IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No._424 of 2003. Judgment reserved on: 2.6.2008 Date of decision: 4.6.2008 Baldev Dass Sharma …….Appellant Vs. Nand Lal & others …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. Ashwani K. Sharma, Advocate. For the Respondents : Mr. T.S. Chauhan, Advocate, for respondents No.1 & 2. Mr. B.M. Chauhan, Advocate, for respondent No.3. Kuldip Singh, Judge. The claimant No.1 has come in appeal for enhancement of compensation against the award dated 5.6.2003 passed by Motor Accident Claims Tribunal, Bilaspur in M.A.C. Case No.90 of 2001, awarding Rs.1,25,000/- compensation to the claimant No.1, with a direction to respondents No.1 to 3 to deposit the award amount within two months from the date of award, failing which simple interest at Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… the rate of 9% per annum from the date of award was also held payable. 2. The facts in brief are that appellant and proforma respondent No.4 filed claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short Act), claiming Rs.5,00,000/- compensation on account of damage to the house and other articles in an accident on 15.4.2001 involving truck bearing registration No.HIB-4106. 3. The further case of the appellant and proforma respondent No.4 is that they were owners in possession of house situate in the revenue estate Bhatwara, Pargana Ajmerpur, Tehsil Ghumarwin, Distt Bilaspur. On 15.4.2001 at about 9.45 PM, the respondent No.2 had driven truck HIB-4106 in a rash and negligent manner with the result the truck went off the road and struck against the rear wall of the katcha house of the appellant and proforma respondent No.4. Due to the impact of the truck the rear katcha wall of the house had collapsed and house hold goods valuing Rs.61,796/- were damaged. The respondent No.1 was the owner and respondent No.3 was the insurer of the truck. 4. The respondents No.1 & 2 contested the claim, they admitted the ownership of the truck and the fact that the respondent No.2 was driving the truck on 15.4.2001 at about 9.45 PM. It has been denied that respondent No.2 was driving the truck at that time in a rash and negligent manner. It has …3… been pleaded that brakes of the truck failed suddenly, with the result truck struck against the tree and then touched the house of the appellant and proforma respondent No.4. It has been submitted that the house had suffered no damage. The respondent No.3 had also contested the claim petition but admitted that truck was provided with insurance cover by the insurer at the time of the accident. It has been pleaded that liability of the insurance was only to the extent of Rs.6,000/- to third property damage. The driver was not holding valid and effective driving licence. The truck was not having valid registration and fitness certificate. The insurer denied the liability to indemnify the respondents No.1 and 2. The learned Tribunal held that the house was damaged due to rash and negligent driving on the part of the truck HIB-4106 and ultimately awarded Rs.1,25,000/- to the appellant with conditional interest as notice above. In these circumstances, the appellant-claimant No.1 has come in appeal. 5. I have heard Mr. Ashwani K. Sharma, learned counsel for the appellant and Mr. T.S. Chauhan, learned counsel for the respondents No.1 & 2 and Mr. B.M. Chauhan, learned counsel for respondent No.3 and gone through the record. It has been submitted on behalf of the appellant that learned Tribunal has awarded less compensation on account of damage to the house and house hold goods due to accident of truck bearing registration No.HIB- 4106 on 15.4.2001. He has …4… submitted that no compensation has been awarded for the goods lying in the house. The interest awarded by the learned Tribunal is conditional and is not in accordance with law. The learned counsel for the respondent No.3-insurer has submitted that appellant is not entitled to any further enhancement of the compensation. He has submitted that learned Tribunal was liberal in awarding the compensation to the appellant. 6. PW-1 Baldev Dass has stated that on 15.4.2001 truck bearing registration No.HIB-4106 struck against the rear wall of his house, as a result of which that wall collapsed and truck entered in the house. In the accident whole of the house was damaged and articles mentioned in para-11 of the petition were destroyed and he suffered a loss of Rs.61,796/- on account of damage to the goods lying in the house and loss of Rs.2,30,900/- for damage to the house. He has placed on record vouchers Ex.P-1 to Ex.P-4. He has also stated that now his house is not fit for habitation and he has taken on rent house from Prem Lal on 18.4.2001 at the rate of Rs.1000/- per month. In cross-examination he has stated that at the time of accident he was posted as teacher at Barotiwala. The house was constructed 30 years ago. He has also admitted that in Ex.P-10 debris shown is of raw bricks and mud. He has also admitted that the damaged goods of the house have not been shown in the photographs, but volunteered that such goods were lying under the debris. …5… 7. PW-2 Krishna Devi has stated that truck entered the house after breaking the wall and whole of the house was damaged. In the accident the goods such as TV, Fridge, Juicer and beds etc. were destroyed. The roof of the upper storey had fallen down. She has not stated that PW-1 Baldev Dass has taken on rent house of Prem Lal since 18.4.2001 at the rate of Rs.1000/- per month. PW-3 Prem Lal has stated that house hold articles of about Rs.60,000-70,000/- of Baldev Dass were damaged due to truck accident and the loss to the house is of about Rs.3,00,000/-. He has also