( 2025:HHC:16617 ) IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 445 of 2017 Decided on : 29 th May, 2025. Sh. Suresh Kumar .. Appellant. Versus Smt. Banka Mani ....Respondent. Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 For the Appellant: Mr. Sparsh Bhushan, Advocate. For the respondent: Mr. Nishant Khidta, Advocate. Satyen Vaidya, Judge (Oral). This appeal has been filed against the award dated 07.10.2016 passed by learned Motor Accidents Claims Tribunal (IV), Shimla (for short “ the Tribunal”) in MACT Pet. No. 1-R/2 of 2014/12. 2. The respondent herein (hereinafter referred to as “ the claimant”) was victim of motor vehicle accident involving motorcycle bearing No. HP-10A-0790 that had taken place at 4.30 PM on 06.12.2011 at place Sandasu, Tehsil Chirgaon, District Shimla. 3. The offending vehicle was owned and ridden by the appellant (hereinafter referred to as “the owner”). 1 Whether reporters of the local papers may be allowed to see the judgment? 2 ( 2025:HHC:16617 ) 4. The claimant filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (for short “the Act”) seeking compensation on account of injuries and resultant disability suffered by her in the aforementioned accident. It was claimed that the claimant was a housewife and also was looking after the agricultural and horticultural work of the family. 5. The claimant was 40 years old at the time of accident. As per the disability certificate issued in her favour, she had suffered disability to the extent of 17% of lower left limb. 6. The cause of accident was attributed to the rash and negligent driving of the owner. 7. The claim was contested by the owner. Averments made in the claim petition were denied. It was submitted that the accident had taken place on account of the fault of the claimant herself as in the panic she had tried to cross the road immediately before the motorcycle reached the spot. As per the owner, in the above process, the claimant had struck against the rock and fell down on the road as a result of which she had suffered injuries. 8. Learned Tribunal framed the following issues:- 3 ( 2025:HHC:16617 ) 1. Whether the petitioner has sustained injuries on her person on account of rash and negligent driving of respondent, on 06.12.2011 at about 4.30 P.M. at place Sandasu while driving motorcycle bearing No. HP-10A-0790?OPP 2. If issue No.1 is proved in affirmative, what should be the compensation and from whom? OPP 3. Whether the petition is not maintainable in the present form as alleged/OPR. 4. Whether the petitioner has no cause of action? OPR. 5. Relief. 9. Issues No.1 and 2 were answered in affirmative, whereas remaining two issues were answered in negative. Accordingly, the claim petition was allowed. A total sum of Rs.2,69,240/- has been awarded as compensation along with interest @9% per annum from the date of filing of the petition till its realization. 10. Learned Tribunal has awarded compensation under the following heads:- Sr. No. Heads under which compensation was granted Amount of compensation. 1. Compensation on account of pain and suffering Rs.50,000/- 2. Compensation on account of loss of earning and earning capacity Rs.1,65,240/- 3. Compensation on account of medicine Rs.33,337.21 4. Compensation on account of Hospitalization charges Rs.5,000/- 5. Compensation on account of Rs.10,000/- 4 ( 2025:HHC:16617 ) transportation for coming and going to the hospital 6. Compensation on account of attendant charges Rs.5000/- 7. Total compensation Rs.2,69,240. 11. By way of instant appeal, the appellant has assailed the impugned award primarily on the ground of its quantum being excessive. 12. I have heard learned counsel for the parties have have also gone through the entire record carefully. 13. There is no dispute that the claimant was 40 years old at the time of accident and was a housewife. The nature and extent of injury and consequent disability suffered by the claimant has also been proved on record. The claimant in her pleadings as also while deposing before the Court has specifically stated that she was looking after horticultural and agricultural work of the family and after the accident she was unable to carry out all such pursuits. According to her, the disability has affected the income of the entire family. 14. Another fact that the petitioner remained as indoor patient in IGMC, Shimla w.e.f. 19.12.2011 to 23.12.2011 has also not been disputed. 15. Though, the claimant had alleged and claimed her income at the rate of Rs.10,000/- per month but the learned 5 ( 2025:HHC:16617 ) Tribunal had assessed the same at Rs.180/- per day i.e. Rs.5400/- per month. The assessment as to the income of the claimant was made by way of guess work in the backdrop of the facts of the case that the claimant in addition to the housewife, was also looking after the agricultural and horticultural work of the family. Learned Tribunal assessed the loss of future income of the claimant in tune with the percentage of disability suffered by her and in this manner Rs.918/- was taken as monthly loss of income. Multiplier of 15 was applied and in this manner the total loss of future income was assessed at Rs.1,65,240/- 16. Learned counsel for the appellant has vehemently contended that the assessment so made by the learned Tribunal towards loss of future income was not based on realistic parameters. According to him, learned Tribunal had assessed the monthly income of deceased at the rate of Rs.5400/- per month on higher side. He would submit that without there being any document with respect to the income of claimant, the assessment should have been made on the basis of minimum wages notified by the State Government at the relevant time. He has referred to one such notification for the year 2011, i.e. year of accident, wherein in the State 6 ( 2025:HHC:16617 ) of Himachal Pradesh, the daily wage rates were fixed at Rs.120/- per day i.e. Rs.3600/- per month. 