Himachal Pradesh High Court

Reserved On: 01.05.2025 vs Surinder Singh & Another on 9 May, 2025

                                                                         2025:HHC:13263




                                                1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                         FAO No. 140 of 2019
                                         Reserved on: 01.05.2025
                                         Date of decision: 09.05.2025

Shriram General Insurance Co. Ltd.                               ...Appellant

                                 Versus

Surinder Singh & another.                                        ...Respondents.

Coram:
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 Yes
For the appellant :                      Mr. Jagdish Thakur, Advocate.
For the respondents :                    Ms.   Devyani    Sharma, Sr.
                                         Advocate with Mr. Shivam
                                         Sharma,      Advocate,   for
                                         respondent No.1.
                                         Mr. Jai Ram Sharma, Advocate,
                                         for respondent No.2.


Satyen Vaidya, Judge:

By way of instant appeal, the insurer has

assailed the award dated 17.12.2018, passed by the

learned Motor Accident Claims TribunalII, Solan (for

Whether reporters of Local Papers may be allowed to see the judgment?

2025:HHC:13263

short the 'Tribunal') in Claim Petition No. 04

NL/2/2017, whereby respondent No.1 herein (for short

the 'claimant') has been awarded compensation of Rs.

12,84,700/ with interest at the rate of 8% per annum

and the insurer has been directed to satisfy the award.

2. The claimant had filed a claim petition under

Section 166 of the Motor Vehicles Act, 1988 (for short

the 'Act') before the learned Tribunal, seeking

compensation on account of injuries and permanent

disablement suffered by him in an accident involving

motor vehicle.

3. The claimant had alleged that on 18.8.2016,

at about 9.30 AM, he was riding his motorcycle No. HP

12B0671 with his wife and child on the pillion. When

he reached near the house of Bhagat Singh at Village

RampurBerchha, Tehsil Nalagarh, District Solan his

motorcycle was hit by a car bearing No.HP12E9488 2025:HHC:13263

being driven by Bal Krishan (for short the owner/driver)

in rash and negligent manner.

4. The claimant allegedly suffered grievous

injuries to both of his legs, which resulted in 35%

disablement of the petitioner. The petitioner was

admitted in Usha Nursing Home, Ropar, Punjab from

18.8.2016 to 26.6.2016 and during this period he was

also operated upon.

5. Petitioner claimed to have spent

Rs.5,00,000/ on his treatment including expenses of

special diet, medicines, attendant and hiring of vehicle

etc. As per the petitioner, he was a transporter having

ownership of two trucks. He claimed to be earning Rs.

80,000/ per month from his avocation. Petitioner

claimed total compensation of Rs. 70,00,000/ on the

ground that he had suffered permanent disablement and

was confined to bed even till the date of filing the claim 2025:HHC:13263

petition i.e. 13.12.2016 and was suffering from

continuous pain and suffering besides having suffered

loss of future earning @ Rs. 80,000/ per month.

6. The claimant stated his age to be 48 years at

the time of accident.

7. The ownercumdriver filed his reply and

denied the factum of accident. He disclosed that the

vehicle No. HP12E9488 was insured with the insurer.

It was alleged that the accident had taken place due to

rash and negligent driving of claimant himself, who was

unable to keep control and balance over the motorcycle.

8. The insurer filed the reply and alleged

violation of the contract of policy by the insured. It was

alleged that the ownercumdriver was not possessing a

valid driving license at the time of accident. It was also

alleged that the accident had taken place on account of

rash and negligent driving of the claimant. Therefore, 2025:HHC:13263

the objection as to the non joinder of necessary parties

vis a vis the insurer of the motorcycle of the claimant

was also taken. The averments made in the claim

petition with respect to the income, loss of future income

and disability etc. were denied in generality.

