IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO No.615 of 2003 Date of Decision : September 4, 2008 Shammi …Appellant. Versus: The Principal Shivalik Public School & others …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. Deepak Kaushal, Advocate For respondent No.1 : Mr. Arvind Sharma, Advocate. Sanjay Karol, J.(Oral) The present appeal arises out of the impugned Award dated 17.9.2003 passed by the Motor Accident Claims Tribunal-I, Sirmaur District at Nahan, H. P. in M. A. C. Petition No. 173- MAC/2 of 2001 titled as Shammi vs. Principal Shivalik Public School & others, whereby compensation of Rs.5,800/- along with interest @ 9% has been directed to be paid to the petitioner/ claimant. On 16.9.2000, the appellant, hereinafter referred to as ‘the claimant’, was driving his Scooter bearing registration No.HP-18-1459. A Contessa Car being driven by respondent No.2 bearing registration No.CH-01D-9186 came in a rash and negligent manner and hit the Scooter as a result of which the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 claimant sustained multiple injuries. An F.I.R. was registered and the claimant who fell unconscious was admitted in the Zonal Hospital at Nahan and received treatment as indoor patient from 16.9.2000 upto 21.9.2000. The claimant prayed for compensation of Rs.3 lacs on the ground that respondent No.2 was driving the vehicle in a rash and negligent manner in which he sustained grievous injuries from which he had not recovered fully and was still undergoing treatment. The injuries had impaired his efficiency and working capacity. At the time of accident, he was earning Rs.5,000/- per month. The petition was resisted by respondent No.1 on the ground that the vehicle stood sold to respondents No.2 & 3 and, therefore, no liability could be fastened on it. Respondent No.2 filed a separate written statement and while admitting the averments of the claimant’s case simply pleaded that the accident occurred due to the fault of the claimant. On the basis of the pleadings of the parties, the Court below framed the following issues:- 1) Whether the petitioner suffered injuries as a result of the accident with Car No. CH- 01D-9186 which was being driven in rash and negligent manner by respondent No. 2? ………OPP 2) To what amount of compensation and from whom the petitioner is entitled to receive? ….OPP 3) Relief. 3 Appreciating the material on record, the Court below found that respondent No.2 had been driving the vehicle in a rash and negligent manner and as such the accident occurred in which the claimant sustained multiple injuries. The Tribunal also held that in the absence of any proof of sale of Car, respondent No.1 could not be absolved of the liability being the registered owner of the said vehicle. On the question of compensation, the Tribunal found that only a sum of Rs.800/- had been spent for medical treatment and in the absence of any proof with regard to the income or loss of income, no amount could be awarded but however, Rs.5,000/- was awarded on account of pain and suffering to be paid by respondent No.1. The claimant has filed the appeal seeking enhancement of the compensation. No appeal or cross- objections have been filed by any of the respondents. In fact post admission notices were sent to respondents No.2 & 3 and inspite of intimation, they have chosen not to appear in the present proceedings. I have heard learned counsels for the parties and also perused the record. In the absence of any appeal or cross-objections, the submission made by the learned counsel for respondent No.1 that the said respondent should be absolved of the liability cannot be considered and more so when the Tribunal has arrived at its conclusion that there was no evidence whatsoever to prove on record the sale of the vehicle by respondent No.1 in favour of 4 respondents No.2 & 3. Respondent No.1 has not even bothered to step into the witness box to prove his case. Claimant Shammi Rehman (PW-1) has deposed that after the accident he fell down and became unconscious and had to be admitted in the Zonal Hospital at Nahan for about 7 days. He undertook the treatment and incurred expenditure as per bills Ext.P-1 to Ext.P-12. The discharge slip Ext.P-13 has been proved by him. He has deposed that he incurred an expenditure of Rs.3,000/- to 4,000/- for treatment during the said period and also spent amount as per Ext.P-15 for getting his vehicle repaired. According to him, he was working as a tailor master in the shop of G.M. Tailors and having an income of Rs.5000/- per month. Importantly, there is no serious cross-examination of this witness either on the point of income or the expenditure incurred by him while undergoing medical treatment. It has been suggested to the witness that he was earning only Rs.1,000/- per month. Shri Shoukat Ali (PW-2) is the owner of the shop where the claimant was working. He has corroborated the claimant’s version and has deposed that the claimant was earning Rs.4000/- to Rs.5000/- per month through him. Even though this witness has been cross-examined extensively but however, there is nothing from which it can be inferred that he has falsely deposed. 5 Shri Manmohan Singh (PW-3) has corroborated the version of PW-1 by proving the receipt Ext.P-15 pertaining to the repair of the Scooter belonging to the claimant. He has carried out the repairs. I have seen the medical record and the receipts of the expenditure incurred by the claimant. The injury is multiple and grievous in nature. The record shows that even after discharge from the hospital, the claimant had continued to receive treatment. No doubt the total receipts placed on record are for a sum of Rs.800/- but, however, one cannot loose sight of the fact that he was admitted in the hospital for 7 days and some other expenditure must have been incurred by the claimant. There is no cross-examination with respect to the claimant’s statement that he has incurred an expenditure of Rs.3,000/- to Rs.4,000/- for undergoing medical treatment. Thus, in my view, the claimant is entitled atleast to a sum of Rs.3000/- for the said account. In so far as the damage to the Scooter is concerned, the Tribunal has disallowed the claim only on the ground that receipt Ext.P-15 did not specify the name of the owner or the number of the vehicle. In my view, this reasoning is perverse particularly when both the owner of the vehicle (PW-1) and the mechanic (PW-3) who repaired the vehicle stepped into the witness box and categorically deposed that the vehicle was damaged and got repaired for which an expenditure as per Ext.P-15 was incurred. FIR Ext.P-14 also records the fact that 6 the vehicle was damaged. It was not put to the claimant that he has received the claim from the Insurance Company against the Policy. Therefore, in my view, the claimant is entitled to a sum of Rs.10,055/- (as per Ext.P-15) as expenditure incurred by him for getting his vehicle repaired. The injury received by the claimant is grievous in nature. The claimant specifically deposed that inspite of treatment he could not fully recover and while performing his duties at times feels giddy. PW-3 has also corroborated this version. From the deposition of the witness, it is evident that the claimant’s capacity to work efficiently has been seriously impaired due to the said accident. The claimant was admitted in the hospital for 7 days and taking his monthly income to be Rs.4000/-, the claimant would be entitled atleast to a sum of Rs.1,000/- towards loss of income. The Tribunal has awarded a sum of Rs.5,000/- on account of pain and suffering. Keeping in view the injury sustained by the claimant as also the attending circumstances, in my view, a sum of Rs.5,000/- awarded by the Tribunal on account of pain and suffering is on the lower side and is enhanced to Rs.10,000/-. The claimant shall be entitled to interest as awarded by the Tribunal. Thus, the claimant shall be entitled to total compensation along with interest as under:- 1. On medical treatment = Rs. 3,000/- 2. Pain and suffering = Rs.10,000/- 3. Loss of income = Rs. 1,000/- 7 4. Expenditure incurred for = Rs.10,055/- repair of vehicle ----------------- Total Rs.24,055/- ----------------- The Award is modified to the aforesaid extent. The claimant shall be entitled to all other benefits as awarded by the Tribunal. The appeal is allowed and disposed of as such. ( Sanjay Karol ), Judge. September 4, 2008. (rana)