( 2025:HHC:26566 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 47 of 2018 along with FAO No. 231 of 2021. Reserved on: 31st July, 2025. Decided on : 7th August, 2025. 1. FAO No. 47 of 2018. United India Insurance Co. Ltd. .... Appellant Versus Ritu Kumari & Anr. ....Respondents 2. FAO No. 231 of 2021. Ritu Kumari .... Appellant Versus Jagdish Chand & Another ....Respondents Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 Yes. For the Appellant: Dr. Lalit K. Sharma, Advocate, for the appellant in FAO No. 47 of 2018. Mr. Virender Singh Rathore, Advocate, for appellant in FAO No.231 of 2021. For the respondents: Mr. Virender Singh Rathour, Advocate, for respondent No.1. in FAO No. 47 of 2018. Dr. Lalit K. Sharma, Advocate, for respondent No.2 in FAO No. 231 of 2021. _________ Satyen Vaidya, Judge Both these appeals have been heard and are being decided together as common question of facts and law are involved. 1 Whether reporters of the local papers may be allowed to see the judgment? 2 ( 2025:HHC:26566 2. Respondent No.1 in FAO No. 47 of 2018 and appellant in FAO No. 231 of 2021 Ritu Kumari (hereinafter referred to as the “claimant”) is sufferer of 100% permanent disablement as a result of injuries suffered by her in an accident involving a truck No. HP-40-6982. 3. On 21.06.2009, the claimant was standing on the road outside the Mata Kunal Pathari Temple, Dharamshala. She was trampled by truck No. HP-40-6982 being driven by Ajay Kumar (now deceased). 4. The claimant filed petition under Section 166 of the Motor Vehicles Act for compensation by impleading the driver, owner and insurer of the vehicle as respondents No.1 to 3 respectively. The driver died during the pendency of the petition. The owner, who was none else than the father of the driver was proceeded against ex-parte as he chose not to appear before the learned Tribunal despite service. The claim petition was contested only by the insurer. 5. The claimant had averred in her petition that she was 28 years old at the time of filing of petition. It was her case that on account of 100% disability suffered as a result of injuries caused to her by the accident, she was confined to bed or wheel chair and was unable to perform any work independently. It was also alleged that claimant had been earning Rs.6000/- per month before the accident from tailoring and agriculture. The details of hospitalization and treatment of the claimant was also provided. It was specific averment of claimant that on 21.06.2009, 3 ( 2025:HHC:26566 the claimant was coming out of the Mata Kunal Pathari temple after paying obeisance and was standing on the left side of the road and a truck bearing No. HP-40-6982 driven by Ajay Kumar came towards her in a high speed and resultantly the claimant was trampled along with other persons standing on the road. The cause of accident was attributed to the rash and negligent driving of the driver of the truck. 6. In reply, the insurer raised objection that the driver Ajay Kumar was not possessing valid and effective driving licence at the time of accident. The claimant was stated to be travelling in the vehicle as gratuitous passenger and on such count also the insurer tried to avoid the liability. 7. Learned Tribunal framed the following issues:- “1) Whether respondent No.1 Ajay Kumar on 21.6.2009 at 4.30 p.m. at Kunal Pathari Mandir was driving the truck No. HP-40-6982 in a rash and negligent manner and due to his negligent driving injuries were suffered by the petitioner, as alleged? OPP. 2) Whether the petitioner is entitled to get compensation, as prayed for? OPP 3) Whether respondent No.2 was not having valid and effective driving licence at the time of accident, as alleged? OPR-2. 4) Whether the vehicle in question was insured with respondent no.3, as alleged? OPR-3 5) Whether respondents no.1 and 2 have violated the terms of the policy, as alleged? OPR-3. 4 ( 2025:HHC:26566 6) Whether the petition is not maintainable in the present form, as alleged? OPR-3. 7) Relief.” 8. Issues No.1 and 2 were answered in affirmative, whereas, all other issues were answered in negative. Accordingly, the petition was allowed and the learned Tribunal awarded a total sum of Rs.19,85,586/- as compensation to the claimant under the following heads:- 1. Compensation on account of pain and sufferings Rs.2,00,000/- 2. Compensation on account of medical expenses Rs.1,63,586/- 3. Compensation on account of loss of future amenities and expectation of life Rs.2,00,000/- 4. Compensation on account of conveyance & food nourishment expenses Rs.50,000/- 5. Compensation on account of future medical treatment Rs.1,00,000/- 6. Compensation on account of loss of income and on account of disability Rs.12,24,000/- 7. Compensation on account of Indoor Hospital expenses Rs.48,000/- Total Rs.19,85,586/- 9. In additional, learned Tribunal has also awarded interest on the aforesaid compensation amount @ 7.5% per annum from the date of filing of the petition till the date of actual payment, 10. I have heard the learned counsel for the parties and have also gone through the entire record carefully. 