FAO No.524 of 2007

15th May, 2015.

Petitioner Counsel: Ms. ARCHANA DUTT
Respondent Counsel: Mr. B.M. CHAUHAN

Cases Cited:
Sarla Verma (Smt.) & Ors. Vs. Delhi Transport Corporation & Anr., 2009(4) ALL MR 429 (S.C.)=AIR 2009 SC 3104 [Para 27]
Reshma Kumari & Ors. Vs. Madan Mohan & Anr., 2013(3) ALL MR 460 (S.C.)=2013 AIR SCW 3120 [Para 27]
R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. & Ors., 1995(1) ALL MR 342 (S.C.)=AIR 1995 SC 755 [Para 29]
Arvind Kumar Mishra Vs. New India Assurance Co. Ltd. & Anr., 2010 ALL SCR 2475=2010 AIR SCW 6085 [Para 30]
Ramchandrappa Vs. The Manager, Royal Sundaram Aliance Insurance Company Limited, 2011(7) ALL MR 774 (S.C.)=2011 AIR SCW 4787 [Para 31]
Kavita Vs. Deepak & Ors., 2012(5) ALL MR 914 (S.C.)=2012 AIR SCW 4771 [Para 32]
N.K.V. Bros. (P.) Ltd. Vs. M. Karumai Ammal & Ors. etc., AIR 1980 SC 1354 [Para 45,54]
Vinobabai & Ors. Vs. K.S.R.T.C. & Anr., 1979 ACJ 282 [Para 46]
Himachal Road Transport Corporation & Anr. Vs. Jarnail Singh & Ors., HLJ 2009 (HP) 174 [Para 47]
Oriental Insurance Co. Vs. Mst. Zarifa & Ors., AIR 1995 J&K 81 [Para 55]
Sohan Lal Passi Vs. P. Sesh Reddy & Ors., AIR 1996 SC 2627 [Para 56,66]
Oriental Insurance Co. Ltd. Vs. Shri Kishan Chand & Ors., FAO.No.186/2008, Dt.1.05.2015 [Para 65]
New India Assurance Co. Ltd. Vs. C. Padma & Anr., 2003(4) ALL MR 1148 (S.C.)=AIR 2003 SC 4394 [Para 68]
Mantoo Sarkar Vs. Oriental Insurance Company Limited & Ors., 2009(2) ALL MR 475 (S.C.)=(2009) 2 SCC 244 [Para 69]
Hussain Pasha Vs. Andhra Pradesh State Road Trans. Corpn. & Anr., II (2007) ACC 454 [Para 70]
Karmi Devi Vs. Satendra Kumar Singh & Anr., 2010 ACJ 1661 [Para 71,78]
Savitri & Ors. Vs. M.A.C.T.-cum-District and Sessions Judge, Jhunjhunu & Ors., 2013 ACJ 1361 [Para 72]
New India Assurance Co. Ltd. Vs. R. Srinivasan, AIR 2000 SC 941 [Para 73]
Sheodan Singh Vs. Daryao Kunwar, 2010 ALL SCR (O.C.C.) 129=AIR 1966 SC 1332 [Para 79]
Erach Boman Khavar Vs. Tukaram Shridhar Bhat & Anr., 2014 ALL SCR 683=2014 AIR SCW 61 [Para 80]
United India Insurance Company Ltd. Vs. Smt. Kulwant Kaur, Latest HLJ 2014 (HP) 174 [Para 92]
Nagappa Vs. Gurudayal Singh & Ors., 2014 ALL SCR (O.C.C.) 17=AIR 2003 SC 674 : (2003) 2 SCC 274 [Para 93,97]
State of Haryana & Anr. Vs. Jasbir Kaur & Ors., 2003(4) ALL MR 742 (S.C.)=AIR 2003 SC 3696 [Para 94]
The Divisional Controller, K.S.R.T.C. Vs. Mahadeva Shetty & Anr., AIR 2003 SC 4172 [Para 95]
A.P.S.R.T.C. & Anr. Vs. M. Ramadevi & Ors., 2008 ALL SCR 696=2008 AIR SCW 1213 [Para 96]
Oriental Insurance Co. Ltd. Vs. Mohd. Nasir & Anr., 2009(4) ALL MR 938 (S.C.)=2009 AIR SCW 3717 [Para 97]
Devki Nandan Bangur & Ors. Vs. State of Haryana & Ors., 1995 ACJ 1288 [Para 97]
Syed Basheer Ahmed & Ors. Vs. Mohd. Jameel & Anr., 2009(1) ALL MR 914 (S.C.)=(2009) 2 SCC 225 [Para 97]
National Insurance Co. Ltd. Vs. Laxmi Narain Dhut, 2007(3) ALL MR 834 (S.C.)=(2007) 3 SCC 700 [Para 97]
Punjab State Electricity Board Ltd. Vs. Zora Singh & Ors., (2005) 6 SCC 776 [Para 97]
A.P. SRTC Vs. State, [Para 97]
State of Haryana & Ors. Vs. Shakuntla Devi, 2008 (13) SCALE 621 [Para 97]
Ningamma & Anr. Vs. United India Insurance Co. Ltd., 2010(1) ALL MR 441 (S.C.)=2009 AIR SCW 4916 [Para 98]
Sanobanu Nazirbhai Mirza & Ors. Vs. Ahmedabad Municipal Transport Service, 2013(6) ALL MR 981 (S.C.)=2013 AIR SCW 5800 [Para 99]
Smt. Savita Vs. Bindar Singh & Ors., 2014 ALL SCR 1688=2014 AIR SCW 2053 [Para 100]

