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[Cites 33, Cited by 5]

Himachal Pradesh High Court

Dev Raj Rt vs Shri Krishan Lal And Others on 24 June, 2016

Author: Mansoor Ahmad Mir

Bench: Mansoor Ahmad Mir

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 353 of 2012 a/w .

FAOs No. 349, 350, 357, 359, 360 and 361 of 2012 Reserved on: 17.06.2016 Decided on: 24.06.2016 of

1. FAO No. 353 of 2012 Dev Raj rt ...Appellant.

Versus Shri Krishan Lal and others ...Respondents. .........................................................................................................

2. FAO No. 349 of 2012 Smt. Kamla alias Kamlesh and another ...Appellants.

Versus Shri Krishan Lal and others ...Respondents.

.........................................................................................................

3. FAO No. 350 of 2012 
    Sant Ram                                                                     ...Appellant.

                                                Versus

    Shri Krishan Lal and others                                                  ...Respondents.

.........................................................................................................

4. FAO No. 357 of 2012 
    Krishan Lal                                                                  ...Appellant.




                                                                ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP
                                                       2

                                                Versus

    Dev Raj and others                                                           ...Respondents.




                                                                                     .

.........................................................................................................

5. FAO No. 359 of 2012 
    Krishan Lal                                                                  ...Appellant.





                                                Versus




                                                       of
    Smt. Kamla alias Kamlesh and others                                          ...Respondents.

.........................................................................................................


    6. FAO No. 360 of 2012
                         rt
    Krishan Lal                                                                  ...Appellant.

                                                Versus

    Roshan Lal and others                                                        ...Respondents.

.........................................................................................................

7. FAO No. 361 of 2012 
    Krishan Lal                                                                  ...Appellant.




                                                Versus





    Sant Ram and others                                                          ...Respondents.





    Coram

The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice.

Whether approved for reporting? Yes.

FAOs No. 357, 359, 360 and 361 of 2012 For the appellant(s): Ms. Ritta Goswami & Ms. Komal Chaudhary, Advocates.

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For the respondents: Ms. Sunita Sharma, Advocate, for respondents­claimants.

.

Mr. G.C. Gupta, Senior Advocate, with Mr. Deepak Bhasin, Advocate, and Ms. Meera Devi, Advocate, for respondent­insurer.

Nemo for respondent­driver.

of ........................................................................................................

FAOs No. 349, 350 & 353 of 2012 For the appellant(s): Ms. Sunita Sharma, Advocate.

                         rt
    For the respondents:                   Ms. Ritta Goswami & Ms. Komal

                                           Chaudhary,       Advocates, for
                                           respondent­owner­insured.

Mr. G.C. Gupta, Senior Advocate, with Mr. Deepak Bhasin, Advocate, and Ms. Meera Devi, Advocate, for respondent­insurer.

Nemo for respondent­driver.

Mansoor Ahmad Mir, Chief Justice.

By the medium of FAOs No. 357, 359, 360 and 361

of 2012, the owner­insured has questioned the judgment and award, dated 10th May, 2012, made by the Motor Accient Claims Tribunal (II), Mandi Camp at Karsog (for short "the Tribunal") in Claim Petitions No. 60 of 2008, 59 of 2008, 62 of ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 4 2008 and 63 of 2008, whereby compensation to the tune of ₹ 31,320/­, ₹ 2,60,000/­, ₹ 3,94,000/­ and ₹ 37,000/­ .

respectively, with interest @ 7.5% per annum from the date of filing of the respective claim petitions till its realization, came to be awarded in favour of the claimants and the owner­ of insured came to be saddled with liability (for short "the impugned awards").

2. rt The claimants in Claim Petitions No. 59 of 2008, 63 of 2008 and 60 of 2008 have questioned the respective impugned awards also on the ground of adequacy of compensation.

