IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: FAO.No. 317/2006. Date of Decision:15th December,2008. United India Insurance Co. …Appellant. Versus: Shyam lal and others. …Respondents Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting?1 For the appellants: Mr.A.K.Sharma, Advocate with Ms.Madhu Sharma, Advocate. For Respondent-1: Mr.N.K.Sharma, Advocate. For Respondent-2: Mr.R.L.Chaudhary, Advocate. Sanjay Karol, J (Oral). The insurer has filed the present appeal assailing the impugned award dated 6th July, 2006 passed by the Motor Accident Claims Tribunal, Bilaspur, District Bilaspur, H.P. in M.A.C. Case No. 54 of 2004 titled as Shyam Lal Vs. Rajinder Paul Khera and others awarding compensation of Rs. 68,208/- along with interest at the rate of 7.5% per annum pendente lite and future to the claimant who sustained permanent disability (3%) in a motor accident which took place on 16th May, 2002. Claimant-respondent No.1 filed a claim petition under Section 166 of the Motor Vehicles Act (hereinafter referred to as the ‘Act’) alleging that on 16th May, 2002 while 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 driving scooter No. HP-23-1194 he was hit by vehicle No. HP- 01-0079 (offending vehicle) at village Behal-Kandaila, Tehsil and District, Bilaspur. The accident which took place on 16th May, 2002 was a result of rash and negligent driving on the part of Sh. Chet Ram-respondent No.3 herein who was driving the offending vehicle which was owned by Sh.Rajinder Paul Khera-respondent No.2 herein and insured by the appellant- insurer. F.I.R. was registered by a passer-by against Sh. Chet Ram. In the said accident the claimant sustained injuries on his person and his left leg was fractured as a result of which he had to be hospitalized and take medical treatment both at the District Hospital, Bilaspur, H.P. and the Post Graduate Institute, Chandigarh (U.T). As a result of injury the claimant sustained permanent disability to the extent of 3% on his right hip joint. Compensation of Rs. 5,00,000/- was claimed. The owner filed a reply admitting the occurrence of the accident, but, however, took the defence that the accident occurred due to the fault of the claimant. The driver also filed an independent reply taking a similar stand. The insurer filed a separate reply reiterating the defence taken by the owner and the driver. Based on the pleadings of the parties, the Tribunal framed the following issues: 1. Whether the petitioner has sustained injuries in the accident which had taken place due to the rash and negligent driving of Maruti Van No. HP-01-0079 by respondent No. 2?. …OPP. 3 2. If issue No.1 is proved in affirmative, to what amount of compensation, the petitioner is entitled to and from whom?. …OPP. 3. Whether the respondent No.2 was not having the driving license and other documents at the time of plying the vehicle, if so, its effect?. …OPR-3. 4. Whether the accident had taken place due to contributory negligence of the scooterist and respondent No.2, if so, its effect?. …OPR-3. Opportunity to adduce evidence was afforded to the parties. Appreciating the material on record, the Tribunal found Sh. Chet Ram driver of the offending vehicle have driven the vehicle in a rash and negligent manner which was the cause of the accident in which the claimant sustained injuries. The plea of contributory negligence was rejected by the Tribunal. On the question of compensation, considering the proven injury, hospitalization and the permanent disability of the claimant as also his income to be that of a daily wager i.e. Rs. 3,000/- per month, the Tribunal awarded the following amounts of compensation: 1. Pain and suffering; Rs.15,000/- 2. Loss of amenities Rs.20,000/- 3. Future loss Rs.16,200/- 4. Transport charges Rs. 7,950/- 5. Medical expenses Rs. 3,058/- 6. Attendant charges Rs. 1,500/- 7. Loss of income because 4 of unemployment. Rs. 4,500/- Total Rs.68,208/- Issue No.2 was decided accordingly. On issue No.3 the Tribunal found that in the absence of any proof of documents tendered by the insurer the same could not be looked into and, therefore, there was no evidence on record to prove the fact that the driver was not holding an effective and valid driving license at the time of the accident or that any of the terms of the insurance policy stood breached. Accordingly in view of the fact that the vehicle was insured, the owner was found to have been indemnified by the insurer and as such the insurer was directed to pay the compensation to the claimant. I have heard learned counsel for the parties and also perused the record. In order to prove its case, the claimant examined himself as PW-1 and Dr.Amarjit Singh (PW-2). F.I.R. (Ext.PA), medical prescription, admission slips and medical bills stand proved by the claimant which has been exhibited as Ext.P-1 to Ext.P-24. The disability certificate stands proved as Ext.PW-2/A. In rebuttal, no oral evidence was led by the insurer, insured or the driver of the offending vehicle. However, copy of the insurance policy (Ext.R-1) and the surveyor report (Ext.R-5) were only tendered by the insurer in the evidence. Similarly, the owner tendered a copy of the 5 goods tax receipt (Ext.R-2), certificate of registration (Ext.R- 3) and the certificate of driving