IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Civil Writ Petition No. 1908 of 2007 & FAO Nos. 189, 292, 293, 295 and 296 of 2008 Date of Decision 17th December, 2012 ________________________________________________________ Civil Writ Petition No. 1908 of 2007 National Insurance Company Limited through its Assistant Manager, Divisional Office, Himland Hotel, Shimla ….Petitioner Versus 1. Motor Accidents Claims Tribunla-I, Sirmaur at Nahan (H.P.) through its Presiding Officer, 2. Smt. Sita Devi wife of Shri Raja Ram, 3. Sh. Raja Ram son of Sh. Magi Ram Both resident of Jamniwala Raod, Badripur, Tehsil Paonta Sahib, District Sirmaur (HP) 4. Sh. Prem Chand, son of Sh. Amar Nath, resident of village Taruwala, Tehsil Paonta Sahib, District Sirmaur (HP) ……Respondents FAO No. 189 of 2008 1. Smt. Sita Rani, wife of Shri Raja Ram, resident of Jamniwala road, Badripur, Tehsil Paonta Sahib, Disttt. Sirmaur HP 2. Shri Raja Ram son of Shri Magi Ram, resident of Jamniwala road, Badripur, Paonta Sahib, District Sirmaur HP …..Appellants. Versus 1. National Insurance Company Ltd. through its Assistant Manager, Divisional Office, Himland Hotel, Shimla 2. Shri Prem Chand son of Shri Amar Singh, resident of Taruwala, Tehsil Paonta Sahib, District Sirmaur HP ….Respondents FAO No. 292 of 2008 Manisha Thakur, daughter of Shri Bir Singh, through father and guardian of the minor Shri Bir Singh, resident of village Dadahu, Tehsil Nahan, District Sirmaur HP ….Appellant Versus 1. Shri Prem Chand son of Shri Amar Nath, resident of Taruwala, Tehsil Paonta Sahib, District Sirmaur HP 2. National Insurance Company Limited through the Branch Manager of its Badripur Branch, Tehsil Paonta Sahib, District Sirmaur HP ….Respondents. FAO No. 293 of 2008 Master Nav Raj Singh, son of Shri Beer Singh, through father and guardian of the minor Shri Beer Singh, resident of village Dadahu, Tehsil Nahan, District Sirmaur HP ….Appellant Versus 1. Shri Prem Chand son of Shri Amar Nath, resident of Taruwala, Tehsil Paonta Sahib, District Sirmaur HP 2. National Insurance Company Limited through the Branch Manager of its Badripur Branch, Tehsil Paonta Sahib, District Sirmaur HP …..Respondents. 2 FAO No. 295 of 2008 National Insurance Company Ltd. Badripur, Paonta Sahib, District Sirmaur through its Divisional Manager, Himland Hotel, Circular road, Shimla ….Appellant Versus 1. Master Navraj Singh minor son of Shri Beer Singh, through next friend Sh. Beer Singh resident of Dadahu, Tehsil Nahan, District Sirmaur HP ……Petitioner. 2. Sh. Prem Chand son of Sh. Amar Nath resident of Taruwala, Tehsil Paonta Sahib, District Sirmaur HP ….Respondent. FAO No. 296 of 2008 National Insurance Company Ltd. Badripur Paonta Sahib, District Sirmaur through its Divisional Manager, Himland Hotel, Circular road, Shimla …..Appellant. Versus 1. Ms. Manisha Thakur minor daughter of Sh. Bir Singh through next friend Sh. Bir Singh resident of Dadahu, Tehsil Nahan, District Sirmaur HP ……Petitioner 2. Sh. Prem Chand, son of Shri Amar Nath resident of Taruwala, Tehsil Paonta Sahib, District Sirmaur HP …..Respondent Civil Writ Petition under Articles 226 and 227 of the Constitution of India and appeals under Section 173 of the Motor Vehicles Act. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes ______________________________________________________________ CWP No. 1908 of 2007 For the Petitioner: Mr. A.K. Sharma, Advocate. For Respondent Nos.2 & 3: Mr. K.D. Sood, Sr. Advocate with Mr. Naresh Advocate. FAO No. 189 of 2008 For the Appellant: Mr. K.D. Sood, Sr. Advocate with Mr. Naresh, Advocate. For Respondent No.1: Mr. Deepak Bhasin, Advocate. FAO No. 292 of 2008 For the Appellant: Mr. K.D. Sood, Sr. Advocate with Mr. Naresh, Advocate. For Respondent No.2: Mr. Deepak Bhasin, Advocate 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 3 FAO No. 293 of 2008 For the Appellant: Mr. K.D. Sood, Sr. Advocate with Mr. Naresh, Advocate. For Respondent No.2: Mr. Deepak Bhasin, Advocate FAO No. 295 of 2008 For the Appellant: Mr. Deepak Bhasin, Advocate. For Respondent No.1: Mr. K.D. Sood, Sr. Advocate with Mr. Naresh, Advocate FAO No. 296 of 2008 For the Appellant: Mr. Deepak Bhasin, Advocate. For Respondent No.1: Mr. K.D. Sood, Sr. Advocate with Mr.Naresh, Advocate. _____________________________________________________________ Dev Darshan Sud, J. (oral) CWP No. 1908 of 2007 & FAO No. 189 of 2008 This writ petition and appeals are disposed of by this common judgment as they arise out of the same award of the same accident. In CWP No. 1908 of 2007 the Insurance Company challenges the award passed by the learned Motor Accident Claims Tribunal Sirmaur at Nahan on the grounds of (a) contributory negligence; (b) quantum of compensation awarded. 