IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: FAO.No. 156/2004 with Cross Objection No.293/2004 Date of Decision: 7th November ,2008. Roshani Devi. …Appellant. Versus: Lal Chand Negi and another …Respondents Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting?1 . For the appellant: Mr.G.R.Palsara, Advocate. For Respondent-1. Mr. K.R.Thakur, Advocate. For Respondent-2. Mr.Sanjeev Kuthiala, Advocate. Sanjay Karol, J(Oral) . Both appeal and cross-objection arise out of the impugned award dated 29th March, 2004 passed by the Motor Accident Claims Tribunal (II), Mandi, H.P. in Claim Petition No. 55 of 1997 titled as Smt.Roshani Devi Vs. Lal Chand and another, partly allowing the appellant’s application filed under Section 166 of the Motor Vehicle Act, awarding compensation of Rs. 15,000/- along with interest at the rate of 9% per annum for the damage caused to the property belonging to the appellant. Smt. Roshani Devi is the appellant and the cross objections have been filed by the United India Insurance Company Limited, the insurer who is held liable to indemnify the insured and pay the compensation. On 8th June, 1997 the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 appellant who is the Proprietor of M/s Indira Enterprises Manali, hired truck No.HP-34-0877 to transport 302 empty crates of cold drink bottles from Raison to Parwanoo. When the vehicle reached Sundernagar, due to the negligence of its driver, it met with an accident totally damaging the crates and the bottles and injuring Sh. Megh Sharma an occupant of the vehicle. The appellant as owner filed an application under Section 166 of the Motor Vehicles Act (hereinafter referred to as the ‘Act’) claiming compensation for a sum of Rs. 42,000/- as damage to her property. The owner, while admitting the fact that the goods had been loaded in the truck, which met with an accident, took a defence that the loss caused to the property belonging to the appellant was not more than 5,000/-. The Insurance Company filed its response pleading that the driver was not holding an effective and valid driving license and in any event the extent of liability of the insurer was limited to only Rs.6,000/- as provided under Section 147(2)(b) of the ‘Act’. Based on the pleadings of the parties, the Tribunal framed the following issues: 1. Whether the petitioner is entitled to claim damages on account of damage suffered by him to his property in accident which took place on 8.6.1997 during night time at Sundernagar while the said property was carried on truck No. HP-34- 0877 owned by respondent No.1 and driven in rash and negligent driving manner by respondent No.2 as alleged?. OPP. 3 2. If issue No.1 is proved in affirmative, whether the petitioner is entitled to claim compensation, if so, to what extent and from whom?. OPP. 3. Whether the respondent No.3 was not having valid and effective driving license and he was driving the vehicle in violation of the terms and conditions of Insurance Policy ?. OPR-3. 4. Whether the Insurance Company is not liable to pay damage suffered by the petitioner as alleged?. OPR-3. 5. Whether the petition is bad for non-joinder of necessary parties?. OPR-1. 6. Relief. The Tribunal afforded opportunity to the parties to lead evidence. Appreciating the material on record, the Tribunal found the driver to have driven the vehicle in a rash and negligent manner which resulted into the accident, damaging the claimant’s property. Since there was no proof of the extent of damage caused, the Tribunal purely on the basis of guess work awarded Rs. 15,000/- as compensation to the claimant. The driver was held to have possessed with an effective and valid driving license. Since the insurer had charged extra premium, therefore the defence taken by the insurer of limited liability was rejected and the entire liability was fastened upon the insurer. I have heard learned counsel for the parties and also perused the record. In the claim petition, the claimant has quantified the damage to be Rs.42,000/- being the actual cost of 4 crates of empty bottles of cold drinks including labour charges, Rs.1,08,000/- for actual loss of business and Rs.15,000/- incurred towards the medical treatment of Sh.Megh Sharma, Salesman. In order to prove its case, the claimant has examined herself as PW-1, Sh.Yog Raj (PW-2) and Sh. Megh Sharma (PW-3). In rebuttal the owner examined himself as RW-1. The fact that 302 crates full of empty bottles of cold drinks were damaged in the accident is evident not only from the statements of PW-1, PW-2 and PW-3 but also from the Motor Claim Form (Ext.PW-1/B) filled by the owner. The owner specifically claimed that total crates, 302 in number, along with bottles of 300 M.L. were damaged in the accident. The fact that the truck in question was insured is also evident from the cover note (Ext.RA). It is evident from the same that an extra premium of Rs. 75/- was charged to “cover the damage caused to the property of third party”. Therefore, in my view, the stand taken by the insurer that the liability was limited to the extent of Rs.6,000/- was rightly rejected by the Tribunal. The provisions of Section 147 (b)(i) would not be applicable in view of the special contract entered into between the parties. This Court in United India Insurance Company Vs. Noor Dass and others, Latest HJL 2005 (HP) 211 has also held that the expression “by the owner of the property” as 5 occurring in Section 166 (1)(4) would include in its ambit the property belonging to third party With regard to the value of the damage caused to the claimant’s property, there is no documentary evidence. Therefore only ocular version of PW-1, PW-2 and PW-3 needs to be examined. These witnesses have categorically deposed that the damage caused to the property of the claimant was Rs.42,000/-. This includes various components. There is no evidence to show the cost of the bottles or the crates. What was the outcome of the claim form submitted by the owner has not been brought on record. Similarly the claimant has not produced any witness of the supplier/dealer/stockiest or the bottler to prove the value of the empty bottles. 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. Keeping in view the pleadings as also the evidence on record, I am of the considered view that the amount needs to be enhanced, purely on the basis of guess work. The fact that the damage has taken place stands proved. In my view, a sum of Rs.21,000/- would be just and reasonable. Therefore, the claimant would be entitled to enhanced compensation of Rs.6,000/- along with interest as awarded by the Tribunal. 6 Sh.Megh Sharma had to file an independent petition to claim compensation. Loss of business has not been proved by the claimant. For the aforesaid reasons, the appeal is partly allowed and the cross objections are dismissed. (Sanjay Karol), Judge. November 7, 2008(R)