IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO(MVA) No.256 of 2005 alongwith C.O.No.441 of 2005. Date of decision: 21.12.2009. National Insurance Company Ltd. …Appellant Versus Ramesh Chand & Others …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant: Mr.Deepak Bhasin, Advocate. For Respondent No.1: Mr.N.K. Sood, Advocate. For Respondents No.2 & 3: None Dev Darshan Sud,J. This appeal has been preferred by the Insurance Company against the judgment and award of the learned Motor Accident Claims Tribunal-(2), Kangra at Dharamshala, awarding a sum of Rs.1,00,143/- along with interest at the rate of 9% per annum from the date of petition till deposit of the amount for the injuries caused to the claimant Shri Ramesh Chand. The brief facts necessary for the decision in this appeal are that the petitioner suffered injuries because of the accident caused by bus No.HJP-36-1824 on 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 2.12.1999. The shop and goods of the petitioner were also damaged. He pleaded that he was in sound health and earning a sum of Rs.12,500/- per month. On the fateful night at about 1.00 A.M. when he was sleeping on a cot in the verandah of the shop, bus No.HP-36-1824 which was being driven in a rash and negligent manner, hit the claimant and thereafter dashed into the shop causing extensive damage to the structure as also to the goods lying in side the shop. He pleads that he was the sole bread earner of the family and the injury has disabled him and reduced his capacity to work. In reply, the respondents contested the claim of the petitioner. Respondents No.1 and 2 before the Tribual, namely, Dhaliara Cooperative Transport Society, owner of the vehicle and Joginder Singh, driver, admitted the fact with respect to the accident and pleaded that while the bus was coming from Dadasiba to Dhaliara to get minor repairs of the vehicle completed at Dhaliara, at place called `Badli’, a cow suddenly appeared infront of the bus and in order to avoid injuries to the cow, the driver respondent No.2 negotiated the curve as a result of which the bus, “touched the front portion of the shop”. Respondent No.3 Sanjeev Kumar pleaded misjoinder of parties stating that he was not at all associated with the bus nor he was driving it at the relevant time. Respondent No.4, Insurance Company (the appellant herein) pleaded that the petition is a result of collusion between the 3 claimant and the other respondents, the vehicle was not insured with the Company and Shri Joginder Singh was not holding a valid and effective driving licence on the day of the occurrence. FAO No.138 of 2003 was filed by the Insurance Company in this Court against the award made by the Motor Accident Claims Tribunal. Issue No.1A was reframed on the objection raised by the Insurance Company which was the appellant in the appeal hereinbefore wherein it had objected that not only was the frame of the issue wrong but no opportunity was given to the parties to lead evidence. This Court held:- “At the very outset it may be stated that the objections raised on behalf of the appellant have merit and on account thereof the impugned award cannot be sustained and is liable to be set aside. Issue No.1 framed by the learned Tribunal on 20th November, 2000 is to the following effect:- 1. Whether the respondent No.3 was driving the bus bearing No.HP-36-1824 on 2.12.1999 at 10 P.M. Vaddal Thore, in a rash and negligent manner causing injuries to the petitioner? OPP. 4 The additional issue framed on 20th September, 2001 which is connected with issue No.1 already famed is as under:- 1-A. If issue No.1 is proved in affirmative as to who was driving the bus, whether it was respondent No.2 who was the driver of the bus? OP Parties. In fact the additional issue should have been to the following effect:- If issue No.1 is proved in the negative, who was driving the bus at the relevant time? Once issue No.1 is decided in the affirmative holding respondent No.4 Sanjeev Kumar to be driving the offending bus at the relevant time, additional issue No.1-A as framed would be rendered infructuous since there was no further question to be decided as to who was driving the offending bus at the relevant time. After framing of additional issue on 20th September, 2001, the learned Tribunal ought to have given an opportunity to the parties to lead evidence on such additional issue in view of the fact that the onus of said issue was placed on the parties. If the parties had chosen not to lead 5 further evidence on the additional issue, the learned Tribunal ought to have