11. FAO No. 47 of 2018 has been filed by the insurer on the grounds that it was not liable to indemnify the insured/owner as the vehicle was being used at the time of accident in violation of terms and 5 ( 2025:HHC:26566 conditions of the policy. It is contended that the claimant was a gratuitous passenger in the goods vehicle. Further, the impugned award has also been assailed on the ground that the compensation awarded is excessive and against the settled principles and norms. 12. On the other hand, FAO No.231 of 2021 has been filed by the claimant for enhancement of the compensation. It has been contended that the compensation awarded to the claimant is neither just nor adequate. 13. In order to prove her case, the claimant examined herself as her witness besides PW-1, Dr. G. D. Gupta, PW-2 H.C. Sandeep Kumar and PW-3 Dr. Vipan Sharma. 14. In order to prove the cause of accident, the claimant categorically deposed that she was standing on the road and was hit by truck No. HP-40-6982 being driving by Ajay Kumar driver in rash and negligent manner. In her statement, it was proved that in the same accident 12 people had died and more than 50 persons including claimant had suffered injuries. The insurer had not been able to shatter the version rendered by the claimant. In addition, the copy of FIR has also been proved on record as Ex.PW2/A to reveal that there was allegation of rash and negligent driving against the driver of truck, named, Ajay Kumar (now deceased). 15. In response, the insurer has examined RW-1 Swaroop Kumar, Personal Assistant of ADM, Dharamshala to prove on record the inquiry, 6 ( 2025:HHC:26566 Ex.RW1/A submitted by the Additional District Magistrate, Dharamshala. Another witness RW-2 SI Hari Ram was also examined, who had investigated the case registered vide FIR No. 140/2009, Ex.RW2/A. 16. The insurer through the above evidence tried to establish that the truck was hired by the pilgrims for visiting the Mata Kunal Pathari temple and the claimant was one of the occupants of the vehicle. 17. Learned Tribunal has believed the version of the claimant and in my considered view no fault can be found with such findings of fact. As noticed above, the statement of the claimant had remained unshattered. Merely exhibition of inquiry report, Ex.RW1/A would not have dispensed with the proof of its contents. The inquiry report per se could not have been used as a piece of evidence to establish the facts stated therein. Similarly, the statement of RW-2 SI Hari Ram could not have helped the case of the insurer for the reason that RW-2 was not an eye witness himself and whatever he had stated was on the basis of information gathered by him, which was subject to proof. In absence of any evidence to prove that the claimant was an occupant of the truck at the time of accident, the findings recorded by the learned trial Court needs no interference. 18. It was also brought to the notice of this Court that FAO No.48, 2018, titled as United India Insurance Co. Ltd. vs. Praveen Kumar and another has been decided by a coordinate bench of this Court vide judgment dated 26.07.2021 in which also the identical issue of fact raised 7 ( 2025:HHC:26566 by the insurer has been decided against the insurer. The said judgment is stated to have attained finality. In this view of the matter also the appellant cannot succeed in its endeavor to prove that the claimant was an occupant of the truck at the time of accident. 19. The next issue raised by Dr. Lalit K. Sharma, learned counsel for the insurer is regarding the quantum of compensation. He submitted that the learned Tribunal had erred in considering the income of the claimant at Rs.6000/- per month merely on the asking of the claimant. He would contend that the claimant had failed to prove her income to be Rs.6000/- per month. He submitted that the claimant was simply a housewife and had no independent earning of her own. 20. On the other hand, the claimant has asked for enhancement of compensation. 