IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO(MVA) Nos.520 and 543 of 2008. Judgment Reserved on: 22.07.2011. Date of decision: 02.09.2011. 1. FAO No.520 of 2008. Major Vivek Gupta … …Appellant Versus Smt.Parvati Devi & Others … …Respondents 2. FAO No.543 of 2008. United India Insurance Co. … …Appellant Versus Major Vivek Gupta & Others … …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. FAO No.543 of 2008. For the Appellant: Mr.Rajiv Jiwan, Advocate. For Respondent No.1: Mr.G.C. Gupta, Senior Advocate with Mr.N.S. Chandel, Advocate. FAO No.520 of 2008. For the Appellant: Mr.G.C. Gupta, Senior Advocate with Mr.N.S. Chandel, Advocate. For Respondents No.1 & 2: Mr.Anuj Gupta, Advocate. For Respondent No.4: Mr.Rajiv Jiwan, Advocate. Dev Darshan Sud,J. Both these petitions are being disposed of by a common judgment as they arise out of the same accident. 2. The claimant, who was serving in the Indian Army, filed this petition claiming damages for the accident in which he suffered injuries which took place 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 on 26.08.2000 at around 1.30 P.M. when he was going Mhow from Krishan Ganj in District Indore on his Motorcycle No.HP-07-4400, which was struck by a truck bearing registration No.MP-09KA-7257. FIR No.299 of 2000, dated 26.8.2000 was registered at Police Station Krishan Ganj in District Indore under Sections 279, 336 IPC against respondent No.2 Babu Singh. The petitioner sustained multiple injuries as certified by the Military Hospital Mhow where he was admitted for treatment. After receiving first aid treatment at Civil Nursing Home, he was brought to the Hospital by Lieutenant Joydeep Thapa and Lieutenant Rohit Gupta. It is pleaded that at that time, the petitioner was under unconscious stage. He received head injuries and collarbone abrasion of his right side. He was admitted in Military Hospital, Mhow for about three weeks and again treated in Military Hospital, Jatogh, Shimla. The petitioner claims that the nature of his injuries has totally ruined his career as now he is unfit to be promoted to the other higher rank. At the time of the accident he was undergoing an advance course at the Infantry School, Mhow. The petition was resisted by the Insurance Company on a number of grounds including the maintainability of the petition. 3. On the pleadings of the parties, the learned Tribunal settled seven issues. The first issue related to determining of the fact as to whether the petitioner had suffered injuries because of the rash and negligent 3 driving of the truck by respondent No.2 Babu Singh, the second issue is regarding the entitlement of compensation of the petitioner. The fifth issue was as to whether vehicle was being driven without a valid and effective driving licence. The sixth issue related to accident in question had taken place because of contributory negligence. The fourth issue related to the objection preferred by the Insurance Company that the vehicle was being driven in violation of the provisions of the Motor Vehicles Act. 4. Three issues, namely; (a) as to whether the petitioner has suffered injuries because of the rash and negligence driving, (b) whether petition is bad for non-joinder of necessary parties and (c) whether accident in question has taken place due to the contributory negligence of the petitioner, were tried together by the learned Tribunal. 5. The injured Major Vivek Gupta, appeared as PW-1 and stated that during the night intervening 25th/26th August, 2000, he was undergoing Younger Officer Training at Mhow. He was proceeding from Indore to Mhow from his motorcycle, stopped for meal in a Dhaba and started his motorcycle which was parked on the roadside. At that time truck, bearing registration No.MP-09KA-7257 was being driven by respondent No.2 at a very high speed and on the wrong side of the road, struck against the motorcycle which was dragged 50/60 meters by the truck resulting injuries to the 4 petitioner. At that time, the motorcycle was stationary. He proved on record the copy of the FIR Ex.PW-1/A and attested copy of the police record Ex.PW- 1/B. The Tribunal notes that on these issues, respondent No.3 (Insurance Company) has not led any evidence. It was held that despite the fact that application under Section 170 of the Act was allowed, respondent No.2, who was driver of the truck, was not summoned in evidence. Respondents No.1 and 2 did not contest the petition. In these circumstances, on the evidence of the petitioner, issue No.1 was held in favour of the petitioner and issues No.3 and 6 against the respondent. Issue No.4, which related to the question as to whether the vehicle was being driven in violation of the provisions of the Motor Vehicle Act, the Tribunal notes that no evidence was brought on the record and therefore, this issue was decided against the Insurance Company. Similarly, issue No.5, with respect to the valid driving licence, again the Tribunal noticed a total lack and absence of evidence. 