IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAOs (MVA) No. 527 of 2007 and 170 of 2008 Reserved on: 15th October, 2008 Date of Decision: 21st October, 2008 FAO (MVA) No.527 of 2007 Laiq Ram Appellant Versus B.S.Chauhan and others Respondents FAO(MVA) No.170 of 2008 United India Insurance Company Ltd. Appellant Versus Laiq Ram and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. FAO (MVA) No. 527 of 2007 For the appellant: Mr.G.C.Gupta, Sr. Advocate, with Mr.Deepak Gupta, Advocate. For respondent No.3: Mr.G.D.Sharma, Advocate. FAO (MVA) No.170 of 2008 For the appellant: Mr.G.D.Sharma, Advocate. For respondent No.1: Mr.G.C.Gupta, Sr. Advocate, with Mr.Deepak Gupta, Advocate. For respondent No.2: Mr.Ajay Kumar Sharma, 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. 138-S/2 of 2004 titled as Laiq Ram vs. B.S.Chauhan and others. FAO No.527 of 2007 has been filed by the claimant seeking enhancement of compensation awarded by the Tribunal and FAO No.170 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 Shri Laiq Ram under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act), claiming compensation of a sum of Rs.5.25 lacs for the reason that in the said accident he sustained injuries and suffered permanent disability of 45%, which not only impaired his earning capacity but also hampered his enjoyment of life. The claimant, an agriculturist and a muleteer, was having an income of Rs.10,000/- per month. 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 Buss was wrongly mentioned in the F.I.R. 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 on 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 multiple injuries to the petitioner? 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-51-3393 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.1,3 and 4 collectively, held that at the time of accident Shri Sanjay alias Sanjeev, was driving the bus in a rash and negligent manner which was the cause of the accident. The claimant, one of the passengers sustained injuries in the said accident. 4 On issue No.2, the Tribunal held that there was enough material to establish that the claimant was a Muleteer and due to permanent disability he could not carry out the said work and thus had to engage a labourer by paying Rs.100/- per day and thus the monthly loss was fixed at Rs.3500/-. Further the Tribunal found that out of the entire joint agricultural holding, the claimant’s share in the cultivable land was less than 2 Bighas and his income from the said source would be in the vicinity of Rs.3500/- However, while determining the final compensation, the Tribunal took into account loss of income only from one source and by applying deduction of 50% determined the loss to be Rs.1800/- per month. On the annual income of Rs.21,600/-, considering the age of the claimant to be 45 years, by applying a multiplier of ‘13’ the total loss of income was determined to be Rs.2,80,800/-. In addition, the following compensations were also awarded:- Reimbursement of medical expenses: Rs.20,000-00 Pain and suffering Rs.20,000-00 Loss of disability suffered Rs.40,000-00 Thus a total sum of Rs.3,61,800-00 or say Rs.3,61,000-00 was determined as compensation. The vehicle being insured, the liability was fastened upon the Insurance Company. Mr.Gupta, learned counsel for the claimant has argued that having come to the conclusion that the claimant’s loss of income was from various sources, the Tribunal ought to have clubbed the same to determine the final compensation. In any event, the multiplier applied was much on 5 the lower side and further the compensation towards the head of non- pecuniary damages 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 vehicle in question was being driven by Shri Sanjay and not Shri Man Singh. Learned counsel for the owner has supported the award for the reasons set out therein and the driver, who was ex parte before the Tribunal also chose not to appear in the present proceedings. I have heard the learned counsel for the parties and also perused the record. There is no dispute that on the ill-fated day the claimant was travelling in the bus, which met with an accident. It is also not in dispute that the injuries sustained by the claimant were as a result of the said accident. In support of his claim, the claimant Shri Laiq Ram examined himself as PW-1m Shri Madan Singh (PW-2), Dr.B.K.Arya (PW- 3) and Dr. Manoj Thakur (PW-4). In rebuttal, the respondent-owner Shri Bhagat Singh Chauhan examined himself as RW-1 and examined Shri Khem Chand (RW-2), Shri Shashi Saini (RW-3), Shri Om Parkash Puri (RW-4) and Shri Khem Chand (RW-5). The Insurance Company examined its witnesses Shri Man Singh (RW-6) (alleged driver at the time of the accident) and Shri Dhaminder (RW-7). 6 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 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 7 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. From the statements of PW-1, PW-2, PW-3 and PW-4 as also the disability certificate Ext.P-2, discharge-ship Ext.P-34 and prescription slips Ext.P-35 to P-39, it is evident that the claimant had to undergo medical treatment at State Hospital (I.G.M.C. Hospital, Shimla) where he was admitted from 6.7.2004 upto 19.7.2004. The disability of the claimant is to 8 the extent of 45% and is of permanent nature. He has sustained spinal injury, fracture of ribs from 3rd to 8th left side and also unstable compression fracture D11 and D12 with monoperesis. PW-3, Sr. Medical Superintendent, has clarified that the claimant cannot do hard work and with the passage of time the extent of disability may increase. Even though the claimant can do normal work, but, however, wherever bending and little movement is involved his capacity would be affected. Based on the material on record with regard to loss of income, the Tribunal has returned the following findings:- “27. From the evidence of the petitioner it appears that the mules are also being used and land is also being cultivated, but now these jobs are being done through labourer. So, it can be said that the loss of income to the petitioner is equal to the wages which he is required to pay the labourers. Assuming that he is paying Rs.100/- per day to the labourer as is his statement, monthly loss of income comes to Rs.3000/-. One may argue that labourer works during fixed working hours and not throughout the day. But at the same time, it cannot be said that the petitioner has been rendered totally incapable of doing anything. He might have rendered incapable of physically doing the work himself, but he can manage the affairs. The monthly loss of income thus is only a little more than Rs.300/- and not much more than Rs.3000/- . It think such loss of income can be fixed at Rs.3500/-. 