IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO No.130/2004, FAOs No. 131 & 132 of 2004 and Cross-Objections No.248,249 & 250/2004 Reserved on:9.9.2008 Decided on:23.10.2008 FAO No. 130/2004 & Cross-Objections No.248/2004: Mandeep Guleria. …Appellant/Non-objector. Versus Prithi Singh and others. …Respondents/objector. FAO No. 131/2004 & Cross-Objections No.249/2004: Ashwani Kumar Guleria. …Appellant/non-objector. Versus Prithi Singh and others. …Respondents/objector. FAO No. 132/2004 & Cross Objections No. 250/2004: Kanchan Rani. …Appellant/non-objector. Versus Prithi Singh and others. …Respondents/objector. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. Yes. For the Appellants/non-objectors : Mr. Ramesh Sharma, Advocate vice (in all the appeals) Mr. N.K. Thakur, Advocate For the Respondents/objector : Mr. Kartik Kumar, Advocate vice (in all the appeals) Mr. B.N. Misra, Advocate for respondent No.1. : Mr. Ajay Sharma, Advocate for respondent No.2. : Mr. V.S. Chauhan, Advocate for respondent No.3. 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 Rajiv Sharma, J. Since common questions of law and facts are involved in these FAOs, the same were taken up together for hearing and are being decided by a common judgment. FAO No. 130/2004 with cross objections No. 248/2004 Brief facts necessary for the adjudication of this appeal and cross objection are that when the appellant along with his parents and sister was proceeding to his native place in village Behli on a scooter on 9.8.2001, a Tempo Trax came from opposite side and hit the scooter on extreme left side of the road. The appellant and other members of his family fell down. The accident resulted in multiple injuries on the face of the appellant resulting in extraction of two frontal teeth, fracture of jaw, fracture in left arm and lacerated wound on the occipital region of skull and pressing of vital organs like kidney and liver etc. A sum of Rs. 50,000/- is claimed to have been spent on medicines. Respondent No.1 (owner) and respondent No.2 (driver) filed joint reply to the claim petition. Respondent No.3, Insurance Company, took a plea that respondent No.2 was not holding a valid driving licence at the time of accident. The learned Motor Accident Claims Tribunal on the basis of the evidence led by the parties awarded a sum of Rs. 9071/- to the appellant as compensation for simple and grievous injuries suffered by him in motor vehicle accident. The other finding recorded by the Motor Accident Claims Tribunal is that respondent No.2 was not possessing valid and effective driving licence to drive the Tempo Trax at the time of accident as such respondents No.1 and 2 were 3 ordered to pay the compensation jointly and severally. The present FAO has been filed for the enhancement of compensation. The case set out in the cross-objection is that the finding recorded by the learned Motor Accident Claims Tribunal that respondent No.2 was not holding the valid and effective driving licence is liable to be set aside. FAO No. 131/2004 with Cross Objections No. 249/2004: Brief facts necessary for adjudication of this appeal and cross- objection are that the appellant also suffered injury in the accident, which took place on 9.8.2001. The appellant has claimed that he suffered multiple injuries including fracture of right hand and two left ribs were also fractured. He claimed that he spent Rs. 30,000/- on medicines and also suffered damages to the scooter amounting to Rs. 8,000/-. Respondents No.1 and 2 have filed a joint reply and denied that the accident took place due to rash and negligent driving of respondent No.2. The case set out by the Insurance Company was that the driver was not holding valid and effective driving licence at the time of accident i.e. 9.8.2001. The learned Motor Accident Claims Tribunal on the basis of the evidence led by the parties has awarded a sum of Rs. 35,429/- to the appellant as compensation for simple and grievous injuries suffered by him in the motor vehicle accident. It was further held by the Motor Accident Claims Tribunal that respondent No.2 was not holding valid and effective driving licence. The case set out in the cross-objection is that the finding recorded by the learned Motor Accident Claims Tribunal that respondent No.2 was not holding a valid and effective driving licence is liable to be set aside. FAO No. 132/2004 and Cross-Objection No. 250/2004: Brief facts necessary for the adjudication of this appeal and cross- objection are that the appellant suffered multiple injuries on her arms, 4 legs, head shoulder and her right hand in the accident which took place on 9.8.2001. The appellant claimed