IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAOs (MVA) No. 30 of 2008 and 173 of 2008 Reserved on: 24th October, 2008 Date of Decision:12th November, 2008 FAO (MVA) No.30 of 2008 Khallu and another Appellants Versus B.S.Chauhan and others Respondents FAO(MVA) No.173 of 2008 United India Insurance Company Appellant Versus Khallu and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. FAO (MVA) No. 30 of 2008 For the appellant: Mr.G.C.Gupta, Sr. Advocate, with Mr.Amardeep, Advocate. For respondent No.3: Mr.G.D.Sharma, Advocate. FAO (MVA) No.173 of 2008 For the appellant: Mr.G.D.Sharma, Advocate. For respondent No.1&2: Mr.G.C.Gupta, Sr. Advocate, with Mr.Deepak Gupta, Advocate. Sanjay Karol, J. The present appeals arise out of award dated 20.11.2007 passed by Motor Accident Claims Tribunal (II), Shimla, H.P. in MAC Whether the reporters of Local Papers are allowed to see the Judgment? 2 Petition No. 137-S/2 of 2004 titled as Khallu and another vs. B.S.Chauhan and others. FAO No. 30 of 2008 has been filed by the claimants seeking enhancement of compensation awarded by the Tribunal and FAO No.173 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 Khallu, father Shri Kharak Bahadur and brother of the deceased Shri Bhim Lal, under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act), claiming compensation of a sum of Rs.5.52 lacs on account of the death of Shri Bhim Lal, in the said accident. The deceased an agriculturist was having an income of Rs.3 lacs per annum. 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 Bus was wrongly mentioned in the FIR. 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 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 death of Bhim Lal? 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-51-3993 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.3, held that at the time of accident Shri Sanjay alias Sanjeev, was driving the bus in a rash and negligent manner which was 4 the cause of the accident. Shri Bhim Lal, who was travelling in the Bus died as a result of the said accident. On Issue No.5, dealing with compensation payable to the claimants the Tribunal held that as there was no evidence with regard to income of the deceased, therefore, considering his income to be equal to the wages of a labourer and taking his monthly loss of income to be Rs.4000/- (Rs.3000/- + Rs.1000/-, earnings from the agricultural produce), after deducting half of the same by applying the multiplier of ‘11’ the Tribunal determined the compensation for loss of income to be Rs.2,64,000-00. In addition thereto, a sum of Rs.20,000/- was awarded on account of loss of love and affection and Rs.2000/- on account of funeral expenses. Thus the total compensation of Rs.2,86,000-00 was awarded. Interest at the rate of 7.5% per annum was also awarded. The vehicle being insured, the liability was fastened upon the Insurance Company. Mr.Gupta, learned counsel for the claimant has argued that the Tribunal erred in taking the income of the deceased on the lower side. In any event, the multiplier applied was much on the lower side and further also the compensation towards the head of non-pecuniary damages ought to 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 5 vehicle in question was being driven by Shri Sanjay and not Shri Man Singh. I have heard the learned counsel for the parties and also perused the record. The owner and the driver have chosen not to appear in the present proceedings. Moreover, the driver was even ex parte before the Tribunal. There is no dispute that on the ill-fated day the deceased was travelling in the bus and died in the accident in question. In support of their claim, claimant No.1 Shri Khallu examined himself as PW-1, Shri Rajesh Kumar (PW-2), Shri Laxmi Singh (PW-3) and Sh. Liaq Ram (PW-4). In rebuttal, the respondent-owner examined himself as RW-1. The Insurance Company examined its witness Shri Khem Chand as RW-2, Smt. Shashi Saini (RW-3), Shri Om Parkash Puri, Senior Motor Vehicle Inspector (RW- 4), Shri Khem Chand (RW-5), Shri Man Singh (RW-6) and Shri Dhaninder Singh (RW-7). Shri Sanjay was driving the bus at the time of the accident is evident from the record. PW-2 who was also travelling in the ill-fated bus at the time of accident has deposed that the bus was being driven by Shri Sanjay. RW-1 has also deposed that Shri Sanjeev, also known as Sanjay employed by him was driving the bus on the date of the accident. He denied that it was Man Singh, who was driving the bus in question and Man Singh as RW-6 has himself stated that it was Sanjay who had been driving the Bus at the time of accident. 