2. The fact, which was not disputed, is that truck No. HP-17-4149 knocked down the motor cycle causing fatal injuries to the deceased. It was pleaded that truck in question was being driven by Prem Chand in a rash and negligent manner which fact has been affirmed by the learned Tribunal on the recorded evidence. The learned Tribunal awarded a sum of ` 5,45,000/- to the parents of deceased Rajiv Saini, who was the motor cycle rider and sustained fatal injuries in the accident. In this writ petition it is urged that there was contributory negligence on the part of the deceased himself as there were three persons riding 4 the motor cycle i.e. driver and two pillion riders and that the multiplier and datum figure, which have been adopted by the learned Claims Tribunal, are not in consonance with law. It was further urged that since the deceased was a bachelor, 50% amount is required to be deducted in order to assess the quantum of dependency for awarding the compensation. 3. The matter is no longer res-integra. In Sarla Verma and others vs. Delhi Transport Corporation and another, (2009)6 SCC 121 the Supreme Court has clearly laid down the principles for the award of compensation i.e. the multiplier to be adopted and datum figure for assessing the amount of compensation. It is established on record of the case that deceased was 21 years old and in this event, the multiplier to be adopted is 18, according to the table approved in Sarla Verma’s case supra. 4. On the question of deceased being bachelor there is no dispute regarding this fact and in this eventuality, 50% from his income was required to be deducted for his personal expenses in order to arrive at the datum figure. However, subsequently in Santosh Devi vs. National Insurance Company Limited and others, 2012 ACJ 1428 the Supreme Court is categoric when it holds that income is to be increased by 30% for future prospects. In the present case, what I find is that multiplier adopted by the learned Tribunal is 15 which should and ought to have been 18. Further the income assessed by the Tribunal is ` 4500/- which has to be increased by 30% which would then be ` 5850/- per month. After deducting 50% from this amount, the income available to the family of the deceased would be ` 2925/- which after multiplying by 12 and adopting the multiplier of 18, the 5 amount comes to ` 6,31,800/-. I order accordingly. The award is modified to this extent. Needless to say, that the claimants will be entitled to interest on this amount at the rate as awarded by the learned Tribunal. I find that the learned Tribunal was wrong in awarding only ` 5,45,000/-. 5. What has been submitted before me is that it is not the age of the deceased which has to be considered for adopting the multiplier, but the age of dependents. This submission requires to be rejected in view of the law laid down by the Supreme Court in Amrit Bhanu Shali and others vs. National Insurance Company Ltd. and others 2012 ACJ 2002 that:- “17. The selection of multiplier is based on the age of the deceased and not on the basis of the age of dependant. There may be a number of dependants of the deceased whose age may be different and, therefore, the age of dependants has no nexus with the computation of compensation. 18. In the case of Sarla Verma, 2009 ACJ 1298 (SC), this court held that multiplier to be used should be as mentioned in column (4) of the Table of the said judgment which starts with an operative multiplier of 18. As the age of the deceased at the time of death was 26 years, multiplier of 17 ought to have been applied. The Tribunal taking into consideration the age of the deceased righly applied the multiplier of 17 but the High Court committed a serious error by not giving the benefit of multiplier of 17 and bringing it down to the multiplier of 13.” (at p. 2007) 6. On the second aspect that there was contributory negligence, I am not persuaded to hold that any such finding has been rendered by the learned Tribunal which is perverse calling upon this Court to exercise its jurisdiction under Article 226 of the Constitution of India to interfere in the award. Appreciation of 6 evidence in writ proceedings is not permissive unless the findings are perverse. On the question of perversity, the Supreme Court in Municipal Committee, Hoashiarpur vs. Punjab State Electricity Board and others, (2010)13 SCC 216 states the parameters in which the assessment has to be made and in Kilasho Devi Burman (Smt.) and others