IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAOs (MVA) No. 207 of 2008 and 167 of 2008 Reserved on: 24th October, 2008 Date of Decision:17th November, 2008 FAO (MVA) No.207 of 2008 Nanak Chand Appellant Versus B.S.Chauhan and others Respondents FAO(MVA) No.170 of 2008 United India Insurance Company Ltd. Appellant Versus Nanak Chand and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. FAO (MVA) No. 207 of 2008 For the appellant: Mr.G.C.Gupta, Sr. Advocate, with Mr.Amardeep Gupta, Advocate. For respondent No.3: Mr.G.D.Sharma, Advocate. FAO (MVA) No.167 of 2008 For the appellant: Mr.G.D.Sharma, Advocate. For respondent No.1: Mr.G.C.Gupta, Sr. Advocate, with Mr.Amardeep, Advocate. Sanjay Karol, J. The present appeals arise out of award dated 7.1.2008 passed by Motor Accident Claims Tribunal (II), Shimla, H.P. in MAC Petition No. 81-S/2 of 2005 titled as Nanak Chand vs. B.S.Chauhan and others. Whether the reporters of Local Papers are allowed to see the Judgment? 2 FAO No.207 of 2008 has been filed by the claimant seeking enhancement of compensation awarded by the Tribunal and FAO No.167 of 2008, has been filed by the United India Insurance Company, assailing the award on the ground that the Tribunal has wrongly fixed the liability on the Insurance Company. On 4.7.2004 Bus bearing No. HP-51-3393, owned by Shri B.S.Chauhan, met with an accident near Village Kanog on Kufri-Chial Road, District Shimla, H.P. An FIR was registered against the conductor of the Bus Shri Man Singh, who is alleged to have driven the vehicle at the time of accident. Shri Sanjay alias Sanjeev was in fact the driver of the Bus. In the said accident, various passengers received injuries and some of them succumbed to the same and died. Various claim petitions were filed by the passengers before the different Motor Accident Claims Tribunals in the State. The present appeals arise out of the Claim Petition filed by Shri Nanak Chand under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act), claiming compensation of a sum of Rs.10 lacs for the reason that in the said accident he sustained injuries and suffered permanent disability of 4%, which not only impaired his earning capacity but also hampered his enjoyment of life. The claimant, aged 49 years working as a Munshi was having an income of Rs.3,000/- per month and Rs.5000/- per month from agriculture and other sources. The driver remained ex parte and the owner filed its response stating that at the time of accident the vehicle in question was being driven by its driver Shri Sanjeev, who was having a valid and effective driving 3 licence to drive the vehicle and the name of Shri Man Singh as driver of the ill-fated Buss was wrongly mentioned in the F.I.R. While admitting the fact that the vehicle was insured, the Insurance Company in its reply, however, took up the defence that since Man Singh, who was not possessing any effective and valid driving licence was driving the vehicle at the time of accident, therefore, the Insurer was not liable to indemnify the insured as terms and conditions of the policy stood breached. Based on the pleadings of the parties, the Tribunal framed the following issues:- “1. Whether on 4.7.2004 at about 5.30 PM at Kanog, the respondent No.2 was driving the bus No. HP-51-3393 rashly and negligently and as such caused the multiple injuries to the petitioner? OPP. 2. If issue No.1 is proved in affirmative, what amount of compensation the petitioner is entitled to and from whom? OPP. 3. Whether the driver of bus No. HP-51-3393 was not holding a valid and effective driving licence at the time of accident, as alleged? OPR. 4. Whether the petition is bad for non-joinder of Man Singh driver of bus as party? OPR. 5. Relief.” The parties were afforded adequate opportunities of leading their evidence and after appreciating the material on record, the Tribunal while deciding Issues No.1,3 and 4 collectively, held that at the time of accident Shri Sanjay alias Sanjeev, was driving the bus in a rash and 4 negligent manner which was the cause of the accident. The claimant, one of the passengers sustained injuries in the said accident. The Tribunal decided issue No.2 in favour of the claimant and considering the fact that the claimant was admitted in the Zonal Hospital, Mandi, for medical treatment from 12.7.2004 to 4.8.2004 and 17.9.2004 to 25.9.2004 as also taking into account the bills Ext.P-1 to P-61, a sum of Rs.20,000/- (Rs.13,000/- actual bills and Rs.7000/- for attendant) was