Basant Ram vs. Rakesh Kumar

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

FAO Nos. 356 of 2014 & 191 of 2015 Decided on: August 11, 2020

1.	<br>FAO No. 356 of 2014
	Oriental Insurar	Oriental Insurance Company Ltd.	Appellant
		Versus
	Basant Ram and another	l another	…Respondents
2.	FAO No. 191 of 2015<br>Smt. Santosh Devi and others		Appellants
		Versus
	Rakesh Kumar and another	and another	…Respondents
<b>FAC</b><br>For	FAO No. 356 of 2014<br>For the appellant	Mr. Lalit K. Sharr<br>video-conferencing.
<b>FAC</b><br>For	For the respondents:	video-conferencing.<br>Mr.<br>J.L.<br>Bhardwaj,<br>respondent<br>No.1,	Mr. Lalit K. Sharma, Advocate, through<br>Advocate,<br>for<br>through<br>video
		conferencing.<br>None for respondent No.2	nt No.2
FAC	FAO No. 191 of 2015
For	For the appellants	Mr. J.L. Bhardwaj, Advocate, Advocate,<br>through video-conferencing.
For	For the respondents:	No.1, through video-conferencing.<br>Mr.<br>Lalit<br>K.<br>respondent<br>No.2,<br>conferencing.	Mr. Sumit Sood, Advocate, for respondent<br>Sharma,<br>Advocate,<br>for<br>through<br>video

Whether reporters of the Local papers are allowed to see the judgment? .

Sandeep Sharma, J. (Oral)

Since both these appeals arise out of Award dated 2.6.2014 passed by learned Motor Accident Claims Tribunal-I, Solan, District Solan, Himachal Pradesh in M.AC Petition No. 11- S/2 of 2009, these were taken up for hearing together and are being disposed of vide this common judgment.

2. Precisely the facts of the case, as emerge from the record are that on 19.2.2006, claimant, Basant Ram suffered grievous injuries on his person after being hit by a Maruti Car bearing registration No. HP-39-A-2666, being driven in rash and negligent manner by its Driver, Rakesh Kumar (respondent No. 1 before learned Tribunal below). Rakesh Kumar assured the claimant to get his treatment done but fact remains that he never met the claimant nor paid any amount to him after the accident. Claimant remained hospitalized firstly at CHC, Dharampur, then at Zonal Hospital Solan, at IGMC Shimla and lastly at PGI Chandigarh. Claimant claimed that on account of injuries suffered by him in the accident, he had to spend a sum of Rs.2,50,000/- on his treatment. Claimant also claimed that he suffered 30% permanent disability on account of fracture in his leg. Claimant, while, claiming compensation to the tune of Rs.15,00,000/-, claimed before learned Tribunal below that

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besides his earning from MES, he was also earning Rs.8,000- 10,000/- from agricultural pursuits, which he is now unable to do on account of permanent disability. Driver of the offending vehicle though admitted the factum with regard to accident but denied that the vehicle in question was being driven rashly and negligently by him at the time of accident. While denying the claim of the claimant that apart from getting salary from MES, he was also earning a sum of Rs.8,000-10,000/- from agricultural pursuits, respondent-driver also denied the claim that claimant had spent Rs.2,50,000/- on his medical treatment.

3. Oriental Insurance Company Limited besides opposing the claim of the claimant on technical grounds also claimed that since driver of the offending vehicle was not having a valid and effective driving licence and vehicle in question was being plied in contravention of the terms and conditions contained in the insurance policy, it is not liable to indemnify the insured. Besides above, insurance company also claimed that the claim petition has been filed in collusion with the driver of the offending vehicle by the claimants.

4. On the basis of pleadings of the parties and evidence adduced on record by respective parties, following issues were framed by learned Tribunal below on 5.9.2013:

• "1. Whether the respondent No.1, was driving the offending vehicle Maruti car No. HP-39-A-2666 in a rash and negligent manner on the road and had struck it against the petitioner near Do-Sarka Dharampur and caused grievous injuries to him with permanent disability? OPP
• 2. If issue No.1, is proved in affirmative, to what amount of compensation the petitioner is entitled to and from whom? OPP
• 3. Whether the petition is not maintainable in the present form and the petitioner has no cause of action to file the petition, as alleged? OPR-2
• 4. Whether the respondent No.1, was not having valid and effective driving licence to drive the offending vehicle as alleged? If so, its effect? OPR-2
• 5. Whether the offending vehicle was being plied in breach of terms and conditions of the insurance policy by the respondent No.1, as alleged ? If so, its effect?
• 6. Relief."