28. The petitioner stated that he was having 5-6 bighas of land and from such land and other sources he was getting an income of Rs.10,000/- a month. A perusal of Jamabandi Ext.P40 would show that petitioner has 1/14th share in the land and that out of total land 57-14 bigha only 25-5 bigha is cultivable. Thus, his share in the cultivable land is less than 2 bighas. Now, if one agrees to the petitioner’s case that an income of Rs.10,000/- can be derived from 5 or 6 bigha of 9 land, even by that standard income from less than 2 bigha would come to the vicinity of Rs.3,500/-. So, viewed from any angle, petitioner’s monthly income cannot be taken as more than Rs.3,500/-. 29. The normal rule of deduction of 1/3rd of income for spending on oneself, I think, cannot be applied here as 1/3rd would come to less than to Rs.1200/- only, and I think it is not possible to make both ends meet with such a small amount. So, it can be taken that he was spending on himself about half of the income. The loss of income thus can be taken as Rs.1800/- per month, which means Rs.21,600/- per annum.” In my view, no fault can be found with the findings of the Tribunal with regard to loss of income determined from different sources. The same is evident from the statement of PW-1 who has deposed that he is an agriculturist holding 5-6 Bighas of land and possessing two mules. Due to injury, he is unable to do any work and cannot lift weight of even 2 kilograms. His income was Rs.10,000/-, but after the accident he has to engage labourers for cultivating the land and for driving the mules, for which he is paying Rs.100/- per day. It is true that except for the oral statement of the claimant, there is no documentary evidence to prove the income, but the fact of the matter is that the claimant has not been cross-examined on the point of income. 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 claimant undisputably owns land and is an agriculturist. He was not a labourer. Work of a muleteer is of skilled nature. Judicial 10 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. The Tribunal, however, without any justifiable reason has erred in not computing incomes from different sources while determining the total loss. In my view, having determined the same it ought to have computed the same which in the present case the loss of income would be Rs.7000/-. This Court in National Insurance Company vs. Smt. Sharda Devi & ors.(FAO No. 392 of 2001, decided on 24.10.2005), while determining the value of supervisory services in a case where the corpus from which the income is derived is intact has held that a person working as a Manager of an orchard, himself does business and cannot be replaced by giving the job to other person. A farmer or an orchardist remains in his orchard throughout the day and he is not like a paid employee who only works for some particular hours in a day. An employee cannot put in that amount of effort as the owner himself does. The said view was taken by referring to and relying upon a Division Bench judgment of this Court in H.R.T.C. versus Puni Devi, 1993 ACJ 998. The claimant’s income was solely not from agriculture source. He was also not devoting full time for agricultural activity as he was also working as a muleteer. Therefore, the deduction of 1/3rd is required to be made on the amount of Rs.7000/-, which works out to be Rs.4667/- (Rs.7000 – Rs.2333). On the question of multiplier, it is to be noticed that as on the date of accident, injured had a wife and minor children to support. He was 42 years of age and his permanent disability of 45% may increase. It is true that the disability has not made him bed ridden, but it is equally true that he 11 cannot fully enjoy the fruits of life and carry on the work in normal manner. He has to suffer pain and agony throughout his life and would not be in a position to lead a normal life. 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 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. 12 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, in my view, in the instant case multiplier of ‘13’ is on the lower side and needs to be enhanced. Ends of justice would be met if the same is increased to ‘15’. Thus, by applying the multiplier of ‘15’, the claimant is entitled to compensation towards loss of income to be Rs.4667 x 12 x 15 = Rs.8,40,060/-. 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.” 13 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. In the present case from the statement of PW-1 and PW-3, it is evident that spinal injury may increase and impair his capacity and restrict his movement. Undoubtedly, the suffering has resulted into adverse consequence on the earning capacity of the claimant. The claimant is young and has to suffer pain and agony for the rest of his life. Therefore, the amount awarded under the head of disability needs to be enhanced from Rs.40,000/- to Rs.75,000/-. This would take into account the other heads classified as non-pecuniary damages under which no compensation was granted. It is, however, clarified that the enhancement is in addition to other amounts awarded by the Tribunal. The Tribunal awarded interest @ 7 ½ %. There is no evidence on record to prove the prevailing rate of interest at which the Nationalised Bank are accepting deposits, but in my view the same appears to be just and proper. For the foregoing reasons, the appeal filed by the claimant is allowed and the appeal filed by the Insurance Company is dismissed. The claimant is entitled to the following amount of compensation alongwith interest as awarded by the Tribunal:- Loss of income : Rs.8,40,060-00 Pain and suffering Rs. 20,000-00 Disability suffered Rs. 75,000-00 Medical expenses Rs. 20,000-00 Total: Rs.9,55,060-00 14 However, there shall be no order as to costs. October 21, 2008 (Sanjay Karol), (C) Judge.