Nand Lal And Another vs Manohar Lal And Another on 7 May, 2024

[Cites 28, Cited by 0]

Himachal Pradesh High Court

Nand Lal And Another vs Manohar Lal And Another on 7 May, 2024

By way of this application, the respondent No.2/insurance company seeks to place on record Policy Schedule (Annexure A-1) and terms and conditions of the policy (Annexure A-2). It is stated in the application that during evidence before learned Tribunal below, incorrect terms and conditions of policy (Exhibit RW-1/B) were exhibited, which, in fact, were of 'comprehensive policy' and not of 'Act Policy'.

2. Respondents/appellants have filed reply to the said application stating therein that respondent No.2 has not challenged the award and as such, application is not maintainable, Order 41 rule 27 CPC, vests 1 Whether the reporters of the local papers may be allowed to see the judgment?

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right with the appellant to place on record additional documents/evidence. Respondents/appellants have also stated that the application has been filed at a belated stage, i.e. at the stage of .

arguments. For comparison, the appellants have annexed Annexure R-

1/A, which is a private car package policy, to show that no extra premium was deducted to cover third party liability and only basic premium qua third party cover has been charged. It has been denied that while tendering Exhibit RW-1/B, the concerned officer of the insurance company, wrongly tendered policy/terms and conditions of a package policy.

3. Though the application at hand has been resisted by tooth and nail by the respondents/appellants, on aforesaid grounds, but keeping in view the controversy involved in the appeal, this court deems it fit to take on record the documents Annexures A-1 and A-2, as they would help this court adjudicate the controversy in an effective manner.

4. Consequently, in view of the above, present application is allowed and Annexures A-1 and A-2 i.e. policy schedule and the terms and conditions of policy are ordered to be taken on record. Application stands accordingly disposed of. However, it is clarified that the aforesaid Annexures are being taken on record just for the sake of comparison.

FAO(MVA) No. 104 of 2019

5. By way of present appeal filed under S.173 of the Motor Vehicles Act, 1988 (hereinafter referred to as, 'Act'), the appellants, who were respondents Nos. 1 and 2 before learned Motor Accident Claims Tribunal-I, Solan, District Solan, Himachal Pradesh (hereinafter, 'appellants') in MAC Petition No. 59-S/2 of 2013, filed by respondent ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 3 No.1/petitioner (hereinafter, referred to as, 'claimant') have laid challenge to the Award dated 21.3.2018 passed by the learned Tribunal below, thereby awarding a sum of Rs.21,36,762/- alongwith .

interest at the rate of 6% per annum from the date of filing of the petition, till realization of the amount, besides Rs.10,000/- as litigation expenses, to be paid by the appellants, jointly and severally.

6. Summary of facts is that on 25.2.2012, claimant was travelling in Car bearing registration No.HP-15-9434 being driven by respondent No.2. While returning from a marriage function at Village Banasar, at about 8.30 pm, when claimant reached near Village Sanwli, the vehicle met with an accident, as a result of which, claimant sustained multiple injuries and remained under treatment at ESI Hospital, Parwanoo, from where he was referred to P.G.I. Chandigarh. The claimant is stated to have suffered 100% permanent disability rendering him incapable of performing his daily routine activities and pursuits, in which he was engaged. Averments contained in the petition reveal that the claimant was self-employed and working as a Plumber. Claimant claimed to have been earning Rs.25,000/- per month by working as a Plumber and Rs.50,000/- from agriculture. Besides this, claimant claimed to have spent Rs.1,50,000/- on his medical treatment and other related expenses and further expenses are likely to continue further.

7. FIR No. 20, dated 26.2.2012 under Ss. 279 and 337 IPC was registered qua the accident in question at Police Station Parwanoo, Tehsil Kasauli, District Solan Himachal Pradesh. It is alleged that the accident occurred due to rash and negligent driving on the part of appellant No.2. As per FIR, appellant No.1 owned the car in question ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 4 and sold it on affidavit to appellant No.2, who was driving the vehicle in question, at the relevant time. Claimant claimed a compensation of Rs.80.00 Lakh alongwith interest at the rate of 18% per annum, from .

the date of filing of the petition till the date of realization.

8. Respondents Nos. 1 and 3 contested the claim. Respondent No. 2 was proceeded against ex parte on 28.8.2014.

9. Respondent No.1, has not denied the factum of accident, which allegedly took place on 25.2.2012 at 8.30 pm near Village Sanwli (Banasar) Police Station Parwanoo, Tehsil Kasauli, District Solan nor involvement of offending vehicle i.e. car bearing registration No.HP-15- 9434 being driven by appellant No.2 is denied, however, monthly income claimed by the claimant has been denied.

10. Respondent No.3 i.e. United Indian Insurance Company Limited, contested the claim petition by filing reply, taking preliminary objections of maintainability, verification of policy, violation of mandatory terms and conditions of standard insurance policy and provisions of Motor Vehicles Act, vehicle being driven without valid and effective driving licence by respondent No.2. Respondent No.3 stated in the reply that the claimant being a co-passenger was a 'third party' for the purpose of claim, as the offending vehicle was insured under 'Act Policy' and risk of occupant of the vehicle was not covered under the policy. It is also averred that the offending vehicle did not have valid registration and fitness certificates at the time of accident.

11. On the basis of pleadings of parties, the learned Tribunal below, framed following issues on 21.10.2014:

"1. Whether the suffered injuries in an accident caused due to rash and negligent driving of the Maruti Car No. HP-15- ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 5 9434 by respondent No.2 on 25.02.2012 at about 8.30 PM at Sanwli? 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 driver of the Maruti car No. HP-15-9434 was not holding valid and effective driving licence to drive the car at the time of the accident? OPR

4. Whether the Car No. HP-15-9434 was being driven without registration and fitness certificate? OPR

5. Whether the respondent No.2 was driving vehicle under the influence of alcohol and in violation of the terms and conditions of the insurance policy? OPR

6. Relief."

12. The learned Tribunal below, vide impugned Award, allowed the claim petition and held the claimants entitled to compensation of Rs.21,36,762/- alongwith interest at the rate of 6% per annum, from the date of filing of the petition, till realization/deposit of the amount.

Besides, this, claimants came to be held entitled to litigation expenses of Rs.10,000/-. Learned Tribunal below fastened the liability to pay the compensation upon the appellants, jointly and severally.

13. In the aforesaid background, the appellants, who are owner and driver of the vehicle, have approached this Court by way of instant appeal, praying therein to set aside the impugned Award and exonerate them from their liability.

14. The prime ground raised by the appellants to challenge the impugned Award is that the policy in question though was an act policy but risk of the occupants of the vehicle was covered, as premium towards third party risk, was also charged. Another ground raised by ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 6 the appellants is that it has not been proved on record that the driving licence held by appellant No.2 at the time of alleged accident was a fake one and onus to prove the same was upon the insurance .

company, which failed to discharge its liability.

15. Learned counsel for respondent No.4, while supporting the impugned Award, stated that learned Tribunal below has rightly held the policy to be an act /liability policy and burdened the appellants, being owner and driver of the offending vehicle, with liability to indemnify the claimants. While supporting the impugned Award, learned counsel for the respondent No.2 stated that since the policy in question was an act/liability policy, which does not cover the risk of the occupants of the car, as such, the appellants have been rightly held liable to indemnify the claimants.

16. Ms. Devyani Sharma, learned senior counsel duly assisted by Mr. Basant Pal Thakur, Advocate, submitted that though no separate appeal or cross-objections have been filed by the claimants, but learned Tribunal below, while allowing the claim petition, ought to have awarded higher rate of interest, as prevalent rate of interest on fixed deposits at the time of accident was much higher and as such, impugned Award deserves to be modified on this ground. While referring to the provisions of Order XLI, rule 33 of the Code of Civil Procedure, Ms. Sharma, stated that this Court has ample powers to grant additional compensation.

17. I have heard the parties and gone through the records.

18. Since respondent insurance company has not laid challenge to the award impugned in the instant proceedings, findings returned ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 7 therein have attained finality qua it, as such, this court, while considering appeal having been filed by the appellant/owner of the offending vehicle need not ascertain the correctness of the findings .

returned by learned Tribunal below with regard to issue of rash and negligent driving, if any, on the part of the driver of the offending vehicle as well as findings returned qua entitlement of claimant under various heads, as detailed in the impugned award.

