Punjab-Haryana High Court
Baldev Raj Sharma vs Gaurav Bhatia & Ors on 26 April, 2023
Neutral Citation No:=2023:PHHC:059424
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IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
FAO-3122-2017 (O&M)
Reserved on:21.04.2023
Date of Pronouncement:26.04.2023
Baldev Raj Sharma ... Appellant
Vs.
Gaurav Bhatia & others ... Respondents
2. FAO-4848-2017 (O&M)
Gaurav Bhatia ... Appellant
Vs.
Baldev Raj Sharma & others ... Respondents
CORAM: HON'BLE MRS. JUSTICE SUKHVINDER KAUR.
Present: Mr. R.C. Gupta, Advocate for the appellant.
(in FAO-3122-2017).
Mr. Neeraj Khanna, Advocate for the appellant.
(in FAO-4848-2017).
None for respondent No.2 in FAO-3122-2017.
Mr. Rajneesh Malhotra, Advocate,
for respondent No.3/Insurance Company.
...
SUKHVINDER KAUR, J.
This order shall dispose of FAO-3122-2017 (Baldev Raj
Sharma Vs. Gaurav Bhatia & others) and FAO-4848-2017 (Gaurav
Bhatia Vs. Baldev Raj Sharma & others) as both the appeals have arisen
from a common award dated 04.10.2016.
1. The relevant facts are that on 24.06.2014, claimant-Baldev Raj
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Sharma was going from his village Padwala to Taraori on his motorcycle
bearing No.HR05X-1573. Kusum Lata wife of Roshan Lal met him at about
1:15 P.M. near petrol pump, Railway over bridge and then they proceeded to
village Shamgarh from Taraori. He was driving the motorcycle at the normal
speed. When they reached near GT road over bridge of Village Shamgarh
then one Tata Magic vehicle came and hit their motorcycle from the
backside. The driver of the vehicle came to them after stopping his vehicle
but then fled away along with his vehicle. He informed the police about the
number of the said vehicle as HR45B-3658, but during the investigation it
was found by the police that number of the said vehicle was HR45B-3653.
He as well as Kusum Lata wife of Roshan Lal suffered injuries in the said
accident. Claimant was shifted to Civil Hospital, Karnal, but due to his
serious condition, he was shifted to Shree Hari Hospital, Karnal. He
remained admitted there from 24.06.2014 to 30.06.2014. He was operated
upon by the doctors for the fracture in his right arm and right foot and was
also given treatment for the injuries on his head and left eye. The accident
had been caused by respondent No.2-Amit driver of the offending vehicle,
by driving the same in a rash and negligent manner. In this connection, FIR
No.173, dated 25.06.2014, under Sections 279/337/338/420 IPC was
registered at Police Station Taraori, District Karnal.
2. It has been averred that the claimant is working as a Priest to
perform religious ceremonies and other related activities in the area and was
deriving income of Rs.20,000/- per month out of same. The injured was 48
years old at the time of the accident. He was healthy before the accident but
after the accident, he has become permanently disabled and is confined to
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bed. He is unable to do any work and is suffering from great mental pain and
agony. He is unable to do even his daily necessary jobs and he cannot do any
work to earn livelihood for his family. He is getting treatment from Shree
Hari Hospital, Karnal as an outdoor patient and had spent Rs.80,000/- on his
treatment and special diet, physiotherapy and transportation etc. and is still
incurring more expenses. It has been prayed that he may be granted
compensation of Rs.10 lakhs along with interest @ 18% per annum.
3. After notice, respondent Nos.1 and 2 appeared (owner and
driver respectively) and filed joint written statement alleging therein that
claim petition is not maintainable. No such accident had ever been caused by
respondent No.2 while driving Tata Magic Vehicle No.HR45B-3653 and a
false FIR has been got registered in collusion with the police. It has been
alleged that the claim petition has been filed in order to grab money in an
illegal manner from the respondents. Respondent No.2 driver was having a
valid and effective driving license and the offending vehicle was fully
insured with the Magma HDI General Insurance Company Limited which
was valid from 23.12.2013 to 22.12.2014 and it was for the insurer to
indemnify the insured by satisfying the award.
4. A separate written statement was filed by respondent No.3/
insurance company, alleging therein, that the insurer was not liable to pay
any compensation as respondent No.2/driver was not having a valid and
proper driving license at the time of the accident. So, the owner was liable to
pay the compensation. The claim petition was bad for mis-joinder and non-
joinder of necessary parties and cause of action and the other pleas taken in
the claim petition were also denied.