either recorded the statement of the parties in this behalf or at least ought to have incorporated such fact in the order dated 20th September, 2001 after framing of additional issue and before posting the case for hearing. Since opportunity has not been given to the parties to lead evidence on the additional issue, prejudice has been caused to the parties and especially to the appellant.” After remand, two witnesses, namely, the Criminal Ahlmad of the Court of the Judicial Magistrate Ist Class, Dehra and Sanjeev Kumar, respondent No.3, were examined as witnesses by the Insurance Company. RW-1, Uggrasen, who was Criminal Ahlmad in the Court of learned Judicial Magistrate, Dehra, brought the record of criminal proceedings under Sections 279, 337, 338 of the Indian Penal Code and Sections 181, 184 and 187 of the Motor Vehicles Act, pending in the Court of the learned Judicial Magistrate Ist Class, Dehra, titled as: State vs. Sanjeev Kumar. Sanjeev Kumar stated that he did not bring his driving licence since he does not know driving and is not possessed of any licence for driving any vehicle. The factum of the accident having been admitted, on the first settled issue i.e. whether the respondent No.3 was driving the bus which met with an accident at Baddal Thore, the learned Court holds that 6 in reply to the petition, respondents No.1 and 2 admitted in unequivocal terms that it was respondent No.2 who was driving the bus. Considering the First Information Report Ex.PW-3/A, the learned Tribunal holds that it does not mention the name of the driver. In fact RW-2, Shri Jasbir Singh, ASI posted at Police Station, Dehra, proved on record Ex.PW-3/A and stated that during investigation he found that it was Sanjeev Kumar alias Sanju, respondent No.3, who was driving the vehicle and was the culprit. He admits that in this First Information Report the name of the driver is not mentioned. The learned Tribunal, while dealing with issues No.1 and 1(a), which are reproduced: “1. Whether the respondent No.3 was driving the bus bearing No.HP-36- 1824 on 2.12.1999 at 10 P.M. Vaddal Thore, in rash and negligent manner causing injuries to the petitioner? OPP. 1(a) If issue No.1 is proved in the negative, who was driving the bus at the relevant time? O.P Parties. holds that the admission of respondents No.1 and 2 that the bus was being driven by respondent No.2 was itself sufficient to hold that it was respondent No.2, Joginder Singh, who was driving the bus at the time of accident. He also relies on this fact being corroborated by RW-2, ASI Jasbir Singh. An argument was raised before the learned Tribunal that if respondent No.2 was driving the 7 bus, he should have got the First Information Report Registered. The Tribunal rightly rejects this argument holding:- “The arguments of the ld.counsel for the respondent no.4 that if respondent no.2 was driving the vehicle he should have got FIR registered against him is not tenable as no ordinary person will like to became the accused in any case voluntarily.” It is undisputed that the accident occurred in the late hours of the evening and the learned Tribunal rightly holds that it was not possible for the claimant to have known who the driver was. Before remand, respondent produced RW-1, Raj Kumar, Criminal Ahlmad in the Court of learned Additional Chief Judicial Magistrate, Dehra, to show that challan in FIR No.134 of 1999, titled: State vs. Sanjeev Kumar is pending in Court and RW-2, ASI Jasbir Singh, has stated that he was the Investigating Officer and during his investigation he found that the accused was Sanjeev Kumar. He admitted that in the First Information Report the name of the accused is not known. He also admitted that he cannot state as to who named Sanjeev Kumar as the driver. To fix the responsibility of rash and negligent driving of respondent No.2, Joginder Singh, the learned Court holds that there is no name of the driver mentioned in the FIR which fact of-course is 8 corroborated by RW-2 ASI Jasbir Singh. The accident took place at 10 P.M. at night and it was not possible to confirm the identity of the driver as there was no street light. Coupled with the admission of respondent No.2 that he was driving the bus when the accident occurred, as also of respondent No.1 that it was only respondent No.2 who was driving the bus, the statement of RW-2 that he does not remember any of the single person whose name was Sanjeev Kumar as the culprit, the Court holds that it was respondent No.2 who was driving the bus. The story that he tried to hitting a cow which appeared in the middle of the