IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAOs (MVA) No. 197 of 2008 and 168 of 2008 Reserved on: 27th October, 2008 Date of Decision:17th November, 2008 FAO (MVA) No.197 of 2008 Rajesh Kumar Appellant Versus B.S.Chauhan and others Respondents FAO(MVA) No.168 of 2008 United India Insurance Company Ltd. Appellant Versus Rajesh Kumar and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. FAO (MVA) No. 197 of 2007 For the appellant: Mr.Deepak Gupta, Advocate. For respondent No.1: Mr. D.S.Nanta, Advocate, vice Mr.Pankaj Chauhan, Advocate. For respondent No.3: Mr.G.D.Sharma, Advocate. FAO (MVA) No.168 of 2008 For the appellant: Mr.G.D.Sharma, Advocate. For respondent No.1: Mr.Deepak Gupta, Advocate. For respondent No.2: Mr.D.S.Nanta, Advocate, vice Mr.Pankaj Chauhan, Advocate. Sanjay Karol, J. The present appeals arise out of award dated 7.1.2008 passed by Motor Accident Claims Tribunal (II), Shimla, H.P. in MAC Petition No. 131-S/2 of 2004 titled as Rajesh Kumar vs. B.S.Chauhan and others. Whether the reporters of Local Papers are allowed to see the Judgment? 2 FAO No.168 of 2007 has been filed by the claimant seeking enhancement of compensation awarded by the Tribunal and FAO No.197 of 2008, has been filed by the United India Insurance Company, assailing the award on the ground that the Tribunal has wrongly fixed the liability on the Insurance Company. On 4.7.2004 Bus bearing No. HP-51-3393, owned by Shri B.S.Chauhan, met with an accident near Village Kanog on Kufri-Chial Road, District Shimla, H.P. An FIR was registered against the conductor of the Bus Shri Man Singh, who is alleged to have driven the vehicle at the time of accident. Shri Sanjay alias Sanjeev was in fact the driver of the Bus. In the said accident, various passengers received injuries and some of them succumbed to the same and died. Various claim petitions were filed by the passengers before the different Motor Accident Claims Tribunals in the State. The present appeals arise out of the Claim Petition filed by Shri Rajesh Kumar under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act), claiming compensation of a sum of Rs.5.50 lacs for the reason that in the said accident he sustained injury and a rod had to be fitted in his leg which not only impaired his earning capacity but also hampered his enjoyment of life. The claimant an agriculturist was having an income of Rs.5,000/- per month from agriculture and other sources. The driver remained ex parte and the owner filed its response stating that at the time of accident the vehicle in question was being driven by its driver Shri Sanjeev, who was having a valid and effective driving 3 licence to drive the vehicle and the name of Shri Man Singh as driver of the ill-fated Bus was wrongly mentioned in the F.I.R. While admitting the fact that the vehicle was insured, the Insurance Company in its reply, however, took up the defence that since Man Singh, who was not possessing any effective and valid driving licence was driving the vehicle at the time of accident, therefore, the Insurer was not liable to indemnify the insured as terms and conditions of the policy stood breached. Based on the pleadings of the parties, the Tribunal framed the following issues:- “1. Whether on 4.7.2004 at about 5.30 PM at Kanog, the respondent No.2 was driving the bus No. HP-51-3393 rashly and negligently and as such caused the multiple injuries to the petitioner? OPP. 2. If issue No.1 is proved in affirmative, what amount of compensation the petitioner is entitled to and from whom? OPP. 3. Whether the driver of bus No. HP-51-3393 was not holding a valid and effective driving licence at the time of accident, as alleged? OPR. 4. Whether the petition is bad for non-joinder of Man Singh driver of bus as party? OPR. 5. Relief.” The parties were afforded adequate opportunities of leading their evidence and after appreciating the material on record, the Tribunal while deciding Issues No.1,3 and 4 collectively, held that at the time of accident Shri Sanjay alias Sanjeev, was driving the bus in a rash and 4 negligent manner which was the cause of the accident. The claimant, one of the passengers sustained injuries in the said accident. On issue No.2, the Tribunal after taking into account the medical bills placed on record as also the medical record showing that the claimant took medical treatment both as an indoor patient with effect from 6.7.2004 upto 24.7.2004 and thereafter as an outdoor patient, awarded a sum of Rs.500/- towards medical bill and expenses and Rs.2000/- towards attendant’s charges. Considering the injury of the claimant a sum of Rs.25,000/- was awarded on account of pain and suffering. The claimant aged 15 years, who was a student, had to give up his studies, therefore, a sum of Rs.5000/- as loss of studies was also awarded. Thus a total sum of Rs.32,000/- was awarded, which was bearing interest @ 7 ½ %. The vehicle being insured, the liability was fastened