IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAOs (MVA) No. 57 of 2007 and 131 of 2007 Reserved on: 24th October, 2008 Date of Decision:11th November, 2008 FAO (MVA) No.57 of 2007 Ram Krishan and others Appellants Versus B.S.Chauhan and others Respondents FAO(MVA) No.131 of 2007 United India Insurance Company Ltd. Appellant Versus Ram Krishan and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. FAO (MVA) No. 57 of 2007 For the appellant: Mr.G.C.Gupta, Sr. Advocate, with Mr.Amardeep, Advocate. For respondent No.3: Mr.G.D.Sharma, Advocate. FAO (MVA) No.131 of 2007 For the appellant: Mr.G.D.Sharma, Advocate. For respondent No.1: Mr.G.C.Gupta, Sr. Advocate, with Mr.Amardeep, Advocate. Sanjay Karol, J. The present appeals arise out of award dated 17.1.2007 passed by Motor Accident Claims Tribunal (Fast Track), Shimla, H.P. in Whether the reporters of Local Papers are allowed to see the Judgment? 2 RBT No. 139-S/2 of 2005/2004 titled as Ram Krishan and others vs. B.S.Chauhan and others. FAO No. 57 of 2007 has been filed by the claimants seeking enhancement of compensation awarded by the Tribunal and FAO No.131 of 2007, 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 Ram Krishan and others, legal representatives of deceased Smt. Kaushalya Devi, under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act), claiming compensation of a sum of Rs.5 lacs on account of death of Smt. Kaushalya Devi, in the said accident. Deceased Smt. Kaushalya Devi was survived by her husband, two sons and a married daughter. The deceased was a house wife. 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 FIR. 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 Sanjay drove vehicle No. HP51/3393 rashly and negligently on 4.7.2004? OPP 2. Where there was collusion between petitioners and the respondents No. 1 and 2 and if so, its effect? OPR 3. Whether there was no valid and effective driving licence with Man Singh, if so its effect? OPR 4. Whether the petition is bad for non-joinder of necessary parties? OPR. 5. If issue No.1 is proved, whether petitioners are entitled to compensation, if so to what extent and from whom? OPP. 6. Relief. The parties were afforded adequate opportunities of leading their evidence and after appreciating the material on record, the Tribunal while deciding Issues No.3, held that at the time of accident Shri Sanjay alias Sanjeev, was driving the bus in a rash and negligent manner which was the cause of the accident. Smt. Kaushalya Devi, who was travelling in the Bus died as a result of the said accident. 4 On Issue No.5, dealing with compensation payable to the claimants, relying upon the ratio of law laid down by the Apex Court in Lata Wadhawa vs. State of Bihar and others, 2001 ACJ 1735, the Tribunal held that deceased was a housewife and rendering service to the family, as such, determined the monthly loss of income to be Rs.3000/- and by applying the multiplier of ‘8’ determined the compensation as loss of income to be Rs.2,88,000-00. In addition thereto, a sum of Rs.10,000/- for loss of love; Rs.5000/- on account of loss of estate and Rs.5000/- for funeral charges was also awarded. Thus the total compensation of Rs.3,08,000-00 was awarded. Interest at the rate of 6% was also awarded. The vehicle being insured, the liability was fastened upon the Insurance Company. Mr.Gupta, learned counsel for the claimant has argued that the Tribunal erred in ignoring the fact that keeping in view the price index, the income of the deceased, who was no doubt a housewife, for her services to the family, should be increased from Rs.3000/- to Rs.5000/-. In any event, the multiplier applied was much on the lower side and further compensation under the heads of non-pecuniary damages ought to 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. I have heard the learned counsel for the parties and also perused the record. Learned counsel for the owner has not appeared at the time of hearing of the present appeal and the driver, who was ex parte before the Tribunal also chose not to appear in the present proceedings. There is no dispute that on the ill-fated day the deceased was travelling in the bus and died in the accident in question. In support of their claim, claimant No.1 Shri Jitender Sharma examined himself as PW-1, HC Subhash Chand (PW-2), Sh. Hira Lal (PW-3) and Smt. Maina Devi (PW-4). In rebuttal, the respondent-owner examined himself as RW-1. The Insurance Company examined its witness Shri Khem Chand as RW-2. Shri Sanjay was driving the bus at the time of the accident is evident from the record. PW-4 who was also travelling in the ill-fated bus at the time of accident has deposed that the bus was being driven by Shri Sanjay. She has specifically