JUDGMENT
R.K. Rastogi, J.
1. Both these appeals have been filed against the judgment and award dated 17th February, 1997 passed by Sri Kartar Singh, the then Vth Addl. District Judge, Muzaffarnagar in motor accident claims petition No. 293 of 1993, Shiv Kumar Gael v. Rajendra Kumar and Ors. Since both these appeals have arisen against a common order in the aforesaid claim petition, they have been heard together by us, and now we are deciding them by a common judgment.
2. The facts relevant for disposal of both these appeals are that Shiv Kumar Goel, respondent No. 1 in both the appeals, filed the aforesaid claim petition in the Court of Motor Accident Claims Tribunal/District Judge, Muzaffarnagar, under Section 166 of the Motor Vehicles Act with these allegations that on 6th April, 1993 he was going from Budhana to Muzaffarnagar in bus No. UP-12-A-3747 owned by Ajab Singh, opposite party No. 4. It was being driven by its driver Ram Pal, opposite party No. 5. He was sitting on a seat near right side window in the middle of the bus. The bus reached near village Sawali at 11 a.m. At that time bus No. URJ-8962, which was owned by opposite party Nos. 1 and 2 Rajendra Kumar and Yogesh Kumar, and was being driven by opposite party No. 3 Vijendra, came from the side of Muzaffarnagar. This bus was being driven rashly and negligently by its driver and it hit bus No. UP-12-A3747 on the middle portion exactly at the place where the claimant was sitting. The claimant was badly injured and he received such injuries on his right hand as his right hand below elbow got cut from rest of the body while the remaining right hand upto the shoulder was badly crushed. He was immediately taken to Muzaffarnagar. The hand was amputated from the joint near shoulder. Since bleeding was continuing he was advised to be shifted to Delhi and lie was shifted to Delhi the same evening, and was admitted in Batra Hospital where he was again operated by Dr. B.K. Gupta. He remained admitted in that hospital for fourteen days and a sum of Rs. 40,000 was spent on his treatment. However, he has got receipts of Rs. 20,000 only. This accident had taken place due to rash and negligent driving by the driver of bus No. URJ-8962. However, if it is found that there was negligence of the driver of bus No. UP-12-A-3747 also, then the drivers, owners and insurers of both the vehicles are liable to pay compensation to the claimant. The age of the injured Shiv Kumar Goel was 43 years at the time of accident and his monthly income was Rs. 6,000 from his own business. He was drawing a salary from crusher business and he was also a partner in the business of that crusher. He also had income as a partner in a brick-kiln. He was income-tax payee. He, therefore, claimed Rs. 22,40,000 as compensation. It was disclosed by O.P. No. 4 that O.P. No. 5 was not driving the bus No. UP-12-A-3747 but O.P. No. 8 was driving this vehicle, hence, O.P. No. 8 was impleaded in the case. The New India Assurance Company Ltd. and the Oriental Insurance Company Ltd., insurers of these vehicles, had been impleaded as O.P. Nos. 6 and 7. The petitioner further pleaded that due to amputation of right hand from shoulder there was loss of his earning capacity upon 90% and since he was earning Rs. 6,000 per month the loss of earning capacity came to be Rs. 5,400 per month, in other words Rs. 64,800 per year for a period of 32 years, which comes to Rs. 20,63,600. However, he claimed Rs. 20 lacs only under this head. He further stated that he was also entitled to general damages on account of inconvenience, hardship, discomfort, pain etc. and he claimed Rs. 2 lacs on this account. In all, Rs. 22,40,000 including medical expenses of Rs. 40,000 for his treatment. He also claimed pendente lite and future interest.
3. O.P. No. 1 died during pendency of the case and his heirs were impleaded as O.P. Nos. 1/1 to 1/4.
4. O.P. Nos. 1/1 to 1/4 and O.P. No. 2 filed a joint written statement in which they admitted the ownership of bus No. URJ-8962 and the factum of accident but pleaded that there was no fault of the driver of the bus. He was driving the bus in a cautious manner. On the other hand, driver of bus No. UP-12-A-3747 was driving it very rashly and negligently and the bus was overcrowded and it hit bus No. URJ-8962. The driver of their bus had a valid driving licence. The bus was being driven in compliance of the terms of the insurance policy. The vehicle was duly registered and its tax had been paid and the fitness certificate had been obtained and it was being driven on a proper route. Even then if it is found that there was any fault of the driver of bus No. URJ-8962, which was insured with the New India Assurance Company, O.P. No. 6, the liability is to be borne by that Company.