21. The assessment of Rs.6000/- as income of the claimant cannot be said to be unjustified or unreasonable. Even if, there was no proof of the income being earned by the claimant before the accident, on notional basis also the income of claimant, who aged about 27 years cannot be said to be excessive. I do not find the compensation assessed by the learned Tribunal under various heads to be excessive. Rather, it has been found that the learned Tribunal has erred in not considering the grant of incremental increase on the income of the claimant on account of loss of future prospects. As per National Insurance Company Ltd. vs. Pranay 8 ( 2025:HHC:26566 Sethi & Ors., (2017) 16 SCC 680, 40% increase should have been allowed on the monthly income of Rs.6000/-. By allowing such increase, the monthly income of the claimant would be Rs.8400/- and in this way, the compensation on account of loss of future income would be Rs.8400x12x17=Rs.17,13,600/- 22. Indisputably, the claimant has suffered 100% permanent physical disablement. She has suffered from fracture of D-12 vertebra and consequent paraplegia. Her medical record reveals that she has also suffered bladder and valve disturbances/incontinence. There is no evidence that the claimant will improve in future. Thus, the inevitable conclusion is that the claimant will have to spend her rest of life in the same state either being confined to bed or to wheelchair. In such circumstances, her functional disability also cannot be less than 100%. 23. The claimant was young female of 27 years at the time of accident. She has been divested of all comforts of life for all time to come till she remains alive. Besides the physical sufferance of the claimant she has suffered colossal mental trauma and agony. She cannot move the way she would wish to. All pleasures of life have been taken away from her. In such special case, the loss cannot be compensated in terms of money. Still just and adequate monetary compensation is required to be provided for decent sustenance of the life of the claimant. 9 ( 2025:HHC:26566 24. At this stage, it will be relevant to notice what has been observed in Rekha Jain vs. National Insurance Company Limited and others (2013) 8 SCC 389 as under: “29. In this regard, it is worthwhile to refer to certain paragraphs which have been referred to by the Karnataka High Court in the case of K. Narasimha Murthy vs. The Manager, Oriental Insurance Company Limited and Anr. ILR 2004 KAR 2471, wherein the Division Bench of the Karnataka High Court has considered the relevant important aspects from the judgment of this Court and the House of Lords and different learned scholars and authors of books on awarding pecuniary and non-pecuniary damages. The abovementioned decision states about the approach of the Motor Accidents Claim Tribunals and Courts for awarding just and reasonable compensation in favour of the claimants in relation to the bodily injuries suffered by them. It is worthwhile to extract Paragraph 16 from K. Narasimha Murthy case (supra), which reads as under: “16. The Courts and Tribunals, in bodily injury cases, while as- sessing compensation, should take into account all relevant circumstances, evidence, legal principles governing quantifi- cation of compensation. Further, they have to approach the is- sue of awarding compensation on the larger perspectives of justice, equity and good conscience and eschew technicalities in the decision-making. There should be realisation on the part of the Tribunals and Courts that the possession of one's own body is the first and most valuable of all human rights, and that all possessions and ownership are extensions of this primary right, while awarding compensation for bodily injuries. Bodily injury is to be treated as a deprivation which entitles a claim- ant to damages. The amount of damages varies according to gravity of injuries.” 25. In Rekha Jain (supra), the Hon’ble Supreme Court had found the amount of Rs.10,00,000/- to be the justified compensation for loss of amenities and pain and suffering respectively in following terms: “61. The Tribunal awarded compensation of Rs.2,00,000/- for the loss of amenities, pleasure of life and her inability to attend social functions in future, which is inadequate, therefore, it should be enhanced to Rs.10,00,000/-. 10 ( 2025:HHC:26566 62. Towards the pain and suffering, the Tribunal awarded Rs.1,00,000/-. It should be proper to award another Rs.9,00,000/- as she has undergone ordeal for the period of 4 years continuously taking treatment in Odisha and Kerala States and the damages for mental and physical shock, pain and suffering, disfigurement of the face and other bodily injuries she already suffered continuously or likely to suffer.” 