that she spent Rs. 50,000/- on medicines. The case of respondents No.1 and 2 as set out is that the accident was not caused due to rash and negligent driving of respondent No.2. The case set out by respondent No.3, Insurance Company, is that respondent No.2 was not holding a valid and effective driving licence at the time of accident i.e. 9.8.2001. The learned Motor Accident Claims Tribunal on the basis of the evidence led by the parties awarded a sum of Rs.30,082/- to the appellant for the simple and grievous injuries suffered by her in motor vehicle accident. The learned Motor Accident Claims Tribunal further held that respondent No.2 was not holding a valid and effective driving licence at the time of accident, as such, respondents No.1 and 2 were ordered to pay compensation jointly and severally. The case set out in the cross-objection is that the finding recorded by the learned Motor Accident Claims Tribunal that respondent No.2 was not holding the valid and effective driving licence is liable to be set aside. Mr. Ramesh Sharma, Advocate appearing vice Mr. N.K. Thakur, Advocate has strenuously argued that the learned Motor Accident Claims Tribunal has awarded the compensation at very conservative side and has over looked that the appellants have suffered multiple injuries and the amount is liable to be enhanced. He also contended that the appellant in FAO No. 130/2004 has lost two frontal teeth, fracture of jaw, fracture in left arm and lacerated wound on the occipital region of skull and pressing of vital organs like kidney and liver etc. He has strongly relied upon the MLC Ex.PW-2/B issued by PW-2 Dr. Puran Chand. He has further relied upon OPD ticket Ex.PA/3 whereby the appellant was admitted for eruption of lower front teeth. He lastly contended that as far as the appellants in 5 FAOs No. 131 and 132 of 2004 are concerned, their disability was assessed at 5% permanent and they have suffered fracture. Mr. Kartik Kumar, Advocate appearing vice Mr. B.N. Misra, Advocate has submitted that respondent No.2 was holding a valid and effective driving licence and he has relied upon National Insurance Company Limited versus Annappa Irappa Nesaria and others, AIR 2008 SC 1418 to substantiate his submission. Mr. V.S. Chauhan, Advocate has supported the findings recorded by the learned Motor Accident Claims Tribunal whereby he has absolved the insurance company from indemnifying the owner. I have heard the learned counsel for the parties and have perused the record carefully. Findings FAO No. 130/2004: Appellant Mandeep Kumar was immediately examined after the accident by Dr. Puran Chand (PW-2). He has issued MLC Ex.PW-2/B. He has found lacerated wound 7 cm x ½ cm x 4 cm on right side of head in frontal and parietal region covered with the clotted blood and swelling on lower part of left fore-arm of the appellant. His father Aswhani Kumar has deposed that the appellant was taken for treatment to PGI, Chandigarh where he remained admitted for 11 days with effect 8.10.2001 to 20.8.2001. He has relied upon discharge certificate Ex.PA/1. Ex.PA/3 is the OPD ticket of the appellant. It is evident from Ex.PA/1 and Ex.PA/3 that the appellant got treatment for eruption of lower frontal teeth. He was also treated for fracture of mandible symphysis and dental S/R emergency recovery. The learned Motor Accident Claims Tribunal has only awarded a sum of Rs. 2,500/- under the head future loss due to injuries and a sum of Rs. 2,000/- towards pain suffering. The total amount awarded to the 6 appellant is to a sum of Rs. 9,071/- as compensation for personal injuries suffered by him in the accident. The appellant was initially treated by PW-2 Dr. Puran Chand as is evident from MLC Ex.PW-2/B and thereafter he remained admitted in PGI, Chandigarh with effect from 10.8.2001 to 20.8.2001. He has lost his two frontal teeth. It is borne out from the medical evidence placed on record by the appellant that he has received mandible fracture with fracture of fore-arm. His arm was plastered and oral surgery was also performed to fix the broken jaw. He has suffered serious injuries in motor vehicle accident and is required to be duly compensated for the same. He has to live with this disability throughout his life. It was a fit case where the appellant ought to have been awarded a sum of Rs. 1,00,000/- as compensation for the injuries suffered by him in the motor vehicle accident. A Division Bench of Karnataka High Court in Kanayyalal versus Divisional Controller, Karnataka State Road Transport Corporation 2004 (I) ACJ 653 have held that the Claim Tribunal is under a legal obligation to award just, reasonable and adequate compensation