5. O.P. No. 4 also filed a written statement in which he admitted the ownership of bus No. UP-12-A-3747 and the factum of accident. He, however, pleaded that there was no fault of his bus driver who was driving the bus in a cautious manner. He was a duly licensed driver and the bus was duly registered. Its taxes had been paid upto date and it was being plied in accordance with the terms of the insurance policy. It was registered with the Oriental Insurance Company, O.P. No. 7. The entire fault was of the driver of bus No. URJ-8962 who was driving the bus negligently and rashly. However, if it is found that there was any negligence of the driver of his bus, the liability is to be borne by the Insurance Company.
6. O.P. No. 6, the New India Assurance Company Ltd. pleaded in the written statement that in the absence of insurance policy it was not in a position to admit the allegation of insurance of the bus. It also denied the factum of accident. It further pleaded that the petitioner did not have the income of Rs. 6,000 per month and the claim of Rs. 22,40,000 is excessive. The claimant is not entitled to get Rs. 40,000 for his treatment. The driver did not have a valid driving licence and the vehicle had been plied in violation of the terms of the insurance policy. Information of the accident was not given to the Insurance Company.
7. O.P. No. 7, the Oriental -Insurance Company also filed its written statement and it took almost the same pleas which were taken by O.P. No. 6 in its written statement.
Following issues were framed in the claim petition:
(1) Whether the claimant suffered the injuries due to rash and negligent driving of the drivers of bus No. UP-12-A-3747 and bus No. URJ-8962 ?
(2) To what amount is the claimant entitled and against whom?
8. The claimant examined Rajeshwar Dayal as P.W. 1, who filed two partnership deeds of the crusher business, which are Paper Nos. A-91 and A-92. The claimant Shiv Kumar Goel examined himself as P.W. 2. He narrated the entire case on oath. He also filed a copy of his assessment order of income-tax for the assessment year 1993-94 and also filed 21 cash memos etc. regarding purchase of medicines. O.P. Nos. 6 and 7 filed copies of insurance policies issued by them in respect of insurance of the vehicles vide List 25-C and C-27. The driver of bus No. URJ-8962, namely, Vijendra Singh opposite party No. 3 was examined as D.W. 1. No other evidence was produced by the opposite parties.
9. The learned Presiding Officer of the Motor Accident Claims Tribunal held on Issue No. 1 that the accident took place due to rash and negligent driving of the drivers of both the buses, and so the drivers, owners and insurers of both the buses were liable to pay the amount of compensation jointly and severally.
10. On Issue No. 2 he held that a sum of Rs. 35,000 should be allowed for medical expenses. He further held that the claimant was entitled to a sum of Rs. 3 lacs for monetary loss due to reduction of his earning capacity as a result of amputation of the right hand. He further held that the claimant was also entitled to get a sum of Rupees one lac for pain and suffering and a sum of Rs. 1.5 lacs for loss of amenities of life and Rs. two lacs for loss of expectation of life, in all Rs. 7,85,000. He also awarded pendente lite and future interest on the above amount till the date of actual recovery at the rate of 15% per annum. He further ordered that both the Insurance Companies shall pay half of the decretal amount each, to the claimant. Aggrieved with this award, the New India Assurance Company filed F.A.F.O. No. 30 of 1998 and the Oriental Insurance Company filed F.A.F.O. No. 81 of 1998.
11. We have heard Counsel for the parties and have perused the record.
12. The learned Counsel for the opposite parties took a preliminary objection before us that the New India Assurance Company had not obtained any permission to contest the case under Section 170 of the Motor Vehicles Act and so the appeal filed by it is not maintainable. It was, however, admitted that the Oriental Insurane Company which has filed F.A.F.O. No. 81 of 1998 had taken permission to contest the case under Section 170 of the Motor Vehicles Act. This permission was granted to the Oriental Insurance Company on its application Paper No. C-122 dated 28th April, 1997 vide order of the same date passed on the order sheet of the claim petition. It was submitted that in this way F.A.F.O. No. 81 of 1998 filed by the Oriental Insurance Company is maintainable and if the amount of compensation is reduced in the appeal filed by it, the New India Assurance Company will also be entitled to the benefit of that reduction in the amount because both the Insurance Companies have been held jointly and severally liable to pay the amount. With this background we now proceed to decide the appeal on merits.