awarded as reimbursement towards medical expenses. Rs.40,000/- was awarded towards pain and suffering as the claimant continued to undertake medical treatment for more than 2 years and Rs.30,000/- was awarded towards permanent disability (4%) as vide disability certificate (Ext.PW-2/A) it is evident that claimant’s leg was shortened by ½ an inch. With regard to loss of income, taking into account the claimant’s income to be Rs.3000/- and loss of earning determined to be 10% of the same, the actual annual loss of earning was taken to be Rs.3600/- and considering the claimant’s age to be 49 years, by applying a multiplier of ‘11’ compensation of Rs.40,000/- was awarded for the same. For the period for which the claimant could not perform his job i.e. 28 months, the Tribunal worked out his total loss of income to be Rs.3000/- per month and, therefore, arrived at a figure of Rs.84,000/-. Thus a total sum of Rs.2,14,000-00 was determined as compensation. The vehicle being insured, the liability was fastened upon the Insurance Company. 5 Mr.Gupta, learned counsel for the claimant has argued that the claimant’s loss of income was from various sources, and, therefore, the Tribunal ought to have clubbed the same to determine the final compensation. In any event, the multiplier applied was much on the lower side and further the compensation towards the head of non-pecuniary damages be enhanced. Per contra, Mr. G.D.Sharma, learned counsel for the Insurance Company, while justifying the quantum of compensation awarded by the Tribunal, vehemently argued that the liability to pay the same stands wrongly fastened upon the Insurance Company for the reason that the Tribunal has seriously erred in holding that at the time of the accident the vehicle in question was being driven by Shri Sanjay and not Shri Man Singh. Learned counsel for the owner has supported the award for the reasons set out therein and the driver, who was ex parte before the Tribunal also chose not to appear in the present proceedings. I have heard the learned counsel for the parties and also perused the record. There is no dispute that on the ill-fated day the claimant was travelling in the bus, which met with an accident. It is also not in dispute that the injuries sustained by the claimant were as a result of the said accident. In support of his claim, the claimant Shri Nanak Chand examined himself as PW-1, Dr.Sanjeev Raj Kapoor (PW-2), Shri Hira Lal (PW-3), Shri K.L.Verma (PW-4) and Shri Roop Singh (Pw-5). In rebuttal, the Insurance Company examined its witnesses Shri Khem Chand (RW-1). 6 That Shri Sanjay was driving the Bus at the time of accident is evident from the record. PW-1 categorically deposed that the accident occurred as respondent No.2 (Shri Sanjay) lost control and the bus fell down the road. Importantly, eh has not been cross-examined on this point either by the owner or the Insurance Company. In the other appeals arising out of the same accident being FAO No. 527 of 2007 and 170 of 2008, this Court while examining the statement of said Man Singh (the alleged driver) the owner and the Investigating Officer who investigated the FIR has already held that it was Sanjeev Kumar, who was driving the vehicle. It was observed as under:- “That Shri Sanjay was driving the Bus at the time of accident is evident from the record. PW-1 categorically deposed that the accident occurred as respondent No.2 (Shri Sanjay) lost control and the bus fell down the road. Importantly, he has not been cross-examined on this point either by the owner or the Insurance Company. RW-1 has corroborated his version and has further stated that he had employed driver Sanjay alias Sanjeev Kumar, who was possessing a valid and effective driving licence at the time of accident. He denied that Man Singh was driving the vehicle. Importantly, Man Singh, (RW-6) alleged to have driven the vehicle at the time of accident, as a witness of the Insurer deposed that his name was wrongly mentioned in the FIR and it was Sanjeev Kumar, who was driving the vehicle at the time of the accident. In any event, he possessed a driving licence (HTV) and was entitled to drive the vehicle at the time of accident. RW-7 is the Investigating Officer, who carried out the investigation pursuant to the registration of the FIR. Even though in his examination-in-chief he has deposed that during investigation he found that the vehicle was being driven by Man Singh, but, however, in his cross-examination 7 he clarified that he did not