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5. On the basis of the pleadings of the parties, issues were settled.
Both the parties adduced their respective evidence to discharge the onus
behind the issues upon them.
6. After considering the evidence available on record and the
submissions made on behalf of the parties, learned Tribunal has partly
allowed the claim petition MACP Case No.53 of 2014/CIS No.2171 of 2014
and awarded a sum of Rs.1,26,800/- as compensation to the claimant
alongwith interest at the rate of 9% per annum from the date of filing of the
petition till realization. Respondents No.1 to 3 were held jointly and
severally liable to pay the compensation and the recovery rights were given
to the Insurance Company, to later on recover the amount deposited from the
insured.
7. Feeling dissatisfied with the award dated 04.10.2016, the
appellant-claimant has preferred the instant appeal.
8. I have heard learned counsel for the parties and have also
perused the relevant record.
9. Learned counsel for the claimant/appellant in FAO-3122-2017
has contended that due to receiving the injuries in the accident in question,
the appellant/claimant has become disabled and is unable to perform his
duties for earning his livelihood. The appellant who was aged about 48 years
at the time of the accident remained hospitalized for many days. But while
granting the compensation, the learned Tribunal has not awarded anything
on account of loss of amenities of life, loss of happiness and frustration in
life. He has further argued that the Tribunal has wrongly taken income of the
injured on the lower side consequently awarding the lesser compensation
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under the head of loss of income as well as under the other conventional
heads. He has contended that the claimant is still getting the follow up
treatment. He had spent huge amount on the transportation and for taking
special diet. So, amount of Rs.50,000/- may be granted on account of
transportation charges and Rs.50,000/- under the head of the special diet. He
has contended that the appellant has also not been awarded anything towards
the future medical expenses. As the claimant had suffered serious injuries, so
some compensation was required to be awarded on this account also to
enable him to get the future required treatment. He has prayed that the
amount of compensation may be enhanced accordingly and the present
appeal may be accepted.
10. On the other hand, learned counsel for the respondents has
contended that the compensation awarded by the learned Tribunal is rather
on the higher side which does not require any enhancement.
11. In addition to it, counsel for the appellant in FAO-4848-2017
has contended that the offending vehicle was fully insured with respondent
No.3/insurance company and the insurance policy Ex.R3 was valid at the
time of the accident. There was no violation of any terms and conditions of
the insurance policy, so the insurance company was liable to pay the amount
of compensation. He has contended that the Tribunal has wrongly granted
the recovery rights to the insurance company by holding that it transpired
from the criminal proceedings against driver of the offending vehicle that the
fake number plate had been affixed on the vehicle and as such the owner and
the driver of the offending vehicle had not approached the Tribunal with
clean hands. He has argued that the proceedings against the driver under
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Section 420 IPC were dropped by the prosecution and no charge was framed
under Section 420 IPC. Later on the driver of the vehicle had been acquitted
in the criminal case pertaining to the accident in question which was decided
on 06.11.2015 and has prayed that his appeal may be accepted and insurance
company be made liable to pay the amount of compensation and no recovery
rights are required to be given to the insurance company.
There is no dispute with regard to the finding given by the
Tribunal on issue No.1 that the accident in question had taken place on
account of rash and negligent driving of the offending vehicle by its driver,
in which the claimant/appellant Baldev Raj Sharma had sustained the
injuries.
12. Claimant-Baldev Raj Sharma has himself stepped into the
witness box as PW1 and has deposed on oath before the Tribunal, that as per
the averments made in his claim petition, he was 48 years of age at the time
of receiving injuries in the accident in question. He suffered fracture in his
right arm and right foot and also suffered injuries on his head and left eye
and other parts of the body. He remained hospitalized from 24.06.2014 to
30.06.2014. He also underwent surgery of his foot and arm and he had spent
Rs.80,000/- on his treatment which is still continuing. He has suffered 27%
disability and could not earn his livelihood.
13. After considering that the claimant remained hospitalized in
Shree Hari Hospital, Karnal, for 7 days from 24.06.2014 to 30.06.2014 also
underwent surgery and then also got treatment as an outdoor patient for
sometime and thus suffered a lot of pain due to it. The Tribunal has awarded
sum of Rs.25,000/- under the head of pain and sufferings, which appears to
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be the reasonable amount.
14. The Tribunal has further rightly granted Rs.5,000/- as
transportation charges and Rs.5000/- as cost of special diet. When nothing
has been brought on record that the claimant had spent much more than the
amount granted under the above said heads, then the compensation granted
under these heads also needs no interference.