9. The learned Tribunal framed the following

issues:

"i) Whether on the morning of 18.8.2016, at about 9.30 a.m. at place Rampur Baircha, Police Sta tion, Nalagarh, District Solan, the respondent N.1 was driving Nano Car bearing Registration No. HP12E9488 rashly and negligently, which resulted in causing multiple injuries to the peti tioner Surinder Singh, rider of motorcycle bear ing No. HP12B0671, which was being driven by him and knocked down by aforesaid car, as alleged. OPP

ii) Whether the petitioner is entitled for com pensation? OPP

iii) Whether petition of the petitioner is not maintainable in the present form? OPR

iv) Whether the aforesaid car was being plied in violation of the terms and condi tions of insurance policy, as alleged? OPR2.

2025:HHC:13263

v) Whether the petition of the petitioner is bad for nonjoinder of necessary parties, as alleged?

vi) Relief."

10. Issues Nos. 1 and 2 were decided in affirma

tive while all other issues were answered in negative.

The claim petition was allowed and the claimant has

been awarded a sum of Rs. 12,84,640/ rounded of to

Rs. 12,84,700/ under the following heads:

1. Future loss of income Rs. 10,92,000/

2. Medical expenses (as is Rs. 99,940/ evident from Ex.

PW5/B to Ex. PW5/E

3. Taxi charges (as is Rs. 32,700/ evident from receipts Ex. PW4/A to Ex.

PW4/P

4. Pain and sufferings Rs. 40,000/

5. Special died and Rs. 10,000/ attendant charges

6. Future discomfort and Rs. 10,000/ inconvenience

7. Total Rs. 12,84,640/ which is 2025:HHC:13263

rounded of to Rs. 12,84,700/

11. In addition, the claimant has been held

entitled to 8% interest per annum on the awarded

amount from the date of filing of the petition till ac

tual realization.

12. I have heard learned counsel for the par

ties and have also gone through the record carefully.

13. Learned counsel for the insurer has

fairly submitted that his challenge to the impugned

award is confined to the quantum of compensation

awarded in favour of the claimant. According to him,

the compensation awarded to the claimant is higher

and excessive. He would submit that the assessment

of income of the claimant at Rs. 20,000/ per month

has no basis. He would further contend that the

claimant had not been able to prove the loss of in 2025:HHC:13263

come on account of injuries and disablement suffered

by him in the accident. According to him, the

claimant was transporter having two trucks and it

had not been proved on record that after the accident

the petitioner was not able to generate any income

from his said business. It has further been submit

ted that the learned Tribunal has erred in holding

loss of earning capacity to the tune of 35% whereas,

there was no legal evidence on record to warrant

such findings.

14. On the other hand, the learned Senior

Counsel for the claimant has supported the award. It

has been submitted that the assessment of income of

the claimant at Rs. 20,000/ per month was on a

very lesser side. The disablement of the claimant was

permanent in nature and he was not able to work, as

he used to do prior to the accident. She further 2025:HHC:13263

claimed that the functional disability of the claimant

was much more than 35%. It has also been pointed

out that while assessing the income of the claimant

nothing has been allowed on account of loss of future

prospects.

15. The learned Tribunal has held the dis

ability of claimant due to injuries suffered in the acci

dent as 35% of the whole body. Reliance has been

placed on disability certificate Ext. PW3/A, issued

by the medical board. Perusal of said document re

veals that the permanent physical impairment in re

spect of the claimant has been assessed by the medi

cal experts as 35%. One of the authors of certificate

Ext. PW3/A Dr. Jai Sharma has been examined as

witness (PW3) by the claimant. He has not been

cross examined on the aspect of nature and extent of

disability certified in Ext. PW3/A. It being so, the 2025:HHC:13263

finding recorded by learned Tribunal with respect to

disability suffered by the claimant cannot be faulted.

Though, PW3 admitted that there was possibility of

improvement in the patient with the passage of time,

but the opinion being hypothetical is not sufficient to

whittle down the impact of injuries on physical abili

ties of the claimant as assessed and certified vide dis

ability certificate Ext. PW3/A.