upon the Insurance Company. Mr.Gupta, learned counsel for the claimant has argued that the claimant’s loss of income was from various sources and the Tribunal ought to have clubbed the same to determine the final compensation. In any event, the compensation awarded was much on the lower side and further the compensation towards the head of non-pecuniary damages be enhanced. Per contra, Mr. G.D.Sharma, learned counsel for the Insurance Company, while justifying the quantum of compensation awarded by the Tribunal, vehemently argued that the liability to pay the same stands wrongly fastened upon the Insurance Company for the reason that the Tribunal has seriously erred in holding that at the time of the accident the 5 vehicle in question was being driven by Shri Sanjay and not Shri Man Singh. Learned counsel for the owner has supported the award for the reasons set out therein and the driver, who was ex parte before the Tribunal also chose not to appear in the present proceedings. I have heard the learned counsel for the parties and also perused the record. There is no dispute that on the ill-fated day the claimant was travelling in the bus, which met with an accident. It is also not in dispute that the injuries sustained by the claimant were as a result of the said accident. In support of his claim, the claimant Shri Rajesh Kumar examined himself as PW-1, Shri Hira Lal (PW-2), Shri Madan Singh (PW- 3), Shri Sunil Kumar (PW-4), Dr. Mukand Lal (PW-5) and Shri Partap Singh (PW-6). In rebuttal, the respondent-owner Shri Bhagat Singh Chauhan examined himself as RW-1 and examined Shri Khem Chand (RW- 2). That Shri Sanjay was driving the Bus at the time of accident is evident from the record. PW-1 categorically deposed that the accident occurred as respondent No.2 (Shri Sanjay) lost control and the bus fell down the road. Importantly, he has not been cross-examined on this point either by the owner or the Insurance Company. In the other appeals arising out of the same accident being FAO No. 527 of 2007 and 170 of 2008, this Court while examining the statement of said Man Singh (the alleged driver) the owner and the 6 Investigating Officer who investigated the FIR has already held that it was Sanjeev Kumar, who was driving the vehicle. It was observed as under:- “That Shri Sanjay was driving the Bus at the time of accident is evident from the record. PW-1 categorically deposed that the accident occurred as respondent No.2 (Shri Sanjay) lost control and the bus fell down the road. Importantly, he has not been cross-examined on this point either by the owner or the Insurance Company. RW-1 has corroborated his version and has further stated that he had employed driver Sanjay alias Sanjeev Kumar, who was possessing a valid and effective driving licence at the time of accident. He denied that Man Singh was driving the vehicle. Importantly, Man Singh, (RW-6) alleged to have driven the vehicle at the time of accident, as a witness of the Insurer deposed that his name was wrongly mentioned in the FIR and it was Sanjeev Kumar, who was driving the vehicle at the time of the accident. In any event, he possessed a driving licence (HTV) and was entitled to drive the vehicle at the time of accident. RW-7 is the Investigating Officer, who carried out the investigation pursuant to the registration of the FIR. Even though in his examination-in-chief he has deposed that during investigation he found that the vehicle was being driven by Man Singh, but, however, in his cross-examination he clarified that he did not remember as to who had stated this fact to him. He further deposed that during investigation he found that the owner had employed Man Singh as a Conductor and Sanjeev Kumar as driver. Both Sanjeev Kumar and Man Singh were challaned, which was still pending in the Court of JMIC, Shimla. He also admitted that both Man Singh and Sanjeev Kumar were having valid licences and were entitled to drive Heavy Transport Vehicle. This is the only evidence to this effect. Thus it is evident that it was Sanjeev Kumar, who was driving the vehicle at the time of the accident. FIR mentioning the name 7 of Man Singh to have driven the vehicle was registered on the complaint of one Shri Nitya Nand. Importantly this witness was not examined by the Insurance Company. Statement of RW-7, conclusively does not establish Man Singh to have driven the vehicle. From the unrebutted testimony of PW-1, which is duly corroborated and supported by RW-1, I see no reason to differ with the findings returned by the Tribunal that it was Sanjay alias Sanjeev Kumar, who was driving the vehicle at the time of the accident. It is not as though the prosecution was launched only against Man Singh. RW-7 has stated that challan is pending against both Man Singh and Sanjeev Kumar. Be that as it may be, the fact of the matter is that even Man Singh was possessing a valid driving licence and thus competent to drive the vehicle. The Tribunal has