IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (MVA) No. 221 of 2002. Judgment reserved on 10.3.2008. Date of Decision: 20th March, 2008. Oriental Insurance Company Ltd. ….. Appellant. Versus Kamlesh and others …..Respondents. Coram The Hon’ble Mr. Justice Dev Darshan Sud,Judge. Whether approved for reporting?1 For the Petitioner: Mr. Ashwani K. Sahrma, Advocate. For the Respondents: Mr. Sanjeev Kuthiaial, Advocate, for respondent No. 1. Mr. Raman Sethi, Advocate for respondent Nos. 2 and 3. Dev Darshan Sud, Judge. This appeal has been preferred by the Insurance Company against the award passed by the learned Motor Accidents Claims Tribunal-II, Solan, Camp at Nalagarh in M.A.C. Petition No. 45-NL/2 of 1999. Claimant Kumari Kamlesh, respondent No. 1 instituted the claim on the allegations that she was a pillion rider on 1 Whether Reporters of Local Papers may be allowed to see the judgment? - 2 - motor cycle bearing registration No.CHO-01-L-9742 which was being driven by respondent No. 5 Shri Hira Singh. At about 1 p.m. on 22.3.1999 the motor cycle met with an accident with truck bearing Registration No. HP-12-2055, which was being driven rashly and negligently by respondent Ram Lal. The claimant alleged that at the place of accident, there was a curve and the truck struck against the motor cycle with force with the result that the motor cycle along with its riders fell down about 20 feet below the road. The claimant received injuries and was thereafter rushed to the Regional Hospital at Nalagarh and was thereafter referred to the Post Graduate Institute of Medical Sciences, Chandigarh where she underwent treatment as an indoor patient. A sum of Rs. 7 lacs was claimed as compensation for the injuries sustained by the claimant. It was pleaded that the claimant is unable to perform her daily chores and needs attendant. Her chances of marriage and leading normal life have been ruined. The petition was resisted by the respondents on various grounds including the ground that there was no negligence on the part of the driver of the truck and it was in fact, the motor cycle which was being driven in a rash and negligent manner and at a high speed which resulted in the accident. The Insurance Company denied its liabilities in toto. No specific plea regarding negligence of the driver of the motor cycle was raised by the Insurance Company. - 3 - The learned trial court on a conspectus of the entire evidence, awarded a sum of Rs. 4, 49,000/- to the claimant which included loss of income, medical expenses, pain and sufferings etc. Learned counsel appearing for the Insurance Company submits that it was a case of contributory negligence and the evidence on the record clearly established that the motor cycle was being driven in a rash and negligent manner and no fault could be attributed to the truck driver. It was also urged that the compensation awarded is excessive and not in consonance with the established principles of law on the facts pleaded or proved. I have heard learned counsel for the parties and have gone thorough the record of the case. PW-1 claimant has sworn on oath that she was travelling as a pillion rider on the motor cycle and going to Nalagarh for appearing in an examination. The motor cycle was struck by the truck which was being driven by Ram Lal who was driving it in a rash and negligent manner without caring for the safety of the other users of the road. The motor cycle fell down about 20 feet below the road as a result of which the claimant sustained injuries in the spine resulting in permanent disablement. She proved on record the receipts evidencing payment to Chemist(s) and P.G.I. Chandigarh (Ext. P-1 to P-13), certificates issued by the Department of Technical Education Vocational Industrial training H.P. stating that she had successfully completed a course at the ITI for Women (Ext. P-14 and 15) having successfully learnt the trade of embroidery and needle work. In cross examination she has denied - 4 - any suggestion that the motor cycle was being driven in a rash or negligent manner. PW-2 Dr. Anil Bansal, an Orthopedic Surgeon at District Hospital has proved on record the medical certificates Ext. PW-2/B saying that the claimant has sustained injuries and fractures in D-6, D-8 and D-L and suffered permanent disablement to the extent of 45%. RW-1 Shri Ram Lal was driving the truck which struck against the Motor Cycle. He states that the accident was the result of rash and negligent driving by Hira Singh respondent No. 3. He states on oath that three persons were riding the motor cycle and this was one of the reasons for the accident which occurred as the driver lost control due to imbalance. RW-2 Mukesh Kumar is an eye witness to this accident. He has stated on oath that on 22.3.1999 he was proceeding towards Nalagarh at his scooter. When he reached at Kumarhatti, he found that truck HP-12-2055 was coming at a very fast speed and it struck against the motor cycle on which the claimant was a pillion rider. He corroborates the claimant as also RW-3 who is the driver of the motor cycle on the fact that it was the truck which was being driven in a rash and