IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (MVA) Nos. 332 of 2005 and 254 of 2006. Decided on September 24, 2010 1. FAO(MVA) 332 of 2005. Oriental Insurance Co. ..Appellant. Versus Mangat Ram & others ..Respondents. 2. FAO(MVA 254 of 2006. Mangat Ram ..Appellant. Versus Varinder Kumar @ Babloo & others..Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 FAO (MVA 332 of 2005. For the appellant Sh. G.C.Gupta, Sr. Advocate, with Mr. Deepak Gupta, Advocate. For respondent No. 1 Sh. Sanjeev Kuthiala, Advocate. FAO (MVA) 254 of 2006. For the appellant Sh. Sanjeev Kuthiala, Advocate. For respondents 1 & 2 Mr. Ajay Sharma, Advocate. For respondent No. 3 Mr. Lalit Sharma, Advocate. Surjit Singh, Judge (Oral) By means of this judgment, two appeals, particulars whereof are given in the heading of this judgment, are being disposed of, as both of them are directed against the same award, i.e. award dated Whether reporters of the local papers may be allowed to see the judgment? - 2 - 10.6.2005, of the Motor Accident Claims Tribunal. One appeal, i.e. FAO(MVA) 332 of 2005, has been filed by Insurance Company, assailing the finding and the order, that it being the insurer, is liable to satisfy the award. Second appeal, i.e. FAO(MVA) 254 of 2006, has been filed by the claimant, seeking enhancement of compensation. 2. Facts, relevant for the disposal of the two appeals, may be noticed. Mangat Ram, appellant in FAO(MVA) 254 of 2006, filed a petition, under Section 166 of the Motor Vehicles Act, seeking award of compensation, for the injuries, sustained by him, in an accident of truck No. PUC - 4785. Claimant-appellant, Mangat Ram, was travelling by a bus, bearing registration No. HP-20-4801. Truck No. PUC- 4785 rammed into the bus. It was allegedly being driven in a rash or negligent manner. Appellant-claimant Mangat Ram sustained fracture of both the legs, fracture of hip joint and also fracture of left arm. He remained under treatment at Dayanand Medical College and Hospital and spent a huge amount of money. He was employed as a driver before the occurrence of accident and used to earn Rs.5,000/- per month, as salary and allowances, being driver. Injuries resulted in his permanent disability to the extent of 40%, on account of fracture of lower limbs, i.e. the legs. Claimant pleaded that at the time of accident, his age - 3 - was 45 years. He claimed a sum of Rs.5,00,000/-, by way of compensation. 3. The driver and the owner of the truck, as also the Insurance Company, with which the truck was insured for third party risk, were impleaded as respondents. Owner and driver of the truck denied that accident occurred, because of rash or negligent driving of the truck. 4. Insurance Company pleaded that driver of the truck, did not possess a valid and effective driving licence and thus, there was breach of a condition of the Policy and so it was not liable to indemnify the insured. 5. Various issues, based on pleadings of the parties, were framed. Learned Tribunal came to the conclusion that cause of accident was rash or negligent driving of the truck, by its driver. Plea of Insurance Company that driver did not possess a valid and effective driving licence, was rejected. Age of the claimant was held to be 60 years. Loss of his earning capacity, on account of 40% permanent disability of lower limbs, was assessed at 10%. A total sum of Rs.68,514/- was awarded as compensation. 6. Learned counsel, representing the Insurance Company (appellant in FAO (MVA) 332 of 2005), submits that its evidence has been closed, without affording reasonable opportunity, and the reason recorded for closing evidence, was that the matter was old. It has been - 4 - submitted that appellant Insurance Company was not to blame for delay in disposal of the matter and, therefore, the Tribunal was not justified in closing the evidence, for the reason that the matter was old. Record of the Tribunal shows, that matter was listed for evidence of the Insurance Company, for the first time, on 27.4.2005. That day, the presiding officer was on leave. Matter was then adjourned to 2.5.2005. On 2.5.2005, direction was given to the appellant Insurance Company, to produce evidence on 2.6.2005. On that day, evidence of the appellant, being not present, order of closure of evidence was passed. Record, thus, shows that in fact only one effective date had been fixed for the evidence of the appellant. 7. It has been conceded by learned counsel representing both the sides, that there were some more cases arising out of this very accident. In those cases also, evidence of Insurance Company had been shut and in appeal, this Court has remanded those cases to the Tribunal, with a direction to afford reasonable opportunity to the appellant Insurance Company, to lead evidence. 8. In view of the above stated position, it is held that Insurance Company needs to be afforded another opportunity, for leading its evidence. 