6. On the question of quantum, which is issue No.2, the learned Tribunal notes that a claim in the sum of Rs.5,50.000/- has been filed. In order to prove this claim, the appellant appeared as PW-1 and stated that due to the accident he has received severe injuries on his head as also on his left collarbone whereafter he was treated in Civil Nursing Home and thereafter rushed to the Military Hospital, Mhow where 5 he remained under treatment w.e.f. 6.9.2000 to 26.9.2000. This was corroborated by Ex.PW-1/C which is the sick leave sanction of the appellant by Army Authorities from 6.9.2000 till 27.9.2000. After this he remained admitted in Military Hospital Jutogh, Shimla from 26.9.2000 to 11.10.2000 and again admitted from 1.11.2000 to 4.11.2000. These were proved from the statement of PW-3 Rakesh Kumar who proved Ex.PW-3/A and Ex.PW-3/B from the record of the Military Hospital, Jutogh, Shimla. The hospitalization of the petitioner, according to the Tribunal from the evidence on record, was total for 42 days i.e. for 21 days at Mhow and thereafter 21 days at Jataugh, Shimla. The proceedings of the Medical Board of the Military Hospital were also proved on record as Ex.PW-3/A and Ex.PW-3/B. He was placed in the Low Medical Category w.e.f. 6.9.2000, as evidenced by entries contained in Ex.PW-1/D, Ex.PW-1/E, which are the proceedings of the Medical Board. He was declared unfit for all Military activities and Military duties on the same date vide Ex.PW-1/T. He was again subjected to medical examination by the Board for re- categorization on 11.10.2000 and the report Ex.PW-1/S has been proved on the record. He was pronounced unfit for active duties, but only assigned duties not involving strenuous exertions. He was placed in the Category SIHIA2(U)(T-12) PIET w.e.f. 5.11.2000 for both the injuries. 6 7. The evidence on record shows that the petitioner has been undergoing repeated medical examinations. Ex.PW-1/X2 records that the petitioner was undergoing Young Officer’s Course at Mhow from 27th July, 2000 which course is part of mandatory training for officers of the Indian Army. On 25th August, 2000, he met with an accident, sustaining injuries on his collar bone and head. The certificate detailing the period of his hospitalization shows that he was placed to low medical category for a period of ten months which had an adverse effect on the petitioner, as he was unable to complete his mandatory course. This has also affected his employment and certain other specialized courses, which he could have/was required to undertake during that period. He still has a problem in his collar bone. 8. Now adverting to the evidence of PW-3 on record, what I find is that the petitioner is now unable to undertake any course of active military service. His further promotions have been affected and in future he is unlikely to be promoted to a higher rank of Colonel and above. On the question of sustaining injuries and the nature of disability suffered, I do not find that there is any material on the record to establish that the petitioner has not suffered injuries of the nature which has destroyed his career and his future prospectus. I do not find any 7 evidence contrary to what has been brought on the record of the case. 9. Learned counsel appearing for the appellant submits that the learned Tribunal has been remiss in determining the compensation which has actually been paid/was paid to the petitioner. He submits that what the Court is required to determine is just compensation and not merely compensation. He places reliance on the decision of the Andhra Pradesh High Court in Pidigala Linga Reddy and others vs. Satla Srinivas and others, 2003 ACJ 692, holding as to what the petitioners are entitled to, is just compensation, even if it is more than that what has been claimed, as determined by the Court. The Court hold:- “17. Learned counsel for respondent No.3 insurance company made yet