IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO(MVA) No.236 of 2005 with FAO(MVA) No.461 of 2005 Decided on: 20.11.2009 FAO No.236 of 2005 Sh.Rajeshwar Singh …..Appellant. VERSUS State of Haryana and others …..Respondents. FAO No.461 of 2005 National Insurance Company Ltd. ….. Appellant VERSUS Rajeshwar Singh and others ….. Respondents _____________________________________________________ Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1No For the Appellant: S/Sh..Lokinder Pal Thakur and T.S.Chauhan, Advocates for the claimant. For the Respondents: Ms.Devyani Sharma, Advocate, for National Insurance Company. Mr.Ajay Sharma, Advocate for respondent No.1 in FAO No.236 of 2005. Ms.Sunita Sharma,Advocate for respondents No.2 and 3 in FAO No.461 of 2005. 1 Whether the reporters of the local papers may be allowed to see the Judgment?es …2… Deepak Gupta,Judge (Oral) These two appeals are being disposed of by this common judgment since they arise out of the same award. Briefly stated the facts of the case are that the claimant Rajeshwar Singh filed a Claim Petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the ‘Act’). In this petition, he alleged that on 24.7.2002 at about 4.15 p.m. he was driving his car No.CH-03-9593 from Chandigarh to Shimla. Near Kiari Bungalow, a bus No.HR-37-8809 belonging to Haryana Roadways, being driven by Om Parkash and insured with the National Insurance Company came from the other side. It is alleged that this bus was being driven rashly and negligently. It struck the car and as a result of this, the car fell below the road. The petitioner suffered injuries resulting in fractures to his left leg and ribs. The petitioner was referred to and treated at IGMC, Shimla. He claimed Rs.43,25,000/- as compensation. The Claim Petition was contested by the Haryana Roadways, Driver and National Insurance Company. After trial, the learned Motor Accidents …3… Claims Tribunal (II), Solan has awarded Rs.3,75,000/- in favour of the claimant. The Insurance Company had obtained permission under Section 170 of the Motor Vehicles Act to contest the claim petition vide order dated 7.1.2005 and is, therefore, entitled to contest the petition on all grounds. Both the claimant as well as Insurance Company being aggrieved by the aforesaid award of the Tribunal have filed the present appeals. I have heard Sh.Tara Singh Chauhan, learned counsel for the claimant and Ms.Devyani Sharma, learned counsel for the Insurance Company. It has been urged on behalf of the Insurance Company that the Tribunal has erred in holding that the accident occurred due to the rash and negligent driving of the bus driver. It is contended that in fact the claimant while driving his car was talking on the mobile phone and the accident occurred due to the negligence of the claimant itself. The claimant has examined itself and the respondents have also examined the driver of the bus. No other witnesses have been examined by either side. The FIR was lodged against the driver of the bus and it is also …4… apparent from the evidence on record that the bus struck the car with great force and thereafter the car was pushed back and rolled down into the Khud. This indicates that bus was at a higher speed. The FIR Ext.PW/5 was lodged immediately after the accident and in this FIR, it was alleged that the accident took place due to the rash and negligent driving of the bus driver. According to the driver of the bus, the claimant was trying to overtake some other vehicles but this was not the case put up by the respondents in the reply to the claim petition. Keeping in view all these factors into consideration, the finding of the learned Tribunal in so far as the issue of rash and negligent driving is concerned is upheld. As far as quantum is concerned, the Tribunal has awarded a total amount of Rs.3,75,000/- under the following heads:- Pecuniary damages (i) Expenditure on medical treatment Rs.40,000/- (ii) Expenditure on diet supplement Rs.20,000/- Non-pecuniary damages (iii) Expenditure on attendant & Transportation Rs.50,000/- …5… (iv) pain, suffering and shock Rs.40,000/- (v) Loss of amenities of life Rs.50,000/- (vi) Loss of future income Rs.1,75,000/- Total Rs.3,75,000/- It is apparent that the Tribunal has not even understood the meaning of pecuniary and non- pecuniary damages. Expenditure on attendant and transportation is a pecuniary damage and not a non- pecuniary damage. Similarly, the loss of future income is also a pecuniary damage but the learned Tribunal has classified them as non-pecuniary damages. There is not much dispute with regard to the expenses on medical treatment since there are supported by the medical evidence on record. However, with regard to dietary supplement, there is no cogent evidence on record. Even in respect of the attendant and transportation, the learned Tribunal has awarded Rs.50,000/- without discussing any evidence whatsoever. In respect of loss of future income, the award of the Tribunal is totally non-speaking. All that is stated is that since the petitioner has suffered 52% disability and in view of the earning of the petitioner, it …6… is just and reasonable to hold that the petitioner has suffered a loss of income to the tune of Rs.1,05,000/-. Assessment of damages must be made on the basis of evidence led on record. It is true that the Apex Court as well as this Court have a number of times said that in case the evidence is not precise, some measure of estimation can be resorted to but this must be calculated estimation on the basis of the material on record. The award must flow out of the evidence placed on record. Compensation cannot be assessed at the whims and fancies of the Tribunal. The Tribunal while calculating the compensation under every head must give reasons for doing so. It cannot just arrive at a fanciful figure whether low or high and say that this is just and reasonable. With regard to the dietary supplement, Dr.Manoj Thakur is the only doctor who has spoken about the need for special diet. We must remember that the claimant was a retired Colonel from the army. He does not belong to that strata of society whose normal diet is a low nutritional diet and, therefore, they have to be put on a special diet on account of injuries. A retired Colonel of the Indian …7… army or persons belonging to this strata would eat fruits and drink milk in the normal course. It is not that they cannot afford such a diet. In the case of a poor person, the Court may presume that his normal diet would not include such supplements which are necessary for his proper rehabilitation after injury but this is not true in the case of person belonged to the upper middle class. These aspects must be kept in mind by the Tribunal while decide such matters. Dr.S.R.Thakur, does not say a word whether he had recommended any special diet or not. Dr.Manoj Thakur has stated that dietary supplement is necessary for improvement of the knee joints and that such supplements costs between Rs.2000/- to Rs.3000/- per month but there is no proof of such supplements having been purchased or utilized by the claimant. The documents which have been produced for the medicines purchased has already been granted to the petitioner under the heading of medical expenses. Glucosamine is a medicine and if it had been prescribed, the claimant would have been compensated for the same. Therefore, the claimant is not entitled to any amount under this head. …8… While granting medical expenses, the Tribunal has not at all taken into consideration the statement of Dr.Manoj Thakur, PW/8 with regard to the future expenses. Future expenses cannot be quantified in precise terms but this witness clearly deposed that the problem of the petitioner in all probability is likely to aggravate in future and his disability is more than likely to increase with the passage of time. He has also stated that after 5 to 10 years, the petitioner may require replacement of the knee joint and the estimated cost of such a procedure would be between Rs.46,000/- to Rs.1,00,000/-. At that time, the petitioner would also require special supplementary diets. In cross-examination this witness has stated that it may also be true that in this particular case, knee transplant surgery may not be required in future. Thus though it cannot be said with certainty that the petitioner would require such surgery, it is apparent from the statement of this witness that the disability of the petitioner is bound to increase over a period of time. Therefore, the petitioner would require constant treatment and keeping in view all these factors especially the high …9… cost of the knee joint surgery, it would not be unjust to award Rs.50,000/- on account of future medical expenses. Coming to the attendant and transportation charges, the petitioner led evidence of PW/4 Shaitan Singh who has stated that he was engaged by the petitioner at a salary of Rs.2000/- per month plus boarding and lodging to look after the petitioner and has been paid Rs.25,000/- in all. The petitioner states that he came to Shimla 20 to 22 times for consultation with Dr.S.R.Thakur. Dr.S.R.Thakur has not said a word as to how many times he treated the petitioner. Dr.Manoj Thakur has said that the petitioner met him off and on but the petitioner has not led an iota of evidence, other than his bald statement, to show that he visited Shimla as many as 20 to 22 times in between two operations. The petitioner should have led some evidence at least to show that he remained under treatment and visited the hospital at Shimla regularly. This Court can take judicial notice of the fact that in a government hospital, a discharge card is issued showing the period of hospitalization and …10… whenever the patient visits the hospital again, the doctor makes an entry on the same or in the continuation sheets added to such cards. No such discharge certificate or other record has been produced with regard to the visits of the petitioner to the hospital at Shimla. It is in the light of this evidence that these issues have to be decided. The petitioner remained in hospital for about one month. He has to be compensated even for the gratuitous services rendered by his family members. When the petitioner was in hospital, in