IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.16 of 2002 alongwith FAO No.231 of 2002. Judgment reserved on: 21.4.2008. Date of decision: 01.05.2008. FAO No.18 of 2002: Dalip Kumar .....Appellant. VERSUS Rajesh Sahani and others .....Respondents. FAO No.231 of 2002: National Insurance Company Ltd. …..Appellant VERSUS Dalip Kumar and others …..Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? 1 Yes For the Appellants : Mr.Ramesh Sharma, Advocate in FAO No.16 of 2002. Ms.Devyani Sharma, Advocate in FAO No.231 of 2002. For the Respondents : Mr.Ashok Sood, counsel for R-1 in FAO No.16 of 2002 and for R-2 in FAO No.231 of 2002. Mr.Ramesh Sharma, counsel for R-1 in FAO No.231 of 2002. Ms.Devyani Sharma, counsel for R-3 in FAO No.16 of 2002. M/s.K.D.Sood & Sanjiv Sood, counsel for respondent No.5(in both cases). Deepak Gupta, Judge The aforesaid two cross appeals are being disposed of by this judgment. 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes …2… Brief facts of the case are that the petitioner-Claimant Dalip Kumar filed a petition under Section 166 of the Motor Vehicles Act. In this petition it was stated that while the petitioner was travelling on scooter bearing registration No.HP-07-2085 from Shoghi to Khalini, Tipper bearing registration No.HP-07-1909 came from the opposite side. It was alleged that the Tipper was being driven rashly and negligently and hit the scooter as a result of which the scooterist and pillion rider fell down and the petitioner sustained injuries. Tipper was allegedly owned by Smt.Rajesh Sahni and driven by Inder Singh. The Scooter was owned by Duni Chand Saklani. The Tipper was insured with National Insurance Company and the scooter was insured with New India Assurance Company. Contesting parties filed the replies. The driver of the tipper was proceeded against ex-parte. The Insurance Company was granted permission to contest the case on all grounds. Evidence was recorded. Claimant Dalip Kumar in his statement stated that the scooter was being driven by Duni Chand Saklani and he was the pillion rider. This portion of his statement was not subjected to any cross examination. On behalf of the tipper’s owner and driver no suggestion was put to the claimant that he was driving the scooter. The driver of the scooter appeared as RW-3 and stated that the scooter was being driven by him and that the tipper came from the opposite side and was being driven at a high speed. No …3… suggestion was put to this witness that he was not driving the scooter. The driver of the tipper did not appear in the witness box. The learned Tribunal by some highly convoluted reasoning has come to the conclusion that the accident occurred due to the negligence of the driver of the scooter. He further held the claimant entitled to compensation of Rs.1,30,000/-. The National Insurance Company as insurer of the scooter was held liable to pay this amount alongwith interest. This award was challenged both by the National Insurance Company as well as the claimant. During the course of the appeals the claimant filed an application for leading additional evidence. This application was allowed by this Court on 15th July, 2004 and the matter was remanded to the Tribunal to record additional evidence and its findings on the issues. Thereafter, the statements of three witnesses were recorded before the tribunal and the tribunal held the claimant entitled to Rs.2,58,648/- under the following heads: “Cost of treatment including the cost of Rs.30,000.00 Attendant and transportation: Actual loss of earnings: Rs.38,648.00 Future loss of earnings: Rs.90,000.00 Compensation for pain, sufferings and Rs.1,00,000.00 Loss of amenities of enjoyment of life: Total: Rs.2,58,648.00” I have heard learned counsel for the parties. As far as the issue of negligence is concerned I am constrained to observe that the learned Tribunal has decided the case only on conjectures …4… and surmises without caring to go through the pleadings or the evidence of the parties. From the pleadings and evidence it stood proved on record that the accident occurred due to the rash and negligent driving of the driver of the tipper. Both the claimant and the driver of the scooter had deposed in this behalf. Their statements have been brushed aside without any plausible reasoning. The tipper driver did not appear in witness box and an adverse inference was required to be drawn against him. Therefore, I set-aside the findings on the issue of negligence and hold that the accident occurred due to the rash and negligent driving of Sh.Inder Singh, driver of the tipper. Sh.Duni Chand driver of the Scooter was not responsible for the accident and therefore it is only the owner, driver and insurer of the tipper i.e. Vehicle No.HP-07- 1909 who are liable to pay compensation. Next comes the question with regard to the assessment of compensation. In this behalf it would be pertinent to mention that the petitioner at the relevant time was employed as a road supervisor. He is continuing in the same job and admittedly his remuneration has not been adversely affected by the accident. From a perusal of the statement of Dr.J.P. Sharma recorded after remand, it is clear that the petitioner-claimant remained hospitalized at IGMC Shimla from 15.9.1998 to 9.11.1998. He is continuing to be treated as an outdoor patient. This Doctor has clearly stated that the claimant has suffered permanent disability to the extent of 44%. It is further in the evidence of this witness that the petitioner has undergone some degenerative changes in the knee and ankle joints …5… which will continue through out his life. The claimant can only walk with the help of a stick and crutches and cannot walk on his own. The witness has also