19. Primarily, grouse of the appellants, who are owner and driver, respectively of the offending vehicle, as has been highlighted in the grounds of appeal and further canvassed by Mr. J.L. Bhardwaj, learned Senior Counsel duly assisted by Mr. Sanjay Bhardwaj, Advocate appearing for the appellants, is that though perusal of cover note/insurance certificate Ext. RW-1/A, suggests that the offending vehicle, wherein appellant was travelling, was covered by an 'Act Policy', but in case aforesaid policy is read in its entirety, it cannot be said that the respondent Insurance Company was not liable to pay damages to any person, including occupants carried in the vehicle. Mr. Bhardwaj, while making this court peruse aforesaid policy, also submitted that sum of Rs.740/- was charged towards basic third party liability, which would also cover occupants, if any, travelling in the car, apart from the driver, for whom, compulsory premium of insurance was also paid to the tune of Rs.100/-.

20. Mr. Bhardwaj, submitted that aforesaid document was produced on record by the respondent Insurance Company and thereafter, the same was proved in accordance with law by Smt. Shashi Sharma, RW-

1. While making this court peruse statement of aforesaid witness, RW-

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1, Mr. Bhardwaj further submitted that though afore witness deposed that no additional premium was received to cover occupants of car but bare perusal of policy itself suggests that apart from Rs.100/- charged .

for driver, sum of Rs. 740/- was also deposited as basic third party liability. He submitted that even if it is presumed that the policy issued against offending vehicle was 'liability only policy', even then, claim, if any flowing from said policy, is to be governed by terms and conditions of the policy. He submitted that Ext. RW-1/A i.e. liability policy issued qua the offending vehicle in booklet form runs into eight pages and under the heading, "liabilities to third party", it has been specifically provided that Subject to the limits of liability as laid down in the Schedule hereto the Company will indemnify the insured in the event of an accident caused by or arising out of the use of the insured vehicle against all sums which the insured shall become legally liable to pay in respect of death of or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or reward. He submitted that specific expression 'including occupants' would mean persons other than the driver travelling in the offending vehicle at the time of accident.

21. If it is so, respondent insurance company is otherwise liable to pay in respect of appellant, who admittedly was travelling in offending vehicle alongwith driver, who otherwise is entitled to compensation but to the limited extent of Rs.1.00 Lakh. He submitted that since aforesaid insurance policy was adduced on record by insurance company and thereafter same was proved by its official RW-1, it is not open for respondent insurance company to claim that during evidence, incorrect ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 9 terms and conditions were placed on record, which were of a 'Comprehensive Policy' and not 'Act Policy'. It is admitted that RW-1/B was issued by the respondent-insurance company and neither it can be .

accepted nor respondent-insurance company can be permitted to claim that terms and conditions of policy exhibited were in fact of a Comprehensive Policy. He submitted that once, it is admitted that terms and conditions of policy, Ext. RW-1/B were issued alongwith the policy, respondent-insurance company is under obligation to pay compensation qua the injuries suffered by occupants of the car i.e. appellant herein.

22. While making this Court peruse insurance policy adduced on record by way of additional evidence as Annexure A-1, in the application filed under Order XLI, rule 27 CPC, Mr. Bhardwaj, learned Senior Counsel submitted that such document was never issued to the appellant rather, by placing on record aforesaid document, attempt has been made by respondent-insurance company to mislead this court.

While making this court compare, Ext. RW-1/A, with the insurance policy, adduced on record by way of additional evidence, Annexure A-

1, (page 47 of paper-book), Mr. Bhardwaj, argued that there is no similarity between the two, especially of page(s) containing terms and conditions with regard to liability of respondent-insurance company to third party. He submitted that since it is not in dispute that Ext. RW-1/A was adduced on record by respondent-insurance company and there is no denial that the same was issued in favour of the insured, Nand Lal, owner of the vehicle, (appellant herein) respondent-insurance company ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 10 is liable to indemnify the appellant qua the compensation awarded in favour of the claimant, Manohar Lal (respondent No.1 in the appeal).

23. Mr. Bhardwaj, further submitted that since it is not in dispute that .

District Transport Officer, Tuensang Town, Nagaland, which has allegedly furnished verification report, Ext. RW-2/B, was not examined, qua the report submitted by said authority that, "As per information received under RTI Act, from DTO, Tuensang, Nagaland, no record has been found/available in respect of D/L no.: 26707/TV/T/2010 dated 12.08.2015 in the name of Sh. Chain Singh", there was no occasion for learned Tribunal below to take cognizance of the aforesaid verification report. He submitted that since the person, who had actually authored aforesaid report, was not examined, verification report as detailed herein above, is of no consequence. If it is so, learned Tribunal below wrongly held that at the time of accident, appellant No.2 Chain Singh was not having a valid and effective driving licence.

24. No doubt, perusal of cover note, Ext. RW-1/A i.e. insurance policy, issued qua the offending vehicle suggests that a Liability Only Policy was issued, meaning thereby that occupants of the vehicle apart from driver, are not covered by said policy, but schedule of premium if perused, clearly reveals that total Rs. 740/- was paid as Basic Third Party premium and Rs.100/- as compulsory PF for owner/driver.

25. Mr. Ashwani K. Sharma, learned Senior Counsel for the respondent-insurance company, duly assisted by Mr. Ishan Sharma, Advocate, while fairly admitting receipt of Rs.740/- as Basic Third Party premium submitted that aforesaid premium taken was not on account of insurance cover, if any, issued qua occupants of the insured vehicle, ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 11 rather, qua the persons, who may be injured or loses life in the accident involving insured vehicle. However, having perused the terms and conditions of the policy issued in favour of the appellant, this court .

finds that in terms of policy, as detailed herein above, respondent-

insurance company was also liable to indemnify the owner in respect of occupants carried in the vehicle in respect of death or bodily injury, provided such occupants are not carried for hire or reward.

26. It would be apt to take note of aforesaid terms and conditions contained in the policy:

""LIABILITY TO THIRD PARTIES

1. Subject to the limits of liability a laid down in the Schedule hereto the Company will indemnify the insured in the event of an accident caused by or arising out of the use of he insured vehicle against all sums which the insured shall become legally likable to pay in respect of:

(i) Death of or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicles Act, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured.

(ii) Damage to property other than property belonging to the insured or held in trust or in the custody or control of the insured.

2. The Company will pay all costs and expenses incurred with its written consent.

3. In terms of and subject to the limitation of the indemnity granted by the section to the insured, the Company will indemnify any driver who is driving the vehicle on the insured's order or with insured' permission provided that such driver shall as though he/she was the insured observe fulfill and be subject to the terms exceptions and conditions of the Policy in so far as they apply

4. In the event of the death or any person entitled to indemnify under the policy the Company will in respect of the liability incurred by such person indemnify his/her personal representative in terms of and subject to the limitations of the Policy provided that such personal representative shall a though such representative was the insured observe fulfill and be subject ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 12 to the terms exceptions and conditions of this Policy in so far as they apply.

proceedings in any Court of Law in respect of any act or alleged offence causing or relating to any event which may be the subject of indemnity under this Policy."

27. Bare reading of aforesaid clause contained in terms and conditions of policy in question clearly reveals that insurance company would be liable to pay in respect of death of or bodily injury to any person including occupants carried in the vehicle, meaning thereby occupants of offending vehicle apart from driver, against whom compulsory PF is separately charged, would be covered by the insurance. Schedule of premium, as given in the insurance policy, reveals that, apart from Basic Third Party premium of Rs.740/-, respondent-insurance company charged Rs.100/- as compulsory PF for owner/driver. If the premium as taken note herein above, is taken into consideration coupled with the terms and conditions of the policy, as taken note herein above, respondent-insurance company cannot be permitted to claim that under Liability Only Policy, as has been issued in the case at hand, it is not liable to pay in respect of bodily injury or death of any occupants, other than the driver of the vehicle.

28. Though, there cannot be any quarrel with the submission of learned Senior Counsel appearing for the respondent-insurance company that occupants of car are not covered by a 'Liability Only Policy', rather aforesaid proposition of law is settled. In a plethora of judgments, which have been otherwise pressed into service by learned ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 13 Senior Counsel appearing for the appellant, it has been categorically held that occupants of car are not covered by Liability Only Policy.

