IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAOs (MVA) No. 171 of 2008 and 178 of 2008 Reserved on: 29th October, 2008 Date of Decision:19th November, 2008 FAO (MVA) No.171 of 2008 United India Insurance Company Ltd. Appellant Versus Sunil Kumar and others Respondents FAO(MVA) No.178 of 2008 Sunil Kumar Appellant Versus B.S.Chauhan and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. FAO (MVA) No.171 of 2008 For the appellant: Mr.G.D.Sharma, Advocate. For respondent No.1: Mr.Deepak Gupta, Advocate. FAO (MVA) No. 178 of 2008 For the appellant: Mr.Deepak Gupta, Advocate. For respondent No.3: Mr.G.D.Sharma, Advocate. Sanjay Karol, J. The present appeals arise out of award dated 7.1.2008 passed by Motor Accident Claims Tribunal (II), Shimla, H.P. in MAC Petition No. 93-S/2 of 2004 titled as Sunil Kumar vs. B.S.Chauhan and others. Whether the reporters of Local Papers are allowed to see the Judgment? 2 FAO No.171 of 2008 has been filed by the claimant seeking enhancement of compensation awarded by the Tribunal and FAO No.178 of 2008, 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 Sunil Kumar under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act), claiming compensation of a sum of Rs.5.25 lacs for the reason that in the said accident he sustained injuries and suffered permanent disability of 40%, which not only impaired his earning capacity but also hampered his enjoyment of life. 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 licence to drive the vehicle and the name of Shri Man Singh as driver of the ill-fated Bus was wrongly mentioned in the F.I.R. 3 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 on 4.7.2004 at about 5.30 PM at Kanog, the respondent No.2 was driving the bus No. HP-51-3393 rashly and negligently and as such caused the multiple injuries to the petitioner? OPP. 2. If issue No.1 is proved in affirmative, what amount of compensation the petitioner is entitled to and from whom? OPP. 3. Whether the driver of bus No. HP-51-3393 was not holding a valid and effective driving licence at the time of accident, as alleged? OPR. 4. whether the petition is bad for non-joinder of Man Singh driver of bus as party? OPR. 5. Relief.” The parties were afforded adequate opportunities of leading their evidence and after appreciating the material on record, the Tribunal while deciding Issues No.1,3 and 4 collectively, 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. The claimant, one of the passengers sustained injuries in the said accident. 4 On issue No.2, considering the age of the claimant being 22 years and extent and nature of injury (40%), the Tribunal awarded the following compensation:- Reimbursement of medical expenses: including attendant charges Rs. 10,000-00 Pain and suffering Rs. 25,000-00 Loss of one month’s income during hospitalization Rs. 5,000-00 Loss of earning capacity, which was taken to be Rs.1000/-per month and was determined by applying the multiplier of ‘18’ Rs.2,16,000-00 Total: Rs.2,56,000-00 Thus a total sum of Rs.2,56,000-00 was determined as compensation. The vehicle being insured, the liability was fastened upon the Insurance Company. Mr.Gupta, learned counsel for the claimant has argued that the claimant’s loss of income ought to have clubbed to determine the final compensation. In any event, the multiplier applied was much on the lower side and further the compensation under the heads of non-pecuniary damages 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 vehicle in question was being driven by Shri Sanjay and not Shri Man Singh. 5 Learned counsel for the owner has supported the award for the reasons set out therein and the driver, who was ex parte before the Tribunal also chose not to appear in the present proceedings. I have heard the learned counsel for the parties and also perused the record. There is no dispute that on the ill-fated day the claimant was travelling in the bus, which met with an accident. It is also not in dispute that the injuries sustained by the claimant were as a result of the said accident. In support of his claim, the claimant Sunil Kumar examined himself as PW-1, Shri Madan Singh (PW-2), Dr.B.K.Arya (PW-3), Dr. Subhash Chander Negi (PW-4), Shri Rajesh Kumar (PW-5) and Shri Nek Ram (PW-6). In rebuttal, the respondent-owner Shri Bhagat Singh Chauhan examined himself as RW-1 and examined Shri Khem Chand (RW-2). Shri