3. All these appeals are outcome of one motor vehicular accident, which was allegedly caused by the driver, namely Shri Dinesh Kumar, while driving jeep, bearing registration No. HP­63­1797, rashly and negligently, on 5 th May, 2008, at about 8.30 P.M. near Rohanda, in which two persons sustained injuries and succumbed to the injuries and three persons have sustained injuries. Thus, I deem it proper to determine all these appeals by this common judgment for ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 5 the reason that similar questions of facts and law are involved in the same.

.

4. The claimants invoked the jurisdiction of the Tribunal for grant of compensation, as per the break­ups and details given in the respective memo of claim petitions.

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5. The owner­insured, driver and insurer of the offending vehicle have resisted the claim petitions on the rt grounds taken in the respective memo of objections.

6. Similar set of issues came to be framed by the Tribunal in all the claim petitions except issue No. 1. Thus, I deem it proper to reproduce the issues framed in Claim Petition No. 60 of 2008 (subject matter of FAO No. 353 of 2012) herein:

"1. Whether on 5.05.2008 at Rohanda jeep in question being driven by Dinesh Kumar driver met with an accident which resulted in causing injuries to the petitioner? OPP
2. Whether the driver of the jeep was not holding a valid and effective driving license at the time of accident? OPR­3
3. Whether the vehicle in question was being driven in violation of the terms and conditions of the insurance policy? OPR ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 6
4. Whether the deceased was travelling in the jeep as gratuitous passenger? OPR­3
5. If issue No. 1 is proved in affirmative, .
whether the petitioner is entitled for compensation, if so to what extent and from whom? OPP
6. Relief."

7. Parties have led evidence.

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8. The Tribunal after scanning the evidence, oral as well as documentary, awarded compensation in favour of the rt claimants in terms of the respective impugned awards and saddled the owner­insured with liability.

9. There is no dispute about the findings recorded viz­a­viz issue No. 1. Accordingly, the findings recorded by the Tribunal on issue No. 1 are upheld.

10. The only dispute in FAOs No. 357, 359, 360 and 361 of 2012 is that the Tribunal has fallen in an error in discharging the insurer and saddling the owner­insured with liability. In FAOs No. 349, 350 and 353 of 2012, the adequacy of compensation is in dispute.

11. Issues No. 2 to 4 and part of issue No. 5 so far it relates to as to who is to be saddled with liability are ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 7 interconnected. Thus, I deem it proper to determine all the said issues together.

.

12. Ms. Ritta Goswami, learned counsel for the owner­ insured, argued that the Tribunal has wrongly decided all the issues. The said argument is not tenable for the reason that of the Tribunal has rightly scanned the pleadings, evidence and other material on record.

13. rt The findings recorded by the Tribunal that the driver of the offending vehicle was not having a valid and effective driving licence to drive the same at the time of the accident, the deceased and injured were gratuitous passengers and the owner­insured has violated the terms and conditions contained in the insurance policy, are legally correct.

14. Learned Senior Counsel appearing on behalf of the insurer argued that the owner­insured of the offending vehicle had questioned the award made by the Tribunal in a claim petition, arising out of the same accident, being Claim Petition No. 61 of 2008, titled as Gopal versus Krishan Lal and others, by the medium of FAO No. 358 of 2012­D, titled as Krishan Lal versus Gopal and others, which was dismissed vide ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 8 judgment and order, dated 7th January, 2013, thus, the present appeals by the owner­insured are governed by the said .

judgment.

15. I have gone through the judgment made by this Court in FAO No. 358 of 2012­D (supra). It specifically of provides that dismissal of the appeal will not prejudice the case of the appellant or any other persons. It is apt to rt reproduce relevant portion of the judgment herein:

".....The dismissal of this appeal will not prejudice the case of the appellant or any other persons who have challenged this award on the ground as stated therein."