vs. Commissioner of Income Tax, W.B., Calcutta (1996)7 SCC 613 holds: “8……..A conclusion is perverse only if it is such that no person duly instructed, could, upon the record before him, have reasonably come to it.” (at p. 616) In Municipal Committee, Hoshiarpur’s case (supra) the Supreme Court holds:- “28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan (2010)11 SCC 483). (at p. 229) Lastly in General Manager (P), Punjab & Sind Bank and others vs. Daya Singh, (2010)11 SCC 233 the Supreme Court holds:- “24…….A perverse finding is one which is based on no evidence or one that no reasonable person would arrive at. This has been held by this Court long back in Triveni 7 Rubber & Plastics v. CCE 1994 Supp (3) SCC 665. Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration the finding cannot be said to be perverse. The legal position in this behalf has been recently reiterated in Arulvelu v. State (2009)10 SCC 206. The decision of the High Court cannot therefore be sustained.” (at p.240) I do not find that approach of the learned Tribunal is as such which can be faulted with on these grounds. The conclusions arrived at are in consonance with the facts on record. 7. I do not find any merit in this writ petition which is accordingly dismissed and the appeal filed by the claimants i.e. FAO No. 189 of 2008 titled Sita Ram and another vs. National Insurance Company and another is allowed and award is accordingly modified. The entire amount shall carry interest at the rate as awarded by the learned Tribunal. FAO No. 295 of 2008 titled National Insurance Company Ltd. vs. Master Navraj Singh & FAO No. 296 of 2008, titled National Insurance Co. Ltd. vs. Ms. Manisha Thakur and another 8. Dismissed in view of what I have held in the writ petition. These appeals urge the same points. 9. On the question of award of compensation, two separate appeals have been preferred one by master Nav Raj Singh (FAO No. 294 of 20 08, titled Master Nav Raj Singh vs. Prem Chand) and second by Manisha Thakur (FAO No. 292 of 2008, titled Manisha Thakur vs. Prem Chand). FAO No. 293 of 2008 titled Master Nav Raj Singh vs. Prem Chand and another 10. Adverting to this appeal filed by Master Nav Raj Singh, the learned Tribunal held that the injured was about 15 8 years old at the time when the accident occurred. He was pillion rider and has been awarded a sum of ` 1,34,665/-. It is submitted that the petitioner had sustained permanent disability and that he had to be treated in a number of hospitals. PW5 Dr. Sanjeev Kapoor, Zonal Hospital, Nahan, PW4 Shri Subhash Chand, K.D. Hospital, Ambala have been examined to prove the medical treatment rendered to the petitioner. Dr. Sanjeev Kapoor PW5 proved on record disability certificate Ext.PW5/A according to which the injured had suffered 20% disability qua the whole body. Reading of this certificate shows that the injured has suffered the deformity to the left foot to the extent of 20%. The claimant also proved on record photographs Ext.PW1/D and Ext.PW1/E showing the condition of his foot. The learned Tribunal on the evidence concludes that the claimant had sustained injuries including compound fracture of tibia left with crush injuries on foot. According to Ext.PW1/C, the initial treatment was at CMI Hospital, Dehradun where the claimant remained admitted w.e.f. 26.5.2006 to 27.5.2006 and thereafter he was shifted to K.D. Hospital, Ambala where he was treated from 28.5.2006 to 24.7.2006 and three surgeries were performed on his left foot. He remained as an indoor patient for about two months. The learned Tribunal holds that he must be under treatment for a considerable period of time. The evidence of PW4 Subhash Chand who was working as Accountant cum Record Keeper of K.D. Hospital, Amabla established that he had received treatment from 28.5.2006 to 11.1.2007. The petitioner-claimant was aged about 15 years and was studying in 9th class at the time of accident. In this eventuality, the learned Tribunal 9 awarded ` 9000/- for pain and suffering, ` 12,000/- for the loss of enjoyment of life, ` 1250/- for loss of earning capacity etc. and `63,815/- for medical expenses, ` 7000/- in lump sum as taxi charges, ` 21600/- as special diet and attendant and taking the total claim of ` 1,34,655/-. 