addition to Sh.Shaitan Singh, at least one or two members of his family must have looked after him. Keeping in view the fact that he belongs to the upper middle class his family members would require boarding and lodging expenses, it would not be unreasonable to assess the attendant expenses of such a person at Rs.250 per day for each attendant i.e. Rs. 500/- per day for two attendants. Therefore for the attendant charges in the hospital, the petitioner is entitled to Rs.15,000/-. In addition thereto, the petitioner admittedly remained under plaster for a long time and if attendant charges are conservatively …11… taken at Rs,2500/- per month for two more months, the petitioner is entitled to Rs.5000/-. The petitioner is, therefore, entitled to Rs.20,000/- for attendant charges. The petitioner must have taken an Ambulance from Shimla to Chandigarh and has visited Shimla at least thrice if not more and it would, therefore be just and reasonable to award him Rs.2500/- for each visit and if four visits are taken, Rs.10,000/- is awarded to him for transportation and other incidental charges. The main dispute is with regard to the loss of future income. I am constrained to observe that the learned Tribunal has given no reason whatsoever for assessing loss of future income at Rs.1,75,000/-. The Court while arriving at a figure must give its reasons as to why it has arrived at a particular figure of compensation. If reasons are given then the higher Court can properly adjudicate as to whether such reasons are proper or not. Coming to the facts of this case, the claimant injured was a retired Colonel from the army. According to him he had sought discharge from the …12… Army since he wanted to pursue his business career. He then took up a distributorship of Amway products. According to him, he was in the process of developing this business of distributorship of Amway products when he met with an accident. In his evidence, he has alleged that he was earning commission of approximately Rs.40,000/- per month in addition to the pension of Rs.11,000/- per month which he was getting from the army. He has further deposed that for one year, he could not work and he has assessed his loss to the business at Rs.15 lacs, out of which Rs.4,80,000/- is for the current year and Rs.8 lacs for future loss of income. Unfortunately, the petitioner did not produce any record of the income tax returns filed by him for the period prior to or after the accident. What is the loss of income, if any, suffered by him was for him to prove. It would not be true to say that he was out of work for 10 months. He was hospitalized for one month when he obviously could not have worked. He was thereafter discharged from the hospital. After discharge from the hospital it can be presumed that he may not have worked for two months but thereafter he would have started slowly coming back …13… to his normal life. The second operation was only to remove the screws and the bolt inserted in his leg while performing the first operation. It is in the light of these factors that this compensation has to be assessed. The learned Tribunal has not granted even a single paisa to the claimant for the actual loss of income. The petitioner even if he did not remain out of work for one year, as claimed by him, at least could not have worked for three months on the basis of the evidence led on record. PW/6 Bimal Kumar has stated that the claimant had received a commission of Rs.37090/- for the month of June, 2002, Rs.28471/- for the month of July, 2002 and Rs.41212/- for the month of August, 2002. In cross examination, he admits that he has arrived at these figures on the basis of the record which is in the custody of the petitioner. It has been urged by the Insurance Company that no reliance can be placed on the statement of this witness, with regard to the extent of commission being earned by the claimant. The claimant had deposed that he was earning commission of Rs.40,000/- per month. This …14… witness has supported him. It may be true that his statement is based on the record of the petitioner but it is nowhere the case of the Insurance Company or the claimant that the claimant is not working at all. He is an ex-service army officer who has gone into the business and it is quite obvious that such a person would not go into the business where his income would be less than Rs.30,000/- per month. Out of the commission, the petitioner must be spending some amount for entertainment and office expenses etc. so his income is assessed Rs.25,000/- per month from the Amway business. Therefore, even if a conservative figure is taken, his income from commission can be taken to be at least Rs.25,000/- per month on the basis of the evidence produced. We must also remember that the work being done as Amway Distributor is one where the petitioner was required to motivate people and when such a person sells the products, some commission would accrue to the petitioner. He was not directly selling the products. This Court has come to the conclusion that the petitioner remained out of work for three months. …15… He has to be