26. Recently in Baby Sakshi Greola vs. Manzoor Ahmad Simon 2024 SCC Online SC 3692 the Hon’ble Supreme Court by taking into consideration what has been held in Kajal vs. Jagdish Chand and others (2020) 4 SCC 413, Master Ayush vs. Branch Manager, Reliance General Insurance Company Limited and another (2022) 7 SCC 738 and K.S. Muralidhar Versus R. Subbulakshmi and Another 2024 SCC Online SC 3385 has held as under: 34. As has been referred to hereinabove, this Court recently in the case of K.S. Muralidhar (supra) relying inter-alia upon the previous decisions of this Court in the cases of Kajal (supra) and Master Ayush (supra) awarded a sum of Rs. 15,00,000/- under the head of pain and suffering to the appellant therein. 35. In this respect, it would be appropriate to refer to paragraphs 26 and 27 of the judgment of this Court in the case of Kajal (supra), which read thus: “Pain, suffering and loss of amenities 26. Coming to the non-pecuniary damages under the head of pain, suf- fering, loss of amenities, the High Court has awarded this girl only Rs. 3,00,000. In Mallikarjun v. National Insurance Co. Ltd. [Mallikarjun v. Na- tional Insurance Co. Ltd., (2014) 14 SCC 396 : (2015) 1 SCC (Civ) 335 : (2015) 1 SCC (Cri) 372 : (2013) 10 Scale 668], this Court while deal- ing with the issue of award under this head held that it should be at least Rs. 6,00,000, if the disability is more than 90%. As far as the present case is concerned, in addition to the 100% physical disability, the young girl is suf- fering from severe incontinence, she is suffering from severe hysteria and above all she is left with a brain of a nine-month-old child. This is a case where departure has to be made from the normal rule and the pain and 11 ( 2025:HHC:26566 suffering suffered by this child is such that no amount of compensation can compensate. 27. One factor which must be kept in mind while assessing the compensation in a case like the present one is that the claim can be awarded only once. The claimant cannot come back to court for en- hancement of award at a later stage praying that something extra has been spent. Therefore, the courts or the Tribunals assessing the compensation in a case of 100% disability, especially where there is mental disability also, should take a liberal view of the matter when awarding the compensation. While awarding this amount, we are not only taking the physical disability but also the mental disability and vari- ous other factors. This child will remain bedridden for life. Her mental age will be that of a nine-month-old child. Effectively, while her body grows, she will remain a small baby. We are dealing with a girl who will physically become a woman but will mentally remain a 9-month-old child. This girl will miss out playing with her friends. She cannot communicate; she cannot enjoy the pleasures of life; she cannot even be amused by watching car- toons or films; she will miss out the fun of childhood, the excitement of youth; the pleasures of a marital life; she cannot have children who she can love, let alone grandchildren. She will have no pleasure. Her's is a vegetable existence. Therefore, we feel in the peculiar facts and circumstances of the case even after taking a very conservative view of the matter an amount payable for the pain and suffering of this child should be at least Rs. 15,00,000.” (emphasis supplied) 36. This Court has observed that it has to be borne in mind that while as- sessing compensation in a case like the present one, the claim can be awarded only once. It was observed that the claimant cannot come back to the court for enhancement at a later stage praying that something extra has been spent. This Court further observed that courts or tribunals assessing compensation in a case of 100% disability, especially where there is mental disability also, should take a liberal view of the mater when awarding compensation. It was observed that while awarding this amount, courts are not only taking into ac- count physical disability but also mental disability and various other factors. 37. Similarly, in the case of Master Ayush (supra), this Court in paragraph 14 observed as under: “14. The determination of damages in personal injury cases is not easy. The mental and physical loss cannot be computed in terms of 12 ( 2025:HHC:26566 money but there is no other way to compensate the victim except by payment of just compensation. Therefore, we find that in view of the physical condition, the appellant is entitled to one attendant for the rest of his life though he may be able to walk with the help of assistant device. The device also requires to be replaced every 5 years. Therefore, it is reasonable to award cost of 2 devices i.e. Rs. 10 lakhs. The appellant has not only lost his childhood but also adult life. Therefore, loss of marriage prospects would also be required to be awarded. The learned Tribunal has rejected the claim of taxi expenses for the reason that the taxi