11. Learned counsel appearing for the petitioner urges that the compensation is frugal and does not take into account the principles settled by the Supreme Court for award of compensation in this case. He submits that the entire future prospects of the petitioner have been ruined as he cannot work, will not be able to undertake a normal avocation, profession requiring physical fitness is ruled out which narrows down the choice of the petitioner for a profession. He will not be able to participate in day to day activities of sports and it also affects his marital prospects. I do not find that there is detailed evidence in this regard on record, but nonetheless, as urged before me, the same requires consideration. 12. The law for award of damages has been settled by the Supreme Court in Govind Yadav vs. New India Assurance Co. Ltd. 2012 ACJ 28. The Court holds:- “10. The personal sufferings of the survivors and disabled persons are manifold. Some time they can be measured in terms of money but most of the times it is not possible to do so. If an individual is permanently disabled in an accident, the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term compensation' used in Section 166 of the Motor Vehicles Act, 1988 (for short, `the Act') would include not only the expenses incurred for immediate treatment, but also the amount likely to be incurred for future medical treatment/care necessary for a particular injury or disability caused by an accident. A very large number of people involved in motor accidents are pedestrians, children, women and illiterate persons. Majority of them cannot, due to sheer ignorance, poverty and other 10 disabilities, engage competent lawyers for proving negligence of the wrongdoer in adequate measure. The insurance companies with whom the vehicles involved in the accident are insured usually have battery of lawyers on their panel. They contest the claim petitions by raising all possible technical objections for ensuring that their clients are either completely absolved or their liabilities minimized. This results in prolonging the proceedings before the Tribunal. Sometimes the delay and litigation expenses' make the award passed by the Tribunal and even by the High Court (in appeal) meaningless. It is, therefore, imperative that the officers, who preside over the Motor Accident Claims Tribunal adopt a proactive approach and ensure that the claims filed under Sections 166 of the Act are disposed of with required urgency and compensation is awarded to the victims of the accident and/or their legal representatives in adequate measure. The amount of compensation in such cases should invariably include pecuniary and non-pecuniary damages. In R.D. Hattangadi v. Pest Control (India) Private Limited (1995) 1 SCC 551, this Court while dealing with a case involving claim of compensation under the Motor Vehicles Act, 1939, referred to the judgment of the Court of Appeal in Ward v. James (1965) 1 All ER 563, Halsbury's Laws of England, 4th Edition, Volume 12 p. 446 and observed: "(9) Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. 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 up to 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, mental stress and frustration in life." In the same case, the Court further observed: "(12) In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some 11 guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards." 11. In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka,2010 ACJ 38 (SC), the three-Judge Bench was dealing with a case arising out of the complaint filed under the Consumer Protection Act, 1986. While enhancing the compensation awarded by the National Consumer Disputes Redressal Commission from Rs.15 lakhs to Rs.1 crore, the Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act: "(39) We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The "adequate compensation" that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. At the same time we often find that a person injured in an accident leaves his family in greater distress vis-`-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity." (emphasis supplied) 12. In Reshma Kumari v. Madan Mohan (2009) 13 SCC 422, this Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the judgment are extracted below: "The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust 12 enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms. The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guess work may be inevitable. That may be so. In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd.v. Jashuben 2008 ACJ 1097 (SC) held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration. One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard-and-fast rule, however, can be laid down therefor." (emphasis supplied) 13. In Arvind Kumar Mishra v. New India Assurance Company Limited (2010) 10 SCC 254, the Court considered the plea for enhancement of