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2003 DIGILAW 607 (PNJ)

Dina Nath Grover v. Ram Dhan

2003-04-28

HARJIT SINGH BEDI

body2003
JUDGMENT H.S. Bedi, J. (Oral) - This order will dispose of F.A.O. No. 796 of 1985 (Dina Nath v. Ram Dhan & Others), filed by the Claimant; Cross-Objection No. 18-CII of 1988 and the Civil Revisions No. 1031 of 1992 (National Insurance Company Ltd. v. Dina Nath & Others) both filed by the Insurance Company. 2. F.A.O. No. 796 of 1985 has been filed by Dina Nath, who was injured in an accident on 10.3.1982, when the Scooter No. DLW-4835, on which he was going as a pillion rider, met with an accident with a Fiat Car bearing registration No. DLF-9100, being driven by Ram Dhan, respondent No. 1, owned by Surinder Ganesh, respondent No. 2, and allegedly insured with respondent No. 3, the National Insurance Company. As a consequence of the accident, the petitioner, who was seriously injured, was first removed to B.K. Hospital, Faridabad and subsequently shifted to the All India Institute of Medical Sciences, New Delhi, where he remained admitted from 10.3.1982 to 11.8.1982. The claimant pleaded that he had incurred a huge amount of expenditure on his treatment, suffered permanent disability on account of several fractures in his body and that his future prospects had been marred on account of his injuries. He accordingly claimed a sum of Rs. two lacs by way of compensation. The Insurance Company did not put in appearances and was proceeded against ex- parte. 3. On the pleadings of the parties, the following issues were framed :- 1. Whether the petitioner received injuries as a result of rash and negligent driving of respondent No. 1 while driving car No. DLF-9100 ? OPA 2. Whether the petitioner is entitled to any compensation, if so, to what amount and from whom ? OPA. 3. Relief. 4. On issue No. 1, the Tribunal held that the accident had happened on account of the rash and negligent driving of the offending car No. DLF-9100 by its driver-respondent No. 1. On issue No. 2, the Tribunal observed that as many as six serious injuries had been detected on the person of the injured- claimant and that he had remained admitted to the All India Institute of Medical Sciences for a period of 155 days and undergone several operations and expensive treatment alongwith special diet etc. He was accordingly allowed a sum of Rs. 7,175/- (wrongly shown as Rs. He was accordingly allowed a sum of Rs. 7,175/- (wrongly shown as Rs. 5675/-) under the following heads :- On account of bed charges Rs. 775-00 Special diet Rs. 1550-00 Blood charges Rs. 800-00 Attendant charges Rs. 1550-00 Transportation charges Rs. 2500-00 Total Rs. 7175-00 5. The Tribunal also awarded a sum of Rs. 15,000/- each for pain and suffering and on account of disability and accordingly held that the claimant was entitled to a sum of Rs. 37,175/-, which was rounded off Rs. 38,000/- alongwith interest. All the respondents were jointly and severally made liable for the payment of the amount. 6. F.A.O. No. 796 of 1985 has been filed by the claimant, whereas cross- objections have been preferred by the Insurance Company-respondent No. 3. It appears that, in the meanwhile, the claimant filed an application for execution of the award of the Tribunal. At that stage, the Insurance Company took the plea that it had not been properly served as full particulars of the insurance Company with which the vehicle in question had been insured had not been given in the claim petition. It accordingly pleaded that the ex-parte award rendered by the Tribunal was non est. The plea taken by the Insurance Company before the Executing Court was repelled, on which the Insurance Company has also filed Civil Revision No. 1031 of 1992. This too is being disposed of by this order. 7. It is the conceded position that the accident had happened in the year 1982 and on account of the stay granted by this Court in the appeal, the appellant had not received any compensation. 