5. Subsequently, vide impugned award dated 2.6.2014, learned Tribunal below allowed the claim petition and held the claimant Basant Ram, entitled to compensation to the tune of Rs.9,65,000/- alongwith interest at the rate of 7% per annum from the date of filing of the petition till realization. In the aforesaid background, claimant as well as insurance company have approached this Court by way of two separate appeals i.e. FAO No. 356 of 2014 is by the insurance company for setting aside the impugned Award and FAO No. 191 of 2015 is by the claimant for enhancement of the award amount.

6. Before proceeding further, it may be observed that the claimant Basant Ram, appellant in FAO No. 191 of 2015 and respondent No.1 in FAO No. 356 of 2014 expired during the pendency of the appeals. In FAO No. 191 of 2015, legal heirs of the deceased claimant, Basant Ram have been brought on record whereas, in FAO No. 356 of 2014, no steps ever came to be taken at the behest of insurance company for bringing on record legal heirs of the deceased claimant. Since legal heirs of claimant, Basant Ram are on record in FAO No. 191 of 2015, this Court, on the oral prayer of learned Counsel appearing for the insurance company, orders impleadment of legal heirs of Basant Ram, and their substitution in place of Basant Ram. Registry to carry out necessary correction in the memo of parties in FAO No. 356 of 2014 on the basis of memo of parties in FAO No. 191 of 2015.

7. Mr. Lalit K. Sharma, learned Counsel appearing for the insurance company contends that the impugned award passed by learned Tribunal below is on higher side and deserves to be reduced accordingly. While referring to the record, Mr. Sharma, vehemently submits that learned Tribunal below has fallen in grave error by taking income of the claimant at Rs.10,000/- per month on account of agricultural pursuits. He submits that since the claimant has failed to prove his income in the manner assessed by learned Tribunal below, save and except solitary deposition of the claimant in Ext. PW-1/A, learned Tribunal below ought not have returned the finding that resultant loss of income of the claimant on account of disability of 30% was Rs.7,000/- per month. He further submits that though claimant in the claim petition claimed that he was mason in MES, Dagshai and was employed but at no point of time, evidence, if any, qua aforesaid aspect of the matter came to be led on record, as such, in the absence of such evidence, learned Tribunal below wrongly concluded that income of the claimant was Rs.10,000/- per month. While referring to the evidence led on record by the claimant, Mr. Sharma, states that it stands duly established on record that the claimant was only able to prove that he spent Rs.1,386/- on account of treatment as such, learned Tribunal below erred in awarding a sum of Rs.1,25,000/- on account of medical treatment. Mr. Sharma also contends that since no specific evidence ever came to be led on record with regard to hospitalization of the claimant for 15-20 days, no amount, if any, could have been awarded by learned Tribunal below on account of attendant charges and transportation charges. Lastly, Mr. Sharma contends that once learned Tribunal below had awarded a sum of Rs.1,25,000/- on account of 30% disability allegedly suffered by the claimant in the accident, as per Ext. PW-7/A, learned Tribunal below could not have awarded a sum of Rs.4,20,000/- on account of such disability without explaining exact loss of income.

8. On the other hand, while seeking enhancement of award amount, Mr. J.L. Bhardwaj, learned Counsel appearing for the claimants contends that once it stood duly established on record that the claimant suffered 30% permanent disability on account of fracture suffered by him in the alleged accident, learned Tribunal below rightly awarded lump sum compensation of Rs.1,25,000/- and Rs.30,000/- on account of treatment and attendant charges, respectively. While referring to the judgment rendered by Hon'ble Apex Court in National Insurance Company Limited vs. Pranay Sethi and others, AIR 2017 SC 5157, Mr. Bhardwaj contends that learned Tribunal below ought to have made an addition of 10% while assessing loss of future prospects, as such, award in this regard requires to be enhanced. Mr. Bhardwaj contends that since age of the claimant at the time of accident was 59 years, learned Tribunal below ought to have applied multiplier of 9 in terms of Sarla Verma and others vs. Delhi Transport Corporation and another, 2009 AIR(SC) 3104 but, in the case at hand, learned Tribunal below erred, while applying multiplier of 5. Mr. Bhardwaj further contends that the sum awarded on account of loss of amenities i.e. Rs.75,000/- is on lower side, because on account of permanent disability, claimant would not be able to lead normal life as such, impugned award under this head needs to be increased. Lastly, Mr. Bhardwaj contends that the interest awarded is also on lower side, which may be enhanced.

