Partly allowed

Hem Lata Jain v. Subash Chand and Anr.

Punjab & Haryana HC25 Jan 2011FAO/224/1988

Case brief

AI extract

What is this about?

The High Court allowed appeals to enhance compensation for injuries and death resulting from a motor accident. The Judge awarded enhanced medical and lump-sum compensation to surviving dependents and employees. It modified the liability ruling to restrict the insurer's responsibility to the policy limit and held the vehicle owner personally liable for the excess.

What did the court decide?

Compensation enhanced to Rs. 53,250/- for injuries; Rs. 1,20,000/- awarded for mother's death; owner held liable for excess over Rs. 1,50,000/-.

Hem Lata Jain Vs Subash Chand and… — Contract and Commercial Disputes | Punjab & Haryana HC (2011)

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FAO No.224 of 1988

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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1. FAO No.224 of 1988

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DATE OF DECISION: January 25, 2011 HEM LATA ...APPELLANT VERSUS SUBHASH CHAND AND OTHERS ...RESPONDENTS PRESENT: MR. O.P. GOYAL, SR. ADVOCATE WITH MS. RANJITA GILL, ADVOCATE FOR THE APPELLANT.

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MR. INDERJIT SHARMA, ADVOCATE FOR MR. RAVINDER ARORA, ADVOCATE FOR THE RESPONDENT-INSURANCE COMPANY.

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MR.Y.K. SHARMA, ADVOCATE FOR RESPONDENTS NO.1 TO 4 IN FAO NO.787 OF 1989

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2. FAO No.226 of 1988 REKHA JAIN ...APPELLANT

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VERSUS

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SUBHASH CHAND AND OTHERS ...RESPONDENTS PRESENT: MR. O.P. GOYAL, SR. ADVOCATE WITH MS. RANJITA GILL, ADVOCATE FOR THE APPELLANT.

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MR. INDERJIT SHARMA, ADVOCATE FOR MR. RAVINDER ARORA, ADVOCATE FOR THE RESPONDENT-INSURANCE COMPANY.

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NONE FOR THE REMAINING RESPONDENTS.

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3. FAO No.225 of 1988 ANIL KUMAR ...APPELLANT VERSUS SUBHASH CHAND AND OTHERS ...RESPONDENTS PRESENT: MR. O.P. GOYAL, SR. ADVOCATE WITH MS. RANJITA GILL, ADVOCATE

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FAO No.224 of 1988

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FOR THE APPELLANT.

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MR. INDERJIT SHARMA, ADVOCATE FOR MR. RAVINDER ARORA, ADVOCATE FOR THE RESPONDENT-INSURANCE COMPANY.

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NONE FOR THE REMAINING RESPONDENTS.

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FAO No.787 of 1989

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AISHI LAL ...APPELLANT

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VERSUS

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SMT. URMILA SHARMA AND OTHERS

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...RESPONDENTS

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CORAM: HON'BLE MR. JUSTICE K.KANNAN.

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Whether reporters of local papers may be allowed to see the judgement. No

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To be referred to the reporters or not? No

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Whether the judgement should be reported in the digest? Yes

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PRESENT: MR. NEERAJ KHANNA, ADVOCATE FOR THE APPELLANTS.

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MR.Y.K. SHARMA, ADVOCATE FOR RESPONDENTS NO.1 TO 4.

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NONE FOR RESPONDENTS NO.6 AND 7.

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MR. INDERJIT SHARMA, ADVOCATE FOR MR. RAVINDER ARORA, ADVOCATE FOR RESPONDENT NO.8.

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K.KANNAN, J.(ORAL)

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All the appeals arise out the same accident and the issue in all the appeals relates to the quantum of compensation.

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The appeal in FAO No.224 of 1988 is for enhancement of claim for compensation for injuries suffered in a motor accident. The Tribunal had assessed a compensation of 14,000/- against a claim of 1,55,000/- for injuries suffered by her. The aspect of negligence is taken as established and the case is being examined only for ascertainment of the compensation

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FAO No.224 of 1988

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as regards the adequacy.

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The claimant had a fracture of the nose, dislocation of the jaw, fracture of both her legs, one at the knee and another at the thigh. PW3 was the Medical Officer at Jagadhri, who initially treated her, having examined her by x-ray and referred her for further management at PGI, Chandigarh. CW5-Dr.K.R.Babu, who was the Senior Resident, Plastic Surgery, PGI, had given evidence to the effect that she had leforte fracture of maxilla and she also had swelling on the right cheek and she was referred to the Orthopaedic Unit for examination of the fractures at the nose and her legs. CW9-Dr.V.V. Dixit has also spoken about the inconvenience suffered by the claimant for chewing hard objects. Overall, it could only be seen that the patient was going through enormous pain and suffering on account of injuries. CW6Dr.D.P.Bhusan, who was Orthopaedic Resident at the PGI, had carried out x-ray and the claimant was diagnosed as a case of fracture of the shaft femur right and also had tenderness abnormal mobility and crepitus of right thigh with abrasions and contusion. The patient was said to have been treated with Thomas splint and she had been advised for repeat examination but she has not come back for treatment. At the time when the doctor was examined in Court, he said that he could not make a complete appraisal of the disability but he still noticed that the patient had suffered about 1 to 2 inches of shortening and there was pain and tenderness at the sites of fractures. He also stated that the patient was carrying a limp and that it might not improve. CW8-Dr.Surinder Sharma was Orthopaedic Surgeon at Saharanpur and through him certain bills were produced and proved to the effect that she had shortening of the limp by three quarter of an inch and she still had pain in the right knee because of traumatic artrius. He stated that