16. Viewed thus, the argument is not tenable.

17. The owner­insured is caught by law of estoppel and res judicata for the following reasons:

18. The owner­insured had laid a claim for damages caused to the offending vehicle in the said accident by the medium of Complaint Case No. 52/2009, titled as Krishan Lal Sharma versus The Oriental Insurance Company Ltd. Filed under Section 12 of the Consumer Protection Act, 1986 (for short "CP Act") before the District Consumer Disputes ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 9 Redressal Forum, Mandi, H.P. (for short "District Consumer Forum"), which came to be determined on 11 th September, .

2009, wherein the District Consumer Forum has held that the offending vehicle was being plied in violation of the terms and conditions of the insurance policy.

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19. The copies of the said order are part of the Tribunal's record in each of the claim petitions and finds place rt at page 58 of the paper book of Claim Petition No. 60 of 2008 (subject matter of FAO No. 353 of 2012). It is apt to reproduce relevant portion of para 4 of order made by the District Consumer Forum herein:

"4. ........As discussed above, the opposite party had proved that at the time of accident unauthorized passengers were sitting in the vehicle. Therefore, we have no hesitation to conclude that the vehicle was being plied in violation of the terms and conditions of the insurance policy."

20. Ms. Ritta Goswami, learned counsel for the owner­ insured frankly conceded that the said order has not been questioned by the owner­insured and it has attained finality.

21. This Court in a batch of FAOs, FAO No. 258 of 2014, titled as M/s Lucky Shoes Store versus Smt. ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 10 Sushma Sankhyan and others, being the lead case, decided on 13th May, 2016, held that the findings recorded by the .

Consumer Forum, which have attained finality, cannot be set aside by any other authority exercising the powers under the MV Act or any other summary proceedings and it cannot be of held by the Tribunal that the findings returned by that Forum are not binding on it.

22. rt It is apt to reproduce paras 14 to 28 of the judgment in M/s Lucky Shoes Store's case (supra) herein:

"14. The question is - Can the Tribunal in summary proceedings return a finding contrary to the finding returned by two Fora, that too, when the said finding has attained finality? The answer is in the negative for the following reasons:
15. The remedies provided under the CP Act and Chapters X, XI and XII of the Motor Vehicles Act, 1988 (for short "MV Act") are for the benefits of the claimants. The aim and object of the said Acts is to provide immediate relief to the claimants and the proceedings are summary in nature.
16. The same view has been taken by the Apex Court in the case titled as Lucknow Development Authority versus M.K. Gupta, reported in AIR 1994 Supreme Court 787. It is apt to reproduce relevant portion of para 2 of the judgment herein:
"2. ................
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It has been approved by this Court in Regional Director, Employees' State Insurance Corporation v.

.

Highland Coffee Works of P. F. X. Saldanha and Sons, (1991) 3 SCC 617: (1991 AIR SCW 2821); C. I. T., Andhra Pradesh v. M/s. Taj Mahal Hotel, Secunderabad (1971) 3 SCC 550 : (AIR 1972 SC

168) and State of Bombay v.

Hospital Mazdoor Sabha, AIR of 1960 SC 610. The provisions of the Act thus have to be construed in favour of the consumer to achieve the purpose of enactment rt as it is a social benefit oriented legislation. The primary duty of the Court while construing the provisions of such an Act is to adopt a constructive approach subject to that it should not do violence to the language of the provisions and is not contrary to attempted objective of the enactment."

17. Section 24 of the CP Act reads as under:

"24. Finality of orders. ­ Every order of a District Forum, the State Commission or the National Commission shall, if no appeal has been preferred against such order under the provisions of this Act, be final."

18. It mandates that if appeal has not been preferred against the order of a District Forum, State Commission or National Commission, the said order attains finality.

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19. The bone of contention between the parties before both the Fora was ­ whether Anil Kumar or Abhinay Thakur was the driver of the offending vehicle. It is a .

question of fact, has attained finality in terms of the proceedings conducted under the CP Act. Thus, it cannot now lie in the mouth of the insurer that Anil Kumar was not driving the offending vehicle at the relevant point of time.

