IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO(MVA) No. 408 of 2003. Judgement reserved on: 19.6.2008. Date of decision: July 24,2008. Surender Kumar ….. Appellant. Vs. Prem Chand & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. V.S. Chauhan, Advocate. For the Respondents : Mr. B.M. Chauhan, Advocate, for respondent No.3. Kuldip Singh, Judge. The claimant has filed this appeal against the award dated 19.6.2003 passed by learned Motor Accident Claims Tribunal, Solan in MAC Petition No. 41-S/2 of 2001 for enhancement of compensation. 2. The facts in brief which are necessary for disposal of appeal, are that the appellant was a pillion rider on scooter No. HP-15-0214, which was being driven by one Sadiq. The respondent No. 2 was driving Swaraj Mazda No. HP-51-1529 in a rash and negligent manner and could not control his vehicle and hit scooter No. HP-15-0214 on Nalagarh-Kunihar road on 24.5.2000 at Whether the reporters of the local papers may be allowed to see the Judgment? …2… about 12.30 p.m. The appellant sustained multiple injuries in the accident and fracture of his right leg which caused permanent disability. The appellant was hospitalized at Kunihar and then in I.G.M.C., Shimla. The appellant remained indoor patient at I.G.M.C. Shimla from 24.5.2000 to 20.6.2000. The appellant had incurred Rs.50,000/- on his treatment but his treatment was still continuing. The respondent No. 1 was the owner of Swaraj Mazda, which was insured with respondent No.3 at the time of accident. The appellant was 19 years of age at the time of accident and was earning Rs.2500/- per month by working as labourer and rupees one lac from agriculture. The appellant has claimed Rs.5,50,000/- compensation alongwith interest at the rate of 18% per annum against the respondents. 3. The claim of the appellant was contested by respondents No.1, 2 and 3 by filing separate replies. They denied the income of the appellant. They denied disability of the appellant and the expenses allegedly incurred by him on his treatment and denied the claim of appellant. The learned Tribunal on 19.6.2003 has awarded Rs.75,000/- compensation inclusive interim amount, if any, paid under Section 140 of the Motor Vehicles Act, alongwith 9% interest from 25.9.2001 to appellant, respondent No. 3- insurer was made liable to pay the compensation. The appellant has come in appeal for enhancement of the compensation. 4. I have heard Mr. V.S. Chauhan, learned counsel for the appellant, Mr. B.M. Chauhan, learned counsel for respondent No. 3 and gone through the record. On behalf of the appellant, it has been …3… submitted that appellant has been awarded less compensation keeping in view his age, income, injuries and disability suffered by him due to accident. It has been submitted that learned Tribunal has misconstrued, misinterpreted the material on record. The learned counsel appearing on behalf of respondent No. 3 has supported the impugned award. 5. The respondents have accepted the award and they have not filed any appeal/ cross- objections against the impugned award. Therefore, the controversy left for determination is the quantum of compensation. The appellant in evidence has filed his affidavit Ex. PA. He has stated that in the accident, he suffered serious injuries, his left leg had broken at three places. He was taken to hospital at Kunihar and from there he was referred to I.G.M.C., Shimla. He was operated upon and his leg was put under plaster for 45 days. After 45 days plaster was repeated twice for 45 days. He remained indoor patient from 24.5.2000 to 20.6.2000. Thereafter he remained under treatment till 3.11.2000. He did not recover completely despite the treatment. Lastly he took local treatment from Madan, which is continuing. He appeared before the Medical Board, Solan. He was given disability certificate showing 55% disability. He feels difficulty in walking. He could not walk without support. He is unable to work. He had spent about Rs.50,000/- on his treatment. The expenditure of the medicines Rs.20,000/- to Rs.22,000/- was reimbursed to his father, who is a government servant, rest of the amount was not reimbursed or paid to him or his father. He has produced taxi bills. He did not obtain bills of medicines amounting to …4… Rs.1664.14. He has produced discharge slip, prescription slip, X-Ray forms, laboratory slips and disability certificate. He was working as a labourer prior to accident and was earning Rs.2000/- to Rs.2500/- per month. From agriculture he was earning Rs.1,00,000/- per annum. After the accident, he is unable to work. He has suffered both physically and mentally due to accident. The appellant appeared as PW 1 and tendered in evidence his affidavit Ex. PA, disability certificate Ex. PB. In cross-examination, he has stated that he was spending Rs.10/- per day on his tea etc and Rs.500/- on his clothing. 