Sanjay was driving the bus at the time of the accident is evident from the record. PW-5 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 6 of negligence and failed to exercise reasonable care in the matter of 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 7 Conductor and Sanjeev Kumar as driver. Both Sanjeev 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 8 account of some carelessness on the owner’s part that person not holding the licence came to drive the vehicle was heavy on the Insurer. In the present case, no such burden was discharged. The claimant sustained injuries in the accident is not in dispute. From the discharge slip Ext.P-2, it is evident that the claimant was admitted in Indira Gandhi Medical College and Hospital, Shimla from 5.5.2004 to 17.7.2004. He incurred medical expenses is evident from medical bills Ext.P-4 to P-29. He sustained permanent disability (40%) is also evident from Ext.P-3. PW-4 Doctor, who treated him has deposed that the claimant was treated for acute generalized peritonitis and the cause was Jeunal perforation with serosal tear of tramsverse colon due to blunt trauma abdomen with lacerated wound left palmar aspect of hand with fracture shaft second metacarpal with fracture base of Ist metacarpal. He was operated upon and exploratory lasparotomy with closure of jejunal perforation with repair of serosal tear of transverse colon with peritoneal toileting and peritorial drainage on 6.7.2004. He was operated by orthopedic doctors for tendon and muscle repair and fractures of metacarpal bones of hand. According to him, the claimant would have incurred expenditure of Rs.30,000/- to Rs.40,000/-. There is no cross-examination on this point at all. No doubt, the Tribunal has taken into account all the bills submitted by the claimant, the total of which comes to about Rs.6000/-, but however, the fact of the matter is that the claimant sustained serious injuries and was treated over a period of time. Even he has deposed that he spent about Rs.25,000/- on his treatment. He is a resident of far off place and he and his family must have incurred expenditure in coming to State Hospital, 9 Shimla, therefore, the amount of Rs.10000/- as awarded by the Tribunal needs to be enhanced to Rs.15,000/-. The Tribunal has taken the income of the claimant to be Rs.5000/-. In my view, there is nothing wrong with the same. The Tribunal has taken into account the statement of the claimant as also PW-6. The version of PW-6 that he was engaged by the claimant to carry out the works in the fields has been rightly rejected for the reason that the same is neither corroborated by PW-1 nor supported by any contemporaneous evidence on record. No doubt, PW-1 has deposed that his parents are old and he has five sisters, one of whom is unmarried. His parents have not stepped into the witness box to depose that none of the family members can carry out the work in the fields and cultivate 10 bighas of land, which in any event is in the name of the mother. The mother is not so old so as not to cultivate the land. According to claimant, she is 58 years of age. There is no document to prove the employment of any labourer. Therefore, I find no infirmity with the findings returned by the Tribunal on this count. It is true that except for the oral statement of the claimant, there is no documentary evidence to prove the income, but the fact of the matter is that the claimant has not been cross-examined on the point of income. 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. The claimant was working in the fields and his income has been taken to be Rs.5000/- by the Tribunal. However, while determining the loss of earning capacity the Tribunal has assessed the same to be 10 Rs.1000/- per month or say Rs.12,000/- per annum. As per doctor, the disability suffered in the “left wrist hand with claw hand deformity with stiff joint” and the claimant “cannot pick up anything due to deformity” and the capacity to work and earn has been affected. The claimant has also deposed that he cannot work in the fields any longer. Therefore, in my view his disability to carry out the nature of work, which he had been doing earlier is not 40% as has been held by the Tribunal, but is in fact 100%. Even though the claimant is uneducated, but is a young man and can find alternate source of income. He is married and his wife and