However, aforesaid findings returned by various courts including this .

court are based upon interpretation of various clauses of insurance policy as well as terms and conditions contained therein. Since in the case at hand, cover note though suggests that same is a 'Liability Only Policy' but if the terms and conditions of the same are perused in their entirety, it is difficult to agree with the plea taken by respondent-

insurance company that it is not liable to pay compensation, if any, in respect of death of or bodily injury to any person including occupants carried in the vehicle, especially when it is not the case of the respondent-insurance company that at the relevant time, occupants were being carried in the vehicle for hire or reward.

29. Since, while issuing Liability Only Policy, Ext. RW-1/A, respondent-insurance company in terms and conditions, itself provided that it shall be liable to pay in respect of death or bodily injury to occupants, it cannot escape its liability to pay compensation qua the injuries received by claimant, Manohar Lal, who admittedly, at the time of accident was occupant in the offending vehicle. Since, schedule clearly reveals that separate premium was charged for compulsory PF for owner/driver, driver was also entitled to receive compensation but to limited extent, on account of bodily injuries or death, if any.

30. Moreover, it is not in dispute that Ext. RW-1/A, policy, was placed on record by the respondent-insurance company itself and not by the appellant. Though, RW-1, Smt Shashi Sharma, Assistant Manager of the respondent-insurance company stated that no ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 14 additional premium was charged from the insured so as to cover occupants of car but, at no point of time, she deposed that the terms and conditions annexed with policy, Ext. RW-1/A are not of this policy .

but are of a 'Comprehensive Policy.'

31. Though, respondent-insurance company by way of placing another copy of policy, Annexure A-1, with the application under Order XLI, rule 27 CPC, attempted to argue that though initial three pages of policy Ext. RW-1/A issued against offending vehicle are of Liability Only Policy but inadvertently, terms and conditions annexed with the same were of Comprehensive Policy, however, this court finds no force in the aforesaid submission of learned Senior Counsel appearing for the respondent-insurance company for the reason that Ext. RW-1/A, if perused in its entirety, clearly reveals that the same is in booklet form and runs into eight pages. Terms and conditions of the policy are given on the fourth page, which is on the backside of page No.3, wherein schedule of premium is given. Had terms and conditions been not printed on the backside of page No.3, where schedule of premium is given or were attached separately, this court would have accepted the submission made on behalf of the respondent-insurance company that inadvertently, terms and conditions of Comprehensive Policy were attached with Liability Only Policy, issued qua the vehicle in question.

32. Having perused the policy adduced on record by respondent-

insurance company by way of additional evidence, this court has no hesitation to conclude that the respondent-insurance company with a view to avoid liability, which can be fastened on account of terms and conditions contained in the policy, as taken note herein above, ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 15 prepared duplicate policy, three initial pages whereof are same as of Ext. RW-1/A but thereafter, terms and conditions given are of a Comprehensive Policy. Moreover, careful perusal of terms and .

conditions annexed with the policy placed on record by way of additional evidence, clearly reveals that the same are verbatim the same as RW-1/A, placed on record by respondent-insurance company before learned Tribunal below, save and except change of few words in clause (i) under head "Liability To Third Parties'. In Ext. RW-1/A, condition reads as under:

1. "Subject to the limits of liability a laid down in the Schedule hereto the Company will indemnify the insured in the event of an accident caused by or arising out of the use of he insured vehicle against all sums which the insured shall become legally likable to pay in respect of:

(iii) Death of or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicles Act, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured. ..."

33. Said terms and conditions contained in Annexure A-1, adduced on record as additional document, read as under:

"LIABILITY TO THIRD PARTIES

1. Subject to the limits of liability as laid down in the Schedule hereto the Company will indemnify the insured to the extent of an accident caused by or arising out of the use of the insured vehicle against all sums which the insured shall become legally liable to pay in respect of:

(i) Death of or bodily injury to any person so far as it is necessary to meet the requirements of Motor Vehicles Act, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 16

(ii) Damage to property other than property belonging to the insured or held in trust or in the custody or control of the insured.

2. The Company will pay all costs and expenses incurred with its written consent.

3. In terms of and subject to the limitations of the of the indemnity granted by this section to the insured, the Company will indemnify any driver who is driving the vehicle on the insured's order or with the insured's permission provided that such driver shall as though he/she was the insured observe fulfill and be subject to the terms exceptions and conditions of the Policy, in so far as they apply.

4. In the event of the death of any [person entitled to indemnify under this policy the Company will in respect of the liability incurred by such person indemnify his/her personal representative in terms of and subject to the limitations of this policy provided that such person representative shall as though r such representative was the insured observe fulfill and be subject to the terms exceptions and conditions of the Policy in so far as they apply.

5. The Company may at its own option (a) arrange for representation at any Inquest or Fatal Inquiry in respect of any death which may be the subject of indemnity under this Policy and (b) undertake the defence of proceedings in any Court of Law in respect of any act or alleged offence causing or relating to any event which may be the subject of indemnity under this Policy."

34. Though terms and conditions placed on record by way of additional evidence, (page 50 of paper book, Annexure A-2), is claimed to be of Comprehensive Policy but if the same are read juxtaposing Ext. RW-1/A, there is no difference between the two, save and except liability of respondent-insurance company to pay in respect of death or bodily injury to any person including occupant. In policy adduced on record by way of additional evidence (Annexures A-1 and A-2), it has been attempted by respondent-insurance company to prove that liability of respondent-insurance company is to pay in respect of death ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 17 or bodily injury of insured/driver/ owner, so far as to meet requirement of Motor Vehicle Act and there is no mention with regard to death or bodily injury of any occupant, which is otherwise specifically mentioned .

in Ext. RW-1/A tendered in evidence by respondent-insurance company before learned Tribunal below.

35. It appears that, while placing on record duplicate policy, insurance company has purposely placed on record terms and conditions of other policy. Though perusal of aforesaid document adduced on record by way of additional evidence, clearly reveals that there is not much difference between terms and conditions contained in Ext. RW-1/A and Annexure A-1 of the application, but in the policy adduced by way of additional evidence, words, "any person including occupants" have not been mentioned, whereas, in policy Ext. RW-1/A, which was actually issued in favour of the insured, specifically provides that insurance company is liable to pay in respect of death or bodily injury of occupants carried in the vehicle.

36. Mr. Ashwani Sharma, learned Senior Counsel representing respondent-insurance company relied on the following judgments to argue that the occupants of car are not covered by Liability Only Policy:

regarding statutory obligation of insurance company

(i) NIC v. Geeta Bhatt (2008) 12 SCC 426, regarding insurance policy being contract inter-se parties

(ii) NIC v. Yellamma, (2008) 7 SCC 526, Occupants of a vehicle not covered in Liability Only Policy

(iii) 2011 (11) aCJ 1415 (Delhi

(iv) 2013 (I) ACJ 199 (SC)

(v) 2013 (I) ACJ 321

(vi) OIC v. Sudarshana Devi FAO No. 403 of 2010, decided on 8.9.2016 ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 18

(vii) Sukh Ram v. Nirmala FAO No. 400 of 2011 decided on 9.8.2017

(viii) Rahul Sood v. Bimla FAO No. 352 of 2017 decided on 12.9.2019

(ix) 2022 (2) Shimla LC 751 .

(x) NIA v. Sanjay Sharma, 2023 SCC OnLine Del 3404

(xi) OIC v. Anil Kumar, FAO No. 153 of 2012, decided on 8.1.2024

37. Since, there is no dispute rather, this court is in full agreement with the learned Senior Counsel for the appellant that occupants of car are not covered in a Liability Only Policy/Act Policy, judgments detailed above, pressed into service by learned Senior Counsel for respondent-

insurance company are not required to be taken note of.

38. However, as has been observed herein above, that though settled principle is that the occupants of vehicle are not covered in Liability Only Policy, but once terms and conditions if any contained in Liability Only Policy issued in favour of insured, Exhibit RW-1/A, clearly provide that insurance company shall be liable to indemnify the insured in case of death or bodily injury of occupants being carried in the vehicle, provided that they are not carried for hire or reward coupled with the fact that the insurance company has charged Rs. 740/- as Basic Third Party premium apart from Compulsory PF of Rs.100/- for the owner/driver, respondent-insurance company cannot evade its liability to pay compensation in respect of injuries suffered by respondent No.1-Manohar Lal, who at the relevant time was travelling in the offending vehicle apart from the driver.