opined that the claimant is incapable of doing manual work. PW-7 Dr.R.S.Yadav also treated the claimant on various dates. He has proved the disability which is 44% in respect to the right lower limb. He has also opined that the claimant has developed chronic orteomytelis of right tibia and for which he will require regular check up and treatment. The wife of the petitioner was examined as PW-5 and according to her one Dhani Ram has been engaged as servant to do household work. She has however admitted that the claimant is getting the same salary as before. Dhani Ram was examined as PW-6 and has stated that he has been engaged at a salary of Rs.500/- per month. PW-1 is the petitioner. He has alleged that prior to the accident he was selling vegetables and now since he is unable to do manual work and now he cannot do this work. From the evidence on record it is apparent that the petitioner was an indoor patient for about 7 weeks and thereafter for about 6 months he was advised total bed rest. It has also come on record that the petitioner is unable to walk for a long distance and therefore has to take a taxi whenever he has to come to hospital for outdoor treatment. When the petitioner was hospitalized for about 7 weeks, he necessarily had to be attended upon by at least two persons. Taking the cost of one attendant at Rs.100/- per day the …6… costs of two attendants work out to Rs.200/- per day. Since the petitioner was hospitalized for about 50 days he is held entitled to Rs.10,000/- for the cost of attendant. Even for the period when the petitioner was bed ridden at home he required one attendant at least. Keeping in view the fact that he was at home it is felt that the cost of one attendant should be paid to him for this period and this works out to Rs.3000/- per month or Rs.18,000/- for six months. Therefore, the petitioner is held entitled to Rs.28,000/- which is rounded to Rs.30,000/- as costs of attendant only. The claimant admittedly is still under treatment and has to visit the hospital time and again. The doctors have opined that he cannot walk long distances. He, therefore, has to take a taxi to visit the hospital. Keeping in view the huge number of visits which the petitioner has made for the last 5 years and also the visits which he may be required to make in future it would be appropriate to award him Rs.15,000/- on account of costs of transportation. The petitioner is a government servant and is entitled to reimbursement of medical expenses. However, this Court cannot loose sight of the fact that certain medicines such as tonics etc. are not reimbursed and the petitioner must have been given special diet etc. On this account the petitioner is awarded Rs.5000/-. Therefore, the award under the head of costs of treatment and costs of attendant and transportation is enhanced from Rs.30,000/- to Rs.50,000/-. …7… The learned Tribunal has assessed the actual loss of earnings of Rs.38,648/- which is strictly in accordance with the actual loss of suffering by the claimant and is only rounded to Rs.40,000/-. As far as future loss of earning is concerned I do not understand how the learned Tribunal has made an award under this head. The petitioner is admittedly doing the same job as before. He is getting the same salary and there is no material on record to show that his service prospects or chances of promotion have been adversely affected by the accident. The claimant could not have been awarded any amount for loss of future earnings till his retirement at least. However, after retirement the future earning prospects of the petitioner are definitely being affected. There is no cogent proof of what the claimant could have done after retirement. Keeping in view the fact that the petitioner has some agricultural land I am of the opinion that it would be appropriate to award him Rs.30,000/- on lump sum basis for loss of future earnings after retirement. The petitioner has been awarded a lump sum amount of Rs.one lakh for pain, sufferings and loss of amenities of enjoyment of life. I propose to divide this into two separate heads. The first head is compensation for pain and suffering. The petitioner remained hospitalized for almost two months. He was bed ridden for 8 months. He has undergone great pain. It is in the evidence that he cannot walk comfortably. He has to walk with the help of …8… crutches. Therefore, the petitioner is awarded Rs.50,000/- on account of pain and suffering. As far as loss of amenities and enjoyment of life is concerned, the learned Tribunal has not taken into consideration the fact that on account of the disability the petitioner can virtually do no manual work. He has become dependent on others. For his remaining life he has to walk with the help of stick. It is in the evidence that degenerative changes have taken place due to the accident. Therefore, the petitioner shall suffer through out his life and the suffering in all probability will increase. Keeping in view all these factors I feel that the petitioner should be awarded Rs.one lakh on account of loss of amenities, disability and enjoyment of life. In view of the above discussion, I award compensation of Rs.2,70,000/- to the claimant. The claimant shall also be entitled to interest on this amount @ 7.5% p.a. from the date of institution of the petitioner i.e. 21.12.1998 till payment/deposit of the amount. The owner, driver and insurer of the tipper No.HP-07-1909 are held jointly and severally liable to pay this amount. Since admittedly the tipper was insured with the New India Assurance Company it is directed to deposit the amount of compensation in the Registry of this Court within a period of 12 weeks from today. No order as to costs. ( Deepak Gupta ) May 01, 2008 Judge. PV