to an injured. Their Lordships have held that compensation should be substantial and not merely token. Their Lordships have laid down the following factors which are to be considered by the tribunal while determining compensation for the injuries received by the claimants in the motor accidents: “Before dealing with that question, it will beneficial for us to keep in mind the principles governing determination of a just compensation contemplated under the Act. It is trite, bodily injury is to be treated as a deprivation, which entitles a claimant to damages. The amount of damages vary according to gravity of the injury sustained by a claimant in an accident. Deprivation on account of injuries sustained in an 7 accident may bring with the consequences such as, (i) loss of earnings and earning capacity, (ii) expenses to pay others for what otherwise he would do for himself and (iii) loss or diminution in full pleasures of living. Though it is impossible to equate money with human suffering or personal deprivation, the court has to make judicious attempt to award damages so far as money can compensate the loss. Such compensation is what is understood to be a just compensation. In that view of the matter, the court while considering deprivation sustained by a claimant on account of the accident should have regard to the gravity as well as degree of deprivation. The court should also have regard to the degree of awareness of the deprivation because the degree of awareness of deprivation would determine the degree of loss or diminution in full pleasures of living. It is well settled that in awarding damages in personal injury cases, the compensation awarded by the court should be substantial and it should not be merely token damages. Further, it is intended to compensate both personal loss and economic loss. Under the head of personal loss, damages for pain and suffering, loss of amenities, personal inconvenience and discomfiture, social discomfiture, as the case may be, having regard to the facts of individual case, have to be included. The pecuniary loss would include damages in respect of financial loss, past and future, such as loss of earnings, medical expenses and cost of nursing as also the loss of earning capacity where the injured is handicapped in the labour market. In addition, the damages could be recovered for loss of expectation of life where the injury is such which might result in cutting off the normal expectation of life of the injured. Since in bodily injury cases compensation goes to the injured living person, the courts have been liberal in relative terms in awarding compensation. One could clearly see from the judgments of the Apex Court and High Courts that the compensation awards are always higher than in cases 8 of death. Redressal of deprivation in living person in terms of money to the extent possible seems to be the prime concern of the courts. The said concern is in conformity with compensation and humanity, which together constitute accountability of the civilized society. It is well settled that in a personal injury case, the injured has to be compensated under the heads (1) pain and suffering; (2) loss of amenities; (3) shortened expectation of life, if any; (4) loss of earnings or loss of earning capacity or in some cases for both; and (5) medical treatment and other special damages like transportation or travelling expenses, nutrition and food, etc. While determining compensation under the above heads, the two main elements to be borne in mind are: personal loss and the pecuniary loss. Chief Justice Cookburn in Fair versus London and North Western Railway Co., *1869) 21 LT 326, distinguished the above two aspects thus: “In assessing (the compensation) the jury should take into account two things, first, the pecuniary loss (the plaintiff), sustains by accident; and secondly, the injury he sustains in his person, or his physical capacity of enjoying life. When they come to the consideration of the pecuniary loss they have to take into account not only his present loss, but his incapacity to earn a future improved income.” This Court in Rashila Ram Kaushal versus Ranjit Singh and others, 2004 (III) ACJ 1891 has held that the injured is entitled to compensation for disability suffered in the accident. His Lordship has held as under: “Whenever, in a petition filed under section 166 of the motor Vehicles Act, 1988, it comes out as an admitted fact that a person has suffered permanent disability on account of an injury caused to him by or through an accident involving a motor vehicle, whether such 9 permanent disability has a direct or indirect bearing, or it has no direct