16. Learned Tribunal has then proceeded to

hold the loss of working and earning capacity of the

claimant to be not less than 35% and the finding to

this effect has been based on the certified disability of

claimant by the medical board. Reference has also

been made to paragraphs 10,11 and 13 of the judg

ment passed by Hon'ble Supreme Court in Raj Kumar

vs. Ajay Kumar & another (2011) 1 SCC 343.

2025:HHC:13263

17. In Raj Kumar (supra) it has been held

that the effect on earning capacity of victim having

suffered permanent disablement may not in every

case be exactly commensurate to the extant of dis

ability suffered by him and it may vary from case to

case depending upon attending circumstances. The

following extract from above noted judgment is rele

vant to the context:

"13. Ascertainment of the effect of the permanent disability on the ac- tual earning capacity involves three steps. The Tribunal has to first as- certain what activities the claimant could carry on in spite of the perma- nent disability and what he could not do as a result of the permanent ability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was pre- vented or restricted from discharging his previous activities and func- tions, but could carry on some other or lesser scale of activities and func- tions so that he continues to earn or can continue to earn his livelihood."

2025:HHC:13263

18. Though learned Tribunal while holding

the loss of earning capacity of claimant as 35% has

not explicitly analysed the facts of the case at the

touchstone of principle laid down in Raj Kumar, yet

such finding needs no interference for the reasons

detailed hereafter.

19. Admittedly, the avocation of claimant is

that of a transporter. It has been proved on record

that the claimant owned two trucks. The copies of

registration certificates of the trucks owned by

claimant have been exhibited on record as Ext. P1

and Ext. P2.

20. The question, however, arises as to what

has been loss of earning capacity and for that matter

towards future income of claimant. The claimant has

appeared as his own witness (PW2). He has deposed

that he used to drive one of the trucks and on ac 2025:HHC:13263

count of disability suffered by him, he is unable to do

so and for such matter he has to employ a driver. The

learned counsel for the insurer has taken strong ex

ception to above part of the deposition of the

claimant being beyond pleadings. He referred to the

averments made in the claim petition, wherein no

such specific plea has been raised. The contention so

raised, however, deserves to be rejected for the rea

son that the claimant while being crossexamined on

behalf of the insurer or the insured has not been con

fronted with the contents of the claim petition visà

vis the statement made by him. In absence of such

exercise, no adverse inference can be drawn against

the claimant, as he did not get any chance to explain

the omission, if any. It cannot be ignored that for

drafting of legal pleadings one normally relies upon

the experts or professional engaged for the purpose.

2025:HHC:13263

How and in what manner the instructions are per

ceived depends upon various attending circum

stances.

21. Thus, even if it is assumed that the

claimant used to drive one of trucks himself before

suffering disability, the onus still was upon him to

establish loss of earning capacity or loss of future

earnings, if any, due to disability suffered by him and

for such purpose he owed obligation to prove that he

was not able to drive the truck temporarily or perma

nently. Noticeably, the claimant has failed to prove

that he has lost the physical capacity completely to

drive the vehicle. The claimant has examined two

medical experts i.e. PW3 Dr. Jai Ram and PW5 Dr.

Sat Pal but none of them have deposed that the

claimant would not be able to drive the truck on ac

count of disablement suffered by him. Even the 2025:HHC:13263

claimant has not been very categoric in stating that

he will not be able to drive the truck in future. None

theless, the nature and extent of injuries and conse

quent disablement suffered by the claimant cannot

be ignored. PW5 Dr. Sat Pal has detailed the nature

of injuries suffered by the claimant and the treatment

received by him. According to said witness, the

claimant had suffered fractures on both thigh bones

besides other multiple soft tissue injuries on the

body. According to him interlocking nailing was done

on both thigh bones through surgical intervention.

This part of the testimony of PW5 has not been shat

tered. Therefore, the claimant cannot be said to hold

the same physical strength and capacity as he held

before the accident. The assessment of his physical

disability of 35% towards whole body can reasonably

be taken to be an impediment with the claimant in 2025:HHC:13263

performing his routine jobs to the same extent. As a

corollary his physical capacity to drive the truck can

also be taken to be reduced by 35%.

