F.A.O.NO. 1346 OF 2007 and 1 F.A.O.No. 1347 of 2007 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O.NO. 1346 OF 2007 Date of decision:12th August, 2010 The New India Assurance Company Limited .......Appellant Versus Naresh and others ........Respondents F.A.O.No. 1347 of 2007 The New India Assurance Company Limited ........Appellant Versus Ranju and others ........Respondents BEFORE: HON'BLE MR. JUSTICE K.KANNAN Present: Ms. Vandana Malhotra, Advocate, for the appellant. Mr. Rajesh Sethi, Advocate, for the claimants. Mr. P.S.Jammu, Advocate, for the owner and the driver. 1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No 2. To be referred to the Reporters or not?Yes/No 3. Whether the judgment should be reported in the Digest? Yes/No K.Kannan, J.(Oral) 1. Both the appeals are by the insurer on the question of liability and the quantum. Learned counsel appearing for the Insurance Company would contend that an application under F.A.O.NO. 1346 OF 2007 and 2 F.A.O.No. 1347 of 2007 Section 170 of the Motor Vehicles Act(hereinafter referred to as the 'Act') had been filed before the Tribunal but no order has been passed. Permission under Section 170 of the Act definitely has a bearing to ascertainment of compensation regarding the quantum and the issue of negligence but I see in spite of the fact that such permission had not been expressly accorded, the Insurance Company has had the benefit of cross examination of witnesses on every aspect relating to the determination of claim by the Tribunal. I therefore, treat the case as one where the insurer would have a right to defend the case on all grounds and if it has not been expressly stated by the Tribunal it was an irregular exercise of jurisdiction. It does not vitiate the proceedings itself and I have therefore, allowed the learned counsel to urge in appeal every aspect relating to the accident beyond the scope of Section 149(2) of the Act. 2. As regards the contention that the Insurance Company is not liable at all, there are reasons. Principally, the injured and the deceased who were involved in the accident were travelling as gratuitous passengers in a goods carriage and therefore, there was no insurance cover available to them to make the insurer liable. This contention was at the trial and the Tribunal found the respective claimants' entitlement by the reasoning of the Tribunal that the deceased was a cleaner-cum-alternate driver and the injured was the representative of the owner who was carrying the goods in the vehicle. As regards the contention that the injured was the representative of the owner, the alleged owner of the F.A.O.NO. 1346 OF 2007 and 3 F.A.O.No. 1347 of 2007 goods had been examined. In this case, PW-4 had given evidence to the effect that he had authorised the injured person to transport Basmati Rice through the vehicle to Amritsar and collect sand from Amritsar on retrun to the Rania. This evidence was subjected to cross examination to the effect that there was neither any record to show from the register maintained by the owner that Basmati Rice had been taken from their partnership business and transported to Amritsar nor was there any document to show that sand was procured elsewhere and brought back by the goods carriage. For the non production of records, the alleged owner of the goods gave evidence to the effect that the records were destroyed once in three months and therefore, he was unable to produce the fact that Basmati Rice had been transported and he had authorised the injured person to load sand to bring back from Amritsar to Rania. 3. These contentions, attractive as they seem, I would rather rest on the reasoning of the Tribunal then take an independent appraisal when a witness states that documents are not available, it will be begging the question to contend that since documents have not been produced the contention cannot be true. It could have been just possible for a Tribunal to say that he found the witness PW-2 as unreliable. In the matter of appraisal of evidence when the Tribunal had benefit of examining him in Court, then it shall be a sure guide for an Appellate Court to act on such assessment. If there was evidence available which was relied, I do not feel constrained to take a different view F.A.O.NO. 1346 OF 2007 and 4 F.A.O.No. 1347 of 2007 merely because another view is also possible. I therefore, uphold the finding of the Tribunal that at the relevant time the insured had been authorised by the owner of the goods to transport the same and the fact that there are no documentary evidence for such transportation, in my view, is not very material to discredit the evidence by the witnesses. 4. Learned counsel for the insurer relied on the judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd. Versus Cholleti Bharatmma and others (2008) 1 SCC 423 which held that death of a person who was a gratuitous passenger in a goods carriage cannot make an insurer liable. The point is well taken as a proposition of law but in my view it has no bearing to a case where the attempt was to prove that he was not a gratuitous passenger but he was a representative of the owner of the goods travelling along with the goods. Such a person is required to be compulsorily covered by a policy of insurance under Section 147 of the Act. I therefore, confirm the finding of the Tribunal relating to the issue of liability of the insurer. 