another submission and contended that the appellants have restricted their claim only to an amount of Rs.5,00,000, therefore, they shall not be entitled to any compensation more than Rs.5,00,000. We are not persuaded to accept the above submission as the said issue whether the claimants are entitled to compensation over and above the compensation claimed by them has been examined and decided by us in favour of the claimants by a detailed judgment rendered by us in C.M.A. No.1328 of 1995, dated 5.7.2001. Since we have already taken a view on this aspect, the contention of the learned counsel is rejected.” (p.697) 8 10. Learned counsel then submits that Section 168 of the Motor Vehicles Act casts a duty on the Tribunal to award just compensation even if it is over and above the amount claimed in the petition. He relies upon the decision of the Supreme Court in Oriental Insurance Co.Ltd. vs. Mohd.Nasir and another, 2009 ACJ 2742, holding:- “27. The function of Commissioner is to determine the amount of compensation as laid down under the Act. Even if no amount is claimed, the Commissioner must determine the amount which is found payable to the workman. Even in the cases arising out of the 1988 Act, it is the duty of the Tribunal to arrive at a just compensation having regard to the provisions contained in section 168 thereof. In Nagappa v.Gurudayal Singh, 2003 ACJ 12 (SC), it is held: “(20) Similarly, the High Court of Punjab and Haryana in Devki Nandan Bangur v.State of Haryana, 1995 ACJ 1288 (P&H), observed that the grant of just and fair compensation is statutory responsibility of the court and if, on the facts, the court finds that the claimant is entitled to higher compensation, the court should allow the claimant to amend his prayer and allow proper compensation. (21) For the reasons discussed above, in our view, under the M.V. Act, there is no restriction that Tribunal/court cannot award compensation amount exceeding the 9 claimed amount. The function of the Tribunal/court is to award `just’ compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time-barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub-section (4) of section 166, even report submitted to the Claims Tribunal under sub-section (6) of section 158 can be treated as an application for compensation under the M.V. Act. If required, in appropriate cases, court may permit amendment to the claim petition.” In Syed Basheer Ahmed v.Mohd.Jameel, 2009 ACJ 690(SC), this court held: “(9) Section 168 of the Act enjoins the Tribunal to make an award determining `the amount of compensation which appears to be just’. However, the objective factors, which may constitute the basis of compensation appearing as just, have not been indicated in the Act. Thus, the expression `which appears to be just’ vests a wide discretion in the Tribunal in the matter of determination of compensation. Nevertheless, the wide amplitude of such power does not empower the Tribunal to determine the compensation arbitrarily, or to ignore settled 10 principles relating to determination of compensation…” In National Insurance Co.Ltd. v.Laxmi Narain Dhut, 2007 ACJ 721 (SC), this court held:- “(25) In the background of the statutory provisions, one thing is crystal clear, i.e. the statute is beneficial one qua the third party. But that benefit cannot be extended to the owner of the offending vehicle. The logic of fake licence has to be considered differently in respect of third party and in respect of own damage claims.” In Punjab State Electricity Board Ltd.v. Zora Singh, (2005)6 SCC 776, this court held: “(22) The administrative circulars as thence existed as also the regulations indisputably require supply of electrical energy to the agriculturists within a period of two months from the date of receipt of the amount asked for in terms of the demand notice. It may be true that the note appended thereto provides that the period specified therein shall be subject to availability of requisite material but the same does not absolve the appellant from performing its statutory duties. (23) In Andhra Pradesh State Road Trans.Corpn.v. STAT, a Full Bench of Andhra Pradesh High Court has noticed thus: 11 “(31)[24]. The meaning of `note’ as per P.Ramanatha Aiyar’s Law Lexicun, 1997 Edn., is `a brief statement of particulars of some fact’, a passage or explanation.” (24) The note, therefore was merely explanatory in nature and thereby the rigour of the main provision was not