remember as to who had stated this fact to him. He further deposed that during investigation he found that the owner had employed Man Singh as a Conductor and Sanjeev Kumar as driver. Both Sanjeev Kumar and Man Singh were challaned, which was still pending in the Court of JMIC, Shimla. He also admitted that both Man Singh and Sanjeev Kumar were having valid licences and were entitled to drive Heavy Transport Vehicle. This is the only evidence to this effect. Thus it is evident that it was Sanjeev Kumar, who was driving the vehicle at the time of the accident. FIR mentioning the name of Man Singh to have driven the vehicle was registered on the complaint of one Shri Nitya Nand. Importantly this witness was not examined by the Insurance Company. Statement of RW-7, conclusively does not establish Man Singh to have driven the vehicle. From the unrebutted testimony of PW-1, which is duly corroborated and supported by RW-1, I see no reason to differ with the findings returned by the Tribunal that it was Sanjay alias Sanjeev Kumar, who was driving the vehicle at the time of the accident. It is not as though the prosecution was launched only against Man Singh. RW-7 has stated that challan is pending against both Man Singh and Sanjeev Kumar. Be that as it may be, the fact of the matter is that even Man Singh was possessing a valid driving licence and thus competent to drive the vehicle. The Tribunal has rightly considered the material on record, particularly, the statement of RW-4 and RW-6 to hold that the driving licence of Man Singh was validly issued by the authorities.” This Court in New India Assurance Co. Ltd. vs. Satya Parkash Thakur and others, 2007 ACJ 714, has held that where the owner had proved that he had engaged a person, possessing a valid licence, to drive 8 the vehicle the onus to prove that another person, not holding a valid driving licence was driving the vehicle with the knowledge of the owner or on account of some carelessness on the owner’s part that person not holding the licence came to drive the vehicle was heavy on the Insurer. In the present case, no such burden was discharged. From the statement of PW-1 and PW-4, it is evident that the claimant was employed as Munshi with PW-4 and was earning a salary of Rs.3000/- and in addition thereto he was also arranging labour on contract basis and earning commission thereupon. There is no doubt with regard to the same. PW-1 has deposed that not only he has lost his job as he cannot walk and work in the field, even the work of supply of labour on contract basis cannot be performed. He is owner of 5-6 Bighas of land which is also lying fallow. However, the Tribunal has disbelieved the certificate Ext.PW-4/A showing the annual income of the claimant from the said source. The reasoning given is that there is a cutting on the certificate and the same is not corroborated by contemporaneous record. I am in agreement with the reasons recorded by the Tribunal, but the fact of the matter is that the claimant was also having some income from the said source as both the claimant and PW-4 have orally deposed that the income from the commission was in the range of Rs.30,000/- to Rs.50,000/- per annum. Without there being any document to prove the same, I am of the view that some income of the claimant, purely on the basis of guess work has to be determined. 9 In V.Subbulakshmi & Ors. V. S.Lakshmi & another, AIR 2008 SC 1256, the Apex Court has held that where there is no proof of income some guess work is inevitable. The income from the said source can be fixed at Rs.1000/- per month and Rs.12000/- per year. His income of Rs.3000/- salary stands proved. The Tribunal has taken the total loss of earnings for 28 months i.e. from July, 2004 to October, 2006. Thereafter, the loss of income, taking into account the disability of the claimant has been taken to be 10% of his full earning capacity. I find nothing wrong with the same. The claimant is not a coolie nor was he carrying heavy loads. Since he was a full time salaried person, it could not be said that he was contributing anything towards the development of his agricultural land. In my view, there is nothing to prove that the claimant had any income from agricultural source. No doubt, the jobs are difficult to find but, however, the claimant is young and sooner or later can find work or alternate source of income. On the question of multiplier, it is to be noticed that as on the date of accident, injured had a wife and minor children