road has not been believed by it. Learned counsel appearing for the appellant has argued with vehemence that it was respondent No.3 and not respondent No.2 who was driving the bus and for this, he submits that the evidence of the Investigating Officer, Criminal Ahlmad and the pleading of the petitioner is sufficient to establish the identity of the driver. This submission cannot be accepted. The findings of the learned Tribunal are clear and cogent and based on a rational assessment of the evidence. I see no reason to differ from those findings. I have already discussed the facts and circumstances on the basis of which the learned Tribunal holds that respondent No.2 was driving the bus. Sanjeev Kumar also appeared as a witness after the remand of the case and has in clear terms stated that he was not driving the 9 bus and he has no valid driving licence. He is a witness produced by the Insurance Company itself. There is, thus, no merit in this appeal, filed by the Insurance Company, which is dismissed. No other point was urged on behalf of the appellant. The appeal is, therefore, dismissed. Cross Objection No.441 of 2005. Learned counsel appearing for the appellant submits that according to the decision rendered by this Court, Cross Objections are not maintainable under the Motor Vehicles Act, 1988. He refers to some case law of this Court which I need not advert to as it is no longer relevant. In H.R.T.C. and others vs. Smt.Breekan Devi and others (in FAO.No.221 of 1996) and H.R.T.C. vs. Sh.Man Singh (in FAO No.230 of 1996), Latest HLJ 2005 (HP) 980, this Court held:- “6. In National Insurance Company Ltd. vs. Rukmani Devi and others, in FAO(MVA) No.88 of 1988, decided on 4th September, 1996 a Division Bench of this Court held that Cross Objections for enhancement of compensation were not maintainable in an appeal filed by the Insurance Company where the defences available to the insurance Company were limited under the Motor Vehicles Act. This view was followed in National Insurance Company vs. Satya Devi 10 and others, 2002 ACJ 1618, New India Assurance Co.Ltd. vs. Kehro Devi and Others, 1997 ACJ 623: Krishan Dutt vs. Premi Devi 1998(1) Shim.L.C.103 and various other judgments. 7. The matter was referred to a full Bench as to whether the Division Bench judgment of this Court in Rukmani Devi’s case and subsequent cases required reconsideration. The full Bench while dealing with the question came to the conclusion that the cross objections are not maintainable at all in appeals filed under the Motor Vehicles Act. The Full Bench held that the right to file cross objections was a substantive right and not a procedural right and, therefore, it should have been specifically provided for under some law. It has been held as follows: “Whether, therefore, an appeal is filled by an Insurance Company within the confines of Section 149 (2) of the Motor Vehicles Act, 1988 or otherwise, or an appeal is filed by any one else, against a judgment and award of the Tribunal, since Motor Vehicles Act, 1988 does not lay down, provide for, or say that the provisions of 11 the Code of Civil Procedure shall be applicable to appeals filed under the Act, even though there is a right of appeal against the judgment and award passed by a Tribunal as prescribed in Section 173 of the Motor Vehicles Act, 1988, in the absence of any stipulation in the Act of the applicability of the provisions of the Code of Civil Procedure to appeals filed under Section 173 of the Act, the substantive right of filing Cross Objections cannot be availed of by any one as such right does not exist in the statute. The right of appeal is a creature of statute and that right has been conferred upon a person aggrieved of any award in Section 173 of the Act. Neither in Section 173 of the Act nor elsewhere in the Act has it been provided that there shall be a right of filing Cross Objections. In other words, Motor Vehicles Act, 1988 does not by itself, under its scheme, in its own body, contain any provision similar or identical to Rule 22 or Rule 33 of Order 41 of the Code Civil Procedure, not 12 does the Act anywhere provides that the Order 41 Rule 22 or Rule 33 of the Code of Civil Procedure, or the Principles flowing, therefore, shall apply to appeals filed under the Act nor does it provide that provisions of Code of Civil Procedure shall apply to appeals filed under the Act.” The Full Bench then went out to consider the Himachal Pradesh Motor Vehicles Rules and held as follows: “As is seen, whereas under Rule 232 certain provisions of the Code of Civil Procedure have