IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No.280 of 2007 alongwith FAO No.281 of 2007. Judgment reserved on:14.6.2011. Date of Decision:18.6.2011. (i) FAO No. 280 of 2007 Raj Kumar ..Appellant Versus. Rajesh Kumar and others ..Respondents. (ii) FAO. No.281 of 2007. Prem Dass and another . …Appellants Versus. Rajesh Kumar and others …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the Appellant(s): Mr. Naveen Bhardwaj, Advocate For the Respondent(s): Mr. Narinder Sharma, counsel for R-3 in FAO No.280 of 2007. Mr.Jagdish Thakur, counsel for R-3 in FAO No.281 of 2007. Mr.Harish Behl, counsel for R-5 in both the appeals. Deepak Gupta, J. 1. These two appeals are being disposed of by a common judgment since both the appeals arise out of the same motor vehicle accident. 2. The undisputed facts are that on 1.5.2004 an accident took place between Gypsy No.HP-34A-2766 and Tempo Trax No.HR- 37(T)0885 near village Panarsa. Raj Kumar who was travelling in the Gypsy filed claim petition No.1 of 2005 and in this claim petition he alleged that the accident occurred due to the rash and negligent - 2 - driving of the driver of the tempo trax. He further alleged that he had suffered fracture of his jaw and therefore claimed compensation of Rs.4,00,000/-. 3. Claim Petition No.114 of 2004 was filed by Prem Dass and Neelam who lost their three year old daughter Ms.Anchal in the same accident. They also alleged that the accident occurred due to the rash and negligent driving of the tempo trax. The owner and driver of the tempo trax alleged that the accident had occurred due to the rash and negligent driving of the driver driving the Gypsy. The learned Tribunal came to the conclusion that the claimants who belong to Kullu wanted to help the owner and driver of the Gypsy since they belonged to the same area and that false allegations were levelled against the driver of the tempo trax. He accordingly held that there is no negligence on the part of the driver of the tempo trax and dismissed both the claim petitions. 4. At the outset, I may state that the owner, driver and Insurance Company of the Gypsy were respondents in the original claim petitions. The claimants in the prayer clause had prayed that the respondents be directed to pay the amount of compensation. No doubt, it was alleged that the accident had occurred due to the negligence of the driver of the tempo trax but if that allegation was not proved and negligence was found to be that of the Gypsy driver then the owner, driver and Insurance Company of the Gypsy could have easily been held liable to pay the compensation. The petitions should not have been dismissed. 5. I have carefully gone through the evidence in both the cases. The claimant Raj Kumar appeared as PW-5. In examination-in-chief he stated that the accident occurred because the tempo trax was - 3 - coming at a high speed and hit the Gypsy. When cross examined, he admitted that all the people travelling in the Gypsy were going to attend a wedding and first stated that may be the driver of the Gypsy had drunk liquor but then clarified that the driver had not taken any liquor. He also admitted that both the vehicles were travelling at a high speed. He could not state which vehicle was on the correct side and stated that he had become unconscious. To say the least, the learned trial Court was justified in holding that not much reliance could be placed on the statement of this claimant. 6. The other eye witness is one Sh.Shyam Sunder who was a bystander and according to him the accident occurred when the tempo trax was overtaking a truck in a negligent manner. 7. In the other claim petition Smt.Neelam one of the claimants appeared in the witness box. She was also travelling in the Gypsy and stated that the tempo trax was overtaking the vehicle in a rash and negligent manner and hit the Gypsy which was in a slow speed. In cross examination, she could not say what was the speed of the vehicles and there are some contradictions in her statement with regard to the manner in which the accident had occurred. It is important to note that an FIR, immediately after the accident, was recorded at the instance of the driver of tempo trax and in this FIR the entire fault is shown to be that of the Gypsy driver. 8. Gandhi Ram, RW-1 investigated the matter and according to him during the investigation he found that the accident occurred due to the rash and negligent driving of the Gypsy driver. A criminal case was also lodged against the driver of the Gypsy. However, the private witnesses were all locals and have stated that the accident - 4 - occurred due to the fault of the tempo trax. Keeping in view all the aforesaid factors, I feel that this is a case of composite negligence of the drivers of Gypsy and tempo trax and therefore both are liable to pay the compensation. 9. Coming to the quantum of compensation. In the case of Raj Kumar he had suffered a fracture to the Jaw. He has also suffered permanent disability on this count to the Jaw itself but this has in no manner affected his earning capacity. The disability is only 3% and even in the disability certificate it is mentioned that the clinical jaw movement and clenching of teeth is normal. The petitioner has placed on record the record of his treatment. From this record, it is apparent that the petitioner remained in Hospitals, firstly at Kullu, then at Mandi and finally at Shimla. He was hospitalized for almost a month. His Jaw was totally fractured and he had to undergo treatment. He even after discharge from the hospital had to visit the hospital time and again. The petitioner has also placed on record various receipts issued by the Hill Taxi Operators Union showing that a taxi had been hired on various dates. However, not much reliance can be placed because all the receipts appear to be issued on the same date and with the same pen. But there can be no doubt that the claimant was taken from the site of the accident to Kullu and then to Mandi and finally to Shimla. He has also produced receipts of medicines etc. of about Rs.6300/-. Keeping all these factors into consideration, the claimant is awarded Rs.10,000/- on account of medical expenses and another sum of Rs.10,000/- for transportation. The petitioner remained admitted in the Hospital for one month and must have been attended by two attendants. Boarding and lodging for these attendants had to be - 5 - arranged at Shimla and Mandi. Therefore, the claimant is awarded Rs.10,000/- for attendant charges. 10. The claimant was a student at the relevant time and therefore there has been no loss of income. As already held above, the disability will not cause him loss of future income also. However, the claimant has to be compensated for pain and suffering and also for future discomfort. Since the claimant remained in hospital for about a month, he is awarded Rs.20,000/- on account of pain and suffering. Though the claimant will not suffer any pecuniary loss there is disability in his jaw and is awarded Rs.20,000/- for future discomfort etc. 11. The claimant Raj Kumar is, therefore, held entitled to Rs.70,000/- alongwith interest @ 9% p.a. from the date of filing of the claim petition till deposit of the amount. 12. As far as the second case is concerned, the girl child was only 2-3 years old when the accident took place. Though no monetary loss has been caused to the claimant but keeping in view the minimum amount payable under Section 163-A a sum of Rs.1,50,000/- is awarded to the claimants alongwith interest @ 9% p.a. from the date of filing of the claim petition till deposit of the amount. Only claimant No.2 Smt.Neelam will be entitled to this Amount. 13. In view of the above discussion, both the appeals are allowed. Since drivers of both the vehicles have been held equally responsible for the accident, the Insurance Companies of both the vehicles are directed to deposit 50% amount in each case within 12 weeks from today. No costs. June 18, 2011 ( Deepak Gupta ), PV Judge.