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Himachal Pradesh High Court · body

2019 DIGILAW 937 (HP)

Rachna Devi v. Sushila

2019-07-12

SURESHWAR THAKUR

body2019
JUDGMENT : SURESHWAR THAKUR, J. 1. The owner-cum-driver of the offending vehicle, and, also the disabled claimant, are, both aggrieved, by the award rendered, by the learned Motor Accident Claims Tribunal-III, Una, H.P., upon MAC Petition No. 64 of 2015, (i) wherethrough, compensation amount comprised in a sum of Rs.3,25,000/-, stood awarded, vis-a-vis, the disabled claimant, and, thereon stood levied interest, at, the rate of 9% per annum, and, was ordered to commence from the date of petition, and, till realization, of, the afore compensation amount. The apposite indemnificatory liability thereof, stood fastened, upon, registered owner-cum-driver of the offending vehicle. 2. Through, FAO No. 243 of 2018 reared before this Court, by the registered owner-cum-driver, of the offending vehicle concerned, the latter concerts, to, reverse the findings, recorded upon issue No.1, appertaining to the relevant mishap which occurred, inter se, the offending vehicle, and, the vehicle, whereon the disabled claimant was astride upon its pillion, standing pronounced, to be sequelled by, the, rash, and, negligent manner of driving of the offending vehicle, by one Rachna Devi, the appellant herein (in FAO No. 243 of 2018). Obviously, since, the offending vehicle, did not, carry any insurance cover, thereupon, the learned counsel appearing for the registered owner-cum-driver of the offending vehicle, does not contest, the, fastening of the apposite indemnificatory liability, upon her. The learned counsel appearing for the registered owner-cum-driver, of the offending vehicle, has made a vehement submission, before this Court (a) that the dependence, as, made by the tribunal, upon, the ocular narratives, vis-a-vis, the relevant occurrence, wherein, the tort of negligence stood squarely ascribed, vis-a-vis, the appellant herein, hence, being a gross mis-dependence, (b) given PW-2, being an interested witness, and, PW-4's corroborative testification, vis-a-vis, the testification of PW-2, being also overlookable, and, discardable, (c) as, at the relevant stage, vis-a-vis, the happening, of, the illfated occurrence, he, given his serving as a clerk, with an advocate practising, at Courts located at Una, rather was naturally required, to be present within the precincts of, the Court than, at the site of occurrence, hence his version being both concocted, and, invented. However, the interestedness of PW-2, in his purportedly rendering a testification hence holding leanings, vis-a-vis, the disabled claimant, (d) arising from his being her relative, would not, per se negate the probative vigour of his testification, (e) unless, pointed suggestions stood meted to him, during, the course of his being subjected, to cross-examination, by the learned counsel, for the registered owner-cum-driver, of the offending vehicle, qua his not being present, at the site of occurrence, and, his hence rendering a concocted, and, invented version qua the occurrence, and, thereupon, rather his testimony being discardable. However, PW-2, is, also the informant, vis-a-vis, the relevant collision, which occurred, inter se, the apposite vehicle, (f) and, the offending vehicle, and, upon his purveying information to the police agencies concerned, the apposite FIR, borne in Ex.PW1/A stood registered, (g) and, furthermore, with a close scrutiny, of his testification, borne, in his cross-examination, hence not, making any emergences, that, the counsel for the registered owner-cum-driver, denying the afore factum, rather through his meteing suggestions, to him, vis-a-vis, his not being present, at the relevant site of occurrence, (h) nor his attempting to bely his version qua the occurrence, embodied in his examination-in-chief, wherein, he has pointedly, and, squarely, rather ascribed tort of negligence, vis-a-vis, the appellant herein. Conjoining, the afore, with, despite, it being open for the driver, of, the offending vehicle, to, mete, vis-a-vis, PW-2, hence, a suggestion, appertaining qua, in the relevant collision, the tort of negligence rather standing committed by the driver of the vehicle, whereon, on its pillion, the disabled claimant was astride, emphatically, given the latter vehicle occupying, the, inappropriate side of the road, (i) yet, with, even the afore espousal remaining un-recoursed, by the counsel for the appellant, as, visibly no suggestion compatible therewith, stood meted to PW-2, during the course, of his cross-examination, (j) hence, wants of all afore suggestion(s) being meted to PW-2, by the counsel for the registered owner-cum-driver, of the offending vehicle, hence, cumulatively fillip an inference, that, not only the owner-cum-driver of the offending vehicle, driving it, in a rash and negligent manner, also, the vehicle driven by her, rather occupying the inappropriate site of the road, hence, hers committing the tort of negligence. 3. 3. Even though, the meteing of credence, vis-a-vis, PW-2's testification, vis-a-vis, the relevant occurrence, was, sufficient to render affirmative findings hence in consonance therewith, upon, issue No.1, yet corroborative thereto testification, is, also encapsulated in the deposition rendered by PW-4, Ram Singh, another ocular witness tot he occurrence, (i) who alike PW-2 has squarely ascribed the tort of negligence, vis-a-vis, the registered owner-cum-driver, of, the offending vehicle. Even though, he may be serving, as a clerk, with an advocate practising at Courts located at Una, and, even if, the relevant occurrence rather occurred, at a time, whereat he was expected, to be present within the precincts of the Courts located at Una, (ii) however, when he has meted an explanation qua his proceeding, to the site of occurrence in connection with his personal work, (iii) thereupon, his being merely expected to hence remain present, within the court precincts, would not belittle the efficacy, of the testification rendered by him. Consequently, the affirmative findings rendered by the learned tribunal, upon, issue No.1 are upheld. 