39. Though, learned Senior Counsel for the respondent-insurance company argued that on account of inadvertent mistake of RW-1 Smt. Shashi Sharma, wrong terms and conditions of policy Ext. RW-1/B, ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 19 came to be tendered on record, but such plea cannot be accepted for the reason that if Ext. RW-1/A tendered in evidence by RW-1 is perused in its entirety it clearly suggests that it is in a booklet form, .

consisting of eight pages, terms and conditions are printed on page 4, which is on back side of page 3, which is schedule of premium. Once terms and conditions of Ext. RW-1/A are printed on backside of page 3 i.e. schedule of premium, coupled with the fact that policy is in a booklet form which runs into eight pages, it is difficult to accept that, while issuing policy wrong set of terms and conditions of insurance policy came to be annexed with the insurance cover.

40. At the cost of repetition, it is observed that there cannot be any quarrel with the proposition of law that occupants of an insured vehicle are not covered by Liability Only Policy, but since terms and conditions contained in Liability Only Policy issued in favour of insured as detailed herein above, provide for liability of insurance company to pay in respect of death or bodily injury of any occupants carried in the vehicle, learned Tribunal below ought not have exonerated the respondent-

insurance company of its liability to pay the compensation on account of injuries received by claimant, Manohar Lal, who was one of occupants alongwith the driver in the vehicle in question, for whom separate premium was paid to the respondent-insurance company, as is evident from schedule of premium.

41. There is another aspect of the matter that due to not carrying forward the Proviso (ii) of Section 95(1)(b)(i) of Old Act in Section 147(1)(b)(i) of the New Act, even the unpaid passengers in private passenger car and a pillion rider on a Motor Cycle are also covered ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 20 within the scope of Compulsory Insurance required by Section 147(1)(b)(i) of the Act, therefore, to cover such unpaid passengers and pillion rider, no separate premium is required to be paid and hence no .

distinction can be made on the basis of description of policy as 'Comprehensive Policy/Package Policy' or 'Act only policy'

42. In this regard, it would be apt to take note of judgment passed by Hon'ble Apex Court in Shiv Lochan Singh alias Bhola v. National Insurance Co. Ltd. and others, 2017 SCC OnLine P&H 6484, High Court of Punjab and Haryana has held that distinction of Act Only Policy and Package Policy does not hold good, qua covering the claim for the damage caused to third party, which includes the passengers in a private passenger car and a pillion rider on a motor cycle. Hon'ble Apex Court held as under:

"Act Policy and Comprehensive Policy

44. The provisions of Motor Vehicle Act, 1988 make a positive provision of compulsory insurance of a motor vehicle before bringing it on the road. Still further the Act makes a compulsory provision for covering of all claims qua third party in case of damages arising from an accident involving such an insured vehicle. Hence the attempt of the insurance companies to avoid statutory liability by creating artificial distinction of Comprehensive/Package policy and the alleged 'Act only policy' does not stand legal scrutiny under the provisions of the New Act. Needless to say that qua the claim for damages to third party liability; every policy has to be taken as 'Act Policy' only, since it is mandatory to be issued by the Insurance Company and it is mandatory to be obtained by the owner of the vehicle under the provisions of the Motor Vehicle Act. In that sense every policy, qua third party, can be said to be and has to be only an 'Act Policy'. Under the provisions of the Old Act since the vehicles other than the vehicles for carrying passengers for hire or reward(i.e. private passenger car/motor cycle) were excluded from the Compulsory Insurance. So the Insurance Companies were very much right in creating category of 'Act Policy' and 'Comprehensive Policy'; where separate premium was charged for covering the unpaid or gratuitous passengers in private ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 21 passenger car and pillion rider on a motor cycle. But since under the provisions of the New Act, as discussed above, due to not carrying forward the Proviso (ii) of Section 95(1)(b)(i) of Old Act in Section 147(1)(b)(i) of the New Act, even the unpaid passengers in private passenger car and a pillion rider on a Motor Cycle are also covered within the scope of Compulsory .

Insurance required by Section 147(1)(b)(i) of the Act, therefore, to cover such unpaid passengers and pillion rider, no separate premium is required to be paid and hence no distinction can be made on the basis of description of policy as 'Comprehensive Policy/Package Policy' or 'Act only policy'. May be, the insurance company can created another class of policy called as 'Comprehensive' or 'Package Policy' for covering some extra risk like qua the driver, conductor or employee of the owner, which are still excluded from Compulsory Insurance by virtue of Proviso(i) of Section 147(1)(b), by charging some extra premium. But that classification created by the insurance company can not be made a ground by it for avoiding liability arising from an insured vehicle, qua the damages to the third party, including passengers in private passenger car/pillion rider on a Motor Cycle. Needless to say that insurance company can charge only a single consolidated premium for covering all risks qua third party, since it is compulsory and consolidated insurance for covering all third party claims under the provisions of the Motor Vehicles Act. Insurance company is not entitled and authorised to create differential policies even for third party claim cover, by categorizing the separate amounts of premium to be charged from the insured. Once the third party insurance is compulsory, it is compulsory for all purposes and for all persons falling in definition of third party. Hence the distinction of 'Act only Policy' and 'Package Policy' do not hold good; qua covering the claim for the damage caused to third party, which include the passengers in a private passenger car and a pillion rider on a Motor Cycle."

43. In view of above, there appears to be merit in the claim of the appellants that liability to pay compensation, if any, on account of injuries suffered by claimant Manohar Lal is of insurance company, as such, award in that regard needs to be modified.

44. Similarly, there appears to be merit in the contention of learned Senior Counsel representing the appellants that learned Tribunal below has erred in recording findings that the driver of the offending vehicle was not having a valid and effective driving licence at the time of ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 22 accident. While arguing on issue No.3, insurance company placed heavy reliance upon Driving Licence Verification Report, Ext. RW-2/B, procured by Mr.P.S. Chandel, Advocate, RW-2, from District Transport .

Officer, Tuensang Town, Nagaland with respect to Driving Licence No. 26707/TV/T/2010 dated 12.8.2015, placed on record by respondent No.1, Exhibit RW-2/B. As per verification report, no record of said driving licence was found in the office of District Transport Officer, Tuensang Town, Nagaland.

45. Having taken note of verification report, learned Tribunal below, returned a finding that the driving licence, Ext. R2 was a fake document. However, it is not in dispute that at no point of time, District Transport Officer Tuensang Town, Nagaland who supplied the information, as conveyed by Mr. P.S. Chandel, Advocate vide Exhibit RW-2/B, was ever examined. If it is so, it cannot be said that the verification report reflected in Ext. RW-2/B, ever came to be proved in accordance with law. If it is so, same otherwise could not have been taken into consideration by learned Tribunal below, to return the finding that driving licence possessed by appellant No.2 at the relevant time, was fake.

46. Though, RW-2, Mr. PS Chandel, deposed that he had sent communication for verification of licence number as detailed above to District Transport Officer, Tuensang, Nagaland, and in response to same, vide communication dated 12.8.2015 (Mark R1), afore authority supplied the requisite information, but he also admitted that he has not placed on record postal receipt if any with regard to aforesaid communication sent to the authority concerned i.e. District Transport ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 23 Officer, Tuensang Town, Nagaland. There is nothing on record to suggest that the insurance company made any effort to examine any official from the office of District Transport Officer, Tuensang, Nagaland .

to prove report given in Exhibit RW-1/B qua the driving licence held by appellant No.2 to be fake.

47. At this juncture, it would be apt to take note of few judgments relied upon by the appellants on the issue of exhibiting and proving documents.

48. In Jagmail Singh v. Karamjit Singh¸(2020) 5 SCC 178, Hon'ble Apex Court has held that that merely the admission in evidence and making exhibit of a document does not prove it automatically unless the same has been proved in accordance with the law.

