IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.22 of 2004 with CO No.343 of 2004. Reserved on: 21.11.2008. Date of decision: 19.12.2008. Ashwani Kumar …Appellant. Versus Bhupinder Singh & Ors. …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant : Mr.Ramakant Sharma, Advocate. For Respondents : Mr.T.S.Chauhan, Advocate for respondent No.1. Mr.J.S.Bagga, Advocate for respondent No.3. Kuldip Singh, Judge. This appeal has been directed against the award dated 4.12.2003 passed by learned Motor Accident Claims Tribunal, Bilaspur in MAC Case No.81 of 2001 awarding Rs.1 lac compensation in favour of respondent No.1 and against appellant as well as respondent No.2. The learned Tribunal had granted two months’ time for depositing the compensation amount failing which it has been ordered that appellant and respondent No.2 would pay 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 till realization. Respondent No.1 claimant has filed cross objections for enhancement of compensation. 2. The facts, in brief, are that respondent No.1 filed claim petition under Section 166 of the Motor Vehicles Act, 1988 claiming Rs.10 lacs compensation from appellant and respondents No.2 and 3 along with 18% interest from the date of accident till realization. In the claim petition it has been alleged that on 12.10.1999 at about 12.15 p.m. respondent No.1 was going from Dehar to Ghumarwin on Scooter bearing registration No.HIE-721 as pillion rider which was being driven by Rattan Singh owner. At place Samleu a maruti car bearing registration No.HP-12-6821 came from opposite side on wrong side and in high speed and struck against the scooter as a result of which Rattan Singh and respondent No.1 claimant sustained multiple injuries. F.I.R. No.251 of 1999 was registered at Police Station, Sunder Nagar on 13.10.1999. Respondent No.1 was removed to Primary Health Centre, Dehar. He was referred to Zonal Hospital, Bilaspur where he remained indoor patient from 12.10.1999 to 10.11.1999. He had already spent Rs.50,000 on his treatment which is still continuing. Respondent No.1 claimant had suffered permanent disability. On account of injuries sustained by …3… him he could not do the job of Architect / Draughtsman. He was running stationery shop at Dehar apart from working as Architect. Respondent No.1 claimant was about 28 years of age at the time of accident and was earning Rs.10,000 per month. The accident took place due to rash and negligent driving on the part of respondent No.2. 3. The petition was contested by appellant by filing reply in which preliminary objections of maintainability and non-joinder as well as mis-joinder of necessary parties were taken. It was pleaded that appellant had sold maruti car No.HP-12-6821 to respondent No.2 vide agreement dated 11.9.1999 who was the owner of the car on the date of accident. He denied that accident took place due to rash and negligent driving on the part of car driver. It has been pleaded that accident took place due to rash and negligent driving on the part of respondent No.1 claimant. Respondent No.3 insurer has also contested the claim petition and pleaded that there was no contract of insurance of the vehicle involved in the accident and denied the liability. On the basis of pleadings of the parties, the learned Tribunal had framed the following issues:- i) Whether the claim petitioner had sustained injuries due to rash and negligent driving of Maruti car No.HP- …4… 12-6821 by respondent No.2 Bahadur Singh, as alleged? OPP ii) If issue No.1 is proved in affirmative to what amount of compensation the petitioner is entitled to and from whom? OPP iii) Whether the respondent No.2 Bahadur Singh, driver of Maruti car No.HP-12-6821 did not have valid and effective driving licence on the date of accident, as alleged? OPR-3 iv) Whether there was no contract of insurance between respondent No.1 and Insurance Co. respondent No.3, as alleged? OPR-3 v) Whether the petition is bad on account of non-joinder and mis-joinder of necessary parties? OPR-1 vi) Relief. The learned Tribunal returned the findings that accident took place due to rash and negligent driving of car No.HP-12- 6821 by respondent No.2 Bahadur Singh and awarded Rs.1 lac compensation to respondent No.1 claimant, as noticed above. In the appeal, cross objections have been filed for enhancement of the compensation. …5… 4. I have heard Mr.Ramakant Sharma, learned counsel for the appellant, Mr.T.S.Chauhan, learned counsel for respondent No.1, Mr.J.S.Bagga, learned counsel for respondent No.3 and gone through the record. It has been submitted on behalf of the learned counsel for the appellant that the learned Tribunal has wrongly held that the accident took place due to rash and negligent driving on the part of maruti car driver. The appellant had sold the car to respondent No.2 on 11.9.1999 which fact has been admitted by respondent No.2, the liability, if any, is of respondent No.2 and not of appellant. He has also submitted that excess compensation has been awarded to respondent No.1 claimant. Mr.T.S.Chauhan, learned counsel for respondent No.1 claimant, has supported the impugned award with respect to ownership of car and negligence of respondent No.2 for causing the accident. He has, however, submitted that keeping in view the income, age, injuries, disability suffered by respondent No.1, the learned Tribunal has awarded less compensation to respondent No.1, interest has not been awarded as per law. He has submitted for enhancement of compensation. 