20. All the proceedings conducted before a of Commission under the CP Act or a Tribunal under the MV Act are in the nature of a suit.

21. My this view is fortified by the judgment rt rendered by the Apex Court in the case titled as M/s. Fair Air Engineers Pvt. Ltd. And another versus N.K. Modi, reported in AIR 1997 Supreme Court 533. It is apt to reproduce para 15 of the judgment herein:

"15. It would, therefore, be clear that the Legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the Act does not confer an automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forums, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 13 liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to .
a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, some of to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act."

rt

22. In the case titled as Patel Roadways Ltd. versus Birla Yamaha Ltd., reported in AIR 2000 Supreme Court 1461, the Apex Court has discussed the aim and object and the relevant provisions of the CP Act right from paras 20 to 25 and in para 49 of the judgment, it has specifically been held that the proceedings before the Consumer Forum fall within the definition of 'suit'. It is apt to reproduce para 49 of the judgment herein:

"49. From the above it is clear that the term "suit" is a generic term taking within its sweep all proceedings initiated by a party for realisation of a right vested in him under law. The meaning of the term "suit" also depends on the context of its user which in turn, amongst other things, depends on the Act or the Rule in which it is used. No doubt the proceeding before a National Commission is ordinarily a summary proceeding and in an appropriate case where the Commission feels that the issues raised by the parties are too contentious to be decided in a summary ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 14 proceeding it may refer the parties to a civil Court. That does not mean that the proceeding before the Commission is to be decided ignoring the express .
statutory provisions of the Carriers Act (S. 9) in a proceeding in whcih a claim is made against a common carrier as defined in the said Act. Accepting such a contention would defeat the object and purpose for which the Consumers Protection Act was enacted. A of proceeding before the National Commission, in our considered view, comes within the term "suit".

Accordingly we reject the contention raised by Shri Ashok Desai in this rt regard."

23. Thus, virtually the proceedings before both the Fora were just in the nature of 'suit' and the question determined in the said proceedings cannot be reopened in the other proceedings or similar proceedings.

Otherwise, it will amount to sit in judgment over the orders passed by the District Consumer Forum and State Commission.

24. The Tribunal has virtually upset the findings of both the Fora, which is not permissible, rather, it amounts to judicial indiscipline.

25. It is apt to record herein that the Tribunal has held that the findings returned by the District Consumer Forum and the State Commission are not binding, is totally misconceived, illegal and erroneous. The claims under the CP Act and the MV Act are not to be tried as a civil or criminal case, are to be decided on prima facie proof. The provisions of the Code of Civil Procedure (for short "CPC") are not applicable to the proceedings under MV Act and CP Act in toto. Some of the provisions of the CPC have ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 15 been made applicable in order to take the claim petitions and the complaints to its logical end.

.

26. The Calcutta High Court in the case titled as Krishna Chandra Mukherjee versus Manik Lal Mukherjee and others, reported in AIR 1939 Calcutta 169, held that the doctrine of res judicata applies to proceedings which are in themselves final in the sense that they are conclusive between the parties even though of the decisions in such proceedings may not be susceptible of appeals. Hence, question of res judicata can arise even in consequence of antecedent summary proceedings. rt

27. The findings returned by the competent authority, which have attained finality, cannot be set aside by any other authority exercising the powers under the MV Act or any other summary proceedings and it cannot be held by the Tribunal that the findings returned by that Forum are not binding on it.