49. This court in National Insurance Company Ltd. v. Arbind Singh & another, FAO No. 236 of 2014, decided on 5.12.2023, has held as under:

"10. The onus was upon the insurance company to prove that the driver of the offending vehicle was not possessing a valid and effective driving license at the time of the accident. To prove this issue, the insurance company examined RW-1 Narender Kumar and RW-4 Ravi Karan Singh. RW-1 Narender Kumar, Administrative Officer, Divisional Office of the appellant- Insurance Company, deposed that the driving license No.S-3127/MTR/99 had not been issued by the Motor Licensing Authority, Mathura and in this respect, the Investigator of the company had sent his report Ext. RW1/B and copy of the form No.54 Ext. RW1/C and as per the report, the said license was fake having not been issued by the competent authority. However, no reliance can be placed upon the report of the Investigator Ext. RW1/B as the insurance company has failed to produce the investigator who had sent the report Ext. RW1/B. There is also nothing in his report that on what basis he had come to the conclusion that the said driving license of respondent No.1 was fake. Similarly, the person who had issued form No.54 Ext. RW1/C has also not been examined, as such, no benefit can be derived by the insurance company from the form No.54 Ext. RW1/C. RW-4 Ravi Karan Singh is another witness examined by the insurance company, who was the Junior ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 24 Clerk in the office of ARTO, Mathura. He deposed that the driving license No. S-3127/MTR/99 was never issued from their office and to this effect, the report and the writing Ext. RW1/C and Ext. RW4/A are correct. However, in cross-examination, he admitted that the register for the year 1999, which he had brought consisted of 152 pages and on its cover page, it has been .

mentioned that the licenses No.S2255 to 3858 have been issued from their office and it had stamp of ARTO, Mathura. The learned Tribunal below dealt with this issue as under:-..."

50. In view of discussion and law taken into consideration, findings returned by learned Tribunal below, qua legality of Driving Licence also deserve to be reversed. If it is so, liability if any, to pay compensation to respondent No.1, is upon the respondent-insurance company.

51. Though, in the case at hand, no cross-objections have been filed by respondent No.1, laying therein challenge to quantum of compensation awarded to him, but Ms. Devyani Sharma, learned Senior Counsel appearing for the claimant, while making this Court peruse the provisions of Order XLI rule 33 CPC, submitted that The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. Ms. Sharma, learned senior counsel submitted that since bare perusal of impugned award itself suggests that adequate compensation has not been paid in favour of respondent No.1, who on account of having suffered injuries, has become disabled to the extent of 100% this court can always enhance the compensation, while exercising power under Order XLI, ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 25 rule 33 CPC. In support of aforesaid contention, she placed reliance upon following judgments:

(a) (2021) 4 SLC 2151

(b) (2020) 4 SLC 2367 .

(c) (2011) 14 SCC 639

(d) (2002) ACJ 146 (DB)

(e) FAO No. 49 of 2018, United Indian Insurance Company v. Munni

52. Since in all the above judgments pressed into service, more or less similar findings have been returned with regard to competence of appellate court to grant compensation or pass order without there being any cross-objection or appeal, this court would be only making reference to judgment rendered by this Court in National Insurance Co. v. Dharmesh reported in (2021) 4 SLC 2151, relevant paras, whereof read as under:

"13. At this stage, learned counsel for Appellant-Insurance Company vehemently argued that no amount, if any, can be awarded in the appeal filed by the Appellant-Insurance Company in favour of the claimants, especially when no cross appeals, praying therein for enhancement of compensation have been filed by the claimants. However, this Court is not in agreement with the aforesaid submissions having been made on behalf of the Appellant-Insurance Company. On the issue of power of appellate court to make an additional award, reference is made to Ranjana Prakash and Ors. V. Divisional manager and Ors (2011) 14 SCC 639, whereby it has been held that amount of compensation can be enhanced by an appellate court while exercising powers under Order 41 Rule 33 CPC, relevant para of the aforesaid judgment is reproduced herein below:

"Order 41 Rule 33 CPC enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 of the Code can however be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 26 relief. For example, where the claimants seeks compensation against the owner and the insurer of the vehicle and the Tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, along with the owner, even though the claimants had not challenged the non-grant of relief against the insurer."

14. It is quite apparent from the aforesaid judgment rendered by the Hon'ble Apex Court that this Court while exercising power under Order 41 Rule 33 CPC can proceed to award compensation even in those cases, where no cross appeals have been filed. It is not in dispute that learned Tribunal below while passing impugned award has not awarded amount, if any, on account of loss of estate and espousal consortium as well as filial consortium to claimant No.1 to 3 and as such, award to that extent needs to be modified."

53. Reliance is also placed upon judgment passed by Hon'ble Apex Court in Prahlad & Others v. State of Maharashtra, (2010) 10 SCC 458, wherein it has been held as under:

"18. The provision of Order 41, Rule 33 of CPC is clearly an enabling provision, whereby the Appellate Court is empowered to pass any decree or make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require. Therefore, the power is very wide and in this enabling provision, the crucial words are that the Appellate Court is empowered to pass any Order which ought to have been made as the case may require. The expression `Order ought to have been made' would obviously mean an Order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying `the court may pass such further or other Order as the case may require.' This expression `case' would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.

19. In fact, the ambit of this provision has come up for consideration in several decisions of this Court. Commenting on this power, Mulla (CPC, 15th Edition, pg. 2647) observed that this Rule is modelled on Order 59, Rule 10(4) of the Supreme Court of Judicature of England, and Mulla further opined that the purpose of this rule is to do complete justice between the parties.

::: Downloaded on - 10/05/2024 20:34:26 :::CIS 27

20. In Vanarsi vs. Ramphal, AIR 2004 SC 1989, this Court construing the provisions of Order 41 Rule 33 of CPC held that this provision confers powers of the widest amplitude on the appellate court so as to do complete justice between the parties. This Court further held that such power is unfettered by considerations as to what is the subject .

matter of appeal or who has filed the appeal or whether the appeal is being dismissed, allowed or disposed of while modifying the judgments appealed against. The learned Judges held that one of the objects in conferring such power is to avoid inconsistency, inequity and inequality in granting reliefs and the overriding consideration is achieving the ends of justice. The learned Judges also held that the power can be exercised subject to three limitations: firstly, this power cannot be exercised to the prejudice of a person who is not a party before the Court; secondly, this power cannot be exercised in favour of a claim which has been given up or lost; and thirdly, the power cannot be exercised when such part of the decree which has been permitted to become final by a party is reversed to the advantage of that party. (See para 15 at pg. 1997).

It has also been held by this Court in Samundra Devi and others vs. Narendra Kaur and others, (2008) 9 SCC 100 (para 21) that this power under Order 41, Rule 33 of CPC cannot be exercised ignoring a legal interdict."

54. Bare perusal of aforesaid exposition of law suggests that this power is entrusted to the appellate court to enable it to do complete justice between the parties. Afore provision enables appellate court to pass any decree or make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require. Necessary condition is that power can be exercised power can be exercised subject to three limitations: firstly, this power cannot be exercised to the prejudice of a person who is not a party before the Court; secondly, this power cannot be exercised in favour of a claim which has been given up or lost; and thirdly, the ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 28 power cannot be exercised when such part of the decree which has been permitted to become final by a party is reversed to the advantage of that party. In case aforesaid conditions are satisfied then the .

appellate court can consider any objection to the part or decree of the court and set it right. Though general principle is that a decree is binding upon the party, unless it is set aside in appropriate proceedings, but afore rule enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections.

55. Now being guided by aforesaid law laid down by Hon'ble Apex Court and this Court, this court would make an endeavour to find out illegality, if any, committed by learned Tribunal below, while awarding compensation, with regard to various heads.

56. Admittedly in the case at hand, respondent/claimant after having suffered multiple grievous injuries in the accident, has became 100% permanently disabled, perusal of disability certificate Ext. PW-1/B, issued by Special Medical Board, Department of Surgery, Post Grade Institute of Medical Education and Research, Chandigarh and statement of Dr. Rajesh Chhabra, Department of Neuro Surgery, PGIMER, Chandigarh, clearly suggests that the petitioner/claimant is a diagnosed case of 'spastic paraplegia with very severe bladder involvement.'

57. Ms. Devyani Sharma, learned Senior Counsel submitted that amount of compensation awarded by learned Tribunal below in favour of the claimant, deserves to be enhanced on various grounds. She ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 29 submitted that though in the instant case, it specifically came to be proved by claimant that his income was Rs.25,000 from plumbing and Rs.8,000 as income from dairy. She submitted that over and above .

afore amount, an additional amount of 25% of established income was required to be awarded on account of loss of future prospects in terms of judgment rendered by Hon'ble Apex Court in National Insurance Co. Ltd. v. Pranay Sethi, (2017)16 SCC 680.