5. PW-1 Bhupinder Singh has stated that on 12.10.1999 Rattan Singh was driving the scooter bearing registration No.HIE-721 and he was the pillion rider on that …6… scooter. At about 12.30 p.m. at place Samleu a maruti car No.HP-12-6821 came from opposite side in high speed and struck his right leg as a result of which scooter fell down. He and his friend sustained multiple injuries. The accident took place due to rash and negligent driving on the part of car driver. PW-2 Man Singh has stated that at place Samleu on a curve maruti car struck against scooter. Maruti car was in high speed. The scooter was going on its side. PW-3 Rattan Singh has also stated that on 12.10.1999 he was driving scooter No.HIE-721, at place Samleu a maruti car bearing registration No.HP-12-6821 came from opposite side in high speed, car driver could not control the car and struck against the scooter which fell down. He and Bhupinder sustained injuries. RW-2 Bahadur Singh has stated that scooter did not strike against van but he went out of the road of its own. In cross examination, he has admitted that in the accident in question he was prosecuted under Sections 279, 337, 338 IPC in the Court of learned Additional Chief Judicial Magistrate, Sunder Nagar. The appellant or respondent No.2 have not examined any witness other than RW-2 Bahadur Singh so as to prove the contention of appellant that accident did not take place due to negligence on the part of respondent No.2 while driving car HP-12-6821. RW-2 has given self-serving statement that accident took place due to …7… negligence of Bhupinder Singh, this part of the statement of RW-2 Bahadur Singh has not been corroborated by any other independent witness. On the contrary, RW-2 Bahadur Singh has categorically admitted that he was prosecuted in the Court of learned Additional Chief Judicial Magistrate, Sunder Nagar for the accident in question. In these circumstances, learned Tribunal has rightly returned the finding that accident took place due to rash and negligent driving on the part of car driver at the time of accident, no case for interference on this point has been made out. 6. The learned counsel for the appellant has submitted that appellant was not the owner of the car on 11.9.1999 at the time of accident. He has tried to support his submission by taking the help of statement of RW-2 Bahadur Singh who is none else but the person who was driving the car at the time of accident. In the reply, the appellant has taken the plea that he had sold the car to respondent No.2 vide agreement dated 11.9.1999, no such agreement has been proved on record. The respondent No.2 has not filed any reply but he appeared as RW-2 and virtually conceded the case of appellant regarding the ownership of the car on the date of accident. The close perusal of statement of RW-2 Bahadur Singh would show that he is trying to help appellant out of the way. There is …8… substance in the submission of learned counsel for respondent No.1 that respondent No.2 is helping appellant under the impression that in case the liability would come on respondent No.2 then respondent No.1 would not be in a position to recover the amount from him keeping in view his means. He has submitted that there is collusion between appellant and respondent No.2 to this extent which is apparent from the statement of RW-2. In normal course, a litigating party, particularly in compensation case, does not admit the claim of any side so easily and softly as has been conceded by RW-2 Bahadur Singh in his statement. This apart the statement of RW-2 Bahadur Singh is not enough to establish that on 11.9.1999 at the time of accident appellant was not the owner of maruti car bearing registration No.HP- 12-6821. It is admitted case of appellant that before 11.9.1999 he was the owner of car No.HP-12-6821. There is nothing on record that on or after 11.9.1999 respondent No.2 became the registered owner of the car. The appellant in the reply has stated that the car was sold to respondent No.2 vide agreement dated 11.9.1999 but no such agreement has been placed on record. The only document in order to show alleged sale by appellant in favour of respondent No.2 is affidavit Ext.RW-2/A of Bahadur Singh. This affidavit is a suspicious document, in this document sale …9… consideration of the car has not been mentioned. The papers of this affidavit were purchased on 17.2.1999 and the affidavit was sworn on 11.9.1999. No explanation has been given why the papers were purchased on 17.2.1999 and why those were not used till 11.9.1999. RW-1 Ashwani Kumar in his statement has produced Mark X affidavit which was later on exhibited Ext.RW-2/A. This means Mark X or Ext.RW-2/A affidavit was in his possession. In cross examination, he has stated that he had no record of sale of vehicle but volunteered that affidavit is with Bahadur Singh. In the sequence of events narrated by him in his statement, it appears the affidavit which he is referring with Bahadur Singh is none else but his own affidavit regarding the sale of the car but no such affidavit has