2025:HHC:26565 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No.584 of 2016 a/w FAO No.221of 2019 Reserved on: 30.07.2025 Date of Decision: 07.08.2025 1. FAO No.584 of 2016 Oriental Insurance Company Ltd. ...Appellant Versus Sunil Kumar & others ...Respondents 2. FAO No.221 of 2019 Oriental Insurance Company Ltd. ...Appellant Versus Ram Dayal & others ...Respondents Coram Hon’ble Mr. Justice Satyen Vaidya, Judge Whether approved for reporting? Yes FAO No.584 of 2016 For the appellant: Mr. Ashwani Sharma, Senior Advocate with Ms. Nisha Nalot, Advocate. For the respondents: Mr. B.S.Attri, Advocate, for respondent No.1. Ms. Seema Guleria, Advocate, for respondents No.2 and 3. Mr. Lalit K. Sharma, Advocate, for respondent No.4. FAO No.221 of 2019 For the appellant: Mr. Ashwani Sharma, Senior Advocate with Ms. Nisha Nalot, Advocate. For the respondents: Mr. Maan Singh, Advocate, for respondent No.1. Mr. Baldev Singh, Advocate, for respondent No.2. Mr. Lalit K. Sharma, Advocate, for respondent No.3. Ms. Seema Guleria, Advocate, for respondents No.4 and 5. 2 2025:HHC:26565 Satyen Vaidya, Judge Both these appeals have been heard and are being decided together as common questions of facts and law arise. 2. On 02.02.2015, vehicle No. HP-01K-4126 (hereinafter referred as “cab”) and truck bearing No.HP-11-3402 (hereinafter referred to as “truck”) collided with each other at place near 5 Miles Majhwar near Mandi at about 7:00 AM, within the jurisdiction of Police Station, Sadar, Mandi. 3. The cab was driven by Sunil Kumar and the said vehicle was also owned by said Sunil Kumar himself. Five other occupants were there in the cab, who were travelling towards Mandi. The cab was insured with United India Insurance Company Limited. 4. The truck was owned by Shamsher Singh and was being driven by Manohar Singh at the time of accident. The insurer of the truck was the Oriental Insurance Company Limited. 5. Sunil Kumar and other occupants of the cab had suffered injuries as result of accident. 6. An FIR with respect to the accident was registered at Police Station, Sadar, Mandi as FIR No.26 of 2015 dated 02.02.2015 against Sunil Kumar. 7. FAO No.584 of 2016 has arisen against the award dated 29.08.2016 passed by learned Motor Accident Claims 3 2025:HHC:26565 Tribunal-II, Kullu in Claim Petition No.30 of 2015 filed by Sunil Kumar under Section 166 of the Motor Vehicles Act. 8. FAO No.221 of 2019 has arisen from award dated 06.03.2019 passed by learned Motor Accident Claims Tribunal-II, Kullu in MACP No.36 of 2016 in claim petition filed by Ram Dayal (occupant of the cab) for the injuries and disablement suffered by him in the accident. 9. In claim petition i.e. MAC No.30 of 2015, there were counter allegations with respect to cause of accident. Sunil Kumar had alleged that the accident had taken place due to rash and negligent driving of Manohar Singh, whereas Manohar Singh had alleged that it was on account of rash and negligent driving of Sunil Kumar that the accident had taken place. 10. In MACP No.36 of 2016 also though the respective stands of Sunil Kumar and Manohar Singh remained the same, however, the claimant Ram Dayal had attributed the cause of accident to the rash and negligent driving of both the drivers i.e. Sunil Kumar and Manohar Singh. 11. In both the impugned awards, learned Tribunals have held the cause of accident to be the rash and negligent driving of Manohar Singh. 12. The medical board had certified the disablement of Sunil Kumar at 70%, as one of his legs had been amputated. 4 2025:HHC:26565 Learned Tribunal, however, has considered the disability of Sunil Kumar as 100%. Sunil Kumar has been awarded compensation as under: Pain and Sufferings Rs.50,000/- Loss of Enjoyments of life Rs.50,000/- Shortened expectation of life Rs.1,00,000/- Loss of income Rs.10,000 x12 x18=Rs.21,60,000/- Medical expenses Rs.34,877/- Total Rs.23,94,877/- 13. The disablement of Ram Dayal has also been assessed at 70% of permanent nature on account of fracture of “thoracic spine-D4”. Learned Tribunal has considered the functional disability of Ram Dayal in the same proportion as certified to be physical disability i.e. 70% and has awarded the compensation as under: Medical Expenses Rs.9,484/- Income Rs.9000 @ 70%=6,300x12x15= Rs.11,34,000/- Attendant charges Rs.25,000/- Transportation charges Rs.25,000/- Pain and suffering Rs.1,00,000/- Loss of amenities and future Rs.1,00,000/- 5 2025:HHC:26565 discomfort Total Rs.13,93,430/- 14. The liability in both the cases has been fastened upon the insurer of the truck i.e. Oriental Insurance Company Limited. 15. In above circumstances, these appeals have been preferred by the Oriental Insurance Company Limited (for short, “the insurer”). 16. I have heard learned counsel for the parties and have also gone through the record carefully. 17. Mr. Ashwani Sharma, learned Senior Advocate representing the insurer, has assailed both the awards passed by learned Tribunals on the grounds firstly, that learned Tribunals had erred in holding rash and negligent driving of Manohar Singh as the cause of accident and secondly, the quantum of compensation awarded in both the cases have been alleged to be excessive and not in tune with settled principles. 