58. Ms. Sharma, learned senior counsel appearing for the respondent No.1/claimant, further submitted that though statements of PW-1 and PW-3, claimant and one Bal Krishan, respectively, if read in conjunction, clearly suggest that the claimant was earning aforesaid amount of RS. 33,000/- per month, but yet learned Tribunal below, proceeded to assess the monthly income of the claimant as Rs.6,000/-

on the basis of minimum wages notified under Minimum Wages Act.

Ms. Sharma, learned senior counsel further submitted that the minimum wages notified under Minimum Wages Act cannot be a criteria to fix income, especially when the same has been proved otherwise. In this regard, she placed reliance upon judgment rendered by Hon'ble Apex Court in Chandra alias Chanda alias Chandra Ram and Another v. Mukesh Kumar Yadav And Others, (2022) 1 SCC 198, wherein, it came to be held that merely because claimants were unable to produce documentary evidence to show the monthly income of the deceased, the same should not justify adoption of lowest tier of minimum wage, while computing income.

59. To the contrary, Mr. Ashwani K. Sharma, learned Senior Counsel appearing for the respondent-insurance company, vehemently ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 30 argued that since no cross-objections have been filed by the claimant, prayer made on behalf of claimant for enhancement of the compensation deserves outright rejection. He further submitted that .

since no documentary evidence came to be adduced on record suggestive of the fact that claimant was earning Rs. 25,000/- from plumbing and Rs.8,000/- from dairy business (total Rs.33,000/- per month), no illegality can be said to have been committed by learned Tribunal below, while calculating monthly income of claimant, on the basis of minimum wages notified under Minimum Wages Act at the relevant time.

60. Having perused averments contained in the claim petition as well as statements made by PW-1, claimant and PW-3 Bal Krishan, this court finds that claimant and PW-3 Bal Krishan, who also had been doing work of plumber categorically stated that being plumber, claimant used to earn Rs. 25,000/- per month and Rs. 8,000/- per month from dairy. But since aforesaid deposition with regard to income never came to be supported by any documentary evidence, learned Tribunal below, while taking claimant to be a plumber by vocation, proceeded to conclude his monthly income at Rs. 6,000/- on the basis of Minimum Wages notified under Minimum Wages Act.

61. No doubt, apart from statement made by PW-3 Bal Krishan, no document in the shape of pay slip or bank account statement ever came to be adduced on record by claimant, to prove his income but once, it never came to be disputed that at the time of accident, claimant was doing work of plumber, coupled with the statement given by PW-

3, that claimant used to charge Rs.7,000/- for sanitary work in a ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 31 bathroom, which work, he had been doing for the last 23-25 years, learned Tribunal below could not have assessed the monthly income of the claimant to be Rs.6,000/-.

62. No doubt, in the cases, where no definitive proof of income is available, learned Tribunal below, with a view to ascertain monthly income can resort to the provisions of Minimum Wages Act, but merely because, claimant was unable to adduce on record, any document to show monthly income of the deceased, learned Tribunal below ought not have taken into consideration lowest tier of wages, while computing monthly income of the claimant. In absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one to fix the income of the deceased. In absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the income of the deceased should not be totally detached from reality.

63. In this regard reliance is placed upon judgment rendered by Hon'ble Apex Court in Chandra supra, wherein, it has been held as under:

"9. It is the specific case of the claimants that the deceased was possessing heavy vehicle driving licence and was earning Rs.15000/ per month. Possessing such licence and driving of heavy vehicle on the date of accident is proved from the evidence on record. 1 (2021) 2 SCC 166 [email protected].(C)No.6466 of 2019 Though the wife of the deceased has categorically deposed as AW1 that her husband Shivpal was earning Rs.15000/ per month, same was not considered only on the ground that salary certificate was not filed. The Tribunal has fixed the monthly income of the deceased by adopting minimum wage notified for the skilled labour in the year 2016. In absence of ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 32 salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one to fix the income of the deceased. In absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the income of the deceased should not be .

totally detached from reality. Merely because claimants were unable to produce documentary evidence to show the monthly income of Shivpal, same does not justify adoption of lowest tier of minimum wage while computing the income. There is no reason to discard the oral evidence of the wife of the deceased who has deposed that late Shivpal was earning around Rs.15000/ per month."

64. Admittedly in the case at hand, claimant was working as a plumber that too for the last 25-30 years, meaning thereby he apart from having gained experience had also earned name in the field of plumbing. This court cannot lose sight of the fact that plumbing is a skilled work, which cannot be done by a novice, rather same requires special training/specialization. Work of plumbing falls in category of 'skilled labour'. If the income of respondent No.1 is taken to be Rs.6000/- per month, same would be Rs.200/- on daily basis, which conclusion, so far as vocation of respondent No.1 is concerned, appears to be totally detached from reality. Minimum charges of a plumber in today's era are somewhere between Rs.500-1,000/- on hourly basis and thus the income of respondent No.1 deserves to be considered not less than Rs. 400/- per day, as such, this court is of the view that income assessed by learned Tribunal below to the tune of Rs.6,000/- per month is on lower side, and as such, same needs to be taken as Rs.12,000/- per month.

65. Since respondent No.1 has suffered total loss of income, he has also suffered loss of future prospects, as with time, his income would ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 33 have increased, in view of the hike in plumbing charges and thus, applying the law laid down in Pranay Sethi, supra, an addition of 25% is required to be awarded on the income assessed supra, in view of the .

fact that the respondent No.1 was 48 years of age and self-employed, and thus, the loss of income can be calculated as under:

            Monthly income of the injured                                  12000





            Income after 25% addition on account of loss of                15000
            future prospects i.e. 12000 + 25% of 12000=
            3000
            Total loss of future income after applying                  2340000
            multiplier of '13' 15000x 12 x 13

66. Ms. Devyani Sharma, learned Senior Counsel appearing for the claimant vehemently argued that on account of injuries suffered by claimant, he has been rendered 100% disabled, meaning thereby he is unable to do anything of his own, rather constantly requires care of others. She submitted that claimant has been awarded Rs.1.00 Lakh on account of attendant charges and Rs. 1.00 Lakh for special diet, which are on lower side. She submitted that on account of 100% disablement and nature of injuries, claimant ought to have been awarded adequate compensation under the head of pain, suffering etc. but only Rs.2.00 Lakh has been awarded which cannot be said to be adequate, rather needs to be enhanced.

67. Before ascertaining the correctness of the afore claim of learned senior counsel appearing for respondent No.1 it would be apt to take note of judgment passed by Hon'ble Apex Court in Sidram v. United Indian Insurance Co. Ltd., (2023) 3 SCC 439, wherein, it has been held the courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 34 inflicts deep mental and emotional scars upon the victim. Hon'ble Apex Court held as under:

"31. It is now a well settled position of law that even in cases of permanent disablement incurred as a result of a motor-accident, the claimant can seek, .

apart from compensation for future loss of income, amounts for future prospects as well. We have come across many orders of different tribunals and unfortunately affirmed by different High Courts, taking the view that the claimant is not entitled to compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. That is not a correct position of law. There is no justification to exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. Such a narrow reading is illogical because it denies altogether the possibility of the living victim progressing further in life in accident cases - and admits such possibility of future prospects, in case of the victim's death.

xxx THE PECUNIARY EXPENSES (1) Loss of earning due to disability

53. The courts must apply the multiplier method, while ascertaining the compensation to be awarded to the victim. This was so held by this Court in Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another, (2009) 6 SCC 121. In Sarla Verma (supra), this Court quoted the following observations from Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176:

"The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last. It is necessary to reiterate that the multiplier method is logically sound and legally well established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a percentage therefrom towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific. For instance, if the deceased was, say 25 years of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of dependency for 45 years─virtually adopting a multiplier of 45─and even if one-third or one-fourth is deducted therefrom towards the uncertainties of future life and for immediate lump sum payment, the effective multiplier would be between 30 and 34. This is wholly impermissible."

::: Downloaded on - 10/05/2024 20:34:26 :::CIS 35

54. The Tribunal held that although the appellant herein had claimed that he was earning Rs. 9,000/- per month from his business of selling of utensils, yet the appellant was not in a position to adduce any documentary evidence in that regard. Although Dr. Anil B. Patil (PW-2) in his oral evidence has deposed that the appellant suffered a permanent disability to the tune of .

