IN THE HIGH COURT OF HIMACHAL PRADESH At SHIMLA FAO.No. 63 of 2005. Reserved on: 7th January, 2009. Date of Decision: 24.02.2009. Mohammad Salim. …Appellant. Versus: Revati Nandan and another. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting?1 For the appellant : Mr. G.R. Palsra, Advocate. For respondent-1 : Mr.Rajeev Jiwan, Advocate. For respondent-2 : Mr. Ashwani K. Sharma, Advocate. Sanjay Karol, J (Oral). The claimant has filed the present appeal seeking further enhancement of the compensation awarded by the Motor Accident Claims Tribunal-II, Mandi, H.P. in Claim Petition No.- 31 of 1998 titled Shri Mohammad Salim Vs. Revati Nandan and another decided in terms of the impugned award dated 17.11.2004. On 11.12.1997, the petitioner was travelling in Bus No. HP-33-1967 which met with an accident near Village Alag, Mandi, H.P. The accident occurred due to the fault of the driver and in the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 said accident, the claimant Shri Mohammad Salim received injuries. He under took medical treatment as an indoor patient from 11.12.1997 to 17.12.1997 at Zonal Hospital, Mandi, H.P. He suffered a compound fracture of his left arm and coller bone and incurred expenditure for treatment. A Petition Under Section 166 of the Motor Vehicles Act (hereinafter referred to as ‘the Act’), was filed claiming compensation of Rs.3,00,000/-, on the ground that due to the permanent disability (20%) suffered by the claimant from the injuries received in the said accident, he had to give up the work which he was carrying on prior to the accident from which he was having an income of Rs.6,000/- per month. The Petition was opposed by the owner Shri Revati Nandan, who disputed negligence of the driver, but, however, admitted the occurrence of the accident which was pleaded to be as a result of a mechanical fault. The Vehicle was insured with M/s. The United India Insurance Company, who filed a separate reply and pleaded that the driver was not holding a valid and effective driving licence, hence, material terms and conditions of the policy stood breached and, therefore, the insurer could not be held liable to pay the compensation. Based on the pleadings of the parties, the Tribunal framed the following issues: 3 1. Whether the petitioner suffered multiple grievous injuries in an accident took place on 11.12.1997 at about 12:30 PM at Alag when he was travelling in Mini Bus bearing registration No.HP-33-1967 owned by respondent No.1 and driven in rash and negligent manner by respondent No.2 ?. …OPP. 2. If issue No.1 is proved in affirmative, whether petitioner is entitled to claim compensation. If so, to what extend and from whom? …OPP. 3. Whether the Vehicle was being driven by respondent No. 2 at the relevant time without any effective and valid licence in violation of terms and conditions of insurance policy as alleged ? …OPR-3. 4. Whether the vehicle at the time when met with an accident, it was over loaded. If so, its effect? …OPR-3. 5. Relief. Opportunity to lead evidence was afforded to the parties. Based on the material on record (oral and documentary), the Tribunal, while deciding Issue No.-1, concluded that the testimonies of PW-4, Shri Bhup Singh and PW-5 Mohammad Salim sufficiently proved that the accident took place due to the rash and negligent driving of the Vehicle by its driver, in which the claimant received injuries. While deciding Issue No.-3, the Tribunal concluded that the driver was possessing a valid and effective driving licence and, 4 hence, the terms and conditions of the insurance policy Ext. RW1/B were not breached in any manner and as such, the insurer was liable to indemnify the insured. The Issue No.-4 was not pressed and was disposed of as such. While determining the compensation, the Tribunal decided Issue No.-2 by awarding the following compensation: 1. Attendant and Diet money : Rs. 12,000/-. 2. Medical expenses : Rs.2525.86/-. 3. Pain and suffering and Loss of enjoyment of life : Rs.17,000/-. 4. Loss of income due to Disability : Rs.30,000/-. -------------------------------------------------------------- Total : Rs.61525.86/-. Interest pendente lite and future @ 9% was also awarded. The Tribunal awarded the compensation for the loss of income on lump sum basis, purely on the basis of guess work as it was found that there was no evidence on record to prove the avocation undertaken by the claimant and income earned therefrom. 