IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: FAO.No.408/2004. Date of Decision :19th August, 2008 Dhanna Singh .Appellant. Versus: Narinder Kumar l & others. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Tara Singh Chauhan, Advocate. For respondents.1 & 2: Ms. Nishi Goel, vice counsel. For respondent No.3 : Mr. J. S. Bagga, Advocate. Sanjay Karol, J.(Oral). The present appeal arises out of the impugned Award dated 8.3.2004 passed by the Motor Accident Claims Tribunal, Bilaspur, H. P. in M. A. C. Case No. 121 of 2001 titled as Dhanna vs. Narinder Kumar and others, whereby a sum of Rs.50,000/- has been directed to be paid as compensation to the appellant-claimant for the damage caused to his vehicle in an accident which took place on 1.10.2001. The appellant, as claimant filed a claim petition under Section 166 of the Motor Vehicles Act (hereinafter referred to as ‘the Act’) inter alia pleading that on 1.10.2001, due to rash and negligent driving of vehicle No. HP-31-3073 by Shri Piare 2 Singh, respondent No.2 herein an accident occurred in which the claimant’s vehicle was severally damaged. Criminal proceedings were initiated against respondent No.2. There was a substantial damage and the vehicle had to be carried by a recovery Van for repair at Sirhind (Punjab). The claimant spent huge amount for the repair and also sustained loss of business. In the claim petition, the following compensation was claimed :- i) Completion of body including material denting and labour etc.: Rs. 77,200.00 ii) Carriage from Sungal to Sirhind though recovery Van : Rs. 12,000.00 iii) Painting of the truck : Rs. 3,000.00 iv) Loss of business of the truck remained out of order for two months @ Rs. 20,000/- per month. : Rs. 40,000.00 v) Mental agony & harassment : Rs. 20,000.00 ------------------- Rs.1,52,200.00 ------------------- Based on the pleadings of the parties, the trial Court framed the following issues:- 1. Whether vehicle No. HP-12-3588 had suffered damage on account of rash and negligent driving of vehicle No. HP-31-3073 by respondent No.2? ….OPP 2. If issue No.1 is proved to what amount of compensation and from whom the petitioner is entitled to? …OPP 3. Whether the respondent No.2 had not been in possession of valid and effective driving licence to drive vehicle No. HP-31-3073? ….OPR3 3 4. Whether the petition is bad for non-joinder of necessary parties? …..OPR 5. Whether the accident had occurred as a result of contributory negligence of driver of vehicle No. HP-12-3588? …..OPR 6. Relief. After appreciating the entire material on record, the Court below held that respondent No.2 driver of vehicle No. HP- 31-3073 was rash and negligent and the claimant’s vehicle No. HP-12-3588 had sustained substantial damage due to the said rash and negligent acts of the said respondent. On merits, it was held that the appellant was entitled to compensation of Rs.50,000/- as under:- i) Rs.25,000/- on account of repair work; ii) Rs.12,000/- for charges paid to the recovery Van; iii) Rs.8,000/- for lay of the vehicle for 10 days and iv) Rs.5,000/- on account of mental shock and harassment. Respondent No.1 Shri Narinder Kumar, being owner, was also held liable. Aggrieved by the impugned award, the claimant has filed the present appeal seeking enhancement of the amount of damages. Importantly, no appeal has been filed either by the Insurance Company or by the owner and the driver of the offending vehicle. No appeal/cross objections were filed prior to the date of hearing. The findings of facts arrived at by the Court below on issues No. 1, 3, 4 & 5, have not been 4 assailed by any of the parties. Hence, the present appeal is being considered on the limited ground of enhancement of the amount of compensation payable to the appellant. During the course of hearing, Mr. Tara Singh Chauhan, learned counsel for the appellant has restricted his claim to the loss of business of the truck which remained out of order for approximately two months and also the interest as the Court below has awarded interest from the date of the award. Learned counsel for the respondents has empathetically argued that the Court below rightly held that the truck stood parked for 10 days on account of repair work and, therefore, a sum of Rs.8,000/- awarded on account of lay off was justifiable. Any further enhancement is opposed on the ground that there is no material on record justifying the same. The claimant has examined himself as PW-1 and also Shri Madan Lal (PW-2), Shri Naranjan Singh (PW-3), Shri Avtar Singh (PW-4 and respondents have examined Shri Piar Singh (RW-1) and Shri Ramesh (RW-2). From the perusal of the statements of the respondents witnesses, it is evident that there is no mention about the extent of damage or the period of lay off. As far as the claimant’s evidence is concerned, PW-1 has categorically deposed that the vehicle in question could not be plied by him as the same had been sent for repair to Sirhind where it took approximately two months to be fully repaired. He has claimed a sum of Rs.40,000/- on that count. Importantly, there is no cross-examination by either of the respondents on 5 this point. Further, the statement of PW-1 stands corroborated to a large extent by Shri Madan Lal (PW-2), who has stated that the vehicle took approximately 1½ months to be repaired at Sirhind. Even this witness has not been cross-examined on this point. From the material on record, it is evident that the vehicle in question could not be plied for at least 1½ months as it was under repair at Sirhind. Ext.PA is the receipt indicating that the vehicle had been taken by the recovery Van to Sirhind and Ext.PB & Ext.PC are the bills and receipts issued by PW-2 indicating that the vehicle was in fact repaired at Sirhind and payment made for the same. It has come on record that the vehicle is registered in Himachal Pradesh and the area of operation is in and around District Bilaspur, Himachal Pradesh. In my view, the claimant has by cogent, convincing and reliable material proved that the vehicle in question could not be plied for at least 1½ months and, therefore, applying the rates so determined by the Court below for lay off the claimant shall be entitled to a sum of Rs.36,200/- (44 days x Rs.800/- as determined by the Court below) on this count. Ordered accordingly. The Court below has awarded simple interest @9% per annum from the date of the award, which ought to have been awarded from the date of the petition. It is ordered accordingly. 6 For the aforesaid reasons, the present appeal is accepted to the aforesaid extent and is disposed of as such. The impugned award is modified accordingly. (Sanjay Karol), Judge. August 19, 2008. (rana)