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 6 statement of said Man Singh (the alleged driver) and 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 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 7 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 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. I find no reason to interfere with this finding of the Tribunal. 8 From the statements of PW-1, PW-2 and PW-3, it is evident that the deceased died in the accident. PW-1 has deposed that his son, aged 19 years, was working for Shri Laxmi Singh and earning about Rs.10,000/- per month. He further deposed that he was dependant upon his son and there is no one to look after him. PW-3, who is owner of 20 bighas of cultivable land, has supported his version to the effect that deceased was working with him on payment of half of produce. It is true that his statement is not supported by any proof of any documentary evidence but it has come in his evidence that the deceased was working in his fields. However, the statement of PW-1 with regard to the income of deceased cannot be totally believed for the reason that no documentary proof has been produced either by PW-1 or PW-3. 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 deceased undisputably was working with PW-3 in his fields. He was not a labourer. As such, the Tribunal has rightly arrived a figure of Rs.4000/- per month as far as income of the deceased is concerned. Judicial notice can be taken of the fact that in the year 2004 even an unskilled labourer was entitled to daily wages at the rate of Rs.75/- per day. On question of multiplier, it is to be noticed that as on the date of accident, deceased was 19 years of age and the claimant No.1 is totally dependant upon him. The Apex Court in Savita Sharma and others vs. Union of India/Chandigarh Administration and another, 2008 ACJ 2032, while dealing with a case of an Ayurvedic doctor, aged 53 years, where the High 9 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. In Sunil Kumar vs. Ram Singh Gaud and others, 2008 ACJ 9, the Apex Court where a person aged 29 years suffered 49% permanent disability, the Apex Court applied the multiplier of ‘18’ and in New India Assurance Co. Ltd. vs. Charlie and another, (2005) 10 SCC 720, the Apex Court while dealing with a case of an injured claimant, aged 37 years applied the multiplier of ‘18’. 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, multiplier needs to be enhanced. 10 Keeping in view the age of the deceased and the claimant, in my view adopting a multiplier of ‘13’would be just and fair. Thus, by applying the multiplier of ‘13’, the claimants entitlement to compensation would be Rs.2000 x 12 x 13 = Rs.3,12,000-00 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.” In Rashila Ram Kaushal vs. Ranjit Singh and others, 2004 ACJ 1891, this Court while dealing with a case of teacher, who suffered permanent disability of 20% awarded Rs.37,000/- under the head of permanent disability. 11 The father has been deprived of love and affection of his son. In my view instead of Rs.20,000/- awarded by the Tribunal towards loss of love and affection, a consolidated sum of Rs.50,000/- is awarded under all heads of non-pecuniary damages. Further, in the matters arising out of the same accident, as referred to above, the Tribunal below has awarded Rs.5000/- towards funeral charges, therefore, in the present case the amount of Rs.2000/- is increased to Rs.5000/- . Claim qua the minor brother of the deceased has been rightly rejected by the Tribunal. For the foregoing reasons, the appeal of claimant No.1 is allowed and the appeal filed by the Insurance Company is dismissed. Needless to point out that the Tribunal has rightly held claimant No.2 not entitled to any amount. The claimant No.1 is entitled to the following amount of compensation alongwith interest @ 7 ½ % per annum, as apportioned by the Tribunal:- Loss of income : Rs.3,12,000-00 Loss of love and affection and all other heads of non-pecuniary damages Rs. 50,000-00 Funeral charges Rs. 5,000-00 Total: Rs.3,67,000-00 However, there shall be no order as to costs. Pending application, if any, is also disposed of. 12th November, 2008 (Sanjay Karol), (C) Judge. 12