unmarried sister can work in the fields. Therefore, keeping in view the above facts in mind, even if the disability is taken to be 40%, the loss of earning would be Rs.2000/- per month or Rs.24,000/- per annum. Therefore, the Tribunal has erred in assessing the loss of earning capacity. Thus loss of earning of the claimant comes to Rs.2000/- per month (40% of Rs.5000/-) or Rs.24,000/- per annum. On the question of multiplier, it is to be noticed that as on the date of accident, injured had a wife, old parents and an unmarried sister. He was 22 years of age and his permanent disability of 40% may increase. It is true that the disability has not made him bed ridden, but it is equally true that he cannot fully enjoy the fruits of life and carry on the work in normal manner. He has to suffer pain and agony throughout his life and would not be in a position to lead a normal life. The Apex Court in Savita Sharma and others vs. Union of India/Chandigarh Administration and another, 2008 ACJ 2032, while dealing with a case of an Ayurvedic doctor, aged 53 years, where the High Court had reduced the multiplier applied by the Tribunal from ‘11’ to ‘8’, 11 held that when a rough and ready reference is already provided in the 2nd schedule of Motor Vehicles Act, 1988, normally, it should be applied unless there are compelling reasons to take a different view in the matter. The Apex Court reversed the view taken by the High Court and upheld the multiplier fixed by the Tribunal. In Sunil Kumar vs. Ram Singh Gaud and others, 2008 ACJ 9, the Apex Court where a person aged 29 years suffered 49% permanent disability, the Apex Court applied the multiplier of ‘18’ and in New India Assurance Co. Ltd. vs. Charlie and another, (2005) 10 SCC 720, the Apex Court while dealing with a case of an injured claimant, aged 37 years applied the multiplier of ‘18’. Mr.G.D.Sharma, learned counsel for the Insurance Company has brought to my notice judgment of the Apex Court in New India Assurance Company Limited vs. Smt. Kalpana and others, 1 (2007) ACC 356 (SC) and also Kanhaiyalal Kataria and others vs. Mukul Chaturvedi and others, 2007 ACJ 1972, to support his contention that compensation awarded is just and fair and need not be enhanced. In Kalpana (supra), the Apex court was dealing with a case of taxi driver, who died in an accident at the age of 33 years. His monthly income claimed to be Rs.8000/- but was assessed to be Rs.3000/- per month and multiplier of ‘13’ was applied. Thus, by applying the multiplier of ‘18’, the claimant is entitled to compensation towards loss of income to be Rs.2000 x 12 x 18 = Rs.4,32,000/-. 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:- 12 “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.” In Rashila Ram Kaushal vs. Ranjit Singh and others, 2004 ACJ 1891, this Court while dealing with a case of teacher, who suffered permanent disability of 20% awarded Rs.37,000/- under the head of permanent disability. In the present case from the statement of PW-1, PW-3 and PW-4 it is evident that the injuries have certainly affected the working and earning capacity of the claimant. Undoubtedly, the suffering has resulted into adverse consequence on the earning capacity of the claimant. The claimant is young and has to suffer pain and agony for the rest of his life. Therefore, the amount awarded under pain and suffering and one month’s loss of income during hospitalization i.e. Rs.30,000/- is enhanced to 13 Rs.50,000. This would take into account the other heads classified as non- pecuniary damages under which no compensation was granted. The Tribunal awarded interest @ 7 ½ %. There is no evidence on record to prove the prevailing rate of interest at which the Nationalised Bank are accepting deposits, but in my view the same appears to be just and proper. For the foregoing reasons, the appeal filed by the claimant is allowed and the appeal filed by the Insurance Company is dismissed. The claimant is entitled to the following amount of compensation alongwith interest as awarded by the Tribunal:- Loss of income : Rs.4,32,000-00 Medical expenses including attendant charges Rs. 15,000-00 (Rs.10,000/- awarded by the Tribunal) Pain and suffering and all other heads falling under non-pecuniary damages Rs. 50,000-00 Total: Rs.4,97,000-00 However, there shall be no order as to costs. 19th November, 2008 (Sanjay Karol), (C) Judge.