JUDGMENT

JUDGMENT :- Appellant-claimant-injured has invoked the jurisdiction of this Court in terms of Section 173 of the Motor Vehicles Act, 1988 (for short "the MV Act") and has questioned the judgment/award, dated 6th October, 2007, made by the Motor Accident Claims Tribunal, Chamba Division, Chamba, (H.P.) (for short "the Tribunal") in M.A.C. Petition No. 75 of 2004, titled as Jagdish versus Rahul Bus Service and others, whereby the claim petition filed by the claimant came to be dismissed (for short "the impugned award").

2. Before I give the brief resume of the case, I deem it proper to record herein that the appellant-claimant-injured has been driven from pillar to post and post to pillar by the authorities including the Tribunal and the insurer, who have succumbed to the procedural wrangles and tangles and this is how the purpose of granting of compensation in terms of the mandate of Chapters X, XI and XII of the MV Act stands defeated.

3. The appellant-claimant-injured had filed a claim petition before the Tribunal, which was diarized as MAC Petition No. 54 of 2002, and came to be dismissed on 27th May, 2004. He filed a fresh claim petition on 3rd June, 2004, which was dismissed vide the impugned award on the ground that claim petition was barred in view of the dismissal of first claim petition.

4. The core points for consideration involved in this appeal are:

(i) Whether the appellant-claimantinjured has pleaded and proved that the driver, namely Shri Som Raj, had driven the offending vehicle, i.e. bus, bearing registration No. HP-38-7596, rashly and negligently on 3rd July, 2002, at about 1.30 p.m. near Loona Pul (Gehra), and caused the accident, of which he is victim?

(ii) Whether registration of First Information Report (for short "FIR") was required for maintaining the claim petition?

(iii) Whether second claim petition was not maintainable and was barred in view of the fact that the first claim petition filed by the appellant-claimant-injured was dismissed in default in absence of both the parties, vide order, dated 27th May, 2004?

5. In order to determine all these issues, it is necessary to give brief resume of lis, which has given birth to the appeal in hand.