45%, yet the Tribunal held that the appellant had suffered a permanent disability of only 30%. The Tribunal applied the multiplier as explained in the case of Sarla Verma (supra). Accordingly, the compensation awarded for the loss of earning capacity was determined as follows:

5000 x 12 x 18 x 30% = INR 3,24,000/-

55. The High Court enhanced the income to Rs. 7,000/- stating that the same was determined by the Tribunal on a lower side. Further, the High Court held that having regard to the evidence of the treating doctor, the permanent disability of the appellant should be determined at 40%. In such circumstances, the High Court while applying the multiplier, enhanced the compensation to be awarded under the head of loss of earning capacity to Rs. 7,000/-, as under:

7,000 x 12 x 18 x 40% = INR 6,04,800/-

56. The evidence on record indicates that the appellant suffered paraplegia due to the accident. Paraplegia is a form of paralysis of lower body. It restricts everyday routine more particularly the physical activity and leads to

(i) deprivation of simple pleasures and amenities of life, (ii) 100% loss of earning capacity, (iii) long term secondary complications requiring continuous care, medical treatment and hospitalization, (iv) feeling of helplessness, depression, anger, stress, anxiety, etc. In short, paraplegia impairs physical, mental and psychological health and has devastating impact on the social and financial well being of the victim.

57. In the case on hand, the appellant was in the business of selling utensils and used to travel to various villages to sell the same. With this disability in the form of paraplegia being suffered by the appellant, it is not possible for him now to walk a long distance or stand for a long period. His business could be said to have been gravely impacted. Further, the appellant at the time of accident was just 19 years old. The High Court enhanced his notional income from Rs. 5,000/- to Rs. 7,000/- per month. The appellant claimed that his notional income be determined at Rs. 9,000/-. xxxxx

60. In the overall view of the matter, we are convinced that we should determine the notional income of the appellant herein at Rs. 8,000/- per ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 36 month. The same would result in the compensation being enhanced as under:

8000 x 12 x 18 x 45% = INR 7,77,600/-

xxxx .

(3) Medical Expenses

63. The appellant claims Rs. 2,00,000/- towards medical expenses. In this regard, the appellant adduced documentary evidence in the form of medical bills/receipts to the tune of Rs.1,54,931/-, as stated in the order of the Tribunal.

64. The Tribunal in its order dated 21.01.2014 held:

"Medical Expenses: The claimant submitted that he has taken treatment a Lake view hospital, Belgaum and was indoor patient. He has produced the hospital bill and medical bills to1 the tune of Rs.1,54,931/-. The same has been rounded to Rs.1,50,000/- and the petitioner is entitled to Rs.1,50,000/- under this head." [Emphasis supplied]

65. The High Court in Para 11 of its impugned judgment, held:

"The compensation awarded under the head of pain and suffering, medical expenses, conveyance, special diet, etc., loss of amenities in life and marriage prospects is just and proper and same is not disturbed."

66. In view of the aforesaid, we grant compensation of Rs. 1,55,000/- towards medical expenses.

(4) Future Medical Expenses

67. At the outset, we may state that the "Future Medical Expenses" and "Attendant Charges" would fall within the ambit of Pecuniary Expenses. In Abhimanyu Partap Singh v. Namita Sekhon and Another, (2022) 8 SCC 489, this Court held:

"19. In view of the said legal position, the compensation can be assessed in pecuniary heads i.e. the loss of future earning, medical expenses including future medical expenses, attendant charges and also in the head of transportation including future transportation. In the non-pecuniary heads, the compensation can be computed for the mental and physical pain and sufferings in the present and in future, loss of amenities of life including loss of marital bliss, loss of expectancy in life, inconvenience, hardship, discomfort, disappointment, frustration, mental agony in life, etc."

68. The Tribunal has observed that the doctor has deposed that the appellant is likely to incur expenses of Rs. 2,50,000/- towards future medical expenses. However, according to the Tribunal, there was no sufficient and cogent ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 37 evidence in that regard under this head. Accordingly, the Tribunal awarded Rs. 25,000/-. The High Court thought fit not to award any amount for future medical expenses as there was no evidence adduced by the appellant in regard to future treatment that may be required. The High Court however, thought fit to clarify that in the event if the appellant incurs any expenses .

towards any surgery or treatment in future on account of the injury suffered and if he proves the same, then the insurer shall indemnify the same.

69. Dr. Anil B. Patil (PW-2) has deposed categorically that the appellant would require future medical expenses to the tune of Rs. 2,50,000/-. We are of the view that having regard to the evidence on record that the appellant would be incurring costs towards medical expenses in future along with physiotherapy and nursing and considering that the appellant at the time of accident was 19 years old, today his age would be around 29 years, even if a bare minimum of Rs. 1000/- is spent per month, then it comes to:

1000 x 12 x 18 = Rs. 2,16,000/-

xxxxx

72. In view of the aforesaid, we award Rs. 2,16,000/- towards future medical expenses.

(5) Attendant Charges

73. So far as this head is concerned, neither the Tribunal nor the High Court thought fit to award anything. The evidence on record indicates that the appellant is unable to stand, walk, sit or bend his body or lift anything heavy.

It is not in dispute that the appellant will not be able to work in the same manner as he used to prior to the accident. Indisputably, the appellant has suffered from paraplegia on account of the accident and requires an attendant throughout the day. According to the claimant, the cost of keeping the attendant would be Rs. 4,500/- per month. We fix it at Rs. 2,000/- per month. As a result, we award the attendant charges as under:

2,000 x 12 x 18 = Rs. 4,32,000/-

Xxxxx

76. Thus, we award an amount of Rs. 4,32,000/- towards the attendant charges.

(6) Litigation Expenses

77. The Tribunal thought fit not to award anything towards the litigation expenses. The High Court took the view that the appellant is entitled to the ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 38 amount of Rs. 20,000/- towards the litigation expenses. The appellant claims Rs. 50,000/- towards the litigation expenses.

78. We take notice of the fact that the accident took place on 18.07.2012. The appellant is pursuing this litigation for the past almost 10 years. The SLP .

before this Court was filed in 2018. It has been four years since then.

xxxx

82. In view of the aforesaid, we award an amount of Rs. 50,000/- towards litigation expenses.

(7) Loss of Conveyance

83. Under this head, the Tribunal vide order dated 21.01.2014, held:

"15. Conveyance, special diet etc: The claimant was admitted to the hospital and thereafter attended the hospital for further treatment. The claimant is also entitled for special diet and nutrition. Therefore, I award an amount of Rs.20,000/- under this head."

84. The Tribunal awarded Rs. 20,000/- under this head. The High Court in Para 11 of its impugned judgment dated 25.04.2018, held:

"The compensation awarded under the head of pain and suffering, medical expenses, conveyance, special diet, etc., loss of amenities in life and marriage prospects is just and proper and same is not disturbed"

85. The High Court thought fit to confirm Rs. 20,000/- as awarded by the Tribunal.

86. However, the appellant has claimed Rs. 50,000/- towards loss of conveyance.

89. Hence, we may grant the appellant loss of conveyance and special diet up to Rs 50,000/- considering that after the accident at Kulgod- Gokak Road, the appellant was shifted to Lakeview Hospital Belgaum wherein he was admitted as an indoor patient from 18.7.2012 to 6.8.2012 for 19 days, and took treatment for the injuries suffered by him, and continued to take the treatment after getting discharged from the hospital as well.

90. In view of the aforesaid, we may award Rs. 50,000/- towards loss of conveyance and special diet.

NON-PECUNIARY EXPENSES (8) Pain and Suffering ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 39

91. The High Court of Judicature at Allahabad in the case of Virendra Kumar v. Vijay Kumar and Others, (2021) ILR 3 All 272, while discussing the distinction between pecuniary and non-pecuniary damages held as under:

"9. The law with respect to the grant of compensation in injury cases is well-settled. The injured is entitled to pecuniary as well as non- pecuniary damages. Pecuniary damages also known as special .

damages are generally designed to make good the pecuniary loss which is capable of being calculated in terms of money whereas non- pecuniary damages are incapable of being assessed by arithmetical calculations. The pecuniary or special damages, generally include the expenses incurred by the claimants on his treatment, special diet, conveyance, cost of nursing/attending, loss of income, loss of earning capacity and other material loss, which may require any special treatment or aid to the insured for the rest of his life. The general damages or the non-pecuniary loss include the compensation for mental or physical shock, pain, suffering, loss of amenities of life, disfiguration, loss of marriage prospects, loss of expected or earning of life, inconvenience, hardship, disappointment, frustration, mental stress, dejectment and unhappiness in future life, etc."

