993. AW-7 Dr. V.J.S. Dhillon, Medical Officer, Civil Hospital, Moga proved the MLR Ex.PW7/A.

On the basis of the above said evidence, it is proved that the claimant remained under treatment from 3.2.1993 till the date of filing of the claim petition and that there was permanent disability to the extent of 40% due to the fracture of the right leg. Counsel for the claimant cited 1993 ACJ 1208, Aman Dahiya v. Surinder Jain and others wherein in a case of fracture of leg of an advocate the Hon''ble High Court was pleased to grant Rs. 1,15,000/- as compensation. In Jagdish Chander Vs. Manjit Singh and Another, , the Hon''ble High Court, in a case of injury of the left hip, where disability was 25%, granted Rs. 30,000/- for pain and suffering while granting Rs. 1,80,000/- as total compensation.

On the basis of evidence led by the claimant, pecuniary loss is assessed as Rs. 17,000/- as mentioned here-in-above and for the pain and suffering, mental agony and permanent disability a sum of Rs. 40,000/- is assessed. A sum of Rs. 3,000/-is assessed as expenses for special diet, conveyance and other miscellaneous expenses, considering the period of hospitalisation and plastering of leg. Thus in total, the claimant is held to be entitled to Rs. 60,000/-."

The Tribunal has also held that the insurance Company will be liable to pay the compensation. The Insurance Company has come in appeal by inter alia praying that since the driver of the insured vehicle had no valid driving licence, therefore, it is not liable to pay the compensation. I must say that the plea of the Insurance Company has to be rejected. It has undertaken the respondent-owner to reimburse the third party claim. In these circumstances, if there is any wilful breach on the part of the owner, the Insurance Company can always recover the amount from him. But so far as the injured is concerned, the Insurance Company is liable to reimburse him.

By and large, I approve the reasons of the Tribunal when it had assessed the compensation. I endorse the view of the Tribunal that the appellant Indu Bhushan is entitled to Rs. 3,000/- by way of special diet and that he is entitled to Rs. 17,000/- by way of pecuniary loss but with regard to permanent disability. I am of the opinion that the amount of compensation should be awarded Rs. 50,000/- instead of Rs. 40,000/- because the appellant Indu Bhushan had suffered fracture of neck of femur right side, fracture shaft of right femur and grade two compound fracture of both bones. The disability assessed by the medical expert is 40% of the right lower limb. It is stated at be Bar by Mr. Agnihotri that Indu Bhushan is not fully fit and he is yet to undergo one more operation and some more money is needed for the said operation. Keeping this factor in view, I modify the award and award a sum of Rs. 70,000/- by way of compensation to Indu Bhushan along with interest @ 12% per annum which shall be calculated from the date of the filing of the claim petition.

Resultantly, FAO No. 2625 of 1998 titled Indu Bhushan v. Major Singh and others is partly allowed while FAO No. 70 of 1999 titled the New India Assurance Company Ltd. v. Indu Bhushan and others is hereby dismissed with the observations that it will always be open to the Insurance Company to file a suit separately and recover the amount from the owner and driver if the court comes to the conclusion that there is a wilful breach on the part of these persons. There shall be no other as to costs.

Appeal partly allowed