been made applicable to the proceedings before the Tribunal, under Rule 233 it has only been laid down as to be filed against awards of the Tribunal. Rule 232 of course does not relate to appeals, as it refers only to the proceedings before the Tribunal. In Rule 232 of course the applicability of Order 41 Rules 22 and 33 of the Code of Civil Procedure to the appeals under the Act but this not having been done, we cannot import either into the Act or into the 13 aforesaid 1999 Rules any provision with respect to the aforesaid applicability of Order 41 of the Code of Civil Procedure to the appeals under the Act but this not having been done, we cannot import either into the Act or into the aforesaid 1999 Rules any provision with respect to the aforesaid applicability of order 41 of the Code of Civil Procedure to the appeals filed under the Act with the result that we have to hold and declare that there is no right of filing Cross Objections, same not having been created by any statute and hence it not being in existence. It shall however be open to the State Government to consider effectively the desirability of suitably amending 1999 Rules to incorporate appropriately in these Rules, for example, in Rule 233 by way of its own amendment, or otherwise by introducing a new rule, that Order 41 of the Code of Civil Procedure shall apply to the appeals filed under the Act, as it appeals to State Government to consider this issue, in its true perspective and in 14 best public interest and, if at all decides to carry out the above indicated amendment 1999 Rules, to do the needful in that direction within two months from today. The decision has to be of the State Government in the exercise of its rule main power and we have no intention of issuing any direction, much less a binding direction as to how and in what manner this decision should be taken. Only, that the decision, one way or the other, has to be taken in a time bound manner. We, therefore, direct the Law Secretary, Government of Himachal Pradesh to inform the Registrar General of this Court about the action taken, one way or the other, before 31st December, 2004. A copy of this judgment accordingly shall be sent to the Law Secretary, Government of Himachal Pradesh for his information and compliance.” 9. In view of the directions of the Full Bench, the State Government considered the matter and promulgated the Himachal Pradesh Motor Vehicles (Fourth Amendment) Rules, 2004 which were published 15 on 15th January, 2005. Rule 233 of the existing Himachal Pradesh Motor Vehicle Rules, 1999 was substituted as follows: “233 Form and manner of appeals against the award of Claims Tribunal-(1) Every appeal under sub-section (1) of section 173 of the Act against the award of a Claims Tribunal shall be preferred in the form of a memorandum stating concisely the grounds on which the appeal is preferred, and shall be accompanied by a copy of the judgment and the award appealed against. (2) The provision of Order 41, Rule 22 and 33 of the Code of Civil Procedure, 1908, shall, so far as may be, apply to the appeals filed under the Act.” 10. Therefore, there cannot by any doubt that on and w.e.f 15.1.2005 Cross Objections would be maintainable under order 41 Rule 22 in an appeal filed under the Motor Vehicles Act. The question is – whether this amendment to the 16 Rules can be given retrospective effect and it can be held that the cross objections filed prior to the coming in force of these Rules are validly constituted or not? 11. The Full Bench has clearly held that the right to file cross objections is a substantive right. An amendment giving a substantive right cannot be treated to be retrospective unless it is specifically provided for. In the present case there is nothing to show that the amendment to the Rules has been made with retrospective effect. The same shall be applicable to all appeals pending on 15th January, 2005. 