15. After considering the medical bills/receipts, Ex.P3 to P18,
Tribunal has rightly observed that the claimant had incurred about
Rs.67,806/- on his treatment. Tribunal has rightly pointed out that there is no
such evidence on record that the claimant requires some future surgery and
treatment. As per testimony of PW2-Dr. Tarun Goel also, the claimant was
discharged in a stable condition on 30.06.2014. After taking the view that
the claimant must had spent this much amount on his treatment and keeping
in view the nature of injuries sustained, a sum of Rs.67,800/- has been
rightly awarded to the claimant as cost of medicines and treatment expenses
incurred by him.
16. As claimed by the claimant, he has suffered 27% disability
which is permanent in nature. But no medical evidence in support of this
plea has been produced on record. Even the doctor concerned, who issued
the disability certificate, has not been examined. In these circumstances, the
Tribunal has rightly held that there is no evidence that optimum earning
capacity of the claimant had ever been diminished. Furthermore, as per the
claimant, he is working as a Priest and thus his work does not require
physical and strenuous labour. The Tribunal has thus rightly held that it
cannot be taken that the claimant would be unable to carry on his work in
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future, due to the injuries suffered by him in the accident in question. But as
the claimant remained hospitalized and also keeping in view the nature of
the injuries suffered by him in the accident, the claimant must had been
unable to work properly for a period of about four months. As no proof
regarding actual income of the claimant has been produced on record, so the
Tribunal by considering him to be an unskilled labour, with monthly wages
of Rs.6000/-, has rightly awarded a sum of Rs.24,000/- towards loss of
earnings. The case law cited by the learned counsel for the appellant in
Lallan D. @ Lal & another Vs. The Oriental Insurance Company
Limited, Civil Appeal No.2855 of 2020 (arising out of SLP (Civil)
No.2131 of 2018, decided on 17.09.2020) and Munna Lal Jain & another
Vs. Vipin Kumar Sharma & others, 2015 (3) SCC (Civil) 315 is not
applicable to the facts of the case in hand, as Lallan D. @ Lal was a case of
100% disability, while Munna Lal was a death case and in that case
Rs.12,000/- was taken as income of the deceased who was working as a
Priest, only as per facts and circumstances, of that case.
17. As such, the compensation of Rs.1,26,800/- granted by the
Tribunal to the claimant/injured appears to be just and no enhancement is
required.
Accordingly, the appeal i.e. FAO-3122-2017 is dismissed.
FAO-4848-2017:
Perusal of the evidence on record reveals that the offending
vehicle was fully insured with respondent No.3/insurance company at the
time of the accident. The insurance policy of the offending vehicle has
been produced on record as Ex.R3. The registration certificate of the
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offending vehicle was also produced as Ex.R2. Perusal of these
documents shows that same engine and chassis numbers have been
reflected in both these documents. There is no such evidence on record to
show that the terms and conditions of the insurance policy have been
violated in any manner. But the Tribunal has given recovery rights to the
insurance company on the ground that from the criminal proceedings
initiated against the driver, it was made out that the driver was charge
sheeted under Section 420 IPC also, as there was fake number plate on the
vehicle. But counsel for the appellant has placed on record copy of
judgment dated 06.11.2015 pertaining to FIR No.173 dated 25.06.2014,
under Sections 279/337/338 IPC at Police Station Taraori passed by the
Judicial Magistrate 1st Class, Karnal. Perusal of which reveals that the
driver of the offending vehicle had been charge sheeted only under
Sections 279, 337 and 338 IPC and was not charge sheeted under Section
420 IPC. He has been acquitted even for the offences under Sections 279,
337 and 338 IPC. Even counsel for the respondent/insurance company has
conceded regarding the fact that no charge under Section 420 IPC was
ever framed against the driver and he had already been acquitted in the
criminal case. So there is nothing on record from which it can be
presumed that the vehicle was being driven with the fake number plate as
alleged. So when the offending vehicle was fully insured with the
insurance company and the insurance policy was valid at the time of
accident and there was no violation of any terms and conditions of
insurance policy, then the insurance company is liable to pay the amount
of compensation and no recovery rights are required to be given to the
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insurance company.
Accordingly, the appeal i.e. FAO-4848-2017 is partly allowed.
( SUKHVINDER KAUR )
JUDGE
26.04.2023
harjeet
1. Whether speaking/reasoned? Yes/No
2. Whether reportable? Yes/No
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