22. The next question arises as to entitle

ment of claimant for compensation on account of loss

of earnings. Needless to say, the compensation has to

be just, fair and reasonable. The claimant cannot ex

ploit the situation to claim a bounty or windfall. At

this stage it will be relevant to take note of following

observations made by Hon'ble Supreme Court in State

of Haryana & another vs. Jasbir Kaur & others, (2003) 7 SCC 484:

"7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be "just and reasonable". It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be 2025:HHC:13263

"just" and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just. (See Helen C. Rebello v. Maharashtra SRTC [(1999) 1 SCC 90 : 1999 SCC (Cri) 197 : AIR 1998 SC 3191] .)

23. Though the claimant had claimed the

earning of Rs. 80,000/ per month from his transport

business, but he has not placed on record any docu

mentary evidence like income tax returns, if any, to

prove his income from the said business or any other 2025:HHC:13263

source. Thus, except for bald assertions of claimant

with respect to his income there was no tangible ma

terial before the learned Tribunal to arrive at defini

tive conclusion. In such circumstances, the learned

Tribunal had no option but to indulge in guesswork,

which is not impermissible, if based on realistic pa

rameters. The learned Tribunal has assessed the

monthly income of claimant at Rs. 20,000/. What

has weighed with learned Tribunal is the ownership

of claimant over two trucks. On such basis, it has

been assumed that the income of claimant with oper

ation of two trucks would not be less than Rs.

20,000/. The findings to this effect also need no in

terference because the assessment made by the

learned Tribunal with respect to the monthly income

of the claimant, in my considered view, cannot be

said to be unreasonable or unjustified. In 2016, even 2025:HHC:13263

the wages payable to a skilled worker under the Mini

mum Wages Act were approximately Rs. 6000/ per

month. Hence, it can be reasonably assumed that for

operation of the trucks, the claimant would have em

ployed drivers by paying them at least minimum

wages. In case, the employee of claimant would earn

Rs. 6000/ per month, the assessment of income of

Rs. 10,000/ from each of the truck in respect of

claimant appears to be quite reasonable.

24. However, in my considered view, the fur

ther approach adopted by learned Tribunal thereafter

is not correct. The monthly loss of income has been

taken as Rs. 7000/ i.e. 35% of Rs. 20,000/. Resul

tantly, annual loss of income has been assessed as

Rs. 84,000/. By applying the multiplier of 13, total

loss of future earning has been assessed as Rs.

10,92,000/. As discussed above, the only evidence 2025:HHC:13263

that can be said to be available on record favouring

the claimant is his statement to the effect that prior

to the accident he was driving one of the trucks and

after the accident he has employed a driver for said

purpose. That does not mean that claimant was di

vested of entire income hitherto earned by him by ply

ing both the trucks. Since, as per claimant also the

income from plying of one of the trucks only was af

fected, the loss could not be assessed on the basis of

total earning from both the trucks. The claimant has

nowhere stated that the plying of other truck or the

income generated therefrom was affected in any man

ner. Thus, it can be safely held that the sufferance of

claimant in earning was only from one truck as

statedly he had to employ a driver for driving the said

truck.

2025:HHC:13263

25. The statement of PW5 Dr. Sat Pal was

recorded after about 18 months after the accident

and as per this witness the claimant was still under

treatment till that juncture. The claimant himself had

also deposed about his pain and suffering while ap

pearing as his own witness, therefore, it will not be

unreasonable to infer that the claimant would not

have been able to drive the truck at least for a con

siderable period. In this view of the matter and keep

ing in view the nature of injuries suffered by him the

version of the claimant that he had employed a driver

after the accident cannot be disbelieved altogether.

26. Thus, by reasonable approximation it

can be inferred that the claimant had not been able

to drive the truck himself for a period of 18 months

and had to employ a driver for plying the same.