9. As regards the second appeal (i.e. FAO(MVA) 254 of 2006) filed by the claimant for enhancement of award, - 5 - claimant, while in the witness box, got his age recorded as 58 years in his particulars. In the petition, it was stated that his age was 45 years. Respondents did not deny this averment, though, they did say that they were not aware of his age. In the disability certificate Ex.PW-12/A, his age is recorded as 45 years. Even if it be assumed that the age of the claimant appellant Mangat Ram was 58 years, when he stepped into the witness box on 3.1.2002, his age on the date of accident, which took place on 15.7.1995, comes to 51 years. Learned Tribunal has given the finding that his age was 60 years. That is wrong and incorrect, on the face of it. So, the age of the claimant is to be taken to be 51 years, for working out the compensation payable, on account of loss of future earnings. 10. Learned Tribunal has held that earning capacity of the claimant has not been affected more than 10%, on account of 40% permanent disability of lower limbs. This view of the Tribunal is perverse. Claimant was a driver by occupation. Permanent disability, to the extent of 40% of both the legs, in case of a driver, as a matter of fact, results in almost 100% disability, because a person with 40% disability of lower limbs, if driving a commercial vehicle, like truck, would be putting safety of the public at very high risk. However, claimant must have been earning his livelihood, by shifting to some other occupation and, therefore, loss of - 6 - earning capacity is assumed at 50%. Income of the claimant has been held to be Rs.3,000/- per month, by the Tribunal. Finding calls for no interference, because in the year 1995, when accident had taken place, drivers were paid, not more than the aforesaid amount of money, as their salary and allowances. 11. In the case of an injured between the age of 51 to 55 years, multiplier 11 years’ purchase, is required to be applied, in view of the law laid down by the Hon’ble Supreme Court in Sarla Verma (Smt) and others v. Delhi Transport Corporation and another, (2009) 6 SCC 121 (Para 42). Thus, compensation payable, on account of future loss of earnings, comes to (Rs.1500x12x11=1,98,000/-) Rs.1,98,000/-. 12. With the kind of injuries, the claimant sustained, he must have remained without any work for, at least, six months and thus, compensation payable to him, on account of actual loss of earnings, comes to Rs.3,000/- x 6 = Rs.18,000/-. 13. Learned Tribunal has awarded a sum of Rs.7,000/- only, on account of pain and suffering. The amount is too meagre. Considering the fact that claimant suffered fracture of both the legs, resulting in 40% permanent disability, fracture of one arm and also fracture of - 7 - hip, he is held to be entitled to a sum of Rs.50,000/- on this count. 14. Claimant is also held entitled to another sum of Rs.50,000/-, on account of loss of amenities of life, because of permanent disability, though the Tribunal has awarded only a sum of Rs.8,000/-. 15. A sum of Rs.11,964/- has been awarded on account of medical expenses by the Tribunal. This assessment is based on the vouchers, pertaining to medical expenditure, produced by the claimant and, therefore, no increase is required. 16. Rs.2,000/- have been awarded, on account of transportation expenses and Rs.3,600/- for special diet. Admittedly, claimant had been getting treatment at Dayanand Medical College-cum-Hospital which is away from his home district of Una in H.P. Therefore, a higher amount of money is required to be paid, as compensation on account of transportation charges, expenses of attendant and special diet. A sum of Rs.10,000/-, on all these counts, at least, deserves to be awarded. 17. Thus, total amount of compensation, payable to the claimant works out at Rs.3,38,000/-, as per detail given below:- i), Future loss of earning = Rs.1,98,000/-. ii), Actual loss of earning = Rs. 18,000/-. iii), Pain and suffering = Rs. 50,000/- - 8 - iv), Loss of amenities of life= Rs. 50,000/- v), Medical expenses = Rs. 11,964/- vi), Transportation charges,= Rs. 10,000/- attendant expenses and special diet. Total Rs.3,37,964/-, or say Rs.3,38,000/-. Consequently, appeal filed by the claimant is allowed and the amount of compensation is enhanced by (Rs.3,38,000/- - 68,514/- = 2,69,486/-) Rs.2,69,486/-. 18. The increased amount of compensation, as worked out above, is ordered to be paid with interest @ 6% per annum, from the date of accident to the date of payment. Appeal stands disposed of accordingly. 19. As regards the other appeal, filed by the Insurance Company, FAO(MVA) 332 of 2005, matter is remanded to the learned Tribunal, with the direction to afford at least one opportunity, of not less than 45 days, to the appellant Insurance Company, to lead its evidence and to determine the question of liability of Insurance Company, afresh on the basis of evidence, which the Insurance Company may lead and also the evidence, if any, which the claimants and the insured may lead, in rebuttal, as also the evidence already adduced by the insured and the driver. It is clarified that in case Insurance Company applies for Court assistance, in producing its evidence, such assistance shall be provided. - 9 - 20. Compensation money already deposited with the Registry of this Court, together with upto date interest, is ordered to be released in favour of the claimant. This release is subject to adjudication by the Tribunal, as to the liability of Insurance Company. In case the Tribunal holds that Insurance Company is not liable, then the Insurance Company shall be entitled to recover money from the insured, by executing this order itself. 21. Parties are directed to appear before the Tribunal on 3.11.2010. September 24, 2010 (PC). (Surjit Singh) Judge.