5 The challenge in the present appeal is limited. The insurer and the owner have not assailed any of the findings of the Tribunal. According to Mr. G.R. Palsra, Learned Counsel for the appellant, the compensation awarded towards the loss of income is much on the lower side. Per contra, Mr. Ashwani K. Sharma, Learned Counsel for the insurer, opposed the petition for the reasons set-out in the award and has also referred to decision reported in Oriental Insurance Co. Ltd. V. V. Hariprasad & Ors. (AIR 206 Kerala 125) to contend that since the compensation towards permanent disablement already stands determined, therefore, fresh compensation under the head of loss of earning power is not permissible in Law. I have heard learned counsel for the parties and also perused the record. In Oriental Insurance Co. Ltd. V. V. Hariprasad & Ors. (Supra), the Court has held as under: “30. Resultantly, we find that (1) Loss of earning power is one of the consequences that follows from a permanent disability; (2) Permanent disability is a physical impairment which results in distinct personal, social and financial consequences to be classified as one head requiring compensation to be worked out as one entitling for non-pecuniary damages; (3) An injured, who sustained a disability 6 is entitled to claim compensation under the head “permanent disability”. If the resultant deprivation is categorized and claim is made under separate heads and compensation is awarded under the above heads, over and above the same, for the deprivation suffered compensation is not to be granted under the general head “permanent disability”; (4) all the eventualities that may surface on account of a disability, which deserves to be compensated may not be possible to be catalogued and essentially the Tribunal has to determine the claim bearing in mind the statutory mandate that what is payable is a just compensation; and (5) while awarding compensation under the head “permanent disability”, the Tribunal should take notice of the loss of earning power, in each individual case, in case a claim is made as one of the contributories to the total packet of compensation and shall not take into consideration the loss of earning power as a separate head after fixation of compensation for permanent disability.” Even if the aforesaid principal of Law is to be accepted, the question, however, is as to whether the compensation awarded in the present case is just, fair and reasonable. For the determination of the same, the statements of relevant witnesses, namely, Dr. P.R. Chauhan, P.W.-1, Claimant Mohammad Slim, P.W.-5 and Umerdeen, P.W.-6 are important. 7 P.W.-1 has proved on record the disability certificate Ext. PW1/A. From his statement as also the said Certificate, it is evident that the claimant suffered permanent disability of 20% on the left Shoulder joint. From the record, he proved that the claimant was admitted in the hospital w.e.f. 11.12.1997 to 17.12.1997 as there was a fracture on the shaft humerous left Shoulder. The doctor has further deposed that due to the injuries, the claimant cannot carry heavy load. Most importantly, he has not been cross-examined except for single suggestion put to him that the claimant had not been treated by him. P.W.-5 has also deposed that in the accident, the coller bone and the left arm bone was fractured for which he was hospitalized w.e.f. 11.12.1997 to 17.12.1997. His treatment carried on for 7 to 8 months for which he incurred an expenditure of Rs.15,000/- to 16,000/-. He proved on record the discharge slip, bills showing the expenditure incurred towards medicines etc. Due to the injuries, he sustained permanent disability which was evident from Ext.PW1/A. He categorically deposed that he was self employed and used to sell clothes by carrying it on his shoulder and back from village to village and was earning approximately Rs.6,000/- to 7,000/- per month. However, due to the injuries and the disability suffered, he can no longer carry the goods, hence had to give up the said avocation. 8 There is no serious cross-examination by the insurer on this point at all. It is true that he has not produced any documentary evidence in support of his deposition to prove his avocation and income, but, however, it is equally true that there is no serious cross-examination by the respondents on the said point. P.W.-6, who is a relative of P.W.-5 has supported his version and stated that both of them used to sell wears by going from village to village. However, the claimant stopped the same due to the injuries suffered in the accident. 