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FAO No.224 of 1988

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she remained in treatment for 3 to 4 months and also stated that he had charged about `2000/- for medical expenses.

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As regards the claim for compensation, the case has to fall under the various heads which are legally permissible against medical expenses. The Tribunal had awarded 2000/- for the medical bills proved and established through one of the doctors at Saharanpur. She had treatment at Jagadhri and also the treatment at PGI. I will assume that she must have spent an equal amount elsewhere and provide to her the additional amount of 2000/- towards medical expenses. She had fairly a long spell of treatment when the doctor, who was giving her traction for three months and I would assume for the period of three months, she would have spent for transportation from her place of residence to the various hospitals referred to above, I will provide for transportation charges at 5000/-. I will also provide for a period of treatment attendant charges for three months @ 750/- to the extent of 2250/- and an additional sum of Rs.2,000/- towards special diet. For four fractures which she has suffered at her nose, jaw, knee and legs, I will provide for a compensation of 25,000/-. No permanent disability had been ascertained except for an assessment of a shortening by three quarter of an inch for the inconvenience that she may have to suffer for the rest of her life, and having regard to the fact that the case relates to the year 1985, I will assess a compensation of 15,000/-. On the whole, the compensation will be 53,250/-. The Tribunal had already awarded `14,000/- and the amount in excess over what has been awarded by the Tribunal, shall attract interest at 6% from the date of petition till date of payment. The liability shall be on the owner of the truck and the insurer. 5. The appeal is allowed to the above terms.

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FAO No.224 of 1988

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FAO No.226 of 1988 relates to claim of compensation by the claimants for the death of the mother in the accident for which an award of 25,000/- was passed. The same claimants also filed a claim for compensation for death of their father, FAO No.38 of 1985. The Tribunal had granted compensation for the death of the father 1,20,000/- and the claimants have not preferred any appeal against the same. Both the father and mother died leaving behind six children. The compensation awarded at 25,000/- was grossly low and inadequate by any stretch of imagination even for a claim that has been disposed of in the year 1987. It could not have been anything less than what was determined for the death of the father. I would provide for the same amount of compensation to the children at 1,20,000/-. The amount in addition to what has been determined by the Tribunal shall attract interest @ 6% from the date of petition till date of payment.

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FAO No.225 of 1988 is for injury to a thumb and ribs and arm. The Tribunal rejected the claim totally. Having regard to the fact that the case is pending for this longer time, I would provide for a compensation at `7500/- in full quit of the claim and direct that the the amount will be paid within 4 weeks, failing which it will bear interest @ 7.5% from the date of this judgement.

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8. The points urged in appeal in FAO No.787 of 1989 at the instance of the appellants are i) the liability of insurance company which was unlimited, but restricting it to the insurer at `1,50,000/- and making the balance amount payable by the owner was erroneous. ii) The first appellant Aishi Lal was merely a power of attorney holder for the owner and personal liability for an agent could not have been cast.

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FAO No.224 of 1988

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As regards the first contention regarding the liability of the insurance company, I have gone through the terms of the policy which says that the liability for the insurer was only the basic liability to public risk on payment of 120/- and no extra premium had been paid for unlimited coverage of risk. The restriction made by the Tribunal at 1,50,000/- in the insurance is, therefore, properly justified. The liability for the excess amount over `1,50,000/- with interest shall, therefore, be borne only by the owner of the vehicle.

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As regards the contention that the power of attorney holder cannot be made personally liable to an additional amount over risk cover by the insurer, the order of the Tribunal was clearly erroneous. Unless it was case where the personal liability was undertaken by the agent by having an interest on the subject matter of agency or under other circumstances making the agent personally liable, such as when the agent acts on his own account, the liability has to be only on the principal and the right of enforcement for a third party shall also be available only against the principal.

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The award of the Tribunal, therefore, will stand modified and the claimants shall have a right of enforcement for the amount in excess over the limit of liability of the insurance company against the ownerappellant No.2 Subhash Chand only. The award of the Tribunal will stand modified and the appeal is allowed to the extent of restricting the liability only to appellant No.2, exonerating appellant No.1 from a personal liability.

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(K.KANNAN) JUDGE

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January 25, 2011 Gulati

Hem Lata Jain v. Subash Chand and Anr.

Case brief

What is this about?

What did the court decide?

Hem Lata Jain v. Subash Chand and Anr.

Case brief

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What did the court decide?

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