28. The High Court of Madhya Pradesh in the case titled as Basant Kumar versus The United India Insurance Company Limited and others, reported in AIR 2003 Madhya Pradesh 203, held that the order passed under Consumer Protection Act is final and Arbitrator cannot sit over the order passed by Consumer Forum. It is apt to reproduce paras 9 and 10 of the judgment herein:

"9. Section 24 of the Consumer Protection Act, 1986, attaches finality to the orders of District Forum, State Commission or the National Commission if no appeal has been preferred against such an order under the provisions of this Act. It is not a case ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 16 where lack of jurisdiction is alleged; petitioner has been benefited by the award made by the Consumer Forum; by enacting Section 23 any person if .
aggrieved by an order made by National Commission in exercise of its power conferred by Sub­clause (i) of Clause (a) of Section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order. The intention of of the Act is to make the order final as provided in Section 24 of the Act. Section 24 of the Act reads as under:­ "24. Finality of orders.­­ Every order of rt a District Forum, State Commission or the National Commission shall, if no appeal has been preferred against such order under the provisions of this Act, be final."

10. An Arbitrator cannot be allowed to sit over the order of the District Forum and State Commission particularly when the matter has been adjudicated on merits. In my opinion, considering the scheme of the Consumer Protection Act, petitioner cannot now avail the benefit of arbitration proceedings though initially it was open for him to choose the remedy before the Arbitrator. Once the matter has been entertained and decided by the District Forum; award has been passed, it is not open for the petitioner to claim further amount by having recourse to the arbitration clause in the agreement. The order passed under Consumer Protection Act is final."

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23. Having said so, the Tribunal has rightly discharged the insurer and saddled the owner­insured with .

liability. But, the perusal of the record does disclose that the offending vehicle was duly insured with the insurer at the relevant point of time as per the mandate of Sections 146, 147 of and 149 contained in Chapter XI of the Motor Vehicles Act, 1988 (for short "MV Act").

24. rt The mandate of Sections 146, 147 and 149 of the MV Act is to protect the rights of third parties and that is why, compulsory duty has been imposed upon the owners to get the vehicles insured, so that, claim of third parties cannot be defeated.

25. The same question arose before the Apex Court in a case titled as S. Iyyapan versus United India Insurance Company Limited and another, reported in (2013) 7 Supreme Court Cases 62. It is apt to reproduce para 16 of the judgment herein:

"16. The heading "Insurance of Motor Vehicles against Third Party Risks" given in Chapter XI of the Motor Vehicles Act, 1988 (Chapter VIII of 1939 Act) itself shows the intention of the legislature to ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 18 make third party insurance compulsory and to ensure that the victims of accident arising out of use of motor vehicles would be able to get compensation for the death .
or injuries suffered. The provision has been inserted in order to protect the persons travelling in vehicles or using the road from the risk attendant upon the user of the motor vehicles on the road. To overcome this ugly situation, the legislature has made it obligatory that no of motor vehicle shall be used unless a third party insurance is in force."

26. The same principle has been laid down by this rt Court in a series of cases.

27. In view of the above, the claimants cannot be left in lurch and cannot be dragged from pillar to post and post to pillar in order to get compensation. Thus, it was the duty of the Tribunal to ensure that the compensation is paid to the claimants by directing the insurer to satisfy the award with right of recovery.

28. My this view is fortified by the judgment rendered by the Apex Court in the case titled as Manager, National Insurance Co. Ltd. versus Saju P. Paul and another, reported in 2013 ACJ 554. It is apt to reproduce paras 16, 18 and 25 of the judgment herein:

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"19. The next question that arises for consideration is whether in the peculiar facts of this case a direction could be issued to the insurance company to first .
satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle (respondent no. 2 herein).
20. In National Insurance Co. Ltd. v. Baljit Kaur and others, 2004 ACJ 428 of (SC), this Court was confronted with a similar situation. A three­Judge Bench of this Court in paragraph 21 of the Report held as under :
rt "(21) The upshot of aforementioned discussions is that the instead and in place of the insurer the owner of the vehicle shall be liable to satisfy the decree. The question, however, would be as to whether keeping in view the fact that the law was not clear so long such a direction would be fair and equitable. We do not think so. We, therefore, clarify the legal position which shall have prospective effect. The Tribunal as also the High Court had proceeded in terms of the decision of this Court in Satpal Singh. The said decision has been overruled only in Asha Rani. We, therefore, are of the opinion that the interest of justice will be subserved if the appellant herein is directed to satisfy the awarded amount in favour of the claimant, if not already satisfied, and recover the same from the owner of the vehicle. For the purpose of such recovery, it would not be necessary for the insurer to file a separate suit but it may initiate a proceeding before the executing court ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 20 as if the dispute between the insurer and the owner was the subject­matter of determination before the Tribunal and the issue is decided against the .

owner and in favour of the insurer.