license (Ext.R-4). That the accident took place on 16th May, 2002 at 9.30 A.M. at village Behal-Kandaila, Tehsil and District Bilaspur, H.P. is not in dispute. The vehicles were being driven by the parties is also not in dispute. F.I.R. No. 176/02 dated 16th May, 2002 (Ext.PA) was registered under Sections 279 and 337 of the Indian Penal Code against Sh. Chet Ram is also not in dispute. PW-1 has proved that the accident took place as Sh. Chet Ram who was driving the offending vehicle came from the opposite direction on the wrong side and hit the claimant who was driving the scooter. Importantly, his testimony is unimpeachable. Even the insurer has not cross examined him on the question of contributory negligence. The driver and the owner of the offending vehicle have chosen not to step into the witness box and depose to the contrary, therefore, in my view the Tribunal has rightly came to the conclusion that the accident took place as a result of negligence of Sh.Chet Ram-respondent No.2. The fact that the claimant sustained injury and had to be admitted in the District hospital from 23rd May, 2002 up to 28th May, 2002 and had to further undergo treatment at P.G.I. Chandigarh stands proved by PW-1. The same is also evident from the medical prescription and the discharge slips more particularly Exts.P-2 to P-4, P-6, P-7,P- 11, P-12, P-15, P-16, P-18 and P-19. 6 That the claimant sustained permanent disability to the extent of 3% on the right hip joint stands proved by PW-2 as also the disability certificate (Ext.PW-2/A). The claimant has incurred medical expenditure for his treatment is evident from the medical bills placed on record by the claimant. The medical bills of various places (Exts.P-5, P-17, P-20 to P-24) sufficiently prove the expenditure incurred by the claimant. The fact that the claimant had to travel to Chandigarh for treatment and incur travelling expenses also stands proved vide receipts (Ext.P-8 to P-10 and Ext.P-13 and P-14) issued by the Taxi owner. The claimant could not place on record any documentary proof of his income. Taking the oral testimony of the claimant his income was determined to be Rs.3,000/- per month. The same was based on the daily wages earned by a casual labourer engaged with the State Govt. There is no error in the determination of such amount. The medical record shows that the claimant has been taking treatment both as an indoor and outdoor patient at various places from 23rd May, 2002 up to 7th August, 2002. The Tribunal has only taken into account 45 days for which the claimant would have remained unemployed. In my view considering the length of the treatment the same is on the lower side. Be that as it may be in the absence of any appeal by the claimant a sum of Rs. 4,500/- awarded on the said account cannot be interfered with. 7 Similarly, a sum of Rs. 3,058/- awarded towards medical expenses stands proved on record. The future pecuniary loss of earning capacity has been taken to be only 3%. The same appears to be on the lesser side for the reason that the injury with the increase of age is likely to decrease the earning capacity of the claimant. The compensation awarded by the Tribunal towards the pain and suffering and loss of amenities is Rs.35,000/-. With the increase of age the pain and suffering is likely to be increased and the claimant is likely to suffer further loss of amenities of life. I see no reason to interfere in the same. The compensation awarded by the Tribunal towards the attendant charges and transportation charges also appears to be fair, just, reasonable and stands substantiated by the oral and documentary evidence on record. Therefore, I see no reason to interfere with the compensation awarded by the Tribunal. Importantly, the insurer, insured or the driver did not examine any witness. The fact that the vehicle was insured at the time of the accident is admitted by the insurer in its reply and is not disputed even now. The insurance policy (Ext.RW-1/A) however was tendered in evidence by the insurer The insurer has placed on record surveyor’s report (Ext.R-5) and also the photo copy of the driving license (Ext.R-4) to the effect that the driver was not entitled to have driven the vehicle at the relevant time for the reason that he was holding a license only to drive a light motor vehicle. The 8 vehicle in question was, in fact, a transport vehicle. Even though the documents were exhibited but, however, the fact remains that they were not public documents as contemplated under the provisions of the Indian Evidence Act, therefore the Tribunal was right in not considering the same. Merely that the document is exhibited by itself would not be enough. The same has to be proved in accordance with law. It is settled law that any breach of insurance policy is to be proved by the insurer. {National Insurance Co. Ltd. Vs. Swaran Singh and others (2004) 3 Supreme Court Cases 297}. In the present case unfortunately the Insurance Company led no evidence to prove the breach of the term of the insurance policy. I see no illegality or irregularity in the impugned award. The Tribunal has considered and appreciated the entire material in its correct perspective. For the aforesaid reasons, the appeal is dismissed. (Sanjay Karol), Judge. December 15, 2008(R)