FAO No. 795 of 2013 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 795 of 2013 Date of Decision: September 06, 2014 [ENTITY] and another Appellants Versus [ENTITY] and others Respondents CORAM:- HON'BLE MR.JUSTICE [ENTITY] Present: Present Ms.[ENTITY], Advocate for the appellants. Mr.[ENTITY], Advocate for respondent No.1. Mr.[ENTITY], advocate for respondent No.2. None for respondent No.3. <><><> [ENTITY], J.
This order shall dispose of [CASE NUMBER] ([ENTITY] and another v. [ENTITY] and others) and 1072 of 2013 ([ENTITY] v. [ENTITY] and others) as both the appeals arise out of the same accident. [CASE NUMBER] has been filed by the driver and the owner of the offending vehicle i.e. Bus bearing registration No.HR47A-1322 impugning the award dated 5.1.2013 passed by the Motor Accident Claims Tribunal, Rewari to the extent that recovery rights have been granted to the Insurance Company to recover the awarded amount from the present appellants.
2. [CASE NUMBER] has been filed by the claimant seeking enhancement of compensation. Injured in the present case is [ENTITY] son of Shri [ENTITY].
3. Facts, in brief, are that a claim petition was filed by [ENTITY] under [SECTION] and [SECTION] of the [ACT] claiming compensation to the tune of `75 lacs along with interest @ 24% per annum on account of injuries having been sustained in an accident that is stated to have occurred on 11.12.2010 while claimant [ENTITY] was going on his motorcycle and was hit by a Bus bearing registration No.HR47A- 1322 being driven in a rash and negligent manner by [ENTITY], driver. In the accident, claimant [ENTITY] is stated to have sustained simple and grievous injuries on his head as also other vital parts of the body. FIR No.274 dated 11.12.2010 under [SECTION] of [ACT] was duly lodged against the driver of the offending vehicle.
4. On the pleadings of the parties, following issues were framed by the Tribunal:
1. Whether [ENTITY] sustained injuries in the accident occurred on 11.12.2010 on account of rash and negligent driving of vehicle No.HR47A-1322 by its driver respondent No.1? OPP
2. Whether the petitioner is entitled to compensation, if so to what amount and from whom? OPP
3. Whether the respondent No.1 was not holding a valid and effective driving licence at the time of alleged accident? [ENTITY] 4. Relief.
5. Issue No.1 was decided by the Tribunal against the respondents and in favour of the claimant. Under Issue No.2, the claimant was held entitled to a total compensation of `7,90,738/-. However, as regards Issue No.3, it was held that the Insurance Company cannot be absolved from its liability to pay compensation, but recovery rights were granted to the Insurance Company to recover the awarded amount subsequently from respondents No.1 and 2 i.e. driver and owner of the offending vehicle.
6. Learned counsel for the parties have been heard at length.
7. It has gone uncontroverted that the driver had placed on record driving licence, Exhibit R4, in terms of which he was authorized to drive motorcycle, light motor vehicle (LMV) and light transport vehicle (LTV) only. The Tribunal while returning findings on Issue No.3 has observed that the owner of the offending vehicle had taken a stand that prior to appointing the driver, a driving test had been taken and even the driving licence issued by the Licensing Authority had been seen and it was only upon satisfaction having been arrived that the driver held a valid licence and was fully competent to drive the offending vehicle that he was appointed as driver. In [PRECEDENT] it had been held that there would be no breach of [SECTION] of the [ACT] where the owner had satisfied himself that the driver had the licence and was competent to drive the vehicle in question and that the Insurance Company would escape its liability to indemnify only upon proving that the owner was aware that the licence was fake or invalid or inspite thereof permitted the person to drive.
8. In the facts of the present case, the Insurance company had not adduced any evidence on record so as to sustain a finding that the owner of the offending vehicle had knowledge as regards the driver holding a licence on the basis of which he was not even competent to drive the vehicle.
9. That apart, the registration certificate of the offending vehicle i.e. Bus No.HR47A-1322 was duly exhibited as Annexure R1. In such certificate at Sr.No.1 i.e. class of vehicle, it was mentioned as "LTV bus" and the unladen weight was mentioned as 2150 kgs. The Tribunal has not considered Section 2, sub- clause (21) of the [ACT] wherein light motor vehicle has been defined as a vehicle whose gross weight does not exceed 7500 kgs. Accordingly, as per the registration certificate that had been placed on record before the Tribunal and in the light of the definition of light motor vehicle under the provisions of [ACT], the offending vehicle i.e. bus in question was not a heavy vehicle and the driver had adduced on record the driving licence, Exhibit R4, in terms of which he was competent to drive a light transport vehicle (LTV).
10. In view of the discussion above, I am of the considered view that the Tribunal has erred in granting recovery rights to the Insurance Company while returning findings on Issue No.3. The present appeal is, accordingly, accepted and the impugned award to the extent of recovery rights granted to the Insurance Company to recover the awarded amount from the present appellants is set aside.
[CASE NUMBER]
11. Facts, in brief, have already been noticed while deciding connected FAO No. 795 of 2013 hereinabove. Suffice it to notice that the Tribunal has granted a total compensation of `7,90,738/- and assessed the compensation under pecuniary and non-pecuniary heads as under:
Pecuniary damages
1. Loss of income : ` 40,000
2. Transport charges : ` 5,000
3. Attendant charges : ` 8,000
4. Diet & Nutrition : ` 10,000
5. Medical Expenses : `4,77,738 Non-pecuniary damages
1. Pain & suffering : ` 50,000 as claimant had grievous and multiple injuries
2. Loss of amenities : `2,00,000 of life (due to disability)
Total : `7,90,738
12. Having heard learned counsel for the parties, I am of the considered view that the compensation awarded is much on the lower side. Such view is being taken on the following reasoning.
