IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 495/2008 Date of Decision: January 6, 2009. _____________________________________________ Imerti Devi & Others …Appellants. Versus: Om Parkash & others. …Respondents ______________________________________________ Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting?1 No For the appellants : M/s. Rakesh Bharti and Mr. Ajay Dhiman, Advocates. For Respondent No. 2 : Ms. Radhika Gautam, Advocate. For Respondent No. 3 : Mr. Praneet Gupta, Advocate. For Respondent No. 4 : Ms. Anjali Soni Verma, Advocate. SANJAY KAROL, J. (Oral) . The claimants have filed the present appeal seeking further enhancement of the compensation awarded by the Motor Accident Claims Tribunal (I), Kangra at Dharamshala, H. P. in M.A.C. Petition No.12-K/11/2005 titled as Imerti Devi & Others vs. Om Parkash & others in terms of the impugned award dated 27.6.2008. Claim Petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’) was filed by the claimants alleging that on 24.11.2004, their son Shri Manoj Kumar, aged 21 years was hit by vehicle (Bus) No.HP-40- 5345 near Nagrota Bagwan, District Kangra, H.P. The bus, 2 owned by Shri Om Parkash (respondent No.1) was being driven by Shri Hukam Chand (respondent No.2) in a rash and negligent manner which caused the accident in which the said Shri Manoj Kumar received injuries for which he was treated at Zonal Hospital, Dharamshala and subsequently at Post Graduation Institute, Chandigarh. However, he died due to the injuries on 27.11.2004. Compensation of Rs.7 lacs was claimed as the deceased Shri Manoj Kumar was privately employed and drawing a salary of Rs.2500/- per month. The claimants being the parents and the sisters were dependent upon him. The petition was opposed by the owner defendant No.1 on the ground that the vehicle in question stood sold to Shri Jeevan Lal, respondent No.4. The said respondent, however, opposed the petition on the ground that he was not the registered owner and, as such, not liable to pay the compensation. Occurrence of the accident was also disputed by him. The driver chose not to contest the claim petition. The vehicle being insured with the New India Assurance Company Ltd., a separate reply was filed by the insurer admitting the vehicle being insured but, however, pleading breach of conditions of insurance policy, therefore, not liable to indemnify the owner. Based on the pleadings of the parties, the Tribunal framed the following issues:- 3 1. Whether on 24.11.2004, the respondent No.2 was driving Bus No. HP-40-5345 rashly and negligently and hit Shri Manoj Kumar at Therh, who sustained injuries and later on succumbed to the injuries, as alleged? …..OPP 2. If issue No.1 is proved, to what amount of compensation are the petitioners entitled to and from whom? ……OPParties 3. Whether the respondent No.1 is not the owner of the Bus in question and petition is bad for non joinder and mis-joinder of parties, as alleged? ……….OPR-1 3-A.Whether Bus No. HP-40-5345 is owned by respondent No.4, as alleged? ……OPR-1 4. Whether respondent No.2 was not holding a valid and effective driving license at the time of alleged accident? …….OPR-3 5. Whether the vehicle in question was being plied without registration certificate, fitness certificate and route permit, as alleged? ….OPR-3 Opportunity to lead evidence was afforded to the parties. Appreciating the material on record (oral and documentary), the Tribunal held that the driver had been driving the vehicle in a rash and negligent manner which caused the occurrence of the accident in which the deceased Shri Manoj Kumar received injuries and later on died due to the same. Issue No.1 was decided accordingly. Qua issues No. 3 & 4, the Tribunal found that respondent No.1 was the rightful owner and hence, was liable to pay the compensation. With regard to issues No.4 & 5, the Tribunal found that no evidence had been led, hence, the issues were answered 4 against the insurer. The liability of the insured was, however, covered by the insurer. With regard to the amount of compensation payable to the claimants, while deciding issue No.2, the Tribunal concluded that even in the absence of any reliable material to determine the income of the deceased, considering the fact that the deceased may have been rendering gratuitous service, a sum of Rs.1,75,000/- on lump sum basis was awarded in favour of the claimants. The age of the deceased and the parents, the gratuitous service rendered by the deceased, the other attending facts and circumstances of the case were the factors considered by the Tribunal in so awarding the said compensation. I have heard the learned counsel for the parties and also perused the record. The challenge to the impugned award is only by the claimants for the reasons that the compensation awarded is inadequate inasmuch as the material on record has not been considered and appreciated in its correct perspective. That the accident took place on 24.11.2004 in which the deceased received injuries and finally died on 27.11.2004 is not in dispute. That the vehicle in question owned by Shri Om Parkash and being driven by Shri Hukam Chand, was insured with respondent No.3 is also not in dispute. The challenge to the findings of the Tribunal on issues other than issue No.2 is not there, by the owner, the driver or the insurer. Hence, the scope of the present appeal is limited. 