6. Shri Jagdish, appellant-claimant-injured filed a claim petition before the Tribunal for grant of compensation to the tune of Rs.12,00,000/-, as per the break-ups given in the claim petition, on the ground that he became the victim of a vehicular accident, which was caused by the driver, namely Shri Som Raj, while driving the offending vehicle, i.e. bus, bearing registration No. HP-38-7596, rashly and negligently on 3rd July, 2002, at about 1.30 p.m. near Loona Pul (Gehra).

7. The claim petition was resisted by respondents No. 1 and 3, i.e. the owner-insured and the insurer on the grounds taken in the respective memo of objections.

8. It is apt to record herein that respondent No. 2, i.e. the driver of the offending vehicle has not contested the claim petition and was set ex-parte.

9. After examining the pleadings and the documents, the Tribunal framed following issues on 3rd December, 2004:

"1. Whether the accident took place due to the rash and negligent driving of bus No. HP-38- 7596 by its driver in which petitioner received injuries as alleged? OPP

2. Whether the petitioner is entitled to compensation, if so, to what amount and from whom? OP Parties

3. Whether the petition is not maintainable and the petitioner has no cause of action to file the present petition as alleged? OPR

4. Whether the vehicle was being used in contravention of the provisions contained in the Motor Vehicles Act as well as the terms and conditions of the Insurance Policy as alleged? OPR-3

5. Whether the driver of the vehicle was not holding a valid and effective driving licence at the time of accident as alleged? OPR

6. Relief."

10. Appellant-claimant-injured has examined Dr. Rakesh Verma as PW-2, Shri Mulkh Raj as PW-3, Shri Sonu as PW-4, Shri Natho Ram as PW-5, Shri Mohan Lal as PW-6, Dr. S.K. Jain as PW-7, Shri Manoj Davis as PW-8, Dr. Maharaj Krishan Man as PW-9, himself appeared in the witness box as PW-1 and placed on record the disability certificate as Ext. PW-2/A, prescription slips as Ext. PW-7/A & Ext. PW-7/B, treatment summary as Ext. PW-9/A to Ext. PW-9/C, Medical bills as Ext. PA to Ext. PH, Ext. PJ to Ext. PM, Ext. P-1 to Ext. 155, Other medical bills and bus tickets and taxi receipts as Mark X-1 to X-20, X-28 to 30, X-42 to X-44, X-58, 60, 61, 67, 71 to 74, X-96, 101, 105, 109, 127, 137, 138, 139, X-148, 151, 160, 176, 180 to 183, X-186, X-197, X-208, X-211, 212, 217, 218, X-221 to 458.

11. Respondents have not led any evidence and have placed on record the copies of insurance policy as Ext. R-1, route permit as Ex. R-2, Registration certificate as Ext. R-3 and driving licence as Ext. R-4. Thus, the evidence led by the claimant-injured has remained unrebutted.

Issue No. 1:

12. Respondents No. 1 and 3 have not denied the averments contained in the claim petition specifically, but evasively. The claimant-injured has specifically averred in para 24 of the claim petition that the accident was outcome of the rash and negligent driving of the offending vehicle by its driver, which has not been specifically denied by respondents No. 1 and 3 in their replies. The driver, against whom rashness and negligence has been alleged, has not contested the claim petition.

13. It is beaten law of land that evasive denial is deemed to be admission in terms of the mandate of Order VIII of the Code of Civil Procedure, 1908 (for short "CPC").

14. The claimant-injured in paras 13 and 22 of the claim petition has given details how he is entitled to compensation. The said details and figures have not been denied by respondents No. 1 & 3 and, as stated hereinabove, respondent No. 2 has not contested the same.

15. It has come in the evidence that the claimant-injured is a motor mechanic by profession, was requested by the driver to repair his vehicle, accordingly, he accompanied the driver, made the repairs and the bus was set in motion, the driver was in a position to drive the said vehicle and started to ply, the claimant-injured also boarded the said bus and unfortunately, that vehicle met with the accident at Loona Pul (Gehra), in which the claimant-injured sustained injuries, was taken to Hospital at Chamba, thereafter was shifted to Sanjivani Hospital, Chamba, where he was admitted on 3rd July, 2002, was referred to CMC Ludhiana on 4th July, 2002, where he remained admitted from 4th July, 2002, to 10th July, 2002. He has undergone treatment and has placed on record the documents, details of which have been given hereinabove, and has proved that he was in hospital. The doctors have stated that the claimant-injured was in hospital as a case of Road Traffic Accident (RTA).