92. The Tribunal awarded a sum of Rs. 40,000/- for the pain and suffering. The High Court affirmed the amount of Rs. 40,000/-. However, the appellant is seeking enhancement of Rs. 40,000/- to make it Rs. 1,00,000/- towards compensation for the pain and sufferings.

xxxxx

98. In view of the aforesaid, we award an amount of Rs. 1,00,000/- towards pain and suffering.

xxxxxx (10) Loss of Amenities

104. The Tribunal held that an amount of Rs. 30,000/- should be awarded towards loss of amenities. The High Court upheld the amount of Rs. 30,000/- as awarded by the Tribunal. The claim of the appellant towards loss of amenities is Rs. 50,000/-.

xxxxxx

111. In view of the aforesaid, we award an amount of Rs. 50,000/- for the loss of amenities taking into consideration the fact that the appellant was 19 years old at the time of the accident, and also considering the nature of injuries suffered by him and the extent of his disability.

112. The total compensation awarded by us under different heads is as under:

::: Downloaded on - 10/05/2024 20:34:26 :::CIS 40

                  S.NO.      COMPENSATION                        AMOUNT (IN RUPEES)
                  1          Loss of earning due to disability              7,77,600/-
                  2.         Loss of earning for 6 months                    48,000/-

                  3.         Medical expenses                               1,55,000/-
                  4.         Future medical expenses                        2,16,000/-




                                                                             .
                  5.        Attendant Charges                               4,32,000/-





                  6.        Litigation charges                               50,000/-
                  7.        Loss of conveyance                               50,000/-
                  8.        Pain and suffering                              1,00,000/-





                  9.        Marriage prospects                              3,00,000/-
                  10        Loss of amenities                                50,000/-
                            TOTAL                                          21,78,600/-

113. Before we close this matter, it needs to be underlined, as observed in Pappu Deo Yadav (supra) that Courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victim's having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the judge's mind, whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right to life under Article

21) of the individual, thus depriving the person of the essence of the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit-pick and award niggardly amounts oblivious of these circumstances, there is resultant affront to the injured victim. [See: Pappu Deo Yadav (supra)]."

68. Since on account of 100% disablement, claimant is confined to bed, he shall require one attendant throughout the life. Learned Tribunal below, having regard to nature of injuries and extent of disablement has awarded Rs.1.00 Lakh as attendant charges and sum of Rs. 1.00 Lakh for special diet, which by no stretch of imagination can be said to be adequate, for the reason that claimant would require attendant through his life, as he of his own is unable to walk, bend ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 41 body or lift anything heavy. On account of disablement to the extent of 100%, claimant would not be able to work in the same manner as he was doing prior to accident, rather being paraplegic he would remain .

bed-ridden, meaning thereby he would require attendant throughout his life.

69. Though, Ms. Devyani, learned Senior Counsel appearing for the claimant argued that cost of engaging one attendant per month would be Rs.5,000/- but this court is of the view that one attendant on regular basis can be engaged for sum of Rs.4,000/- per month. Learned Tribunal below has awarded sum of Rs. 1.00 Lakh on account of attendant charges but it is not understood, that on what basis, aforesaid amount has been calculated. Since, claimant would require aforesaid amount throughout his life, it needs to be determined and awarded applying multiplier method. Hon'ble Apex Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd., (2010) 10 SCC 254 and Raj Kumar v. Ajay Kumar and another, 2001 SCC 343, laid down certain parameters, for determining quantum of compensation for the victims, who have suffered permanent disability then adequate compensation not only for physical injury and treatment but also for loss of earning and inability to lead normal life and amenities, which he could have enjoyed but for the disability, is required to be awarded.

70. Hon'ble Apex Court in Sidram supra held that, while determining attendant charges, multiplier method has been found to be most realistic and reasonable because, it is based upon age of injured, inflation, uncertainties of life and other factors, as such, attendant charges are required to be awarded by applying said method.

::: Downloaded on - 10/05/2024 20:34:26 :::CIS 42

71. Taking note of aforesaid judgment coupled with the claimant having suffered paraplegia on account of accident, this court deems it fit to fix Rs.4,000/- per month as attendant charges and keeping in .

view the life expectancy of the injured, he would live at least for 20 years, as such, attendant charges can be worked out thus:

4000x12x20 = 9,60,000/-.

72. In terms of aforesaid judgment passed by Hon'ble Apex Court, claimant is also entitled to be compensated towards litigation charges.

Though Ms. Devyani, learned Senior Counsel for claimant, claimed Rs.1.00 Lakh as litigation charges, but having taken note of the fact that accident took place in the year 2012, and claimant is pursuing litigation for almost 12 years, an amount of Rs.50,000/- is awarded on account of litigation expenses.

73. Similarly, sum of Rs.1.00 Lakh awarded on account of special diet appears to be on lower side, especially in view of hike in price index. Since claimant requires good and healthy diet, for a long period, therefore, the amount under this head is required to be enhanced to Rs.3.00 Lakh.

74. Since, claimant shall remain confined to bed, on account of his having been rendered 100% coupled with the fact that he may suffer from other ailments, during this time, learned Tribunal below ought to have awarded future medical expenses, which he may have to incur apart from regular medicines, advised to him for the injuries, allegedly suffered by him in the accident. Otherwise, perusal of statement of PW-

4 Dr. Rajesh Chhabra reveals that respondent No.1 was assessed for disability and found to have 100% permanent disability in relation to ::: Downloaded on - 10/05/2024 20:34:26 :::CIS 43 whole body and respondent No.1 is fully dependent on others for day to day activities and will require special bed and wheel chair, regular physiotherapy and special diet.

75. Though, in the case at hand, learned Tribunal below having taken note of medical bills adduced on record, awarded Rs.1,16,762/-

but no amount has been awarded on account of future medical expenses, which the claimant is bound to incur in coming times. Since claimant incurred Rs.1,16,872/- after having suffered injuries, this court is of the view that minimum Rs.5.00 Lakh is required to be awarded to

76.

r to the claimant, on account of future medical expenses, which are getting expensive with every passing day.

Learned Tribunal below, on account of loss of amenities, have awarded Rs.2.00 Lakh which also needs to be enhanced to Rs.4.00 Lakh, especially taking note of fact that the claimant suffered 100% permanent disability with regard to whole body and is at present on wheel chair and dependent upon others for his day to day activities.

77. Consequently in view of discussion made herein above and law taken into consideration impugned award is set aside to the extent liability has been fastened upon the appellants and also qua the quantum of compensation, as under:

           Head                                                       Amount
           Total loss of future income qua respondent No.1            2340000
           37500x12x13
           Medical expenses (as held by learned Tribunal               116762
           below)
           Special diet                                                300000
           Attendant charges                                           960000
           Damages for pain and suffering                              400000
           Future medical expenses                                     500000
           Loss of amenities of life                                   400000
           Total compensation                                         5016762
           Litigation expenses                                          50000
           Total award                                                5066762




                                                ::: Downloaded on - 10/05/2024 20:34:26 :::CIS
                                          44

78. So far rate of interest is concerned, this court can take judicial notice of the fact that the rate of interest during 2012 on fixed deposits .

in a nationalized bank was around 8.75-9% and which now has fallen as low as 5-6% as such, looking for a median, it would be appropriate to modify the rate of interest to 7% instead of 6%.

79. In view of the above, the impugned Award is modified qua the quantum of compensation under various heads, as noted in the table supra and so far liability to pay compensation to respondent No.1 is concerned, the appellants are absolved from the liability and impugned Award is set aside to that extent. Respondent No.2 is held liable to indemnify the insured/appellants. The respondent No.2 is directed to pay the compensation, as quantified above, to the respondent No.1 alongwith interest on the entire amount of compensation (excluding litigation expenses) at the rate of 7% from the date of accident and till the payment thereof to respondent No.1 or deposit of same with this Court.

80. The appeal stands disposed of in the afore terms. All pending applications stand disposed of. The execution proceedings (Sandeep Sharma) Judge May 7, 2024 Vikrant ::: Downloaded on - 10/05/2024 20:34:26 :::CIS

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Himachal Pradesh High Court