Lahri Ram alias Lahri Singh v. Uttam Chand Jawa & Ors.

Present: Ms. Ritu Punj, Advocate for the appellant. Mr. V. Chaudhari, Advocate for the insurance company. CORAM:HON'BLE MR. JUSTICE K. KANNAN

1. Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? K. KANNAN J. -.-

1. The claimant is the appellant, who had been estimated to be entitled to Rs.1,80,000/- but however in the finding that the Tribunal recorded that he had contributed to the accident in equal measure in its collision with a truck made a partial abatement of 50% and granted compensation of only Rs.90,000/-.

2. The accident was reported to have been caused in the evening hours in January when the claimant was driving a motor cycle dashed against a stationary trolley. The claimant contended that there had been no brick bats or lighting around the place where the trolley had been parked and with no indication of a parked vehicle on a highway. The claimant who had just then crossed an excise barrier was still proceeding slowly when he dashed against the FAO No.1294 of 1993 -2- vehicle and suffered serious injuries on the frontal portion of his skull. The contention was that he could not have accelerated even a short distance after riding over a traffic hump and the accident had been the result of only the negligence of the driver of the tractor trolley, who had parked the trolley without giving any indication by appropriate lighting or placing boulders to warn any person using the highway to know of the parking of the vehicle. The driver of the tractor trolley himself had given evidence to the effect that he had place such brick bats and he had also provided for adequate lighting at the back. The Tribunal held that both of them were responsible for the accident. I cannot believe that if there had been any form of lighting at the back side of the trolley, there could have been a collision at all. The claimant points out and in my view correctly to the fact that there had been a traffic hump at the excise point with a space of about 200 mtrs from where accident had occurred and therefore, he could not have come at a very high speed. Even then if he had been reasonably careful, he could not have dashed against the trolley and while upholding the finding of contributory negligence, I will scale down the extent of liability from 50% to 25%. I will increase 75% liability of the accident to the driver of the tractor trolley and the remaining 25% to the claimant himself.

3. It was brought out in evidence that the claimant had extensive injuries on the forehead which was bone deep and had also suffered a lacerated wound below left eye. The upper lid had been swollen with cuts and there had been lacerated wound on the left shin as well. The operation had been performed and the doctor Anil FAO No.1294 of 1993 -3- Sharma, Medical Officer, Civil Hospital at Karnal had given evidence of the fact of various injuries. He had been taken to PGI, Chandigarh and PW3, Dr. A. Pathak, had been examined, who had been certified to the fact that he had performed a surgery. He had given evidence of the fact that the optic nerve canal was operated upon on 24.01.1988 and congestion of brain and medial frontal region of the brain and hematoma was removed from the pre-frontal lobe. From the date of the accident on 22.01.1988 till he was discharged on 25.02.1988, he had been an inpatient and he had a follow up treatment till the time of trial in 1991. The doctor also gave evidence for the fact that there was a plastic repair of the deficiency in the cranium and a cosmetic surgery was also required to be done. The doctor opined that having regard to the head injury, he could in the long run have persistent fits, deficit memory and deficiency in eye sight and it was unsafe for him to drive. He had lost even of one eye and his IQ was just 50. The permanent disability was assessed at 100%. The Tribunal made a provision for future medical expense as Rs.50,000/-, assessed the permanent disability at Rs.1,00,000/- and provided for Rs.30,000/- towards pain and suffering.

4. In my view, each one of the heads of claim have not been properly addressed. For an injury in the head that had resulted in fracture of the cranium and which has resulted in his IQ level as low as 50 and possibility of persistent fits and loss of memory, the person was literally a walking vegetable. If the doctor had assessed the disability at 100%, it means he was not fit to do any work. He was a FAO No.1294 of 1993 -4- drag on himself and for persons attending on him. For pain and suffering, I would increase the compensation from Rs.50,000/- to Rs.1 lac. There are no clear details of the medical expenses, which he had incurred. He had taken CT scans and he had been in the hospital for nearly three months and was in post operative care till the date of trial. I would provide for medical expenses for Rs.50,000/-. I would make provision for future medical expense for another Rs.1 lac as against Rs.50,000/- granted by the Tribunal. In all, towards the medical expenses I would provide for Rs.1,50,000/-. Having regard to the fact of assessment of the disability at 100% by the doctor, I would take that he had lost his capacity to earn for the rest of his life. I would take his annual income notionally at Rs.15,000/- per annum and provide for a multiplier of 18 that would come to Rs.2,70,000/-. I will add Rs.10,000/- for attendant charges, Rs.10,000/- for special diet and another Rs.10,000/- for transportation during the period of his treatment. In all, the amount that would become payable would be Rs.5,50,000/-. I have already determined 25% of the liability on the claimant himself and to that extent, the claim shall stand abated. The award of compensation, which has been granted by the Tribunal shall stand enhanced as Rs.4,12,500/-. The additional amount provided under this order shall attract 6% interest from the date of the petition till the date of payment.

5. The appeal is allowed as above. September 30, 2010 Pankaj* (K. KANNAN) JUDGE