17. Even if the contention of the learned counsel for the appellant is conceded, the figure of monthly income of the claimant as assessed by the learned Tribunal may not see substantial change. Firstly, the minimum wages cannot be applied exactly in the case of claimant for the reason that such rates are fixed for limited hours, whereas the claimant was not only a housewife, she was looking after the horticultural and agricultural work of the family and this fact has nowhere been controverted by the owner. In such context, the income as payable to a daily wager could not be strictly applied to the claimant. Further, as per the mandate in National Insurance Company Ltd. vs. Pranay Sethi & Ors., (2017) 16 SCC 680 and followed in Pappu Deo Yadav vs. Naresh Kumar, AIR 2020 SC 4424, the claimant would be entitled to enhancement in her income towards the loss of future prospects which according to the aforesaid judgment would not be less than 25%. Thus, I do not see any reason to differ with the findings recorded by the learned Tribunal in so far as the assessment of monthly income of the claimant is concerned. 7 ( 2025:HHC:16617 ) 18. It has also been contended by the learned counsel for the appellant that the learned Tribunal has erred in granting the benefit of 17% disability to the claimant as if such disability was suffered by her towards the entire body. He submits that as per the disability certificate and the statement of PW-4, the disability was assessed at 17% qua lower left limb only. 19. It is more than settled that for assessment of compensation, it is not the percentage of physical disability that is to be taken into consideration, rather it is the functional disability that matters. In Raj Kumar vs. Ajay Kumar & Anr., (2011)1 SCC 343, the Hon’ble Supreme Court has held as under:- “13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent 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 8 ( 2025:HHC:16617 ) was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.” 20. As noticed above, the claimant has categorically deposed on oath that she had been doing the agricultural and horticultural work besides the household work and after the accident was unable to do so. The version of the claimant to this effect has remained uncontroverted. She has also not been cross-examined on this aspect at all. Indisputably, the household as also the agricultural and horticultural works involve physical labour. The injury and disablement has been suffered by the claimants in her leg, therefore, it can be assumed that with the nature of injury suffered by the claimant, she would not be having the same physical strength to do the manual labour as she had before the accident. In this background, holding her functional disability to be commensurate with the physical disability suffered by her cannot be said to be unreasonable. 21. Learned counsel for the appellant has submitted that there is no medical opinion on record with respect to the functional disability suffered by the claimant. The absence of medical evidence, in this case will not make any difference for 9 ( 2025:HHC:16617 ) the reason that the version of claimant in this behalf has not been challenged. 22. Learned counsel for the appellant has also challenged the award of Rs.10,000/- towards transportation charges awarded to the claimant. This contention of learned counsel for the appellant also deserves to be rejected for the reason that the claimant belongs to an interior area of the State and in such areas the transportation facilities are not readily or easily available. Further, it has been submitted that the award of attendant charges @ Rs.1000/- per day is also on higher side. This submission again is without substance. The attendant charges cannot be equated with the wages payable to a daily wager. The attendant has to discharge multifarious functions round the clock especially during the period when the patient is admitted in the hospital. Such charges include everything like diet, transportation, accommodation etc. 23. In light of above discussion, I do not find any material on record to disagree with the findings recorded by the learned Tribunal. The compensation assessed by the learned Tribunal is just and fair. No interference is required. Accordingly, the instant appeal is dismissed. 10 ( 2025:HHC:16617 ) 24. Pending applications, if any, also stand disposed of. 25. Records be sent back forthwith. (Satyen Vaidya) Judge 29th May, 2025. (jai)