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) 9 inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.” The fact that the claimant received 20% permanent disability is not in dispute. Not only the claimant, but the Doctor has also deposed that due to the injuries sustained, the claimant cannot carry any load. This version goes unrebutted. From the statements of P.W.-5 and P.W.-6, it stands proved that the claimant was self employed and used to carrying his wears on his shoulder/back and sell the same by going from village to village. He had to stop the same due to the injuries. Therefore, in my view, the claimant has been able to sufficiently prove that he was employed and having some income. The findings of the Tribunal that the Claimant had not been able to prove his avocation are, therefore, contrary to record and not based on correct appreciation of the material on record. In my view, considering the material on record, a sum of Rs.61525/- awarded by the Tribunal is far on the lesser side. The compensation awarded towards attendant and diet money and purchase of medicines amounting to Rs.12,000/- and Rs.2525.86/- or say Rs.2525/- is adequate, hence no interference is warranted. In Hariprasad (supra), a Full Bench of the Kerala High Court itself, it has been so observed:- “28. Statute prescribes for a just compensation. What is suggested is not a reasonable compensation. 10 Under the two broad divisions, what is expected of the Tribunal is to assess the damages dispassionately and give a total packet of compensation, so as to protect the interest of the victim, simultaneously ensuring that an uncalled for burden is not there on the respondents. The sum total of our discussions leads us to conclude that the view taken in Shajan’s case (1995 AIHC 4575) (cited supra) has correctly laid down the principle. When compensation is assessed, the basic principle to be borne in mind is the heads of damages, namely the requirement for compensating pecuniary losses on the one hand, and for assessing the non- pecuniary losses and appropriately compensating such loss. The exercise required while attending the latter of course is complex. 29. The loss of earning capacity does not come within the category of pecuniary damage in its broad sense. It is directly attributable to the injury and the extent of the irretrievable damage suffered. As the first step, therefore, items coming within the broad head for determining compensation for permanent disability are to be individually examined. Extent of loss of earning power is one of the ingredients. The sequence, if scrupulously followed, would avoid any confusion. Determination of loss of earning power does not prevent the Tribunal from further proceeding with its duty of assessing compensation for permanent disablement. But after adjudging quantum of compensation for the permanent disablement suffered, a fresh expedition therefore for fixing loss of earning power is not called for.” 11 In my view, the compensation awarded towards pain and suffering and the loss of income amounting to Rs.17,000/- and Rs.30,000/- respectively, total amounting to Rs.47,000/- is on the lesser side. The claimant, a young man of 27 years suffered disability of permanent nature to the extent of 20%. He had to give up his job. His injury is such that it is likely to impair his working capacity for all times to come. With the passage of time, the pain and suffering is bound to increase resulting into loss of enjoyment of life. It is true that there is no documentary evidence to prove the income of the deceased, but, however, it cannot be disputed that the claimant was working. The State of Himachal Pradesh even in the year 1997 had been paying wages at the rate of about Rs.55/- to Rs.75/- per day to a daily wager. Taking his notional monthly income to be the same and considering 20% disability and the relevant multiplier of ‘17’, the compensation for loss of income would be somewhere between 45,000/- and Rs.50,000/-. Considering the overall material on record, facts and circumstances, I am of the considered view that a lumpsum amount of Rs.1 lac would be just compensation payable to the appellant. This would cover all heads under the category of non-pecuniary damages. For the foregoing reasons, the appellant is entitled to the following compensation: (i) Towards attendant and diet money and purchase of medicines etc. Rs. 14,525-00 12 (ii) Non-pecuniary damages covering all heads Rs.1,00,000-00 Total: Rs.1,14,525-00 The appeal is accepted and the impugned award is modified accordingly. (Sanjay Karol), Judge. January, 2009. bhupender