16. PW-2, Dr. Rakesh Verma, stated that he has issued the disability certificate, which has been exhibited as Ext. PW-2/A, and has proved that the claimant-injured has suffered permanent disability to the extent of 40%.

17. PW-9, Dr. Maharaj Krishan Man, who has treated the claimant-injured at CMC Ludhiana, has proved the discharge summary, Ext. PW-9/A, which does disclose that the claimant-injured was admitted in hospital on 4th July, 2002, and was discharged on 10th July, 2002. It is specifically recorded in Ext. PW- 9/A that the claimant-injured has sustained injuries in a road traffic accident. Ext. PW-9/B is treatment summary and Ext. PW-9/C is a medical certificate, which do disclose that the claimant-injured was treated with screw fixation with across knee exfix on 4th July, 2002, bone clearance on 7th August, 2002, flap coverage on 16th August, 2002, STSG on 10th September, 2002, Exfix removal on 26th October, 2002 and screw removal on 4th February, 2003.

18. Thus, the claimant-injured has proved that he has sustained injuries, which are outcome of a road traffic accident, which has rendered him permanently disabled to the extent of 40%. He was also under treatment for a pretty long time and all documents on the record from page 109 to 461 are the proof of the fact that he was under treatment and has spent a huge amount on his treatment.

19. The claimant-injured has also led evidence, oral as well as documentary, that he was a mechanic by profession, his services were hired by the driver of the offending vehicle for repairing the said vehicle, he had gone with the driver to the place where the vehicle was stationed, made repairs, vehicle was made functional and, thereafter, bus was in working condition, the driver started the vehicle, the mechanic also boarded the vehicle, met with the accident, in which he sustained injuries.

20. The owner-insured and the insurer have not led any evidence in rebuttal and the driver has not contested the claim petition. Thus, the evidence of the claimant-injured has remained unrebutted.

21. Having said so, the claimant-injured has proved that the driver, namely Shri Som Raj, while driving the offending vehicle, bus, bearing registration No. HP-38-7596, rashly and negligently on 3rd July, 2002, at about 1.30 p.m. near Loona Pul (Gehra), caused the accident, in which he sustained injuries. Accordingly, issue No. 1 is decided in favour of the claimant-injured and against the respondents. Point No. 1 is answered accordingly.

22. Before I deal with issues No. 2 and 3, I deem it proper to determine issues No. 4 and 5.

Issue No. 4:

23. The insurer has taken a stand that the offending vehicle was being driven in breach of the provisions of the MV Act and the terms and conditions of the insurance policy, has not led any evidence, thus, has failed to discharge the onus. Even otherwise, there is not even a single iota of evidence on the record to suggest the fact that the driver had driven the offending vehicle in contravention of the provisions of the MV Act read with the insurance policy. Accordingly, issue No. 4 is determined against the insurer and in favour of the claimant-injured and the insured-owner.

Issue No. 5:

24. It was for the insurer to prove that the driver of the offending vehicle was not having a valid and effective driving licence, has not led any evidence, thus, has failed to discharge the onus. However, the driving licence is on the file as Ext. R-4, which does disclose that the driver was having a valid and effective driving licence. Accordingly, issue No. 5 is decided against the insurer and in favour of the claimant-injured, owner-insured and the driver.

Issue No. 2:

25. Shri Mulkh Raj has appeared in the witness box as PW-3 and deposed that the claimant-injured was working under him and was earning Rs.250/- - Rs.300/- per day. The statement of PW-3 does support the plea of the claimant-injured and is suggestive of the fact that he would have been earning not less than Rs.9,000/- per month.