8. It will be seen that the primary grievance of the respondent-Insurance Company was that they had not been served. I have perused the record myself and find that the Insurance Company-respondent No. 3 was properly served by proclamation as would be clear from the zimni order dated 26.7.1984 when read with order dated 22.8.1984. It is also evident from the record that the publication had in fact been made on 5.8.1986, but the Insurance Company did not put in appearance. I also find that the vehicle in question had been insured with the Asaf Ali Road, New Delhi branch of the Insurance Company which would be very close to the Muslim dominated area of New Delhi and as such the publication in the Urdu Daily Milap was fully justified. I also find that the vehicle in question had been insured with the Asaf Ali Road, New Delhi branch of the Insurance Company which would be very close to the Muslim dominated area of New Delhi and as such the publication in the Urdu Daily Milap was fully justified. In this view of the matter, it is futile on the part of the Insurance Company to contend at this stage or at the stage of the execution of the opinion, therefore, that there is no merit in the Civil revision as also the stand in the cross-objections, both filed by the Insurance Company that it was not bound by the award. 9. I have also gone through the finding of the Tribunal on issue No. 1. It is clear from the evidence that the accident had occurred on account of the rash and negligent driving by Ram Dhan, the driver of the offending car. The finding with regard to the negligence is also confirmed. 10. I am, however, of the opinion that the quantum of compensation awarded (under issue No. 2) is woefully inadequate. As per the statement of Dr. S. Bhan (PW-5), the claimant had been admitted to the institute on 10.3.1982 and confined therein as an indoor patient till 11.8.1982. He also detected the following fractures on his person :- 1. Right femur fracture. 2. Left femur was fractured in many pieces. 3. Right leg was fractured. 4. Left ankle was fractured. 5. Upper end of the right arm was fractured. 6. Left rib was fractured. The doctor further stated as under :- "He had 2 operations on 17.4.1982 and then on 17.7.1982. In first operation right femur and right leg was fixed with a metal plate and nail. In 2nd operation left femur was fixed with a plate. Injuries of leg (right) and left ankle was fitted in plaster. At the time he was admitted, he was in serious condition. At that time, he was not able to move out of the bed even and he required constant attendance of one attendant. He had lost lot of blood and he took sufficient time to make him fit for operation. He was given blood many time and given high protein diet. At the time of discharge, he was advised to stay in bed and take rest for 2 months. He had lost lot of blood and he took sufficient time to make him fit for operation. He was given blood many time and given high protein diet. At the time of discharge, he was advised to stay in bed and take rest for 2 months. He was also advised to take certain exercises, advised by me and to attend hospital every month for check up. I cannot tell the exact number on which the petitioner might have come to me, but he still visits the hospital, plate and nails etc. have yet not been removed & part of treatment is still going on. Without help of stick, he can walk for a very short distance. Because his left knee is almost still, so he can climb stairs very slowly and with difficulty. Because his ankle have become stiff and muscle weak, so he cannot walk long distance, without help of stick. The petitioner can never be absolutely normal and he would always limp and joints would remain stiff. I cannot state if one of the legs has become shorter, because I have not measured the leg, but relative shortness is there. At present the petitioner has become about 40% permanent disabled, but I cannot tell exactly." 11. It is, therefore, obvious that the claimant had suffered serious injuries, leading to a permanent disability of 40%. The compensation of Rs. 38,000/- is, therefore, unrealistic. As the compensation of Rs. 7175/- is based primarily on documentary evidence, it would perhaps be difficult to enhance the same, but I am of the opinion that keeping in view the agony suffered by the claimant and the huge time spent by him as an indoor patient in the hospital and that permanent disability to the extent of 40% would make it difficult for him to lead a normal life, the amount of Rs. 15,000/- each under the heads of pain and suffering and disability is inadequate. The compensation under these two head needs to be enhanced from Rs. 30,000/- to Rs. 60,000/- making a total compensation of Rs. 67,175/-. The claimant shall also have interest on the enhanced amount from the date of filing of the claim petition till the date of payment in the manner determined by the Tribunal. F.A.O. No. 796 of 1985 is accordingly allowed, whereas the cross-objections and the civil revision are dismissed. Appeal allowed.