18. As regards the cause of accident, learned Senior Advocate for the insurer has made identical submissions. Even otherwise also, both the claims having arisen from the same accident cannot be assessed differently for returning findings on the issue of cause of accident. 6 2025:HHC:26565 19. In the claim preferred by Sunil Kumar being MAC No.30 of 2015 issues No.1 and 3 were framed as under: “1. Whether on the morning of 2.2.2015 around 7:10 A.M. at place 5 Miles, Majhwar, District Mandi respondent No.2 Manohar Singh was driving Truck No.HP-11-3403 rashly and negligently on the public highway which resulted in causing 70% permanent disability to the petitioner when Tata Sumo No.HP-01-K-4126 being driven by petitioner was knocked down by the aforesaid truck as alleged? ….OPP 3. Whether on the aforesaid date, time and place petitioner Sunil Kumar was driving Tata Sumo being registration No.HP-01-K-4126 rashly and negligently which resulted in causing accident and petitioner suffered loss due to his own fault, as alleged ….OPR 1 and 2 20. In the case of Ram Dayal MACP No. 36 of 2016, issues relevant to the cause of accident were framed as under: “1. Whether on 02.02.2015, petitioner had boarded in the ill fated Tata Sumo bearing No.HP- 01-K-4126 which was being driven by respondent No.1 in rash and negligent manner at about 7:10 a.m. and when the vehicle reached near 5 Mile Majhwar, District Mandi, HP respondent No.1 lost control over the vehicle and it struck with vehicle (Truck) bearing No.HP-11-3402which was being driven by the respondent No.4 in rash and negligent manner and thereby caused grievous injuries on the head and backbone of the petitioner 7 2025:HHC:26565 and also multiple injuries on his person, as alleged? OPP 2. Whether the accident did not take place due to rash and negligent driving of respondent No.1, as alleged? OPR-1. 21. In the case of Sunil Kumar besides the petitioner Sunil Kumar, another occupant of cab, namely, Devi Ram was also examined as a witness. Both these witnesses deposed that the accident had taken place due to rash and negligent driving of Manohar Singh. 22. On the other hand, Head Constable Jagdish Chand was examined as RW-1 and Manohar Singh was examined as RW- 3 to prove that the accident had taken place due to rash and negligent driving of Sunil Kumar. RW-1, HC Jagdish Chand was the Investigating Officer of the case. He proved the statements of the witnesses recorded during investigation as Ext. RW-1/B to Ext. RW- 1/D. In addition, he also proved a copy of site plan prepared by him as Ext. RW-1/E. On the basis of investigation held by him RW-1 deposed that the cause of accident was the rash and negligent driving of Sunil Kumar. Manohar Singh also stated that he was driving the truck on extreme left-hand side of road, Sunil Kumar came from the opposite direction driving cab on the wrong side in a very high speed and his act of rashness and negligence resulted in collision of both the vehicles. 8 2025:HHC:26565 23. In the case of Ram Dayal, claimant Ram Dayal has examined himself as his own witness. In his examination-in-chief, he deposed that the accident had taken place due to rash and negligent driving of Sunil Kumar and Manohar Singh. However, in cross-examination he laid the blame on Manohar Singh. In this case also, Manohar Singh examined himself as his own witness and made the deposition against Sunil Kumar, accusing him of rash and negligent driving. Sunil Kumar was also examined as a witness. He obviously stuck to his stand. 24. Learned Tribunal, in the case of Sunil Kumar, attached more credence to the statements of Sunil Kumar and Devi Ram. The fact that the FIR had been registered against Sunil Kumar was considered to be of no importance for the reason that there could be possibility of planting of case at the behest of Manohar Singh and Shamsher Singh. In the evidence it was found that Sunil Kumar and other occupants of the cab had become unconscious after sustaining injuries in the accident and it was Manohar Singh who had reported the matter to the police. The findings recorded by RW- 1, the Investigating Officer of the case, have also not been attached much importance by learned Tribunal on the ground that the said witness, while being cross-examined, had stated that he was not aware whether the position of the vehicles had been changed before his arriving at the spot of accident. 9 2025:HHC:26565 25. In the case of Ram Dayal, the version put forth by Ram Dayal was preferred as against the statement of Manohar Singh on the appreciation of their respective depositions. Noticeably, in the case of Ram Dayal, the Investigating Officer of the case was not examined and similarly reliance was also not placed on the site plan, as was done in the case of Sunil Kumar. 26. As I have already observed that since both the matters have their genesis in the same set of facts, there cannot be different assessment. Having gone through the oral as well as documentary evidence led by the parties in both the cases, I do not find any illegality or perversity in the findings recorded by learned Tribunals in both the cases on the above noted issues. 