We have issued the aforementioned directions having regard to the scope and purport of Section 168 of the Motor Vehicles Act, 1988, in terms whereof, it is not only entitled to determine the amount of claim as put of forth by the claimant for recovery thereof from the insurer, owner or driver of the vehicle jointly or severally but also the dispute between the insurer on the one hand and the rt owner or driver of the vehicle involved in the accident inasmuch as can be resolved by the Tribunal in such a proceeding."

21. The above position has been followed by this Court in National Insurance Co. Ltd. v. Challa Bharathamma, 2004 ACJ 2094 (SC), wherein this Court in para 13 observed as under:

"(13) The residual question is what would be the appropriate direction.

Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the executing court concerned as if the dispute between the insurer and the owner was the subject­matter of ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 21 determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the .

claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the executing court shall take assistance of of the Regional Transport Authority concerned. The executing court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make rtpayment to the insurer. In case there is any default it shall be open to the executing court to direct realisation by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case, considering the quantum involved, we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured."

22 to 24. ...........

25. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur, 2004 ACJ 428 (SC) and Challa Bharathamma, 2004 ACJ 2094 (SC) should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, claimant was 28 years' old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 22 rendered permanently disabled. He has not been able to get compensation so far due to stay order passed by this Court. He cannot be compelled to struggle further for .

recovery of the amount. The insurance company has already deposited the entire awarded amount pursuant to the order of this Court passed on 01.08.2011 and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are of satisfied that the claimant (Respondent No. 1) may be allowed to withdraw the amount deposited by the insurance company before this Court along­with accrued interest. The insurance company rt (appellant) thereafter may recover the amount so paid from the owner (Respondent No. 2 herein). The recovery of the amount by the insurance company from the owner shall be made by following the procedure as laid down by this Court in the case of Challa Bharathamma, 2004 ACJ 2094 (SC)."

29. Viewed thus, it is held that the insurer has to satisfy the impugned awards at the first instance with right of recovery and is at liberty to lay a motion before the Tribunal for effecting the recovery.

FAO No. 349 of 2012:

30. In terms of the impugned award made by the Tribunal in Claim Petition No. 59 of 2008, compensation to the tune of ₹ 2,60,000/­ with interest @ 7.5% per annum from the ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 23 date of filing of the claim petition till its realization came to be awarded in favour of the appellants­claimants.

.

31. The claimants have pleaded that the deceased­ Ram Lal was 69 years of age at the time of the accident, an Advocate by profession and was earning ₹ 40,000/­ from that of profession and agricultural vocations. However, the Tribunal has held that the claimants have not placed on record the rt income tax receipts, thus, the deceased was not an income tax payee. It has further been held vide para 27 of the impugned award that the income of the deceased cannot be taken to be more than ₹ 1,10,000/­ per year while keeping in view the mandate of the Income Tax Act.

32. It appears that the Tribunal has fallen in an error in holding that the deceased was earning ₹ 6,000/­ per month.

In terms of para 27 of the impugned award, at the best, the Tribunal could have safely held that the minimum income of the deceased would not have been less than ₹ 10,000/­ per month from both the professions. Accordingly, it is held that the deceased was earning not less than ₹ 10,000/­ per month.

After deducting one­third towards his personal expenses, it ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 24 can be safely held that the claimants have lost source of dependency to the tune of ₹ 6,500/­ per month.

.