been produced on record. This is a strange case where no document executed on behalf of the owner of the vehicle in order to prove the sale of the car has been proved on record. The sale is being proved through the affidavit of the purchaser only. The Tribunal has recorded a finding that affidavit Ext.RW-2/A appears to be fake. The statement of RW-2 Bahadur Singh claiming him to be owner of car on 11.9.1999 is not believable and is otherwise not enough to prove that appellant on 11.9.1999 had divested ownership of the car in favour of respondent No.2 by way of sale. The learned …10… counsel for the appellant has failed to make out any case from record that on the date of accident the appellant was not the owner of the car. 7. The learned Tribunal has awarded the following amounts to respondent No.1 in the award:- 1. Medical treatment Rs.10,000 2. Attendant charges Rs.5,000 3. Period of lay off first six months Rs.15,000 4. Mental and physical pain, shock and suffering Rs.20,000 5. Loss of future income, loss of expectation of life, loss of amenities of life, inconvenience, hardship, dejection and frustration. Rs.50,000 Total Rs.1,00,000 8. Ext.PE (Ext.PW-4/A) is the disability certificate of respondent No.1 showing 45% permanent disability. The respondent No.1 while appearing as PW-1 has stated that he was earning Rs.10,000 per month. He owns 20 bighas land also. He was running a shop and is a Draughtsman (Civil) but due to accident and injuries sustained by him, he has become disabled and cannot work properly. Ext.PJ is the copy of Jamabandi of land in which respondent No.1 has been shown one of the owners. In Matriculation examination certificate Ext.PF date of birth of respondent …11… No.1 has been shown 7.12.1972. In other words, at the time of accident he was plus 26 years. There is no corroboration to the statement of respondent No.1 regarding his earning by authentic evidence but keeping in view the over all facts and circumstances, it can be safely assumed that respondent No.1 was at least earning Rs.3000 per month at the time of accident. Mr.T.S.Chauhan, learned counsel for respondent No.1, has relied upon Sunil Kumar versus Ram Singh Gaud and others, 2008 ACJ 9, where facts were very close to the present case. In that case, the injured was 29 years of age and had suffered 45% permanent disability in his leg. The Supreme Court on the facts of that case took income of appellant Rs.4000 per month and after applying multiplier of 18 awarded Rs.2,59,200 on account of loss of future income as follows:- “9.Taking into consideration the present income of the appellant as Rs.4000 per month and the permanent disability of 45 per cent suffered by him, we are of the view that the capacity of appellant to earn in future would be reduced by Rs.1,800 per month approximately. If 1/3rd is deducted towards miscellaneous expenses, the loss of income comes to Rs.1200 per month which, in turn, comes to Rs.14,400 per annum. Appellant was 29 years of age at the time of accident. Taking the multiplier to be 18 (as per the Second Schedule to …12… Section 163-A of the Act), the total loss of income comes to Rs.2,59,200.” In the present case, the income of respondent No.1 has been assessed at Rs.3000, therefore, keeping in view the disability of respondent No.1, his earning capacity would reduce to Rs.1350, after deducting 1/3rd miscellaneous expenses as per Sunil Kumar’s case (supra) the loss of income comes to Rs.900 per month which in turn comes to Rs.10,800 per annum. The respondent No.1 was 26 years of age at the time of accident, therefore, multiplier of 18 is the appropriate multiplier to assess the loss of future income which comes to Rs.1,94,400. The learned Tribunal has awarded only Rs.50,000 on account of loss of future income etc. The respondent No.1 is thus entitled to Rs.1,94,400 on account of loss of future income. The respondent No.1 is not separately entitled to Rs.15,000 on account of period of lay off for six months as held by the learned Tribunal in view of award of Rs.1,94,400 on account of future loss of income. Thus, total amount of compensation comes as follows: 1. Medical treatment Rs.10,000 2. Attendant charges Rs.5,000 3. Mental and physical pain, shock and suffering Rs.20,000 …13… 4. Loss of future income Rs.1,94,400 Total Rs.2,29,400 On the amount of Rs.2,29,400 the respondent No.1 is entitled to interest at the rate of 9% per annum from the date of filing of the petition till realization. The learned Tribunal has not properly appreciated the material on record for awarding quantum of compensation, therefore, the impugned award is liable to be modified. The appellant has failed to make out any case for interference in the award. 9. No other point was urged. 10. The result of the above discussion, appeal fails and is accordingly dismissed. Cross objections are allowed and award of Rs.2,29,400 is passed in favour of respondent No.1 (claimant) and against the appellant (owner) and respondent No.2 (driver) jointly and severally along with interest at the rate of 9% per annum from the date of filing of the petition till realization. The award amount includes amount, if any, awarded or paid to respondent No.1 under Section 140 of the Motor Vehicles Act. No costs. December 19, 2008 ( Kuldip Singh ) (soni) Judge.