12. On behalf of the Cross Objections it has been prayed that the Cross Objections which were filed earlier were filed under the bonafide belief that cross objections were maintainable since this was the law laid down by a Division Bench of this Court and was being consistently followed. The prayer that the cross- objections be treated to have been filed under the new Rules cannot be accepted unless an appropriate application is moved for treating the cross objections to have been filed under the new Rules. Even if the old objections are then 17 treated to be filed under the new amended Rules they can only be deemed to be filed on 15th January, 2005 and not earlier and, therefore, application for condonation of delay shall also have to be filed. In case any such applications are filed the same shall be dealt with separately.” This appeal was instituted on 30th June, 2005 and Cross Objections were filed on 17th October, 2005. Both the dates of filing the appeal and Cross Objections are subsequent to the amendments made in the Motor Vehicles Rules by the State of Himachal Pradesh declaring that Cross Objections would be maintainable on or w.e.f. 15th January, 2005. The objection raised by the counsel for appellant, therefore, deserves to be rejected. Learned counsel appearing for the Cross Objector submits that the learned Tribunal while correctly holding that the negligence was that of the respondents has erred in assessing the compensation. Learned counsel submits that Ex.P-1 to P-10 are the receipts produced and proved on the record by the claimant Ramesh Chand saying that he had hired taxi for being transporting from Baddal Thore to `Bharaj Nursing Home at Hoshiarpur’ and back. The learned Court holds that this could not be allowed as the name of the 18 petitioner is not mentioned. This finding cannot be sustained. Learned counsel submits that Ex.PW-4/B is the receipt of operation charges produced and proved on the record. The petitioner has also proved on record medical expenditure, cash memos Ex.P-11 to P-21 for a sum of Rs.16,835/- to prove that he has undergone surgery for hip fracture. A sum of Rs.16,943/- has been awarded. Learned Court awarded Rs.2,000/- as charges for the attendant. Ex.PW-1/A proved by Dr. Vineet Aggarwal, Lecturer in the Department of Orthopedic, Dr.Rajinder Prashad Medical College, Dhaamshala, District Kangra, H.P., proves that the claimant-Cross Objector has permanent disability to the extent of 10%. The evidence of the doctor who operated the claimant and under whose treatment he remained, Dr.Rachhpal Singh Bharaj, PW-4, incharge of Bharaj Nursing Home, Hoshiarpur, has stated in his evidence that the claimant remained admitted in hospital from 3.12.1999 to 6.12.1999. He states that thereafter he used to come regularly for check-ups and attend OPD for a period of three months. The claimant, while appearing as PW-5, has also testified that he was regularly visiting hospital for his treatment and check up. The condition of the claimant was such that his leg was in plaster for a period of more than 60 days continuously. Under such condition, it is not expected that he would travel alone from his place of residence/work i.e. Baddal Thore to Hoshiarpur alone. A sum of Rs.2,000/- for the attendant 19 is too meager an amount. Learned counsel appearing for the Cross Objector submits that the amount requires to be enhanced. He relies on a decision of the Punjab and Haryana High Court in Tejinder Singh Gujral vs. Inderjit Singh and another, AIR 1988 Punjab and Haryana 164, holding that a sum of Rs.3000/- per month should be awarded for an attendant for a period of 16 years. Adjudicating on the proved facts of that case, the Court holds:- “24. Learned counsel for the appellant contended before me that the learned Tribunal has not awarded any damages on account of expenditure being incurred by the appellant continuously on the attendance on him by the members of his family and the servant whom he has engaged for the purpose. Learned counsel for respondent No.2 on the other hand submitted that there is no credible evidence on the record that the appellant is incurrig any expenditure on such an attendance on him. In my view the appellant was entitled to damages on this account. It is in evidence that his wife remained on long leave to attend on him after the accident during the course of his hospitalization and convalescence at home. Later on according to him his mother has been attending on him. He has also engaged a servant at Rs.400/- per month to attend on him. In Cunningham v. Harrison, 1974 Acc CJ 20 218, Lord Denning M.R. inter alia observed thus:- “It seems to me that when a husband is grievously injured and is entitled to damages then it is only right and just that, if his wife renders service to him, instead of a nurse, he should recover compensation for the value of the services that his wife has rendered. It should not be necessary to draw up a legal agreement for them. On recovering such an amount, the husband should hold it on trust for her and pay it over to her. She cannot herself sue the wrongdoer ….. but she has rendered services necessitated by the wrong doing, and should be compensated for it. If she had given up paid work to look after