rightly considered the material on record, particularly, the statement of RW-4 and RW-6 to hold that the driving licence of Man Singh was validly issued by the authorities.” This Court in New India Assurance Co. Ltd. vs. Satya Parkash Thakur and others, 2007 ACJ 714, has held that where the owner had proved that he had engaged a person, possessing a valid licence, to drive the vehicle the onus to prove that another person, not holding a valid driving licence was driving the vehicle with the knowledge of the owner or on account of some carelessness on the owner’s part that person not holding the licence came to drive the vehicle was heavy on the Insurer. In the present case, no such burden was discharged. The fact of the matter is that the claimant sustained injuries and was medically treated as deposed by PW-3:- “Patient had severe pain in the right thigh region and was unable to use the lower right limb. The patient had fracture 8 shaft right femur. He was treated by Professor Mukand Lal, ORIF.” and PW-5 deposed that:- “Patient was operated on 12.7.2004, ORIF with K nail was done by me. Post operatively the patient had been visiting the hospital and was seen last on 21.4.2005. According to record available, then patient was advised one attendant to look after him while admitted in the hospital, that is, from 06.07.2004 to 24.07.2004.” It is also evident that the claimant was examined on different dates and continued to undertake the medical treatment even upto April, 2005 and was examined by four different doctors. This is evident from the discharge slip Ext.P-2, medical certificate Ext.PW-3/A. The injury sustained by the claimant is such that a nail had to be fitted in, thus impairing his working capacity. Due to injury he failed in the class and permanently gave up his studies. The fact of the matter is that PW-1 has deposed that there is a rod fitted in his leg and he is still in pain. Keeping in view the totality of circumstances, I am of the view that compensation towards medical expenses and attendant charges needs to be enhanced from Rs.500/-. No doubt medical bills of medical expenses have not been placed on record, but it is equally true that he was operated for major surgery and a rod had to be fitted in. He was under continuous treatment for over a period of 9 months. He must have incurred expenditure more than Rs.500/-. From the record, it is evident that the claimant was moving on crutches and, therefore, necessarily had to be accompanied by attendant to the Hospital. Therefore, instead of Rs.500/- and Rs.2000/- awarded by the 9 Tribunal, it would be only just, fair and adequate that a sum of Rs.15,000/- is awarded under this head. No doubt the claimant has deposed that his father possesses 26 bighas of land and he used to help him and contribute his services in the field, but, however, the father has not stepped into the witness box to depose the extent and the nature of services rendered by the claimant. PW-6 has deposed that the claimant has four brothers and sisters, who also used to contribute. Therefore, in my view the loss of income for the services rendered in the fields cannot be conclusively determined. In R.D.Hattangadi vs. Pest Control (India) Pvt. Ltd. and others, 1995 ACJ 366, Apex Court has laid down the following criteria for awarding the compensation:- “Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, 10 discomfort, disappointment, frustration and mental stress in life.” In Rashila Ram Kaushal vs. Ranjit Singh and others, 2004 ACJ 1891, this Court while dealing with a case of teacher, who suffered permanent disability of 20% awarded Rs.37,000/- under the head of permanent disability. The Tribunal has awarded Rs.25,000/- under head of pain and suffering and Rs.5000/- as loss of studies. The claimant is 15 years of age. He had to give up his studies and cannot perform hard work as advised by the doctor. He has to carry with the pain and suffering throughout his life. No doubt, there is no permanent disability certificate on record, but, however, from the nature of injury, it cannot be said that the claimant can perform his job as he would have otherwise done if he had not suffered the injury in question. Moreover, due to injury his marriage prospects are marred. Therefore, in my view, the claimant under all heads of non- pecuniary damages would be entitled to a sum of Rs.1 lac instead of Rs.30,000/-. The claimant, thus, is entitled to the following compensation alongwith interest as awarded by the Tribunal:- Medical expenses including attendant charges Rs. 15,000-00 Pain and suffering and all other heads falling under non-pecuniary damages Rs.1,00,000-00 Total: Rs.1,15,000-00 11 For the foregoing reasons, the appeal filed by the claimant is allowed and the appeal filed by the Insurance Company is dismissed. The award is modified to the aforesaid extent. However, there shall be no order as to costs. 17th November, 2008 (Sanjay Karol), (C) Judge.