IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAOs (MVA) No. 198 of 2008 and 174 of 2008 Reserved on: 27th October, 2008 Date of Decision:19thNovember, 2008 FAO (MVA) No.198 of 2008 Maina Devi Appellant Versus B.S.Chauhan and others Respondents FAO(MVA) No.174 of 2008 United India Insurance Company Ltd. Appellant Versus Maina Devi & others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. FAO (MVA) No. 198 of 2008 For the appellant: Mr. Deepak Gupta, Advocate. For respondent No.1: Mr.D.S.Nanta, Advocate, vice Mr.Pankaj Chauhan, Advocate. For respondent No.3: Mr.G.D.Sharma, Advocate. FAO (MVA) No.174 of 2008 For the appellant: Mr.G.D.Sharma, Advocate. For respondent No.1: Mr. Deepak Gupta, Advocate. For respondent No.2: Mr. D.S.Nanta, Advocate vice Mr.Pankaj Chauhan, Advocate. Sanjay Karol, J. The present appeals arise out of award dated 7.1.2008 passed by Motor Accident Claims Tribunal (II), Shimla, H.P. in MAC Petition No. 130-S/2 of 2004 titled as Smt. Maina Devi vs. B.S.Chauhan and others. Whether the reporters of Local Papers are allowed to see the Judgment? 2 FAO No.198 of 2008 has been filed by the claimant seeking enhancement of compensation awarded by the Tribunal and FAO No.174 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 Smt. Maina Devi 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, which not only impaired her earning capacity but also hampered her enjoyment of life. 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 licence to drive the vehicle and the name of Shri Man Singh as driver of the ill-fated Bus was wrongly mentioned in the F.I.R. 3 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, considering the age of claimant Smt. Maina Devi, 50 years and the fact that she was widow and issueless, the Tribunal awarded compensation of Rs.68,000/- under various heads i.e. Rs.15,000/- for medical expenses including attendant charges, Rs.10,000/- for pain and suffering and Rs.40,000/- towards loss of earning by taking her income to be Rs.3000/- per month and the loss of income thereupon being 10% and by applying multiplier of ‘11’ the said sum was determined. 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 income of the claimant had to be assessed at Rs.3000/-, on the basis of the decision of the Apex Court in Lata Wadhawa vs. State of Bihar and others, 2001 ACJ 1735, the increase in the price index ought to have been also considered and income fixed accordingly. The income of the deceased, who was no doubt a widow and an agriculturist, should be increased from Rs.3000/- to Rs.5000/-. In any event, the multiplier applied was much on the lower side and further compensation under the heads 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 vehicle in question was being driven by Shri Sanjay and not Shri Man Singh. 5 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, claimant Smt. Maina Devi examined herself as PW-1, Shri Madan Singh (PW-2), Dr. Subhash Chander Negi (PW-3), Shri Rajesh Kumar (PW-4) and Shri Ramesh Kumar (PW-5). In rebuttal, the respondent-owner Shri Bhagat Singh Chauhan examined himself as RW-1 and examined Shri Khem Chand (RW-2). Shri Sanjay was driving the bus at the time of the accident is evident from the record. PW-4 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. PW-1 has also deposed to the said effect. She has specifically denied the suggestion that it was Man Singh, who was driving the bus in question. 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. Further, 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 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:- 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 was registered on the complaint of one Shri Nitya Nand. Importantly this 7 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.” The Insurer has not led any evidence in support of its defence and keeping in view the ratio of law laid down by the Apex Court in National Insurance Co. Ltd. vs. Swaran Singh and others, 2004 (3) SCC 297, it cannot be said that the insurer has proved that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time. 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 8 licence came to drive the vehicle was heavy on the Insurer. In the present case, no such burden was discharged. PW-2 and PW-3 have proved the injuries sustained by the claimant in the accident. She was admitted in Indira Gandhi Medical College and Hospital, Shimla, on 5.7.2004 and discharged on 17.7.2004, which is evident from discharge slip Ext.P-43. She was treated for acute generalized peritonitis and the cause was haemoperitoneum. She sustained injury in the abdomen and the chest, which led to liver laceration and haemopneumothorax. She was operated upon for the repair of liver laceration by exploratory laparotomy. She sustained fracture of ribs 6th, 7th, 8th, 9th and 10th width with haemothorax with blunt trauma abdomen and a chest rod was inserted. As per Doctor, she would have incurred expenditure of Rs.25,000/- and PW-1 proved the medical bills Ext.P-2 to P-42. The Tribunal found that the total amount of bills submitted by her were for Rs.11,000/- and considering that she may have been accompanied by an attendant, a total sum of Rs.15,000/- was awarded. In my view, the Tribunal has erred in holding that some member of the family would have attended to her during the period of hospitalization and PW-5 was actually not employed by her. No doubt, PW-1 has not deposed that she had employed someone to act as an attendant, but the fact of the matter is that PW-5 had deposed that he had been engaged to look after the claimant during hospitalization and even thereafter for monetary consideration. Even if the statement of PW-5 is not to be believed the fact of the matter is that PW-1 herself has deposed that she has spent about Rs.25,000/- on her treatment. One cannot loose sight of the fact that the claimant, an aged illiterate lady came from rural background 9 and had no family to support her. She is owner of 5-6 bighas of land. Therefore, in my view, even in the absence of any documentary evidence to support her contention, taking into account the nature of injury and the version of the doctor, the compensation amount of Rs.15,000/- needs to be enhanced to Rs.25,000/-. The Tribunal disbelieved her statement with regard to her income and took her income to be Rs.3000/- instead of Rs.5000/-. The same was done keeping in view the decision of the Apex Court in Lata Wadhawa (supra).. I find nothing wrong in the same. Submission made by Mr. Gupta that the same ought to have been increased keeping in view the increase in price index needs to be rejected as in Lata Wadhawa (supra) the Apex Court was dealing with the deceased belonging to the upper strata of the society, residing in an urban area. In the instant case, the claimant belongs to rural area. No doubt there is an increase in the price index, but the increase of the same, in my view, would be set off with the difference in the cost of living between the rural and urban area. However, for the purpose of determining the actual loss of income, in the absence of any disability certificate the Tribunal has reduced the capacity to earn by 10%. The fact of the matter is that the land is lying uncultivated and she has no money to engage labour. She has still not recovered from injuries and unable to do any household work. She cannot cultivate the land due to her injuries. Doctor has categorically deposed that “the injuries have certainly affected working and earning capacity of the petitioner”. There is no cross-examination on this point. Taking into account the age and that her wounds and injuries would likely to take some time to heal and for her to fully recover, her loss of earning capacity can 10 safely be taken to be 30%. Accordingly, her loss of earning can be taken to be 30% of Rs.3000/- = Rs.900/- per month or Rs.10,800/- per annum. 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 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 11 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 attending circumstances, the multiplier of ‘11’ as awarded by the Tribunal is maintained. Thus, by applying the multiplier of ‘11’, the claimant is entitled to compensation towards loss of income to be Rs.10800 x 11 = Rs.1,18,800/-. 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, 12 discomfort, disappointment, frustration and mental stress in life.” Similarly, taking into account the extent and nature of injuries, the amount of Rs.10,000/- towards pain and sufferings needs to be enhanced to Rs.50,000/- to cover all heads under non-pecuniary damages. She is an old lady and the wounds at such an age are difficult to heal. 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.1,18,800-00 Medical expenses Rs. 25,000-00 Pain and suffering Rs. 50,000-00 Total Rs.1,93,800-00 However, there shall be no order as to costs. 19th November, 2008 (Sanjay Karol), (C) Judge.