33. Keeping in view the ratio laid down by the Apex Court in the case titled as Sarla Verma (Smt) and others versus Delhi Transport Corporation and another, of reported in (2009) 6 Supreme Court Cases 121, which was upheld by a larger Bench of the Apex Court in Reshma rt Kumari & Ors. versus Madan Mohan & Anr., reported in 2013 AIR SCW 3120, read with the Second Schedule appended with the MV Act, multiplier of '5' applied by the Tribunal is just and proper.

34. Thus, the claimants are held entitled to compensation to the tune of ₹ 6,500/­ x 12 x 5 = ₹ 3,90,000/­.

35. The claimants are also held entitled to ₹ 10,000/­ each under the heads 'loss of consortium', 'loss of estate', 'loss of love and affection' and 'funeral expenses'.

36. Having said so, the claimants are held entitled to total compensation to the tune of ₹ 3,90,000/­ + ₹ 10,000/­ + ₹ 10,000/­ + ₹ 10,000/­ + ₹ 10,000/­ = ₹ 4,30,000/­ with interest ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 25 @ 7.5% per annum from the date of filing of the claim petition till its realization.

.

FAO No. 350 of 2012:

37. The Tribunal, in terms of the impugned award in Claim Petition No. 63 of 2008, awarded ₹ 37,000/­ with of interest @ 7.5% per annum from the date of filing of the claim petition till its realization came to be awarded in favour of the rt claimant­injured.

38. It is beaten law of land that the compensation is to be awarded in an injury case under pecuniary and non­ pecuniary heads by making guess work.

39. My this view is fortified by the judgments made by the Apex Court in the cases titled as R.D. Hattangadi versus M/s Pest Control (India) Pvt. Ltd. & others, reported in AIR 1995 SC 755, Arvind Kumar Mishra versus New India Assurance Co. Ltd. & another, reported in 2010 AIR SCW 6085, Ramchandrappa versus The Manager, Royal Sundaram Aliance Insurance Company Limited, ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 26 reported in 2011 AIR SCW 4787, and Kavita versus Deepak and others, reported in 2012 AIR SCW 4771.

.

40. This Court has also laid down the same principle in a series of cases.

41. The claimant­injured has sustained fracture of of both bones of the leg and was suffering from 40% disability. It appears that the amount awarded is too meagre for the rt following reasons:

42. The claimant­injured remained admitted in hospital with effect from 6th May, 2008, to 25th May, 2008, at the first instance and then, with effect from 6th July, 2008, to 18th September, 2008, in terms of discharge slips, Mark­B and Ext. PW­2/A, respectively. The photocopy of the prescription slip is also on the record, which does disclose the details/types of injury, the claimant­injured has sustained and on which medication he was put by the doctors.

43. The perusal of the disability certificate, Ext. PW­ 5/A, does disclose that the same was issued on 5 th February, 2011, in terms of which the claimant­injured was suffering from 40% disability, which has affected his earning capacity.

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He was attended upon by the attendant during the period he was in hospital, has undergone and has to undergo pain and .

sufferings.

44. The claimant­injured has placed on record the documents, i.e. Marks C­1 to C­16, which do disclose as to how of much amount he has spent on his treatment. At least, ₹ 50,000/­ was to be awarded to the claimant­injured under rt the head 'medical expenses'. He remained admitted in the hospital for more than three months and must have been attended upon by an attendant during the said period. At least, ₹ 25,000/­ was to be awarded under the head 'attendant charges'. The injury has affected his earning capacity for the said period, thus, at least ₹ 12,000/­ was to be awarded under the head 'loss of income for the said period.

45. The disability has also affected his future income, and in lump­sum ₹ 1,00,000/­ should have been awarded under the head 'loss of future income'. He has also gone through pain and sufferings during the said period and has to suffer throughout his life. It has shattered his physical frame. Thus, ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 28 at least, ₹ 50,000/­ was to be awarded under the head 'loss of amenities'.