or indirect bearing, or relation, or any adverse influence on his profession, the fact remains that on account of suffering of a permanent disability the person becomes entitled to the grant of some amount of compensation. Undoubtedly, if the suffering of permanent disability results in some adverse consequences on the profession of the person injured, the compensation amount necessarily has to be higher, but that does not detract the court from awarding compensation, of course, of a lesser quantum if the permanent disability has been suffered, even though it may not have any adverse affect on the professional capability of the injured. I am saying so because suffering of a permanent disability is a physical liability which the injured has to carry for the rest of his life and for that he is to be adequately compensated. Of course, if the permanent disability has an adverse affect on the profession or occupation of the injured, apart from having to suffer for the rest of his life on account of this permanent disability, he also suffers in discharge of his professional obligations and for that additional suffering he has to be additionally compensated.” A Division Bench of Gauhati High Court in New India Assurance Company Limited versus Phelishsa Bakai and others, 2007 (IV) ACJ 2388 has upheld a sum of Rs. 1,00,000/- awarded as compensation to the claimant for the injury sustained on his right hand. Their Lordships have held as under: “By the impugned award dated 22.11.2002 passed in MAC case No.31 of 2000 the learned Tribunal has awarded in favour of the claimant Rs. 1,00,000/- as compensation for the injuries sustained by him. In this case, claimant, aged about 21 years, has been awarded Rs. 1,00,000/- as compensation for the injuries sustained on his right hand. The claimant has 10 asserted in his evidence that he sustained injuries on his right hand, remained hospitalized for about 1 ½ months and even after his discharge from the hospital, he could not attend his classes, for he could not write properly with his right hand. It is also in the evidence of the claimant that at the time of accident, he was a student of 2nd year at St. Anthony’s College, Shillong, but due to the accident, he had to stop his studies. The discharge certificate shows that the claimant was admitted to the Civil Hospital, Shillong on 25.10.1999 and had remained hospitalized till 1.12.1999, i.e. almost for about five weeks for the injuries on his right elbow. In view of the nature of injuries which claimant had sustained, the period for which he had to remain hospitalized coupled with the fact that his studies were adversely affected as a student of Bachelor of Arts, the amount of compensation awarded in favour of the claimant to the tune of Rs. 1,00,000/- cannot be said to be unreasonable and/or illegal.” Accordingly, the appellant is held entitled to a sum of Rs. 1,00,000/- as compensation for the injury received by him in the accident with interest @ 9% per annum from the date of filing the petition till the realization of the awarded amount. Consequently, the award stands modified to the extent as observed hereinabove. Cross Objections No. 248/2004: Ex. RW-2/B is a copy or registration certificate of tempo HP-36- 3533. The vehicle was registered as LMV goods carrier. It was ensured by respondent No.3 vide insurance policy Ex. RW-2/A. It was ensured for carriage of goods only. LMV Vehicle has been defined under sub-clause (21) of section 2 of the Motor Vehicles Act, 1988. EX.RW-1/A is the copy of the driving licence issued in favour of respondent No.2. He was only authorized to drive the motor cycle, motor car and jeep only. The 11 endorsement on driving licence was also to the effect entitling him to drive jeep car and motor car. He was definitely not empowered to drive the goods carrier without the endorsement to this effect in the driving licence. The question raised by respondent No.1 and 2 in the cross-objection is no more res integra in view of the law laid down by their Lordships of the Hon’ble Supreme Court in National Insurance Company Limited versus Kusum Rai and others, (2006) 4 SCC 250. Their Lordships have held as under: “It has not been disputed before us that the vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate licence therefor. Ram Lal who allegedly was driving the said vehicle at the relevant time, as noticed hereinbefore, was holder of a licence to drive a Light Motor Vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently, therefore, there was a breach of condition of the contract of insurance. The Appellant, therefore, could raise the said defence. We have noticed hereinbefore that the