26. PW-2, Dr. Rakesh Verma, has stated that he was a member of the Medical Board which has issued the disability certificate in favour of the claimant-injured after examining him and proved the disability certificate, Ext. PW-2/A, in terms of which the claimant-injured has suffered permanent disability to the extent of 40%. Thus, it is a proved fact that it has affected his income to the extent of 40%. Meaning thereby, the claimantinjured has suffered loss of income to the tune of Rs.3,600/- per month.

27. Admittedly, the claimant-injured was 24 years of age at the time of accident. Thus, in order to assess just and appropriate compensation, multiplier of '15' is applicable in view of Schedule-II appended with the MV Act read with the ratio laid down by the Apex Court in the case titled as Sarla Verma (Smt.) and others versus Delhi Transport Corporation and another, reported in AIR 2009 SC 3104 : [2009(4) ALL MR 429 (S.C.)] and upheld by a larger Bench of the Apex Court in the case titled as Reshma Kumari & others versus Madan Mohan and another, reported in 2013 AIR SCW 3120 : [2013(3) ALL MR 460 (S.C.)]. Thus, the claimant-injured is entitled to Rs.3,600/- x 12 x 15 = Rs.6,48,000/- per annum under the head 'loss of income'.

28. The concept of granting compensation is outcome of Law of Torts. While considering the case for grant of compensation, particularly in injury cases, some guess work has to be done.

29. The Apex Court in case titled as R.D. Hattangadi versus M/s Pest Control (India) Pvt. Ltd. & others, reported in AIR 1995 SC 755 : [1995(1) ALL MR 342 (S.C.)], has discussed all aspects and laid down guidelines how a guess work is to be done and how compensation is to be awarded under various heads. It is apt to reproduce paras 9 to 14 of the judgment hereinbelow:

"9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.

10. It cannot be disputed that because of the accident the appellant who was an active practising lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a life long handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame.

11. In the case Ward v. James, 1965 (1) All ER 563, it was said:

"Although you cannot give a man so gravely injured much for his "lost years", you can, however, compensate him for his loss during his shortened span, that is, during his expected "years of survival". You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet Judges and Juries have to do the best they can and give him what they think is fair. No wonder they find it wellnigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The Judges have worked out a pattern, and they keep it in line with the changes in the value of money."

12. In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards.

13. This Court in the case of C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376, in connection with the Fatal Accidents Act has observed (at p. 380):

"In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable."

14. In Halsbury's Laws of England, 4th Edition, Vol. 12 regarding non-pecuniary loss at page 446 it has been said :-

"Non-pecuniary loss : the pattern. Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award. The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases."

30. The said judgment was also discussed by the Apex Court in case titled as Arvind Kumar Mishra versus New India Assurance Co. Ltd. & another, reported in 2010 AIR SCW 6085 : [2010 ALL SCR 2475], while granting compensation in such a case. It is apt to reproduce para-7 of the judgment hereinbelow:

"7. We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was in so far as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered. In some cases for personal injury, the claim could be in respect of life time's earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The conventional basis of assessing compensation in personal injury cases - and that is now recognized mode as to the proper measure of compensation - is taking an appropriate multiplier of an appropriate multiplicand."

31. The Apex Court in case titled as Ramchandrappa versus The Manager, Royal Sundaram Aliance Insurance Company Limited, reported in 2011 AIR SCW 4787 : [2011(7) ALL MR 774 (S.C.)], also laid down guidelines for granting compensation. It is apt to reproduce paras 8 & 9 of the judgment hereinbelow:

"8. The compensation is usually based upon the loss of the claimant's earnings or earning capacity, or upon the loss of particular faculties or members or use of such members, ordinarily in accordance with a definite schedule. The Courts have time and again observed that the compensation to be awarded is not measured by the nature, location or degree of the injury, but rather by the extent or degree of the incapacity resulting from the injury. The Tribunals are expected to make an award determining the amount of compensation which should appear to be just, fair and proper.