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46. Viewed thus, claimant­injured is held entitled to compensation to the tune of ₹ 50,000/­ + ₹ 25,000/­ + ₹ 12,000/­ + ₹ 1,00,000/­ + ₹ 50,000/­ = ₹ 2,37,000/­ with interest @ 7.5% of per annum from the date of the claim petition till its realization.

rt FAO No. 353 of 2012:

47. The Tribunal has awarded compensation to the tune of ₹ 31,320/­ with interest @ 7.5% per annum from the date of the claim petition till its realization in favour of the claimant­injured, which appears to be meagre.

48. As discussed hereinabove, the compensation in injury cases is to be awarded by exercising guess work.

49. The claimant­injured has suffered knee fracture on right side, remained admitted in hospital with effect from 6 th May, 2008 to 10th May, 2008, was compelled to take bed rest for one month and have to visit for follow­ups. He had spent considerable amount on medical treatment and has to spend in future also. He would have been attended upon by an ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 29 attendant and the family members during the period of admission and for the said period. The Tribunal has awarded .

₹ 5320/­ under the head 'medical expenses', i.e. the amount which he has already spent, but has not awarded the same for future treatment. At least, ₹ 10,000/­ should have been of awarded under the head 'future medical expenses'.

50. It can be safely held that he had to pay ₹ 6,000/­ to rt the attendant during the period he remained admitted and on bed rest, thus, is entitled to ₹ 6,000/­ under the head 'attendant charges'. The injury has also affected his earning capacity for the period of two months, ₹ 12,000/­ was to be awarded under the head 'loss of income for the said period'.

51. The claimant­injured has suffered temporary disability to the extent of 20% relating to the right limb, which has affected his income capacity. It is apt to reproduce para 32 of the impugned award herein:

"32. Dr. Sandeep Vaidya (PW­5) stated that he had found that petitioner had sustained 20% disability in relation to right limb. He stated in cross examination that manual labour would not be easy due to this disability. However, he had mentioned in the disability certificate that the petitioner ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 30 was complaining of pain in the knee and the petitioner could work by manipulating with fingers, pulling and pushing, lifting, kneeling and .
crouching, bending, sitting, standing, walking, seeing, hearing, reading and writing. Thus the medical board had not found any disability to perform work. Hence, his statement in the cross examination that petitioner will have difficulty in performing work cannot be of accepted."

52. Keeping in view the statement made by the doctor rt read with the fact that he has gone through pain and sufferings and has to undergo the same in future also, at least ₹ 50,000/­ was to be awarded under the head 'pain and sufferings' and ₹ 20,000/­ under the head 'loss of amenities'.

53. Viewed thus, the claimant­injured is held entitled to compensation to the tune of ₹ 5320/­ + ₹ 10,000/­ + ₹ 6,000/­ + ₹ 12,000/­ + ₹ 50,000/­ + ₹ 20,000/­ = ₹ 1,03,320/­ with interest @ 7.5% per annum from the date of the claim petition till its realization.

54. Having glance of the above discussions, the amount of compensation is enhanced and the impugned awards, subject matter of FAOs No. 349 & 359 of 2012, 350 & 361 of 2012, 353 & 357 of 2012 and 360 of 2012, are modified, ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP 31 as indicated hereinabove. The insurer is directed to satisfy the awards at the first instance with right of recovery.

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55. The statutory amount deposited by the owner­ insured in the respective appeals is awarded as costs and is payable to the respective claimants.

of

56. The awarded amount be deposited before this Registry within eight weeks. On deposition, the awarded rt amount be released in favour of the claimants strictly as per the terms and conditions contained in the respective impugned awards.

57. The appeals are disposed of accordingly.

58. Send down the records after placing copy of the judgment on each of the Tribunal's file.

(Mansoor Ahmad Mir) Chief Justice June 24, 2016 ( rajni ) ::: Downloaded on - 15/04/2017 20:40:10 :::HCHP