IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (MVA.) No.436 of 2003. Reserved on: 3.06.2008. Date of decision: June 16, 2008. Navneet Thakur … Appellant Versus Narinder Singh & Ors. … Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr Atul Jhingan, Advocate. For the Respondents : Ms Archna Dutt vice Mr.Naveen Bhardwaj, Advocate for respondent No.1. Mr Sanjeev Sood vice Mr.K.D.Sood, Advocate for respondent No.5. Kuldip Singh, Judge. This appeal for enhancement of compensation is directed against the award dated 2.6.2003 passed by Motor Accident Claims Tribunal, Kullu, District Kullu in Claim Petition No.50/2000 whereby an award of Rs.2,00,204 along with 9% interest per annum from the date of filing of the petition till payment has been passed in favour of the appellant – claimant and against respondent No.3 Raj Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… Singh owner and respondent No.4, Lalit Kumar, driver of car No.DNB- 6560 which was involved in the accident. 2. The facts, in brief, are that appellant / claimant on 22.10.1997, at about 10.30 P.M., was riding motorcycle bearing No.HP-34-2030, with one Navneet Bharti as pillion rider, when they reached near meat market Sarwari Bazar, Kullu, a Maruti Car bearing registration No.DNB-6560, which was being driven by respondent No.4 Lalit Kumar rashly and negligently, came from opposite side and struck against the motorcycle. In the accident, appellant / claimant suffered multiple injuries including fracture of right leg and foot. The appellant was taken to District Hospital, Kullu and from there he was referred to PGI Chandigarh where be remained admitted with effect from 23.10.1997 to 27.11.1997. The appellant / claimant spent thousands of rupees on his treatment but due to accident he suffered permanent disability to the extent of 51%. The appellant / claimant has suffered business loss due to accident and now he is dependent on others. The appellant claimed Rs.10 lac compensation. In the petition, initially Narinder Singh alias Pinki was impleaded as owner but later on Dhanwant Singh, who got the car released on Supurdari, as well as Raj Singh, registered owner of the car, along with New India Assurance Company Ltd. were also impleaded as parties in the claim petition. 3. The respondents Narinder Singh alias Pinki, Raj Singh and Lalit Kumar were served but they did not put in appearance before the Tribunal and they were proceeded ex-parte. The …3… respondent Dhanwant Singh has resisted the petition and denied the accident for want of knowledge. But from the reply, filed by Dhanwant Singh, it is clear that he was aware of the accident. He denied his liability to pay any compensation. The Insurance Company contested the petition by taking preliminary objections of necessary parties. The insurance of the Maruti car with the Insurance Company was denied for want of particulars. It was pleaded that driver of the car was not possessing valid and effective documents and the car was being plied in contravention of Motor Vehicles Act. The Insurance Company denied the claim of the appellant. It was denied that appellant / claimant suffered any injury or disability as claimed by him. The amount of claim is excessive. It has been denied that driver of the car was driving the car rashly and negligently. The Insurance Company has denied that appellant / claimant suffered any permanent disability. 4. On the pleadings of the parties, the following issues were framed:- i) Whether the petitioner on 22.10.1997 while driving motor-cycle No.HP-34- 2030 at Sarwari was hit by car bearing No.DNB-6560 driven rashly and negligently by respondent -2, as alleged? OPP ii) If issue No.1 is proved, whether the petitioner suffered injuries, if so, to what extent? OPP …4… iii) Whether petitioner is entitled for compensation, if so, to what amount and from whom? OPP iii-A) Whether the vehicle was not insured with insurance company, as alleged, if so, its effect? OPR-3 III-B) Whether the driver of maruti car No.DNB-6560 was not having valid and effective driving licence in his possession on the date of accident, if so, its effect? OPR-3 III-C) Whether the petition is bad for non- joinder of necessary parties, if so, its effect? OPR-3 iv) Relief. The Tribunal, after impleading additional parties in the petition, gave further opportunity to the parties to lead evidence. The learned Tribunal ultimately passed the award in favour of the appellant / claimant, as noticed above. However, the appellant / claimant, aggrieved by the impugned award, has filed this appeal for enhancement of the compensation. 5. I have heard Mr Atul Jhingan, learned counsel for the appellant, Ms Archna Dutt, Advocate appearing on behalf of Mr.Naveen Bhardwaj, learned counsel for respondent No.1 and Mr.Sanjeev Sood appearing on behalf of Mr.K.D.Sood, learned counsel for respondent No.5 and gone through the record. Mr.Atul Jhingan, learned counsel for the appellant, has submitted that learned …5… Tribunal has taken income of the appellant / claimant on the lower side. It has been proved on record that the appellant was running a restaurant and was also working as trekking guide. The evidence on record has been misinterpreted for awarding less compensation to the appellant under various heads. He has submitted that appellant has suffered 51% permanent disability and, therefore, keeping in view the disability of the appellant, the compensation awarded is less. It has been submitted that interest should have been allowed at the rate of 12% per annum. The learned counsel has, thus, prayed for awarding Rs.10 lac compensation to the appellant along with interest. The learned counsel for the respondents have supported the impugned award. 