27. Learned Tribunal has not committed any wrong in not attaching much credence to the fact that FIR was registered against Sunil Kumar. Similarly, the site plant Ext. RW-1/E, exhibited in the case of Sunil Kumar, has rightly been not considered as conclusive piece of evidence keeping in view the surrounding circumstances. 28. Manohar Singh had admitted that Sunil Kumar and other occupants of the vehicle had become unconscious after the accident. He had further deposed that he tried to make contact with the police and 108 service, but did not succeed. He then visited the Police Post, Pandoh to report the matter. The FIR was registered as per the version rendered by Manohar Singh. He being interested 10 2025:HHC:26565 in getting himself absolved, might not have narrated the correct fact situation to the police. There is not much dispute on the timing of the accident which according to Ram Dayal and other witnesses had taken place at about 7:10 AM. The time of registration of FIR has been recorded as 9:30 AM. The sequence of events suggest that it must have taken some time for Police to arrive at the spot, as Manohar Singh after leaving the spot had reached Police Post, Pandoh; his statement was recorded there and thereafter the police, including RW-1 HC Jagdish Chand, had arrived at the spot. In the meanwhile, what had happened at the spot, nobody knows. Thus, RW-1 was right in stating that he could not say whether the position of the vehicles had been changed. In such circumstances it would not have been safe to place reliance on the site plan Ext. RW-1/E (exhibited in the case of Sunil Kumar). 29. The other evidence on record was in the shape of statements of Sunil Kumar, Devi Ram, Ram Dayal and Manohar Singh. 30. Sunil Kumar, Devi Ram and Ram Dayal have implicated Manohar Singh. It cannot be said that their versions were shattered in the cross-examination. Though Sunil Kumar and Manohar Singh can be said to be interested witnesses, but Devi Ram or Ram Dayal cannot be said to have any axe to grind with Manohar Singh or Shamsher Singh. 11 2025:HHC:26565 31. In the case of Sunil Kumar, learned Tribunal did not have the benefit of considering the version of Ram Dayal. This witness not only in the pleadings, but also in his examination-in- chief had categorically stated that the cab was being driven by Sunil Kumar in a rash and negligent manner. He further had maintained that the truck was also being driven in high speed and in rash and negligent manner by Manohar Singh and according to this Witness, the cause of accident was rash and negligent driving of both the drivers. In his cross-examination on behalf of Sunil Kumar, the witness Ram Dayal had admitted a suggestion that the truck driver was driving the truck in high speed and had struck his vehicle against the cab. Noticeably, it was not suggested to this witness that his version in the examination-in-chief whereby Sunil Kumar was also stated to be driving the vehicle in rash and negligent manner was incorrect. In my considered view, this important aspect has remained unnoticed by learned Tribunal while passing the award in the case of Ram Dayal. Similarly in the cross- examination of Ram Dayal by learned counsel for Manohar Singh and Shamsher Singh, though, the suggestions were put that the driver of cab was driving in high speed and he had struck the vehicle against the truck on the wrong side, it was nowhere suggested that the version of this witness in the examination-in- chief implicating both the drivers was incorrect. 12 2025:HHC:26565 32. In the motor accident claim cases, the standard of proof is preponderance of evidence. The fact that both the vehicles had collided with each other stands established. If none of the drivers were at fault, the collision would not have taken place. It is nobody’s case that the road at the spot of accident was not wide enough to allow both the vehicles to cross each other easily. In light of the contradictory versions, the statement made by Ram Dayal appears to be more near to truth. As noticed above, in the petition filed by Ram Dayal there is a specific version of rash and negligent driving against both the drivers. That shows that Ram Dayal did not intend to side with any of them. In his examination-in-chief also, he categorically stated the same thing. In cross-examination, as observed above, he did not find the appropriate question in cross- examination to answer and narrate the correct factual position. It cannot be ignored that while exercising right of cross-examination, learned counsel usually frame the question in such way which facilitates the answer of their suitability. 