stated that he had rented out two rooms and one verandah to Baldev Dass on 18.4.2001 at the rate of Rs.1000/- per month. In cross-examination he has stated that he does not issue any receipt in token of having received the rent. He has stated that Baldev Dass is employed near Nalagarh and his children are also studying there. PW-4 Jagdish Chand has stated that he took photographs Ex.P-5 to Ex.P-13 and out of them photographs Ex.P-8 to Ex.P-13 were taken when the truck was taken out. In cross-examination he has stated that photographs were taken on 16.4.2001. He has stated that the debris in the house was of mud. Only one room was damaged and in other portion big cracks had developed. He has stated that he has not taken any photographs of the cracks of the house and the articles which were lying under the debris. …6… 8. PW-5 Sanjeev has prepared site plan Ex.PW-5/A and estimate Ex.PW-5/B. He has stated that he had not seen the old house. RW-1 Deepak Sood has prepared assessment report Ex.RW-1/A with details of measurement and drawings, copies Ex.RW-1/B, Ex.RW-1/C, photographs Ex.RW-1/D-1 to Ex.RW-1/D-13. He has stated that he has carried out the inspection on 16.4.2001 and on 19.4.2001. According to him the damage was to the extent of Rs.14,215/-. In cross- examination he has stated that he has cleared diploma in mechanical engineering. Thereafter he did AMIE from institution of Engineers, Calcutta in the field of mechanical engineering. He has completed only part-1 of AMIE. 9. Ex.P-15 is the FIR registered at the instance of Smt. Krishani Devi regarding accident. It has been stated in the FIR that truck HIB-4106 came from Gandawali side and struck against the house of Baldev Dass, causing heavy damage to the house. The accident had taken place due to rash and negligent driving of the driver who was also injured. The accident took place at about 8.45 PM on 15.4.2001 and FIR was registered at 3.30 PM on 16.4.2001. In the FIR there is no mention of loss or damage to any house hold articles of Baldev Dass. 10. The appellant has produced vouchers Ex.P-1 to Ex.P-4, these are of the period from 11.3.1988 to 4.11.1995 and are of colour television, 25 liters Geyser, Mixi, Iron and some cosmetics. PW-1 has admitted that at the time of accident he …7… was posted at Barotiwala. PW-3 Prem Lal has stated that children of Baldev Dass were studying at the place of posting of Baldev Dass near Nalagarh. PW-1 has admitted that in photograph Ex.P-10 debris shown is of mud. In the photographs which were produced by the appellant and were taken from different angles, no items as mentioned in para-11 of the petition, have been shown. PW-1 has stated that his damaged goods were lying under the debris. He has not stated that such goods were recovered later on after removing debris. The appellant has not produced any evidence that articles mentioned in para-11 of the petition were recovered in damaged condition later on. It is not the case of the appellant that he and his family used to frequently visit his village and therefore, he had kept the house fully furnished with modern gadgets. In absence of this plea, it is not believable that the appellant had kept costly goods in his house in the village when he and his family were living at Barotiwala. PW-3 Prem lal has stated that only one room was damaged and in the other portion of the house big cracks had developed. The appellant had not put forward the case that his all costly items mentioned in para-11 of the petition were kept by him in one room. The appellant has miserably failed to prove that he had kept articles mentioned in para-11 of the petition in the house and such articles were damaged in the accident. PW-2 has stated that roof of the upper storey had fallen down due to accident but the photographs …8… produced by the claimant show that the roof of the house was intact and only a part of the wall had broken down due to the impact of the truck. The appellant has failed to prove the damage to articles lying in his house. 11. The appellant-claimant has produced PW-5 Sanjeev in order to prove damage to the house. PW-5 Sanjeev has proved plan Ex.PW-5/A and valuation estimate of the house of Baldev Dass. In his statement as PW-5, he has not elaborated Ex.PW-5/B. The appellant has thus failed to prove actual loss of his house from Ex.PW-5/A, Ex.PW-5/B and other evidence on record. The learned Tribunal was liberal when he awarded Rs.1,25,000/- compensation to appellant on account of damage to the house. The appellant-claimant has failed to make out any case for enhancement of compensation against impugned award. However, there is substance in the submission of learned counsel for the appellant-claimant that the learned Tribunal has not awarded interest in accordance with law. The learned Tribunal in the impugned award has awarded conditional interest and that too from the date of award. The appellant-claimant is entitled to the interest at the rate of 9% per annum on the award amount of Rs.1,25,000/- from the date of institution of the petition i.e. 30.8.2001 till realization and therefore, to this extent the impugned award requires modification. 12. No other point was urged. …9… 13. The result of the above discussion, the appeal is partly allowed and impugned award is modified. The appellant- claimant No.1 is held entitled to Rs. 1,25,000/- compensation along with interest at the rate of 9% per annum from the date of institution of petition i.e. 30.8.2001 till payment. The truck was insured with respondent No.3-insurer, therefore, award amount along with interest shall be paid by respondent No.3-insurer to appellant-claimant No.1. No order as to costs. ( Kuldip Singh) Judge June 4 , 2008(sks)