driver has not been produced. It is impossible to produce the numerous taxi drivers. Still fur- ther, the Tribunal should have realised the condition of the child who had complete sensory loss in the legs. Therefore, if the parents of the child have taken him in a taxi, probably that was the only option available to them. Accordingly, we award a sum of Rs. 2 lakhs as conveyance charges.” (emphasis supplied) 38. In the present case also, the appellant will remain dependant on an- other person for the rest of her life. Even though the physical age will increase, but her mental age will be that of a child studying in the 2nd Standard/Class. Effectively, while her body grows, she will remain a small baby. 39. Similar to the case of Kajal (supra), the appellant in the present case will also miss out on partaking in activities which she would have normally done, if she had not met with this unfortunate accident. 40. The High Court, vide impugned judgment and order, only enhanced the compensation under the head of pain and suffering from Rs. 50,000/- as awarded by the learned Tribunal to Rs. 1,00,000/-. The same is not commen- surate to the impact the unfortunate accident had and will have on the appel- lant as well as her family members for the rest of their lives. In our view, the compensation should be enhanced further. Therefore, in the peculiar facts and circumstances of this case, we are of the considered view that it would be ap- propriate to award compensation to the tune of Rs. 15,00,000/- to the present appellant under the head of pain and suffering. c) Loss of marriage prospects 41. In this respect, we reiterate the evidence given by the Dr. Monica Juneja (PW-3) vide the disability certificate wherein she has opined that the mental status of the appellant would be the same as that of a child studying in the 2nd Standard/Class. Further, it was stated that the appellant would also have 13 ( 2025:HHC:26566 severe apathy and therefore, maintaining/forming marital/familial bonds with the aforementioned conditions for the appellant is very difficult. 42. The appellant, therefore, has not only lost her childhood but also her adult life. Marriage/companionship is an integral part of the natural life of a human being. Although, in the present case the appellant is capable of repro- duction, it is near impossible for her to rear children and enjoy the simple pleasures of marital life and companionship. However, the learned Tribunal in the present case did not award any compensation to the appellant under this head and the High Court, in appeal, without appreciating the impact of the non-pecuniary loss suffered by the appellant only awarded compensation of Rs. 1,00,000/- for the loss of marriage prospects. 43. We are, therefore, of the opinion that this a fit case where the compen- sation awarded under the head of loss marriage prospects by the High Court is inadequate and the same must be enhanced to Rs. 5,00,000/-.” 27. In light of above exposition of law and keeping in view its applicability to the facts of the case, an amount of Rs.15,00,000/- will be just and adequate compensation to the claimant under heads of Pain & suffering and loss of future amenities and expectation of life @ of Rs.7,50,000/- under each head instead of Rs.2,00,000/- as awarded by the learned Tribunal under these heads. 28. Thus, on recalculation, the claimant shall be entitled to the following amounts:- 1. Compensation on account of pain and sufferings Rs.7,50,000/- 2. Compensation on account of medical expenses Rs.1,63,586/- 3. Compensation on account of loss of future amenities and expectation of life Rs.7,50,000/- 4. Compensation on account of conveyance & food nourishment expenses Rs.50,000/- 5. Compensation on account of future medical treatment Rs.1,00,000/- 14 ( 2025:HHC:26566 6. Compensation on account of loss of income and on account of disability Rs.17,13,600/- 7. Compensation on account of Indoor Hospital expenses Rs.48,000/- Total Rs.35,75,186/- (Rs.Thirty five lakhs, Seventy Five Thousand and One Hundred Eighty Six only) 29. The aforesaid compensation amount will carry interest @7.5% per annum from the date of filing of petition till actual realization as awarded by the learned Tribunal. 30. In result, FAO No. 47 of 2018 is dismissed and FAO No.231 of 2021 is allowed. The impugned award dated 09.08.2017 passed by the learned Motor Accident Claims Tribunal-I, Kangra at Dharamshala in MACP (RBT) No. 26/K/II/14/10 is modified to the extent as detailed hereinabove. 31. Both the appeals shall stand disposed of accordingly so also the pending miscellaneous application(s), if any. 32. Records be sent back forthwith. (Satyen Vaidya) 7th August, 2025 Judge (jai)