diluted.” [See also State of Haryana v.Shakuntla Devi, 2008(13) SCALE 621].” (pp-2754-2755) 11. Learned Senior Counsel fortifies this submission from the ratio in Ningamma & anr.vs. United India Insurance Co.Ltd., AIR 2009 SC 3056, holding:- “25. Undoubtedly, Section 166 of the MVA deals with "Just Compensation" and even if in the pleadings no specific claim was made under Section 166 of the MVA, in our considered opinion a party should not be deprived from getting "Just Compensation" in case the claimant is able to make out a case under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the court is duty bound and entitled to award "Just Compensation" irrespective of the fact whether any plea in that behalf was raised by the claimant or not. However, whether or not the claimants would be governed with the terms and conditions of the insurance policy and whether or not the provisions of Section 147 of the MVA would be applicable in the present 12 case and also whether or not there was rash and negligent driving on the part of the deceased, are essentially a matter of fact which was required to be considered and answered at least by the High Court.” (p-3063) 12. Lastly he relies upon the decision in Municipal Corporation of Greater Bombay vs. Kisan Gangaram Hire and Others, (2009)16 SCC 259 to urge that it is within the jurisdiction of the Tribunal to award a higher amount even if not so claimed in the pleadings, but established by evidence. Learned counsel submits that it is proved on the record that the career of a bright officer in the Indian Army has been put to an end at the very threshold. He submits that the amount awarded is meager and does not in any manner take care of the actual loss suffered by him. I do find that the submission is justified. 13. Considering the fact that the petitioner is now debarred from future promotions, I do not think that the amount awarded can be justified as fair and just compensation as the promotion of the petitioner was delayed and the seniority and promotion has been affected and that he can neither be promoted to the rank of Colonel as he cannot undertake Young Officers Course which cannot be undertaken beyond the age of 30 years and for which an officer has to be absolutely fit, his seniority and promotional aspects have been 13 affected. Adverting to Ex.PW-1/X2, I find that this submission is established. 14. In these circumstances, the judgment of the Tribunal is modified and I hold that under the first head namely; compensation on account of loss of future service career and promotional avenues, an amount of Rs.five lacs should and ought to have been awarded to compensate him for his delayed/future promotions and inability to take up specialized courses. I find that under the head pain and suffering and loss of amenities only a sum of Rs.one lac has been awarded, but considering the facts on record it should have been increased, for the reasons that the petitioner has been traumatized, repeatedly hospitalized and is suffering from a fracture injury which still causes discomfort and pain to him in the cold weather, I deem it fit that an amount of Rs.50,000/-, over and above what has been granted by the Tribunal, is just and fair to be awarded to the petitioner. This appeal is accordingly allowed. The petitioner shall be entitled to an additional sum of Rs.3,00,000/- over and above what has been awarded by the Tribunal. The amount shall carry an interest alongwith the amount granted by the Tribunal from the date of filing the petition till its realization. FAO No.543 of 2008. 15. Adverting to the appeal preferred by the Insurance Company, what I find from the ground taken is that the accident was a case of contributory negligence 14 and that the compensation awarded is not fair and is excessive. I do not find that first ground can be sustained as the evidence on record shows that the motorcycle of the petitioner was parked on the road side and the truck struck against it dragging the petitioner along. This can hardly be described as contributory negligence by the petitioner herein. On the second ground, I have already held that the compensation of Rs.2,50,000/- and Rs.one lac for pain and suffering as awarded by the Tribunal, is meager. The career of the petitioner having been permanently adversely affected, I do not find any merit in the appeal of the Insurance Company which is accordingly rejected. September 2, 2011. (Dev Darshan Sud) (aks) Judge.