denied the suggestion that it was Man Singh, who was driving the bus in question. RW-1 has also deposed that Shri Sanjeev, also known as Sanjay employed by him was driving the bus on the date of the accident. He denied that it was Man Singh, who was driving the bus in question. Further the Insurer has not led any evidence in support of its defence and keeping in view the ratio of law laid down by the Apex Court in National Insurance Co. Ltd. vs. Swaran Singh and others, 2004 (3) SCC 297, it cannot be said that the insurer has proved that the insured was guilty of negligence and failed to exercise reasonable care in the matter of 6 fulfilling the condition of the policy regarding use of vehicles by a duly licensed driver or one who was not disqualified to drive at the relevant time. Further, 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) and 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 7 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 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 8 licence came to drive the vehicle was heavy on the Insurer. In the present case, no such burden was discharged. From the statements of PW-1, PW-2 and PW-3, it is evident that the deceased died in the accident. PW-1, no doubt, has deposed that her mother used to work in the fields besides rendering services to the family and they have to engage a woman for household work, but keeping in view the latest trend of the Apex Court and ratio of law in Lata Wadhwa (supra), I am not convinced that the income of the deceased, a housewife should be increased from Rs.3000/- to Rs. 5000/-. In Lata Wadhawa (supra) the Apex Court was dealing with the deceased belonging to the upper strata of the society, residing in an urban area. In the instant case, the claimants belong to rural area. No doubt there is an increase in the price index, but the increase of the same, in my view, would be set off with the difference in the cost of living between the rural and urban area. Moreover, there is no evidence on record to show that the deceased was having income and the family had engaged a woman for household work. No receipt or oral evidence in this respect has been produced by the claimants. One of the claimants is a daughter and the other claimants upon getting married would have assistance of their wives. In V.Subbulakshmi & Ors. V. S.Lakshmi & another, AIR 2008 SC 1256, the Apex Court has held that where there is no proof of income some guess work is inevitable. However, I am not inclined to increase the loss of income. On question of multiplier, it is to be noticed that as on the date of accident, deceased was 48 years of age and was survived by a husband, two major sons and a daughter. It is not a case where after the 9 death of a person the family left is totally in the state of penury. PW-1 has already got married as per his own statement. In the facts and circumstances of this case, the claimants have failed to make out a case of increase the multiplier. The Tribunal has rightly come to the conclusion that in the present case is multiplier of ‘8’ is just and reasonable. 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, discomfort, disappointment, frustration and mental stress in life.” The Tribunal has awarded Rs.10,000/- towards loss of love, Rs.5000/- for loss of estate. The husband and children have been deprived of love and affection of their mother. In my view instead of Rs.10,000/- and 10 Rs.5000/- awarded by the Tribunal towards loss of love and loss of estate, a consolidated sum of Rs.50,000/- is awarded under all heads of non- pecuniary damages. This is in addition to Rs.5000/- awarded towards funeral charges. The Tribunal awarded interest @ 6 %. There is no evidence on record to prove the prevailing rate of interest at which the Nationalised Bank are accepting deposits. However, in other claim petitions arising out of the same accident, the Tribunal has awarded interest at the rate of 7 ½ % per annum, which has been upheld by this Court in FAOs No. 527 of 2007 and 170 of 2008. Accordingly, the rate of interest is enhanced from 6% to 7½ % per annum. For the foregoing reasons, the appeal filed by the claimants is allowed and the appeal filed by the Insurance Company is dismissed. The award is modified to the aforesaid extent. The claimants are entitled to following amount of compensation alongwith interest @ 7½ % per annum, as apportioned by the Tribunal:- Loss of income Rs.2,88,000-00 (As awarded by the Tribunal) Loss of love and loss of estate from Rs.15000/- enhanced to Rs. 50,000-00 Funeral expenses Rs. 5,000-00 (As awarded by the Tribunal) Total: Rs.3,43,000-00 However, there shall be no order as to costs. 11th November, 2008 (Sanjay Karol), (C) Judge.