negligent manner when it struck against the Motor Cycle. He says that after the motor cycle fell down about 15/20 feet below the road, he assisted in lifting the injured and taking them to the Hospital. He has denied the suggestion that there were three people riding on the motor cycle or that the truck driver is not at fault. RW-3 Hira Singh has also corroborated these facts. This is the entire evidence on the record. - 5 - The submission made by the learned counsel for the Insurance Company that the accident occurred because of the negligence of the driver of the motor cycle, cannot be accepted. RW-2 Shri Mukesh Kumar who is an eye witness to the accident does not corroborate or even remotely support the case pleaded by the appellant-respondent. He has stated emphatically that the accident occurred because of the fault of the truck driver. He has denied the suggestions that there were three riders on the motor cycle and the accident occurred because of the fact that it lost balance. He is an independent witness and can be safely relied upon. The reading of the evidence in its entirety leads to only one conclusion and i.e. that the accident was the outcome of the fault and negligence of the truck driver. There is not an iota of evidence to suggest that the motor cycle driver was in any manner responsible for the accident. There is no fact proved on record which would attribute negligence to the motor cycle driver. Learned counsel for the Insurance Company submits that there is no evidence on the record to suggest as to what was the loss of income or the amount expended by the claimant towards the medical expenses. The figure of Rs. 4, 49,000/- awarded amount is very high and without any factual basis whatsoever. The learned Motor Accidents Claimants Tribunal has awarded compensation in the following manner:- “(1) Amount for diminish of future Rs. 3,84,000/-. Prospectus awarded. Monthly Income of the petitioner is assessed - 6 - Rs. 2000/- per month and multiplier Of 16 is applied: (2) Loss of conveyance charged awarded Rs.5000/- (3) Attendance charges awarded: Rs.10,000/- (4) Pain and suffering awarded: Rs. 30,000/- (5) Medical Expenses awarded: Rs. 20,000/- Total compensation awarded to the -------------- Petitioner: Rs. 4,49,000/-“ Learned counsel for the claimant submits that the learned Motor Accidents Claims Tribunal was wrong in assessing the loss of income by using the datum figure of Rs. 2000/- as the earning capacity of the claimant. It is undisputed that the claimant is a young lady and because of the nature of disability as evidenced by Ext. PW-2/B she will be unable to lead a normal life. The learned counsel for the claimant submits that the amount awarded is not excessive. It is in evidence that the claimant had remained admitted in P.G.I. Chandigarh for more than about 8 days. He also admits that she has not retained all the receipts etc. of the amount spent on medical treatment. The amount awarded by the learned Motor Accidents Claims Tribunal is not excessive. The learned Tribunal has awarded Rs. 30,000/- for pain and suffering which I do not consider to be excessive. On medical expenses a sum of Rs. 35,000/- split up to medical expenses, conveyance charges and charges for attendant cannot also be considered as excessive. Learned counsel for the claimant submits that in Lata Wadhwa vs. State of Bihar and others (2001) 8 SCC 197, the Hon’ble Supreme Court has determined the income of a - 7 - house wife to be Rs. 3000/- per month and Rs. 36,000/- per year as the dependency amount. In the present case, learned Motor Accidents Claims Tribunal has assessed the loss at Rs. 2000/- per month and awarded compensation for conveyance charges, attendant charges, pain and sufferings and medical expenses which are on a very lower side. He submits that it is undisputed and unrebutted on the record that the claimant remained under treatment in P.G.I. for a considerable long period of time. In this eventuality, medical and allied expenses of Rs. 35,000/- is not excessive but on the lower side. Learned counsel for the Insurance Company submits that even if the case of the claimant is accepted in toto, she was only entitled to 45% of the awarded amount as her injury as certified by Ext. PW-2/B was only 45%. Considering the totality of the circumstances, submission made by the learned counsel for the Insurance Company cannot be accepted. As held in Lata Wadhwa’s case (supra) if Rs. 3000/- is taken to be a datum figure in that event the compensation awarded by the learned Motor Accidents Claims Tribunal would work out to Rs. 5, 76,000/-. When interest etc. is added this amount would increase. In these circumstances, even if the contention of the learned counsel for the Insurance Company is accepted, the amount which has been awarded by the learned Motor Accidents Claims Tribunal cannot be interfered with/disturbed as it would work out to - 8 - more or less the awarded amount as has been awarded by the Tribunal. In these circumstances, I do not find any merit in the appeal, which is accordingly dismissed. There shall be no order as to costs. 20th March, 2008. (Dev Darshan Sud), (cm) Judge.