9. The term "disability", as so used, ordinarily means loss or impairment of earning power and has been held not to mean loss of a member of the body. If the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same ease as before he was injured or is unable to do heavy work which he was able to do previous to his injury, he will be entitled to suitable compensation. Disability benefits are ordinarily graded on the basis of the character of the disability as partial or total, and as temporary or permanent. No definite rule can be established as to what constitutes partial incapacity in cases not covered by a schedule or fixed liabilities, since facts will differ in practically every case."

32. The Apex Court in case titled as Kavita versus Deepak and others, reported in 2012 AIR SCW 4771 : [2012(5) ALL MR 914 (S.C.)], also discussed the entire law and laid down the guidelines how to grant compensation. It is apt to reproduce paras 16 & 18 of the judgment hereinbelow:

"16. In Raj Kumar v. Ajay Kumar (2011) 1 SCC 343, this Court considered large number of precedents and laid down the following propositions:

"The provision of the motor Vehicles Act, 1988 ('the Act', for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.

The heads under which compensation is awarded in personal injury cases are the following:

"Pecuniary damages (Special damages)

(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on account of permanent disability.

(iii) Future medical expenses.

Non-pecuniary damages (General damages)

(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life (shortening of normal longevity).

In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."

17. ...............................

18. In light of the principles laid down in the aforementioned cases, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses."

33. The claimant-injured is also entitled to compensation, in view of the judgments (supra) under various heads, i.e. pecuniary damages and non-pecuniary damages. As discussed hereinabove, the claimant-injured is entitled to Rs.6,48,000/- under the head 'loss of income'.

34. In view of the the disability certificate and the medical record available on the file, it can be safely said that the claimant-injured has suffered for so many years and is suffering even now. Screws have been fixed and removed, has undergone pain and sufferings and has also to undergo such pain and sufferings throughout his life. Viewed thus, the claimant-injured is held entitled to Rs.1,00,000/- under the head 'pain and sufferings undergone' and Rs.1,00,000/- under the head 'pain and sufferings in future'.

35. The injury has affected the amenities of life of the claimant-injured and has made his life virtually a burden. It has shattered his physical frame. By guess, it can be held that the claimant-injured is also entitled to at least Rs.1,00,000/- under the head 'loss of amenities'.

36. The claimant-injured has claimed Rs.5,40,000/- under the head 'medical treatment' including Rs.5,00,000/- for medicines and operation etc., ' 30,000/- for transportation (taxi charges) and Rs.10,000/- for attendant charges. He has placed on record the medical documents and the medical bills, which comes to Rs.2,90,753.07/-. The claimant-injured has spent a huge amount on his treatment and has to go for treatment in future also. Accordingly, the claimant-injured is held entitled to Rs.3,00,000/- under the head 'medical expenditure incurred' and Rs.1,00,000/- under the head 'medical expenditure in future'.

37. Admittedly, the claimant-injured was taken to Chamba Hospital, thereafter to Sanjivani Hospital, Chamba and from the said hospital, was taken to CMC Ludhiana for treatment and had to go to Ludhiana two-three times for follow-up, thus, claimantinjured has spent a lot of amount on transportation charges. He has claimed Rs.30,000/-, though meager, is awarded in favour of the claimant-injured under the head 'transportation charges'.

38. The treatment summary certificate, Ext. PW-9/C, is a proof of the fact that the claimant-injured was admitted and discharged from the hospital on different intervals with effect from 4th July, 2002 to 4th October, 2003, would have been dependent on the attendant. He has pleaded that he was attended upon by the attendants and claimed Rs.10,000/- as attendant charges, is held entitled to Rs.10,000/- under the head 'attendant charges'.