33. In light of above discussion, I have no hesitation to hold that the cause of accident has been the contributory negligence of both the drivers. Even the insurer in its grounds of appeal has stated so. 34. Coming to the quantum of compensation awarded in the case of Sunil Kumar, learned Tribunal had assessed his income 13 2025:HHC:26565 as Rs.10,000/- per month. Admittedly, Sunil Kumar was self- employed as he was driving the cab owned by him. Learned senior counsel for the insurer has contended that in absence of documentary proof of the income, learned Tribunal should have adverted to the minimum wages fixed by the Department of Labour and Employment under Minimum Wages Act. He placed on record the notification dated 28.05.2014, according to which the minimum wages fixed for driver was Rs.7,324/- per month. 35. In my considered view, the functional disability of Sunil Kumar has rightly been assessed at 100% despite the fact that his physical disability was assessed at 70%. Admittedly, Sunil Kumar was a professional driver and one of his legs having been amputated, he could not drive the vehicle any more. 36. In the instant case, even if the monthly income of Sunil Kumar is assessed at Rs.7,324/- on the basis of aforesaid notification, it cannot be ignored that he was also entitled to incremental increase of 40% on account of loss of future prospects. Thus, his monthly income would be Rs.10,253/-. However, there being only a marginal difference between the income assessed by learned Tribunal and the calculation made by adding 40% to the income as per Minimum Wages Act, this Court does not find any need to interfere with the quantum assessed by learned Tribunal in the case of Sunil Kumar. The compensation awarded to Sunil 14 2025:HHC:26565 Kumar under all other heads, as noted above, is also reasonable and justified and needs no interference. 37. The compensation awarded in the case of Ram Dayal has been assessed by considering his monthly income as Rs. 9000/- per month. His functional disability has also been adjudged to be commensurate with his physical disability i.e. 70%. Again, learned counsel for the insurer has adverted to the notification issued under the Minimum Wages Act and has stated that in his case the minimum wages applicable to unskilled worker should be assessed. In the case of agricultural labourer, as can be considered in the case of Ram Dayal, the application of minimum wages payable to unskilled worker will not be justified. Ram Dayal has stated that he has been working in the field of agriculture and horticulture, which is a specialized field and cannot be compared with an unskilled worker. Thus, his wages can be assessed as skilled worker, which according to the notification relied upon by the insurer, would be Rs.6,196/- per month. The age of Ram Dayal has been stated to be 40 years and thus, he will also be entitled to 20% increase on account of loss of future prospect and on such recalculation, it will come to a figure around Rs.8,000/-. It cannot be ignored that the minimum wages under the Minimum Wages Act are fixed for specified hours, whereas it is common knowledge that a private worker usually works overtime and keeping in view the 15 2025:HHC:26565 age of Ram Dayal, he could easily be expected to be working overtime. By overall analysis, the income of Ram Dayal, as assessed by learned Tribunal at Rs.9,000/- per month, cannot be said to be excessive or unjustified. The compensation awarded to Ram Dayal under all other heads is quite reasonable and again does not require any interference. 38. Now since, the cause of accident has been held to be contributory negligence of both the drivers, the share of responsibility has to be fixed in the ratio of 50:50. Thus the award amount in the case of Ram Dayal will be shared by the appellant- Oriental Insurance Company Limited and respondent No.3-United India Insurance Company Limited in FAO No.221 of 2019 (insurer of the cab) in equal proportions. 39. In the case of Sunil Kumar, 50% of the award amount shall be paid by appellant-Oriental Insurance Company Limited in FAO No.584 of 2016. Out of the balance 50% of the award amount, the United India Insurance Company Limited i.e. respondent No.4 in FAO No.584 of 2016 will bear the burden to the extent of Rs.2,00,000/- only because Sunil Kumar being the owner and driver of the cab cannot seek indemnification for himself for his act of rashness and negligence. Rs.2,00,000/- shall be paid by the United India Insurance Company Limited in view of the fact that in the Policy of Insurance purchased by Sunil Kumar for the cab, it 16 2025:HHC:26565 had accepted Rs.100/- as premium covering personal accident risk of the owner to the tune of Rs.2,00,000/- (the insurance policy in respect of cab is available on the file of MACP 36 of 2016). 40. The entire award amount in both the cases shall bear the interest, as awarded by learned Tribunals respectively. 41. In result, the appeals are partly allowed. Award dated 29.08.2016 passed by learned Motor Accident Claims Tribunal-II, Kullu in Claim Petition No.30 of 2015 and award dated 06.03.2019 passed by learned Motor Accident Claims Tribunal-II, Kullu in MACP No.36 of 2016 are modified to the extent as detailed hereinabove. 42. Appeals are accordingly disposed of along with pending application(s), if any. (Satyen Vaidya) Judge August 07, 2025 (vt)