6. The respondents have accepted the award inasmuch as no counter appeal has been filed by any respondents against whom liability has been fixed by the Tribunal, nor filing of such appeal has been pointed out by any party at the time of hearing of the appeal. Therefore, the limited question before the Court is the quantum of compensation. PW Navneet Bhardwaj, who has been referred as manager of the appellant in the claim petition, in his statement has nowhere indicated how much appellant was earning from his restaurant. PW-4 Navneet Thakur claimant has stated that his right leg had three fractures due to accident and his big toe of right foot was chopped off, he was referred to PGI Chandigarh and remained there as indoor patient till 27.11.1997. Thereafter, he was referred to Zonal Hospital, Mandi. He remained under treatment at Zonal …6… Hospital, Mandi for four months. He spent about Rs.1 lac on his treatment. He tendered in evidence bills of medicines, transportation and food Ext.PW-4/1 to Ext.PW-4/78. He had to go to PGI Chandigarh for treatment every month. The indoor patient slip of PGI Chandigarh is Ext.PW-4/79. The learned Tribunal has considered bills, cash memos Ext.PW-4/1 to Ext.PW-4/78 for awarding Rs.52,154 for medical expenses, conveyance charges etc. This amount has been calculated on the basis of vouchers submitted by the appellant. At the time of hearing, justification for awarding of Rs.52,154 for medical and conveyance charges has not been disputed, therefore, appellant is not entitled to any enhancement under the heading “Medical Expenses, conveyance charges”. 7. The Tribunal has allowed an amount of Rs.10,000 for pain and sufferings and Rs.5000 for loss of amenities to appellant. Thus, in all Rs.15,000 have been allowed to the appellant by Tribunal under the heads pain and sufferings, loss of amenities. The amount of Rs.15,000 for ‘loss of amenities’ and ‘pain and sufferings’, in the facts and circumstances of the case, awarded to the appellant appears to be slightly on the lower side but in my opinion the lesser compensation awarded to appellant by learned Tribunal under aforesaid heads has been duly compensated by liberally awarding compensation to the appellant under ‘future loss of earnings’. Therefore, appellant is not entitled to any enhancement of compensation under ‘pain and sufferings’ and loss of amenities’. …7… 8. The appellant has not proved by leading any cogent evidence that in fact any attendant was engaged by him for certain period but still keeping in view the injury of the appellant and his hospitalization, the learned Tribunal has awarded Rs.3000 to the appellant for attendant charges which requires no interference. 9. The learned counsel for the appellant has strenuously argued for enhancement of compensation under the heading “Future Loss of Earnings.” He has submitted that the treatment of the leg of appellant continued for two years and after two years disability certificate Ext.PW-1/C was issued according to which the appellant has suffered 51% disability. Now, the appellant cannot work properly due to his disability. The restaurant remained closed due to accident and the appellant has suffered loss of Rs.2,50,000. The appellant had been working as trekking guide. Now, due to disability, the appellant cannot work as trekker. In his statement, the appellant has not stated how much he was earning from restaurant and as trekking guide. The appellant has placed no document on record to show that, in fact, he was owner of restaurant. In support of running a restaurant, he could have produced some licence, vouchers for purchasing raw materials. He could have produced some customers to show that in fact he was running a restaurant. In fact, the appellant has produced no corroborative evidence to show that he was running restaurant and was a trekker. PW-1 Dr.Baldev Kumar, in his cross examination, has stated that appellant, despite disability shown in Ext.PW-1/C, could do his routine work. He has stated that a person …8… with disability, as is shown in Ext.PW-1/C, can operate restaurant as owner and such disability will not affect his income. He has also stated that disability, mentioned in Ext.PW-1/C, could be reduced due to exercises as per advice of the doctor. The appellant has led no evidence in order to indicate how much he was earning per month from his restaurant business and working as trekking guide. Therefore, in view of statement of PW-1, practically the disability of the appellant has no bearing on his income even if he is running a restaurant. In these circumstances, the Tribunal had no option but to award compensation on the basis of notional income of the appellant. The learned Tribunal, in my opinion, has liberally granted an amount of Rs.1,30,050 to appellant for future loss of income. The future loss of earning is connected with the diminishing power to earn due to disability. PW-1 Dr.Baldev Parkash has stated that disability shown in Ext.PW-1/C does not affect the income of a person to operate restaurant as owner. PW-4 has not explained in his statement how his power to earn has been reduced due to disability shown in Ext.PW-1/C. There is no worth believing evidence that appellant was a trekker. In view of absence of evidence, the appellant is not entitled to enhancement of future loss of earnings over and above the amount already awarded by the learned Tribunal. 10. The learned Tribunal has made liable respondent No.3 Raj Singh and respondent No.4 Lalit Kumar for payment of compensation and other respondents have been exonerated. In my view, the learned Tribunal has rightly held respondent No.3 Raj Singh …9… and respondent No.4 Lalit Kumar liable for payment of compensation on the basis of material on record. 11. No other point was urged. 12. The result of the above discussion, the appeal fails and is accordingly dismissed. No costs. CMP No.633 of 2007: Infructuous. June 16, 2008(soni) ( Kuldip Singh ) Judge.