39. Ms. Archana Dutt, learned counsel for the claimantinjured, has stated that he was unmarried at the time of accident, was not in a position to get a suitable match and is dependent on his parents. The father of the claimant-injured, namely Shri Natho Ram, while appearing as PW-5, has deposed that after the accident, the claimant-injured was bed ridden, was and is totally dependent upon them. Thus, the claimant-injured has lost marriage prospects, i.e. was not in a position to get a suitable match, which he would have got, had he not become the victim of the said accident. Thus, I deem it proper to award Rs.1,00,000/- under the head 'loss of marriage prospects'.

40. The question is - who is to be saddled with liability? Admittedly, the offending vehicle was insured. The said factum has not been denied by the insurer-respondent No. 3, i.e. The New India Assurance Company and has failed to discharge the onus to prove issues No. 4 and 5. Viewed thus, the insurer-respondent No. 3 has to indemnify and is, accordingly, saddled with entire liability.

Issue No. 3:

41. The next question is - whether the claim petition can be dismissed on the ground that the claimant-injured has not lodged the FIR.

42. I deem it proper to record herein that lodging of FIR or dismissal of criminal case or acquittal cannot be a ground to deny compensation. It was for the doctor at Chamba to inform the police, which he has miserably failed to do so. A question was put to the doctor, while he was appearing as PW-7, as to whether he had lodged FIR. He replied in negative. PW-7 has specifically stated that the documents i.e. the prescription slips, Ext. PW-7/A and Ext. PW-7/B, are not forged.

43. Can a claim petition be dismissed on the ground that FIR was not lodged when there is evidence on the file that the driver had driven the offending vehicle rashly and negligently or can a claim petition be dismissed on the ground of acquittal. The answer is in negative for the following reasons:

44. The findings recorded by the Criminal Court in acquittal cannot be a ground to defeat the rights of the claimants. Even, if the driver is acquitted in the criminal proceedings, that may not be a ground for dismissal of the claim petitions.

45. My this view is fortified by the judgment rendered by the Apex Court in N.K.V. Bros. (P.) Ltd. versus M. Karumai Ammal and others etc., reported in AIR 1980 Supreme Court 1354 wherein a bus hit an over-hanging high tension wire resulting in 26 casualties. The driver earned acquittal in the criminal case on the score that the tragedy that happened was an act of God. The Apex Court held that the plea that the criminal case had ended in acquittal and that, therefore, the civil suit must follow suit, was rightly rejected by the Tribunal. It is apt to reproduce para 2 of the judgment herein:

"2. The Facts: A stage carriage belonging to the petitioner was on a trip when, after nightfall, the bus hit an over-hanging high tension wire resulting in 26 casualties of which 8 proved instantaneously fatal. A criminal case ensued but the accused-driver was acquitted on the score that the tragedy that happened was an act of God. The Accidents Claims Tribunal which tried the claims for compensation under the Motor Vehicles Act, came to the conclusion, affirmed by the High Court, that, despite the screams of the passengers about the dangerous overhanging wire ahead, the rash driver sped towards the lethal spot. Some lost their lives instantly; several lost their limbs likewise. The High Court, after examining the materials, concluded:

"We therefore sustain the finding of the Tribunal that the accident had taken place due to the rashness and negligence of R. W. 1 (driver) and consequently the appellant is vicariously liable to pay compensation to the claimant."

The plea that the criminal case had ended in acquittal and that, therefore, the civil suit must follow suit, was rejected and rightly. The requirements of culpable rashness under Section 304A, I.P.C. is more drastic than negligence sufficient under the law of tort to create liability. The quantum of compensation was moderately fixed and although there was, perhaps, a case for enhancement, the High Court dismissed the cross-claims also. Being questions of fact, we are obviously unwilling to re-open the holdings on culpability and compensation."

46. It is also profitable to reproduce relevant portion of para 8 of the judgment rendered by the High Court of Karnataka in a case titled Vinobabai and others versus K.S.R.T.C. and another, reported in 1979 ACJ 282:

" 8. ......................... Thus, the law is settled that when the driver is convicted in a regular trial before the Criminal Court, the fact that he is convicted becomes admissible in evidence in a civil proceeding and it becomes prima facie evidence that the driver was culpably negligent in causing the accident. The converse is not true ; because the driver is acquitted in a criminal case arising out of the accident, it is not established even prima facie that the driver is not negligent, as a higher degree of culpability is required to bring home an offence."