13. [ENTITY] wife of injured [ENTITY] had appeared as PW5 and deposed as regards the treatment given to the claimant as also the money spent thereupon. It had been stated that [ENTITY] after the accident that occurred on 11.12.2010, was shifted to Trauma Centre, Rewari, but on account of the serious condition, referred to Paras Hospital, Gurgaon on 11.12.2010 itself and was operated upon. Thereafter, he was shifted to Indowestern Brain and Spine Hospital, Jaipur (IBS Hospital) on 17.12.2010 and remained admitted upto 28.12.2010.
[ENTITY], Accountant in IBS Hospital, Jaipur was examined as PW2 and [ENTITY], Assistant Manager, Paras Hospital, Gurgaon was examined as PW7. Both these witnesses had corroborated the version of Smt.[ENTITY], wife of the claimant, and had also produced the relevant receipts of medicines and bills pertaining to treatment. The Tribunal awarded an amount of `4,77,738/- towards medical expenses based on relevant evidence adduced on record. Such amount would not call for any interference and revision.
14. The testimony of [ENTITY], Medical Officer, Government Hospital, Rewari would be crucial. He was a member of the Medical Board which examined the claimant, [ENTITY], to ascertain the disability. Disability certificate, Exhibit PW6/A, was duly proved on record which reflected 100% permanent disability on account of post-head injury profound mental retiration. Furthermore, as per disability certificate, there was no chance of any kind of improvement as regards the 100% disability of the petitioner and as such, there was no recommendation with regard to re-assessment thereof. Wife of the claimant, Smt.[ENTITY], while appearing as PW5 had also stated that [ENTITY] injured had become totally disabled and was even unable to give his statement due to his state of unconsciousness. She had further stated that her husband was working as PTI in Freedom Fighters Shanker Lal Memorial Senior Secondary School Morri (Mohindergarh) and was earning `10,000/- per month as salary. Shri [ENTITY], SS Master of the said school had filed affidavit as PW9/A, attendance register, Exhibit PW9/B and salary register, Exhibit PW9/C. Even though the Tribunal had observed that such record as regards employment, and salary drawn by the injured had not been countersigned by the Block Education Officer/District Education Officer, but no evidence had been led in rebuttal so as to disbelieve the version as regards appointment of the claimant as PTI in the school. Based thereupon, `40,000/- as loss of salary for a period of four months has been assessed. Likewise, attendant charges of `2,000/-per month for a period of four months i.e. `8,000/- have been granted. Towards pain and suffering, a lump sum amount of `50,000/- has been assessed.
15. A three-judge Bench of Supreme Court in [PRECEDENT] had taken a view that in respect of a person who was on a fixed salary without provision for annual increments or he was self-employed, the actual income at the time of death should be taken into account for determining loss of income unless there were extra-ordinary and exceptional circumstances.
16. The same principle would apply for determination of loss of income on account of an accident resulting in total disability of the victim as in the present case. Reference in this regard may be made to the judgment of the apex Court in [PRECEDENT].
17. Even though it had been claimed that the claimant- injured [ENTITY] was earning `10,000/- per month while working as PTI, but no cogent evidence to prove such income has been adduced on record. Be that as it may, evidence has been led to prove the engagement of the injured in the school in question as PTI. The accident relates to the year 2010. It would be safe to presume a monthly income of `6,000/-. Under such circumstances, annual income, as such, would be `72,000/- and on which a cut of 1/3rd would be appropriate. The annual dependency would work out, as such, to be `48,000/-. No evidence has been led as regards age of the injured. Evidence in this regard is not even forthcoming from the deposition of the wife of the injured, namely, [ENTITY]. Under such peculiar circumstances, a multiplier 11 is held to be applicable which, otherwise, in the light of principles laid down in [PRECEDENT] would be applicable in the age group of 51 to 55 years. Loss of income, as such, is assessed as (48000x11) ` 5,28,000/-.
18. In [PRECEDENT] the Hon'ble Supreme Court had held that the heads of 'future treatment' and 'pain and suffering' are distinct and different and the compensation to be awarded under such heads cannot be clubbed together. In the facts of the present case, claimant [ENTITY] had suffered 100% permanent disability on account of grievous injuries having been suffered. The permanent disability certificate adduced on record reflects that there is no scope of improvement as regards his medical condition. Under such circumstances, an amount of `2 lacs is assessed under the head of 'pain and suffering' and an amount of `50,000/- is assessed towards 'future treatment' which the claimant-injured would have to get to even sustain himself in his current state.
19. Even the amount of `8,000/- awarded by the Tribunal towards attendant charges is abysmally low. Injured [ENTITY] has been disabled for life. He would require an attendant all through. As such, an amount of `1 lac towards attendant charges is assessed. It is re-iterated that the amount of `4,77,738/- awarded towards medical treatment/expenses incurred would remain the same.
20. Accordingly, the total compensation assessed and awarded to [ENTITY], injured is as follows:
Loss of income = 5,28,000 Attendant charges = 1,00,000 Pain and suffering = 2,00,000 Future treatment = 50,000 Medical expenses = 4,47,738 Transport charges, diet and nutrition = 15,000 = 13,40,738
21. Accordingly, the present appeal is allowed and the amount of compensation awarded by the Tribunal stands enhanced from `7,90,738/- to `13,40,738/-. The other terms and conditions as regards rate of interest as also cash percentage i.e. 60% of the awarded amount to be given to the claimant and remaining 40% to be deposited in any Nationalized Bank would remain the same.
22. Appeal disposed of in the aforesaid terms.
( [ENTITY] ) September 06, 2014 JUDGE SRM Note: Whether to be referred to Reporter? (Yes/No)