Again, there is no evidence on record to prove the 2025:HHC:13263

wages paid by claimant to the driver and for such

reason this court once again will have to indulge in

some guesswork. As noted above, the wages of skilled

workmen in 2016 fixed under the Minimum Wages

Act were not less than Rs. 6000/ per month. It can

not be ignored that the wages fixed under the ibid Act

are for specified limited hours, whereas the driver of

a truck would normally work for long hours including

nights also and for such reason his wages can be rea

sonably assumed to be Rs. 8000/ per month and

hence, the claimant can be compensated to the tune

of Rs.1,44,000/( Rs.8000 X 18) on this count.

27. With respect to the future loss of income

suffered by the claimant it can be held that though

the claimant has not been fully disabled to drive the

truck yet with the nature of injuries he has suffered,

his physical strength will definitely be lessened and 2025:HHC:13263

can be reasonably taken to be equivalent to the phys

ical disablement assessed by the medical experts.

Notice can be taken of the fact that driving of truck

will require sufficient physical strength in legs.

Assuming that the appellant would be driving the

second truck himself, by the disability of 35% he has

suffered, the value of monthly loss of income from

one truck can be assessed at 35% of Rs.8,000/ i.e.

Rs.2,800/. The annual loss will be Rs.2800 x 12=

Rs.33,600/ and by application of multiplier of 13,

the total loss of future income can be assessed at

Rs.4,36,800/.

28. Learned Tribunal has not considered any

amount payable to claimant on account of loss of fu

ture prospects. In National Insurance Co. Ltd Vs

Pranay Sethi (2017) 16 SCC 680 it has been held 2025:HHC:13263

that even selfemployed person would be entitled to

incremental increase of income. In Pappu Deo Ya

dav Vs Naresh Kumar & others, AIR 2020(SC)

4424, the above principle laid in Pranay Sethi has

been held applicable to the victims having suffered

permanent disablement as result of motor vehicle ac

cident. Hence, the claimant shall be entitled to en

hancement of 25% on account of loss of future

prospects and such relief is admissible to the

claimant even in absence of any appeal filed by him

in light of following exposition made by Hon'ble

Supreme Court in the matter of Rajana Prakash &

others vs. Divisional Manager & another, (2011)

14 SCC 639:

"6. We are of the view that High Court committed an error in ignoring the contention of the claimants. It is true that the claimants had not challenged the award of the 2025:HHC:13263

Tribunal on the ground that the Tribunal had failed to take note of future prospects and add 30% to the annual income of the deceased. But the claimants were not aggrieved by Rs.23,134/- being taken as the monthly income. There was therefore no need for them to challenge the award of the Tribunal. But where in an appeal filed by the owner/insurer, if the High Court proposes to reduce the compensation awarded by the Tribunal, the claimants can certainly defend the quantum of compensation awarded by the Tribunal, by pointing out other errors or omissions in the award, which if taken note of, would show that there was no need to reduce the amount awarded as compensation. Therefore, in an appeal by the owner/insurer, the appellant can certainly put forth a contention that if 30% is to be deducted from the income for whatsoever reason, 30% should also be added towards future prospects, so that the compensation awarded is not reduced. The fact that claimants did not independently challenge the award will not therefore come in the way of their defending the compensation awarded, on other grounds. It would only mean that in an appeal by the owner/insurer, the claimants will not be entitled to seek enhancement of the compensation by urging any new ground, in the absence of any cross-appeal or cross- objections.

7. This principle also flows from Order 41 Rule 33 of the Code of Civil Procedure which enables an appellate court to pass any order which ought to have been passed by 2025:HHC:13263

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 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. Be that as it may."

29. Thus, the total loss under the head of loss of

future income can be assessed at Rs.4,36,800/ +

1,09,200 = Rs. 5,46,000/ .

30. This Court also finds that the award of

Rs.40,000/ for pain and suffering is not reasonable,

rather keeping in view the fact that the claimant has 2025:HHC:13263

to spend rest of his life with permanent disablement

to the extent of 35% and the age of claimant was only

48 years at the time of accident, a sum of Rs.

1,00,000/ shall be just and reasonable to compen

sate the claimant under this head.

31. Thus, the claimant is held entitled to compen