to support. He was 42 years of age and his permanent disability of 4% may increase. It is true that the disability has not crippled him and made him bed ridden, but it is equally true that he cannot fully enjoy the fruits of life and carry on the work in a normal manner. He has to suffer pain and agony throughout his life and would not be in a position to lead a normal life. The Apex Court in Savita Sharma and others vs. Union of India/Chandigarh Administration and another, 2008 ACJ 2032, while 10 dealing with a case of an Ayurvedic doctor, aged 53 years, where the High Court had reduced the multiplier applied by the Tribunal from ‘11’ to ‘8’, held that when a rough and ready reference is already provided in the 2nd schedule of Motor Vehicles Act, 1988, normally, it should be applied unless there are compelling reasons to take a different view in the matter. The Apex Court reversed the view taken by the High Court and upheld the multiplier fixed by the Tribunal. Therefore, taking the age of the claimant to be 49/51 years, the multiplier of ‘11’ needs to be enhanced to ‘13’. Mr.G.D.Sharma, learned counsel for the Insurance Company has brought to my notice judgment of the Apex Court in New India Assurance Company Limited vs. Smt. Kalpana and others, 1 (2007) ACC 356 (SC) and also Kanhaiyalal Kataria and others vs. Mukul Chaturvedi and others, 2007 ACJ 1972, to support his contention that compensation awarded is just and fair and need not be enhanced. In Kalpana (supra), the Apex court was dealing with a case of taxi driver, who died in an accident at the age of 33 years. His monthly income claimed to be Rs.8000/- but was assessed to be Rs.3000/- per month and multiplier of ‘13’ was applied. It is true that the Apex Court has applied a multiplier of ‘13’ in Kalpana (supra) and ‘17’ in Kanhaiyalal Kataria (supra), but keeping in view the subsequent decisions referred to hereinabove and keeping in view the facts and circumstances of the case, in my view, in the instant case multiplier of ‘13’ is on the lower side and needs to be enhanced. Ends of justice would be met if the same is increased to ‘15’. 11 As held by the Tribunal the loss of earning to be 10%, therefore, by applying the multiplier of ‘13, the claimant is entitled to compensation towards loss of income to be Rs.4800 (10% of Rs.48000) x 13 = Rs.62,400/-. As the income of the deceased has been taken to be Rs.4000/- per month, therefore, the amount as worked out by the Tribunal for the period the claimant could not perform his job i.e. 28 months, is also enhanced from Rs.84,000/- to Rs.1,12,000/- (Rs.4000 x 28). In R.D.Hattangadi vs. Pest Control (India) Pvt. Ltd. and others, 1995 ACJ 366, Apex Court has laid down the following criteria for awarding the compensation:- “Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.” 12 For all the heads falling under the non-pecuniary damages, I am of the view that a sum of Rs.20,000/- and Rs.40,000/- needs to be enhanced to Rs.90,000/-, in addition to Rs.30,000/- awarded by the Tribunal towards permanent disability. It has come on record that claimant, who was working as a Munshi cannot perform hard work as his leg had to be shortened by ½ an inch. He had to loose his job and cannot perform the work of Munshi any longer. Even though the permanent disability is of 4%, but, however, the nature of disability is such that he cannot work in the hilly terrain and can do only table work for which he is neither qualified nor experienced. Jobs are difficult to find these days. Since July, 2004, the date of the accident he had to be under continuous medical treatment at Zonal Hospital, Mandi, as also the State Hospital, IGMC, Shimla, and had to continuously undertake treatment for more than two years. The Doctor has opined that the disability is not curable with the passage of time. The pain and the anguish is life long. For all these reasons the enhancement is made. For the foregoing reasons, the appeal filed by the claimant is allowed and the appeal filed by the Insurance Company is dismissed. The claimant is entitled to the following amount of compensation alongwith interest as awarded by the Tribunal:- Total loss of income for 28 months Rs. 62,400-00 Future loss of income Rs.1,12,000-00 Medical expenses, Pain and suffering and all other heads falling under non-pecuniary damages Rs. 90,000-00 Permanent Disability Rs. 30,000-00 Total: Rs.2,94,400-00 13 However, there shall be no order as to costs. November 17, 2008 (Sanjay Karol), (C) Judge.