Shri Dalip Kumar vs New India Assurance Company Ltd.

Mansoor Ahmad Mir, Actg. C.J.

Appellants have questioned the award, dated 26th May, 2008, passed by the Motor Accident Claims Tribunal (III) Shimla, (hereinafter referred to as "the Tribunal"), in MAC Petition No. 57-S/2 of 2006/05, titled as Lekh Ram versus Dalip Kumar and others, whereby compensation to the tune of Rs. 2,20,000/- came to be awarded in favour of claimant Shri Lekh Ram-respondent No. 2 herein and against the respondents No. 1 & 2, appellants herein, with interest @ 6% per annum from the date of the claim petition till its realization, (for short "the impugned award"), on the grounds taken in the memo of appeal.

Brief Facts:

The claimant had claimed compensation to the tune of Rs. 20,00,000/- with interest @ 18% per annum, as per the break-ups given in the claim petition, being victim of the vehicular accident which was allegedly caused on 21.10.2004, at about 4.00 p.m., at Mashobra by Driver, appellant No. 2 herein, while driving vehicle-bus bearing registration No. HP-63-0148 rashly and negligently, in which the claimant had sustained multiple injuries.

The owner, the Driver and the insurer contested the claim petition on the grounds taken in their objections. Following issues came to be framed by the Tribunal on 22.4.2006:

Whether on 21.12.2005 at Mashobra, the respondent No. 2 was driving bus No. HP-63-0148 rashly and negligently and as such caused multiple injuries to the petitioner? OPP

If issue No. 1 is proved in affirmative, to what amount of compensation the petitioner is entitled and from whom? OPP

Whether the driver was not having valid and effective driving licence at the time of accident? OPR

Whether the bus No. HP-63-0148 was being driven without registration and fitness certificate in breach of the policy conditions and provisions of Motor Vehicles Act? OPR

Relief.

The claimant has examined six witnesses in support of his case and also appeared himself in the witness box. The respondents have examined their witnesses in support of their defence. Respondent No. 1-owner and respondent No. 2-Driver appeared in witness box. Respondent No. 3-insurer examined Rajinder Kumar, ASI, as a witness.

In issue No. 1, the Tribunal has wrongly mentioned the date of accident as "21.12.2005" instead of "21.10.2004". Therefore, the issue No. 1 be read as under:-

Whether on 21.10.2004, at about 4.00 p.m., at Mashobra, the respondent No. 2 was driving bus No. HP-63-0148 rashly and negligently and as such caused multiple injuries to the petitioner

After examining the pleadings and scanning the oral as well as documentary evidence, the Tribunal held that respondent No. 2, Driver Vijender Singh had driven the offending vehicle-bus bearing registration No. HP-63-0148 rashly and negligently on 21.10.2004, at about 4.00 p.m., at Mashobra and had caused the accident, in which the claimant had sustained multiple injuries. Accordingly, issue No. 1 was decided in favour of the claimant and against the Driver and the owner-insured.

The onus to prove issues No. 3 & 4 was on the insurer. It failed to prove issue No. 4, accordingly, this issue was decided against the insurer. It is recorded in the impugned award that the insurer had not pressed this issue.

Issue No. 3 was decided in favour of the insurer on the ground that the Driver was not having a valid and effective driving licence at the time of accident. Admittedly, the Driver was duly licenced to drive "Light Motor Vehicles" and was not competent to drive the offending vehicle-bus.

Section 2(21) of the Motor Vehicles Act reads as under:-

(21) "light motor vehicle" means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or road-roller the unladen weight of any of which, does not exceed [7500] kilograms.

While going through the documents on the file, the unladen gross weight of the bus was more than 12000 kg, is not falling within the definition of "Light Motor Vehicle" and was a "Heavy Transport Vehicle". The Tribunal has rightly decided issue No. 3 against the Driver and the owner-insured and in favour of the insurer.

The Tribunal has held that the claimant has lost source of income to the tune of Rs. 2500/- per month, i.e. Rs. 30,000/- per annum and applied the multiplier of ''5'' while taking his age as 56 years at the time of accident and awarded Rs. 1,50,000/- under the head of future income; Rs. 35,500/- under the head of artificial limb and Rs. 34,500/- under the head of pain and suffering, total compensation amounting to Rs. 2,20,000/-. Accordingly, issue No. 2 was decided in favour of the claimant and against the Driver and the owner-insured, appellants herein.

It is apt to record herein that the claimant and the insurer have not questioned the impugned award, thus it has attained finality so far as it relates to them.

The owner-insured and the Driver have questioned the impugned award only to the extent of saddling them with the liability and discharging the insurer from the liability.

I have gone through the pleadings, evidence and the findings recorded by the Tribunal. Admittedly, the Driver was not competent to drive "Heavy Transport Vehicle", but was competent to drive only "Light Motor Vehicle", thus the owner-insured has committed breach.

Learned Counsel for the appellants argued that the offending vehicle-bus was being driven by Tilak Kumar at the relevant point of time and not by Dalip Kumar. This argument is afterthought for the reason that neither such plea was raised before the Tribunal in reply to the claim petition nor there was any issue to that effect, thus cannot be taken for the first time in the appeal or before the Appellate Court. It is apt to record herein that Driver Vijender Singh was facing trial in a criminal case which was the outcome of the said accident.

The learned Counsel for the appellants stated at the Bar that the appellants have already deposited Rs. 25,000/- at the time of filing of the appeal, Rs. 1,10,000/- before the Executing Court during the execution of the impugned award and the amount to the tune of Rs. 25,000/- has been paid by the insurer as interim award in terms of Section 140 of the Motor Vehicles Act. Thus, the impugned award to the tune of Rs. 1,60,000/- stands already satisfied.

It is profitable to record herein that the learned Counsel for the appellants has stated that the Himachal Pradesh State Electricity Board, in which the claimant was employed, has already paid him Rs. 2,00,000/- as compensation and another expenses which he had incurred on medical expenses etc.

Keeping in view the facts and circumstances of the case, I deem it proper to hold that the claimant was not entitled to compensation to the tune of Rs. 1,50,000/- under the head of loss of future income because he was in Government service, has enjoyed all service benefits including salary, medical charges had been reimbursed to him and is now enjoying the retiral benefits. In the given circumstances, the multiplier applied is at higher side. Thus, I deem it proper to apply the multiplier of ''3''. Thus, the claimant is entitled to Rs. 2500 x 12 = Rs. 30,000 x 3= Rs. 90,000/- under the head of loss of future income.

Accordingly, the claimant is entitled to Rs. 90,000/- under the head of loss of future income; Rs. 35,500/- under the head of artificial limb and Rs. 34,500/- under the head of pain and suffering, total compensation amounting to Rs. 1,60,000/- form the date of the claim petition till its final realization with 6% interest per annum.

The Registry is directed to release the amount to the tune of Rs. 25,000/- in favour of the claimant, deposited at the time of filing of the appeal.

The Presiding Officer of the Tribunal to release the amount to the tune of Rs. 25,000/-as interim award in favour of the claimant, if not already released.

The Presiding Officer of the Tribunal to release Rs. 1,10,000/- in favour of the claimant which was deposited by the appellants during the execution of the award, as stated, if not already released.

The appellants to deposit the balance amount i.e. interest amount, within eight weeks. The Registry is directed to release the remaining awarded amount in favour of the claimant, strictly as per the terms and conditions contained in the impugned award.

The impugned award is modified, as indicated above and the appeal is disposed of.

Send down the record after placing a copy of the judgment on record.