4. Through, FAO No. 243 of 2018, and, FAO No. 189 of 2019, the learned counsel appearing for the litigating parties, respectively contend, vis-a-vis, reduction of compensation, and, for enhancement of compensation. The learned tribunal had, vis-a-vis, the disabled claimant assessed hence compensation, under, various heads, i.e. under head "conveyance charges" Rs.21,000/-, under head "unreimbursed bills" Rs.3,858/-, under head "Attendant Charges" Rs.24,000/-, under head "Special diet" Rs.20,000/-, under head "Actual loss of earning" Rs.30,000/-, under head "Pain and sufferings" Rs.75,000/-, and, under head "Future pain and suffering, loss of amenities of life, future loss of income on account of disability, Rs.1,51,200/-, hence, in total compensation of Rs.3, 25,100/- stood assessed, vis-a-vis, the disabled claimant. The serious contention which has emerged inter se the contesting litigants, is confined, vis-a-vis, under assessment, and, contrarily over assessment, by the learned tribunal, on anvil of "future pain and suffering, loss of amenities of life, future loss of income, on account of disability", and, comprised in a sum of Rs.3,25,100/-. The serious contention which has emerged inter se the contesting litigants, is confined, vis-a-vis, under assessment, and, contrarily over assessment, by the learned tribunal, on anvil of "future pain and suffering, loss of amenities of life, future loss of income, on account of disability", and, comprised in a sum of Rs.3,25,100/-. Even though, the, disability certificate issued vis-a-vis the disabled claimant, borne in Ex.PW-6/A27, stood tendered by PW-6, during, the course of recording her testification, obviously when it stands rather not tendered by the author thereof, (a) yet the afore omission would not stain, it, with any aura of invalidity, (b) hence, also renders it to be possessing the requisite probative efficacy, as, during the course of cross-examination of PW-6, no suggestion stood meted, vis-a-vis, her hence qua PW6/A-27 being forged, and, fictitious, and, also qua it not holding any nexus with the injuries encumbered, upon her, during the course of the collision, which occurred inter se the apposite vehicle, whereon she was astride, as a pillion, and, the offending vehicle. Moreover, with the learned counsel appearing for the registered owner-cum-driver, rather permitting the exhibition, of, the afore disability certificate tendered, during, the course of examination-in-chief of PW-6, whereupon, he is rather concluded to acquiesce qua authenticity(ies) thereof. Though, the per centum of disability encumbered, upon, the disabled claimant, is quantified therein in 41%. However, the afore per centum, of, disability, do not, per se hence entitle the disabled claimant, to, apart from hers being disabled to perform household chores, during the course, of her hospitalization also hence rear any claim for compensation being assessed, vis-a-vis, and, towards loss of future income, arising, from hers, being enjoined to pay for the service(s) of domestic helps, for the latter, rather performing the hitherto household chores, and, wheretowhich, she maybe entitled for monetary compensation. The reason, for making the afore conclusion, is, generated from the doctor concerned, not, proving the disability hence permanently, prohibiting the disabled claimant, to perform, the household chores, and, with the disability pronounced in Ex.PW6/A-27 being 41%, yet with also enunciation, rather standing borne therein, vis-a-vis, 41 % disability, rather erupting from 26% mild hearing impairment, and, 20% loss of olfaction, (a) and, when the auditory impairment, may be, repairable with auditory aids, and, when, the, olfaction disability rather appertains to loss of smell, (b) and, also when qua therewith, a, minimal per centum, of, disability, hence stands entailed upon her, (c) thereupon, unless the doctor concerned, had while stepping into the witness box, rendered a testification qua the disabled claimant, throughout her life, being disabled to perform the household chores, thereupon, the afore inference also bolsters a deduction, that, the afore disability neither, prohibiting the disabled claimant, to, throughout her life, hence, perform the household chores nor it besetting her with perennial pain and suffering nor hence, compensation under the head "future pain and suffering, loss of amenities of life, future loss of income on account of disability", borne in a sum of 1,51,200/- is, assessable, vis-a-vis, her. Nonetheless, only a sum of Rs.75,000/- is, assessed towards "future pain and suffering, loss of amenities of life". 5. For the foregoing reasons, the appeal filed by the registered owner-cum-driver of the offending vehicle, bearing FAO No. 243 of 2018, is partly allowed, whereas, the appeal filed by the disabled claimant, bearing FAO No.189 of 2019 is dismissed. In sequel, the impugned award, is, in the aforesaid manner, hence modified. Accordingly, the disabled claimant/appellant, is, held entitled to a total compensation of Rs.2,48,900/- (Rs. Two Lakh, forty eight thousand, nine hundred only) along with interest @ 9%, from, the date of petition till the date, of, deposit, of the compensation amount. The indemnificatory liability, vis-a-vis, the afore compensation amount, shall be, of the registered owner of the offending vehicle. All pending applications also stand disposed of. Records be sent back forthwith.