5. It is also strongly contended that the driver did not have a valid driving licence. In this case a Local Commissioner had been appointed to inspect the records of the Licencing Authority. The Licence No. of the driver was said to be 14277. The report revealed that in the register there were no entries from 14237 to 14287. The Local Commissioner therefore inferred that it must have been fake. The evidence of the clerk F.A.O.NO. 1346 OF 2007 and 5 F.A.O.No. 1347 of 2007 who maintained the records was also taken in the presence of the counsel for both sides. A specific question was asked to her whether she could say the particular licence which was produced was fake to which she could not answer and in the evidence, she was not in a position to explain why there were blank entries as for over 15 numbers. A blank entry, if any, had been made against the number in favour of anyone else, it shall be possible to say that the licence was fake. If there had been no entries at all and the clerk was not able to confirm or give reason as to why there had been blanks left and she could also not deny a suggestion that the licence issued against no. 14277 was not fake then it must only be taken that the insurer had not established that the driving licence was fake. The defence as regards the award of proper driving licence therefore, also falls. 6. As regards the quantum, the Tribunal had before it the evidence of the Doctor who had examined the injured/claimant and he had also issued a certificate. The claimant was reported to be a manual worker and in evidence, the doctor had assessed the disability to be at 48%. Doctor was examined as PW-3 who gave evidence to the effect that the fracture had resulted in non-union of both the bones in the leg which resulted in stiffening of ankles and at the knee. The range of movement on the right knee was subjected to be mere 5 to 10 degrees and if it had been reduced so drastically, the doctor gave evidence that he could walk only with discomfort, only with crutches. He had also given evidence to the effect that he would F.A.O.NO. 1346 OF 2007 and 6 F.A.O.No. 1347 of 2007 not be able to drive any Motor Vehicle or any other vehicle or cycle etc., he had also suggested that he must be having pain due to non-union of bones and the disability itself could increase or decrease to an extent of 2 to 3 percent. I have no doubt in my mind that the disability was very serious. PW-4 the owner of the goods had given evidence to the effect that the injured was a salesman and he was getting pay at Rs. 4.500/- per month. A salesman's job, by the very nature of calling, would involve immense travelling and the doctors evidence clearly showed that he would not be in a position to drive any vehicle or cycle etc. 7. For a disability, the Tribunal had assessed the compensation at Rs. 1,00,000/- and it had also provided for a compensation of Rs. 3,00,000/- for loss of income. Learned counsel for the insurer would contend that the proforma that is required to be filled up by an applicant who is an injured consists of two parts viz., part I and part II. While the part I details, the pecuniary heads of claim and part two refers to non pecuniary heads. The claim of compensation for disability which a court ascertains is the functional disability that may impair the amenities of life, entertainment, happiness and a host of several factors which go to make the sum of happiness for a human being. Apart from disability, an assessment of pecuniary losses that may occasioned to a person by the physical disability. It has to be independently assessed and that is provided under the Motor Vehicles Act itself. Under the pecuniary heads the actual loss of income during the period of treatment shall fall in part I F.A.O.NO. 1346 OF 2007 and 7 F.A.O.No. 1347 of 2007 and a projection of a future loss of income arising out of such disability which in legal parlance is referred to as resulting in loss of earning capacity and the actual loss which Court shall determine as resulting from injuries. The Tribunal had awarded Rs. 1,00,000/- towards disability. It certainly encompasses the pecuniary loss, as well, which is not merely the actual loss incurred during the period of treatment but also loss that would be occasioned by his inability to work. Over and above this, should also be ascertained as compensation for medical expenses and loss due to pain and suffering. The Tribunal has taken all these under one head. In this case, the Tribunal has awarded Rs. 20,000/- for pain and suffering and Rs. 60,000/- for medicines and Rs. 40,000/- for attendants and other charges, in total, the compensation was assessed as Rs. 5,20,000/-. The evidence does not make any reference about the status of employment subsequent to the accident. 8. I have gone through the evidence which does not make even any reference about his ability to continue to work in shop or not. I have therefore, to look into the evidence and the doctor who states that he will not be able to move freely and that he would have to walk on the crutches. I would accord to such a disability, loss of earning capacity of at least 50% The person who was aged 32 years, I would therefore, adopt a compensation as in case of death but reduce it by 50% since that would constitute the loss of earning capacity. So reckoned the amount of compensation shall be Rs. 4,59,000/-. I would add Rs. F.A.O.NO. 1346 OF 2007 and 8 F.A.O.No. 1347 of 2007 20,000/- towards pain and suffering, Rs. 60,000/- towards medical expenses and Rs. 40,000/- for attendants and other charges as awarded by the Tribunal. They would total to Rs. 5,79,000/- a sum more than what has been awarded by the Tribunal. 8. The award of the Tribunal is maintained and it is with reference to the injured person. 9. Even as regards the quantum of compensation awarded to the cleaner who is said to have died, learned counsel would argue that there was no proof that he was a cleaner. If an evidence was given with reference to that aspect orally the evidence is proof enough. A private employer employing a cleaner can not be expected to issue an appointment letter and in this case the income of such a person was assessed as Rs. 3,000/-. The contribution to the family had been taken as Rs. 2,000/-. Having regard to the fact that the deceased was aged 35 years with three minor daughters, two sons and a widow to support, after adopting a multiplier of 15, the total compensation would become at Rs. 3,67,000/-. There is no scope of interference on that score as well. 10. In view of the above, both the appeals are dismissed. [K.KANNAN] JUDGE 12th August, 2010 Shivani Kaushik