13. The first point to be determined is who is responsible for the accident. In this connection it is to be seen that the accident had taken place on 6th April, 1993 at 11 a.m. The F.I.R. of this incident was lodged by Ishwar Saran who was travelling in bus No. URJ-8962 at the time of accident. He has stated in the F.I.R. that drivers of both the buses (bus No. URJ-8962 and UP-12-A-3747) were driving their respective buses rashly and negligently and both the buses collided from their side resulting into injuries to Shyambir sitting in bus No. URJ-8962 and Shiv Kumar Goel sitting in bus No. UP-12-A-3747. The F.I.R. lodged by him is paper No. A-83 and the chik report prepared on its basis is A-82. The claimant examined himself as P.W. 2 and stated that the accident took place due to rash and negligent driving of the driver of bus No. URJ-8962. He, however, stated that if drivers of both the a buses are found to be negligent, compensation should be awarded to him against the owners and insurers of both the vehicles.
14. Vijendra Singh opposite party No. 3, who was driving bus No. URJ-8962 at the time of accident has been examined as DW 1. He has stated that at the time of accident his bus was not in motion but it was parked towards left side of the road and the driver of bus No. UP-12-A3747 came from the opposite direction driving the bus negligently and rashly, and the driver of that bus hit the bus towards the right side of his own bus. It is, however, to be seen that Vijendra Singh opposite party No. 3 did not file any written statement in spite of service of summons. The defendant Nos. 1 and 2 who are owners of bus No. URJ-8962 did not take any such plea in their written statement that the bus was parked towards left side of the road when the accident had taken place and so the above statement of defendant No. 3 Vijendra Singh, (DW 1) appears to be an after-thought and as such no reliance can be placed upon it. The learned Presiding Officer of the Tribunal has rightly observed after weighing the evidence led by both the parties that the accident had taken place due to rash and negligent driving of both the drivers, and he has rightly fixed the liability of drivers, owners and insurers of both the buses to be 50% each. We do not find any error in this finding and confirm the same.
15. Now we come to be second point as to what amount should be awarded as compensation. The claimant claimed a sum of Rs. 22,40,000 under the following heads:
1. Medical expenses Rs. 40,000
2. Monetary loss Rs. 20,00,000
3. General damages for inconvenience, hardship, discomfort, disappointment Rs. 2,00,000
______________
Total : Rs. 22,40,000
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16. First of all we take up the medical expenses. The claimant’s case is that after the accident he was taken to a hospital at Muzaffarnagar where his hand was operated, and since bleeding had not stopped, he was shifted to Batra Hospital at Delhi on the same day, i. e. 6th April, 1993 and he remained admitted in the hospital upto 19th April, 1993. He was operated again at that hospital. He has filed the bill received from the above hospital for Rs. 12,371 Paper Nos. 6-Kaand7-Ka. He has also filed another bill of Rs. 40 for consultation charges, which is dated 1st May, 1993 Paper No. 8-Ka. He has also filed cash memos of medicines Paper Nos. 9-Ka to 26-Ka for Rs. 7,367.40p. The total amount of ail these bills and cash memos is Rs. 19,778.40 P. The petitioner has further stated in his statement as P.W. 2 that he could not obtain cash memos of all the medicines purchased for his treatment and actually a sum of Rs. 40,000 was spent on his treatment. The Tribunal after assessment of evidence on record has awarded a sum of Rs. 35,000 towards medical expenses to the petitioner.
However, taking this fact into consideration that there is documentary evidence of medical expenses of Rs. 19,778.40p. Only, the award of a sum of Rs. 35,000 under this head appears to be unreasonable and excessive, and so we reduce a it to Rs. 25,000 only.
17. Now we come to the head of monetary loss.
18. The petitioner’s case is that he was earning a sum of Rs. 6,000 per month at the time of accident. He has alleged that he was drawing Rs. 36,000 per year as salary from the crusher business in which he was a working partner. The original b partnership deed dated 24th April, 1992 has been filed by Rajeshwar Dayal P.W. 1. In this partnership deed (Paper No. A-91) it has been stated that the claimant Shiv Kumar Goel will get Rs. 36,000 per year as his salary from the crusher. It was further provided in this partnership deed that the petitioner Shiv Kumar Goel was also entitled to the share of 10% in the profit of the firm. Shiv Kumar Goel P.W. 2 has further stated that after this accident, he became unable to look after the work of the c firm and so the salary of Rs. 36,000 per year which was being allowed to him was withdrawn in the revised partnership deed dated 6th June, 1993, Paper No. 92-Ka though his share in the business of the firm to the extent of 10% was maintained. The petitioner Shiv Kumar Goel in this way suffered loss of income of Rs. 36,000 per year.