Tribunal has not gone into the said question. It proceeded on the basis that the case was covered by Kamla (supra). The correctness of the said decision came up for consideration before this Court in National Insurance Co. Ltd. v. Swaran Singh and Others [(2004) 3 SCC 297] wherein this Court clearly held: "The owner of a motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven except by a person who does not satisfy the provisions of Section 3 or 4 of the Act. In a case, therefore, where the driver of the vehicle, admittedly, did not hold any licence and the same was allowed consciously to be driven by the owner of the vehicle by such person, the insurer is entitled to succeed in its defence and 12 avoid liability. The matter, however, may be different where a disputed question of fact arises as to whether the driver had a valid licence or where the owner of the vehicle committed a breach of the terms of the contract of insurance as also the provisions of the Act by consciously allowing any person to drive a vehicle who did not have a valid driving licence. In a given case, the driver of the vehicle may not have any hand in it at all e.g. a case where an accident takes place owing to a mechanical fault or vis major. (See Jitendra Kumar)" In Swaran Singh (supra), to which one of us was a party, this Court noticed an earlier decision of this Court, namely, Malla Prakasarao v. Malla Janaki and Others [(2004) 3 SCC 343] wherein one of the members of the Bench, V.N. Khare, J. (as the learned Chief Justice then was) was a member. In that case, it was held: "1. It is not disputed that the driving licence of the driver of the vehicle had expired on 20-11-1982 and the driver did not apply for renewal within 30 days of the expiry of the said licence, as required under Section 11 of the Motor Vehicles Act, 1939. It is also not disputed that the driver of the vehicle did not have driving licence when the accident took place. According to the terms of the contract, the Insurance Company has no liability to pay any compensation where an accident takes place by a vehicle, driven by a driver without a driving licence. In that view of the matter, we do not find any merit in the appeal." A Division Bench of this Court in New India Assurance Company Limited versus Suraj Parkash and others, 2001 ACJ 85 has held that when the driver had only driving licence to drive scooter, motor cycle, car, jeep, LTV only, but had no endorsement to drive a public service vehicle, 13 the insurance company is exempted from its liability. Their Lordships have held as under: “The learned counsel for the appellant insurance company contended that the Tribunal committed an error in holding that the insurance company failed to prove that the vehicle in question is covered within the definition of the words ‘public service vehicle’, in spite of the fact that the Maruti van in question was registered and got insured also only as a taxi, in which case it would be beyond controversy that the Maruti van would answer the definition of ‘public service vehicle’. From the records and the reply filed by the insurance company, we find particularly in para 3 of the reply that an objection has been taken that the insurance company is not liable in view of the fact that the driver of vehicle, Maruti van HPY 251 did not possess any valid licence to drive the taxi, as a paid driver and as such no liability can be fastened on the insurer. Exh. R-3, policy of insurance (the schedule) filed disclosed that the insurance was in respect of the vehicle in question which stood registered as a taxi. If that be the factual position it would answer the description of ‘public service vehicle’ as defined in section 2 (35) to mean any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward and includes a maxicab, a motorcab, contract carriage and stage carriage. Section 3 (1) of the Motor Vehicles Act, 1988 stipulated that no person shall drive a vehicle in any public place unless he holds an effective driving licence issued to him to drive the vehicle and that no person shall so drive a transport vehicle (other than a motorcab or motor cycle hired for his own use or rented under any scheme made under section 75 (2) of the Act) unless his driving licence specifically entitled him so to do. Section 2 (47) defines transport vehicle to mean a public service vehicle, a goods carriage, an education 14 institution’s bus or a private service vehicle. Therefore, the vehicle in question answers the description of public service vehicle even on the materials closed on record. The conclusion of the Tribunal below to the contra is indicative of non-application of mind to a valid