paid for the loss of income which he actually suffered even though he may have got commission. If he was not working, his future commissions for the said period would come down and, therefore, he has to be awarded Rs.75,000/- under the head of actual loss of commission. Coming to the future loss of income, as discussed above, the petitioner has suffered 52% disability which is in relation to his left leg and rib. It is also proved in evidence that the petitioner can drive since Shaitan Singh states that he accompanied the petitioner to the Court in the car being driven by the petitioner. The doctors in their evidence have also not clearly indicated as to what work the petitioner can do and what he cannot do. Therefore, this portion of the loss has to be assessed accordingly. The petitioner is suffering from a disability and he cannot walk like a normal human being. This will definitely to some extent affects his business. Though there can be no precise estimate as to what would be the percentage of loss, the same has to be estimated to calculate the loss suffered by him. …16… Just because the petitioner’s total disability is 52% in relation to his left leg and rib, it would not be necessary to hold that the earning capacity of the petitioner may have decreased by this percentage. Keeping in view the nature of work of the petitioner and the disability suffered by him, his loss of earning capacity is estimated at about 5%. Therefore, his loss from the commission is assessed at 5% of Rs.25,000/-, i.e., Rs.1250/- per month or Rs.15,000/- per year. Keeping in view the fact that the petitioner was about 50 years of age, I feel that a multiplier of 12 would be reasonable. He is awarded Rs.1,80,000/- for estimated future loss of income. Coming to the non-pecuniary damages, the petitioner has been awarded Rs.40,000/- for pain, suffering and shock which in my opinion is reasonable. However, the amount awarded for loss of amenities of life in my opinion is on the lower side. The learned Trial Court has not taken into consideration the fact that the petitioner’s disability is likely to increase in the future. We are dealing with an ex-serviceman who is used to live an active life. Loss of activity can itself be the root of many other problems. Keeping in view the …17… aforesaid factors and also taking into consideration the statement of Dr.Manoj Thakur that in future the disability of the petitioner is likely to increase further, I think the reasonable amount to be awarded for loss of amenities of life and future discomfort should be assessed at Rs.75,000/-. Coming to the quantum of interest, Ms.Devyani Sharma, learned counsel for the Insurance Company has drawn my attention to the law laid down by the Apex Court in R.D.Hattangadi Vs. Pest Control (India) Pvt. Lrd. And others 1995(1) ACJ 366 wherein the Apex Court held as follows:- “So far the direction of the High Court regarding payment of interest at the rate of 6 per cent over the total amount held to be payable to the appellant is concerned, it has to be modified. The High Court should have clarified that the interest shall not be payable over the amount directed to be paid to the appellant in respect of future expenditures under different heads. It need not be pointed out that interest is to be paid over the amount which has become payable on the date of award and not which is to be paid for expenditures to be incurred in future. As such we direct that appellant shall not be entitled to interest over such amount.” …18… It is thus obvious that for what was payable in the future and is being paid to the claimant should either not be awarded interest or the interest should be awarded at a lower rate. Keeping in view all these factors into consideration, I feel that the interest of justice will be served if taking into consideration all these factors future interest is awarded @ 6% per annum on the entire awarded amount and not 9% per annum which this Court normally award in such cases. Keeping in view the aforesaid discussion, the petitioner has awarded the following amount:- Pecuniary damages (i) Expenditure on medical treatment Rs.40,000/- (ii) Estimated future medical expenses Rs.50,000/- (iii) Attendant charges Rs.20,000/- (iv) Transportation charges Rs.10,000/- (v) Actual loss of income Rs.75,000/- (vi) Estimated future loss of income Rs.1,80,000/- Non-pecuniary damages (vii) pain, suffering and shock Rs.40,000/- (v) Loss of amenities of life Rs.75,000/- and future dis-comfort Total Rs.4,90,000/- …19… In view of the aforesaid discussion, FAO No.461 of 2005 filed by the Insurance Company is dismissed and FAO No.236 of 2005 filed by the claimant is allowed and the compensation awarded to the claimant is enhanced from Rs.3,75,000/- to Rs.4,90,000/-. The claimant shall be entitled to interest on this entire amount @ 6% per annum from the date of filing of the claim petition till realization/deposit of the amount. The Insurance Company is directed to deposit the enhanced amount in the Registry of this Court within twelve weeks from today. No order as to costs. November 20, 2009 ( Deepak Gupta ) (m) Judge.