19. Besides the above income which comes to Rs. 3,000 per month, the petitioner has further alleged that he was a partner in the business of brick-kiln and he was earning his share in the profit of brick-kiln business. He has also alleged that he has got agricultural land and he was earning Rs. 600 to Rs. 700 per month from agricultural work, but now he is giving his land on Batai on the charges of Rs. 200 per month. e
20. The petitioner has also filed a copy of his income-tax calculation memo for the financial year 1992-93 (assessment year 1993-94) which is Paper No. C-102. In this memo a sum of Rs. 36,000 has been shown to have been drawn by the petitioner as pay from the crusher business, and a sum of Rs. 13,913.64 p., as his share in the profit of the crusher business, and then his total income for the whole f year has been shown to be Rs. 49,913.64 p. The receipt of filing the income-tax return has also been produced as Paper No. C-101, and the assessment order passed on the return is Paper No. C-100. It is, however, to be seen that no other income from brick-kiln or from agriculture has been shown in the income-tax calculation memo.
21. Under these circumstances, the petitioner’s claim of income from other g sources cannot be believed and so far as his income from crusher business is concerned, it is to be seen that there was no loss in his 10% share in the profit of the firm and the only monetary loss is that he has been deprived of his salary, which he was drawing as a working partner of the firm and this is the only monetary loss.
22. The petitioner had pleaded in his petition that his age was 43 years at the time of accident and the normal expectancy of life is 75 years, and if he had not been involved in this accident, he would have earned Rs. 6,000 per month upto that age and so monetary loss should be assessed by adopting the multiplier of 32 years. He had further pleaded that due to this accident in which his right hand has been amputated, there was 90% loss of earning capacity and so the monetary loss comes to Rs. 5,400 per month and after multiplying it by 12 the annual loss comes to Rs. 64,400 and after adopting the multiplier of 32 the total loss comes to Rs. 20,63,600. However, he was limiting his claim to Rs. 20 lacs only under this head.
23. The Tribunal did not adopt any multiplier in its judgment and has awarded a lump sum of Rs. 3 lacs under this head of loss of income.
24. However, as we have observed above, monthly income of the petitioner was Rs. 3,000 only and as per petitioner’s own allegation the loss of his earning capacity due to amputation of right hand was 90%. The same provision finds place at serial No. 1 in Part 11 of Schedule II of the Workmen’s Compensation Act in which it has been provided that in case of amputation at shoulder joint, the percentage of loss of earning capacity is 90%. After applying this provision the monthly monetary loss would come to Rs. 2,700. After multiplying it with 12, the amount of annual loss comes to Rs. 32,400. The age of the claimant was 43 years at the time of accident and so multiplier of 15 years only would be applicable in his case in accordance with Schedule II of the Motor Vehicles Act. Thus, the amount payable under this head would come to Rs. 4,86,000.
25. The claimant has also claimed Rs. 2 lacs as general damages for inconvenience, hardship, discomfort, disappointment and mental depression. The Tribunal has, however, awarded a sum of Rs. one lac for pain and sufferings, Rs. 1,50,000 for loss of amenities of life and Rs. 2 lacs for loss of expectation of life, in all Rs. 4,50,000 under this head.
26. We are of the view that taking this fact into consideration that a sum of Rs. 4,86,000 has already been awarded under the head of monetary loss, there is no justification for awarding this sum of Rs. 4,50,000 separately as allowed by the Tribunal and in accordance with Schedule II of the Motor Vehicles Act, the general damages for pain and suffering in the case of grievous injury should be confined to Rs. 5,000 only. Thus, the total amount of compensation comes to Rs. 25,000+Rs. 4,86,000+Rs. 5,000, in all Rs. 5,16,000 only, and this is the reasonable amount of compensation.
27. The Tribunal has also allowed pendente lite and future interest ti11 the date of actual recovery to the petitioner at the rate of 15% per annum. However, taking into consideration the present market rate of interest it would be reasonable to award interest at the rate of 6% per annum only.
28. The appeals in this way deserve to be partly allowed and the amount of compensation deserves to be reduced as pointed out above.
29. Both the appeals are partly allowed and the award of the Tribunal is modified and the amount of compensation is reduced to Rs. 5,16,000 only with proportionate costs. The petitioner is also allowed pendente lite and future interest till the date of actual recovery at the rate of 6% per annum. The amount already deposited by the appellants shall be liable to be adjusted in the above amount. This amount shall be paid by both the appellants equally to the petitioner. Both the parties shall bear their own costs of this appeal.