9. I have heard learned counsel for the parties and perused the material available on record.

10. Having heard learned counsel for the parties and perused material available on record, this Court finds that primarily challenge to impugned award on behalf of the insurance company is on the quantum of compensation as such, this Court is not required to look into other aspects of matter. Perusal of evidence adduced on record by respective parties clearly reveals that no evidence ever came to be led on record by the respondents including insurance company, to the contrary, claimant with a view to prove that he suffered multiple injuries and 30% disability (permanent) examined as many as six witnesses. Though Mr. Lalit K. Sharma, learned Counsel appearing for the insurance company, made an attempt to demonstrate from the record that claimant did not sustain 30% disability but there is ample evidence on record suggestive of the fact that in the alleged accident, claimant suffered fracture and on account of which, he has become 30% permanently disabled, as is evident from disability certificate, Ext. PW-7/A. Disability certificate Ext. PW-7/A has been duly proved on record by the claimant. Close scrutiny of the evidence available on record clearly reveals that on account of accident, petitioner suffered 30% permanent disability and remained admitted in various hospitals.

11. True it is that the claimant, while claiming that he remained admitted in CHC Dharampur, Zonal Hospital Solan, IGMC Shimla and PGI, failed to place on record evidence with regard to his hospitalization, but the factum with regard to his having sustained grievous injuries in the accident can be easily gathered from the disability certificate, Ext. PW-7/A, which stands duly established on record. Having taken note of the injuries allegedly suffered by the claimant, it can be easily inferred that claimant must have remained admitted in the hospitals that too for at least 15-20 days, as such, learned Tribunal below rightly considered the duration of the claimant being an indoor patient for 15 days and awarded compensation at the rate of Rs.2000/- per day including attendant charges, impugned award on account of aforesaid head i.e. Rs.30,000/ cannot be said to be on higher side by any stretch of imagination. 12. However, having taken note of the fact that the claimant was only able to prove that he incurred expenses to the tune of Rs.1386/-, impugned award passed by learned Tribunal below to the tune of Rs.1,25,000/- on this count needs to be reduced. From the perusal of record, this Court finds that though the claimant placed on record photocopies of bills indicative of the fact that Lakhs of Rupees were spent by him on the treatment but, same were not prove in accordance with law, but, as has been taken note herein above, that the factum with regard to claimant having suffered 30% disability on account of fracture is not in dispute, as such, it can not be said that claimant only spent Rs.1386/- on his medical treatment, therefore, having regard to the nature of injuries suffered by the claimant, this Court can presume that he must have spent at least Rs.50,000/ on his treatment, as such, he is held entitled to Rs.50,000/- on account of medical expenses.

13. Similarly, this Court finds that the claimant with a view to prove that he spent amount on transportation, though failed to place on record bills, if any, but he successfully proved on record that on account of his treatment, he was being repeatedly taken to hospital in taxi being driven by Madan (PW-5), driver of the taxi, has categorically stated that he repeatedly took claimant to the hospitals for treatment. If the cross-examination conducted upon this witness by insurance company is perused, it cannot be said that the insurance company was able to shatter the testimony of this witness, as such, no fault, if any, can be found with the award so far amount under this head i.e. Rs. 15,000/ has been awarded. On account of injuries suffered by the claimant in the accident, he must have undergone pain, suffering and trauma as such, he came to be rightly compensated for the same by learned Tribunal below. However, amount as awarded by learned Tribunal below on these counts appears to be on lower side, as such same is enhanced to Rs.2,00,000/- from Rs.1,25,000/-.

14. So far as award of compensation of Rs.1,25,000/- on account of claimant having suffered 30% permanent disability, as reflected in Ext. PW-7/A is concerned, this Court finds force in the submission made by Mr. Lalit K. Sharma, Advocate, that once learned Tribunal below had held claimant entitled to compensation on account of loss of amenities as well as expectation of life, there was no occasion, if any, for learned Tribunal below to award Rs.1,25,000/- on account of claimant having suffered 30% permanent disability, which otherwise could not have been awarded.

15. Having taken note of extent of disability suffered by the claimant, learned Tribunal below could have awarded amount, if any, under the head of loss of earning capacity of the claimant with permanent disability to the extent of 30%. Hon'ble Apex Court in Hydro Allowance in Jagdish v. Mohan & Others, (2018) 4 SCC 571 has carved out certain principles, which are reproduced herein below:

• "3. In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects:
  • (I) Pain, suffering and trauma resulting from the accident.
  • (II) Loss of income including future income;
  • (III) The inability of the victim to lead a normal life together with its amenities;
  • (IV) Medical expenses including those that the victim may be required to undertake in future; and
  • (V) Loss of expectation of life."