5 For the purposes of determining the adequate compensation payable to the claimants, the statements of Smt. Imerti Devi (PW-3) and Shri Gurbax Singh (PW-4) are relevant. PW-3 has categorically deposed that her son, aged 21 years was working as an Operator of a Gas Check Machine of various vehicles with M/s. S. K. & Co., Nagrota Bagwan and drawing a salary of Rs.2500/- per month. His salary certificate Ext.PW-3/A was proved her. She spent about Rs.15000/- for cremation and performance of last rites. According to her, the family has no source of income as her husband is unable to do any work due to his illness and her unmarried daughter is 19 years of age. According to her, the deceased was the only bread earner and with his death, the family has lost all sources of income. They have also been deprived of the love and affection. There is no serious cross-examination on the said deposition. There is no challenge to the money spent on the cremation. That the deceased was working is not in dispute as is evident from the suggestion put to her by the respondents that the deceased was working as a servant and earning Rs.500/- to Rs.800/- per month only. PW-4, an employee of M/s. S. K. & Co., Nagrota Bagwan has supported the version of PW-3. According to him, the deceased was drawing a salary of Rs.2500/- per month and with the passage of time his income and status was likely to be increased and improved. 6 From the salary certificate Ext.PW-3/A, it is evident that the deceased was an employee of M/s. Parmar Auto Exhaust Analyser Service, Nagrota Bagwan. The salary certificate has not been proved by the person who issued the same. Hence, there is not documentary material on record to prove the monthly income of the deceased. Be that as it may be the fact of the matter is that the deceased is proved to have been working. He was a matriculate. The accident took place in the year 2004, when even daily wager employed by the Govt. was entitled to wages @ Rs.60/- per day. The claimants have proved that the deceased was under medical treatment at Dharamshala and at PGI, Chandigarh between 24 & 27.11.2004. Some expenditure towards travelling and medical treatment and performing of last rites must have been incurred by the claimants. It has come from the unrebutted statement of PW-3 that a sum of Rs.15000/- was spent for cremation and performing last rites. Therefore, a sum of Rs.15,000/- would be just and fair under this head. Ordered accordingly. The Apex Court in V. Subbulakshmi & Ors. vs. S. Lakshmi & Anr. {AIR 2008 SC 1256}, has held that in the absence of any documentary evidence some guess work can be carried out to determine the loss of income. That the claimants were dependent upon the deceased is a question which is not under challenge. Taking the notional income of the deceased to be Rs.1800/- per month and 7 after deducting 1/3rd of the said amount, loss of dependency is determined to be Rs.1200/- x 12= Rs. 14,400/- per year and by applying a multiplier of 17, a total sum of Rs.2,44,800/- towards loss of income is determined. In R. D. Hattangadi vs. Pest Control (India) Pvt. Ltd. and others, 1995 ACJ 366, the Apex Court has laid down the following criteria for awarding the compensation:- “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.” 8 In my view, a sum of Rs.20,000/- is a reasonable compensation and should be awarded towards all heads under the non-pecuniary damages. Thus, the claimants would be entitled to the following amount of compensation:- i) Loss of income = Rs. 2,44,800.00 ii) Medical expenditure, = Rs. 15,000.00 transportation and funeral charges iii) For all heads falling under = Rs. 20,000.00 the non-pecuniary damages ------------------- Total Rs.2,79,800.00 ------------------- The Tribunal only awarded future interest. I see no reason as to why interest pendente lite be also not awarded to the claimants. Hence, it is ordered that the claimants shall also be entitled to interest at the rate awarded by the Tribunal from the date of filing of the petition on the awarded compensation. For the aforesaid reasons, the appeal is accepted and the award is modified to the aforesaid extent. (Sanjay Karol), January 6, 2009. Judge. (rana)