6. Sainu Ram father of the claimant has submitted his affidavit Ex. PD and supported the claimant regarding the injuries, treatment, disability as well as his income and the expenditure incurred on the treatment. He has stated that Rs.22000/- of the treatment of his son was reimbursed to him but remaining amount has not been reimbursed. He has stated that his son used to work as coolie before the accident. He appeared as PW 2 and tendered in evidence his affidavit Ex. PD. In cross examination, he has stated that he does not have the bills of other expenses. Salig Ram has submitted his affidavit Ex. PE but has stated nothing about the income of the claimant. He appeared as PW 3 and tendered in evidence his affidavit Ex. PE. PW 4 Dr. Anil Bansal, M.O., Zonal Hospital, Solan has proved disability certificate Ex. PB of the claimant and has stated that permanent disability of the claimant is 55%. In cross examination, he has stated that disability is of right lower leg. In relation to whole body will be around 28%. The patient may or may …5… not require crutches. The learned Tribunal has awarded compensation to appellant under various heads as follows:- (1) For pain and suffering: Rs.5,000/- (2) For loss of amenities: Rs.30,000/- (3) For shortened expectancy of life: Nil, nor proved. (4) For loss of earning and loss of earning capacity: Rs.30,000/- (5) For medical expenses etc. : Rs.10,000/- 7. The learned counsel for the appellant has submitted that the appellant has been awarded less compensation on account of pain and suffering, loss of amenities, loss of future earning and expenses for treatment. The appellant has stated that before the accident, he was working as a labourer and was earning Rs.2000/- to Rs.2500/- per month. He has also stated that from agriculture he was earning Rs.1,00,000/- per annum. PW 2 Sainu Ram father of the appellant has supported the appellant, but appellant has not examined any independent person to corroborate his income. The appellant has not placed any document on record to show that he was owner of some agricultural land at the time of the accident. The appellant has failed to prove his income by leading cogent evidence. In these circumstances, help can be taken from Second Schedule of the Act where notional income for compensation for a person who had no income prior to accident is fixed at Rs.15,000/- per annum. 8. PW 4 Dr. Anil Bansal has stated that disability of the claimant in relation to whole body is around 28%. Therefore, it is reasonable to infer that in view of disability of the appellant in future, …6… he will earn 28% less. This is more relevant because as per appellant he was working as labourer. In this way, the appellant will be suffering loss of Rs.4200/- per annum, which is 28% of Rs.15,000/-. The appellant was 19 years of age at the time of accident, therefore, multiplier of 18 in my opinion is the appropriate multiplier to which the appellant is entitled in the present case. The appellant has thus suffered loss of income Rs.4200 x 18 = Rs.75,600/-. The learned Tribunal has awarded Rs.5,000/- for pain and suffering, Rs.30,000/- for loss of amenities, Rs.30,000/- for loss of earning and loss of earning capacity and Rs.10,000/- for medical expenses etc. In my opinion, so far as the amount awarded to appellant for pain and suffering, loss of amenities and medical expenses etc. is concerned, that does not require any interference. But keeping in view the facts and circumstances of the case which have come on record, the appellant is entitled to Rs.75,600/- instead of Rs.30,000/- awarded by the learned Tribunal for loss of earning and loss of earning capacity. 9. The learned counsel for the appellant has relied Rashila Ram Kaushal vs. Ranjit Singh and others Latest HLJ 2004 (HP) 373, on the point that the appellant is entitled to additional amount of compensation for permanent disability. In Rashila Ram’s case (supra), Rs.50,000/- were awarded by the Tribunal and no amount was awarded for permanent disability. In view of those facts, Rs.37,000/- was awarded as additional compensation for permanent disability. In the present case, the learned Tribunal has already awarded Rs.30,000/- for loss of amenities keeping in view the disability suffered by appellant. Therefore, appellant is not entitled to …7… any additional amount for disability. Thus the appellant is entitled to in all Rs.1,20,600/- alongwith interest at the rate of 9% from the date of filing the petition till payment as against Rs.75,000/- awarded by the learned Tribunal and to this extent the impugned award requires modification. 10. As a result of the above discussion, the appeal is partly allowed. The impugned award is modified and an award of Rs.1,20,600/- is passed in favour of the appellant and against the respondents jointly and severally. On the award amount, the appellant shall also be entitled to 9% interest from the date of filing the petition i.e. 25.9.2001 till payment. The award amount shall include any amount paid to the appellant under Section 140 of the Motor Vehicles Act. The offending vehicle was insured with respondent No.3, therefore, the entire amount of award alongwith interest shall be payable by respondent No. 3 to the appellant. No costs. July 24, 2008. ( Kuldip Singh ) (Hem) Judge.