16. Perusal of aforesaid judgment reveals that the victim who suffers permanent or temporary disability on account of accident is entitled to be awarded compensation on account of loss of future income. In the case at hand, learned Tribunal below, though has awarded some amount on account of pain, suffering and trauma resulting from the accident but no amount, if any, ever came to be awarded on account of loss of earning capacity of the claimant, who admittedly suffered permanent disability to the extent of 30% in the alleged accident.

17. Learned Tribunal below, while denying compensation, if any, on account of loss of income has observed that since the claimant was employed as a Mason in MES, Dagshai, and he was retired in June, 2008, no compensation is required to be given under this head but, aforesaid reasoning, as has been given by learned Tribunal below, does not appear to be correct, especially , when no evidence, ever came to be led on record by respective parties that the claimant was in receipt of some kind of salary from MES on account of his serving there. Since no positive evidence ever came to be led on record with regard to salary, if any, paid to the claimant by MES, it is not understood that on what basis, learned Tribunal below, while denying compensation to the claimant, under the head, loss of income, returned finding that since claimant remained on leave for one year, he must have received salary qua aforesaid period. Interestingly, while recording aforesaid findings, learned Tribunal below proceeded to award a sum of Rs.50,000/- on account of leave encashment. Claimant, by way of leading cogent and convincing evidence successfully proved on record that he besides earning Rs.8,000- 10,000/- from agricultural pursuits, was also serving as a Mason with MES, as such, it can be safely inferred that had the claimant not suffered permanent disability on account of injuries suffered by him in the accident, he would have also earned some amount being mason apart from his income from agricultural pursuits. The Question, whether the claimant being Government employee could have continued to pursue his vocation as a mason after his retirement, is of no relevance, especially when insurance company failed to prove on record that at the time of accident, claimant was permanent employee of MES and he was paid regular salary.

18. In light of aforesaid discussion, this Court while setting aside compensation to the tune of Rs.1,25,000/- awarded by learned Tribunal below on account of claimant having suffered 30% permanent disability, permanent in nature, deems it fit to award a sum of Rs.3,00,000/-, in lump sum on account of loss of amenities and loss of expectation of life.

19. Since insurance company failed to refute the claim of the claimant that besides his earning from MES, he was earning Rs.8,000-10,000/- per month from agricultural pursuits, learned Tribunal below rightly took established income of the claimant as Rs.7,000/-, while assessing future income. However, multiplier of 5 as applied in the case is not justified because, at the time of accident, claimant was 59 years of age and as such, multiplier of '9' ought to have been applied by learned Tribunal below in terms of Sarla Verma (supra).

20. Thus, the amounts to which claimant is entitled are assessed/re-assessed as under:

Attendant charges 30000 Medical treatment/expenses 50000

Taxi charges	15000
Pain, suffering and trauma	200000
Loss of amenities of life and loss of expectation of life	300000
Leave encashment	50000
Loss<br>of<br>future<br>income<br>after<br>taking<br>established<br>income at Rs.7,000/- per month<br>Established income =7000<br>Addition on account of future prospects @ 10% =700<br>Total income = 7700<br>Total loss of future income after applying multiplier<br>of '9'<br>7700x 12x 9=	831600

Total 1476600

21. Besides this, the interest awarded by learned Tribunal below is also on lower side, which also requires to be enhanced to 9%. Recently, Hon'ble Apex Court in Reliance General Insurance Co. Ltd. v. Shalu Sharma, (2018) 2 SCC 753, awarded 9% interest and as such, this court deems it necessary to enhance the rate of interest awarded by learned Tribunal below. The Hon'ble Apex Court in the aforesaid judgment has held as under:

"The Tribunal has awarded a sum of Rs 3,14,335 towards medical expenses. An addition of Rs 70,000 would be required to be made in terms of the decision in Pranay Sethi (supra) on account of the conventional heads of loss of estate (Rs 15,000), loss of consortium (Rs 40,000) and funeral expenses (Rs 15,000). Hence, the total compensation is quantified at Rs 27,66,522 on which the claimants would be entitled to interest @ 9% p.a. from the date of the filing of the claim petition. The apportionment shall be carried out in terms of the award of the Tribunal. We order accordingly."

22. In view of above, both the appeals stand disposed of. Impugned award stands modified in the aforesaid terms. Pending applications, if any, are disposed of. Interim orders, if any, stand vacated.

(Sandeep Sharma) Judge

August 11, 2020 (Vikrant)