47. Reliance is also placed on the judgment made by this Court in Himachal Road Transport Corporation and another versus Jarnail Singh and others, reported in Latest HLJ 2009 (HP) 174, wherein it has been held that acquittal of the driver in the criminal trial will have no bearing on the findings to be recorded by the Motor Accident Claims Tribunal whether the driver was negligent or not in causing the accident. It is apt to reproduce relevant portion of para 15 of the judgment herein:

"15. In view of the definitive law laid down by their Lordships of the Hon'ble Supreme Court and the judgments cited hereinabove, it is now well settled law that the acquittal of the driver in the criminal trial will have no bearing on the findings to be recorded by the Motor Accident Claims Tribunal whether the driver was negligence or not in causing the accident. ................"

48. The purpose of granting compensation is just to come to the rescue of the victim of a traffic accident in order to ensure that he should not become victim of the social evils. The Tribunal has to exercise due care and caution and to take special care to see that the innocent victim does not suffer and the driver, ownerinsured and the insurer do not escape their liability merely because some doubt here and some obscurity there.

49. The claim petition is to be determined summarily and that is why the CPC is not applicable. Some of the provisions of CPC have been made applicable in terms of the provisions of the Rules framed by the Central Government as well as State Government. The State of Himachal Pradesh has also framed the Himachal Pradesh Motor Vehicle Rules, 1999 (for short "the Rules") in terms of Sections 169 and 176 (b) of the MV Act, and only some of the provisions of CPC have been made applicable.

50. The Tribunal should not throw out the claim petition on flimsy grounds and should not succumb to other niceties. Thus, lodging of FIR is no ground for dismissing the claim petition. Point No. 2 is accordingly determined.

51. The Tribunal has dismissed the claim petition vide the impugned award also on the ground that the claimant-injured had filed earlier claim petition, which was dismissed in default and accordingly point No. 3 was framed hereinabove, which relates to the issue.

52. Chapters X, XI and XII of the MV Act are really social legislation and its aim and object is to reach to the victim of a traffic accident. The legislature thought it proper to remove all technicalities and even to delete the limitation provision from the statute enabling the claimants to receive compensation. Sections 168 and 169 contained in Chapter XII of the MV Act specifically provide that the claim petition should be tried summarily and provisions of CPC are not applicable. Only some of the provisions are applicable, which are made applicable in terms of the Rules (supra). The claim petition cannot be dismissed on the ground that it is barred by some other provisions of law, which are not applicable, for the following reasons:

53. It is beaten law of land that granting of compensation is a welfare legislation and the hypertechnicalities, mystic maybes, procedural wrangles and tangles have no role to play and cannot be made ground to defeat the claim petitions and to defeat the social purpose of granting compensation.

54. My this view is fortified by the judgment of the Apex Court in N.K.V. Bros.'s case (supra). It is apt to reproduce relevant portion of para 3 of the judgment herein:

"3. Road accidents are one of the top killers in our country, specifically when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accident Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their "neighbour". Indeed, the State must seriously consider no-fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parcimony practised by tribunals. We must remember that judicial tribunals are State organs and Art. 41 of the Constitution lays the jurisprudential foundation for state relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient number of tribunals and the High Court should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States are unjustly indifferent in this regard. Emphasis supplied"

55. The Jammu and Kashmir High Court in the case titled as Oriental Insurance Co. versus Mst. Zarifa and others, reported in AIR 1995 Jammu and Kashmir 81, held that the MV Act is Social Welfare Legislation and the procedural technicalities cannot be allowed to defeat the purpose of the Act. It is profitable to reproduce para 20 of the judgment herein:

"20. Before concluding, it is also observed that it is a social welfare legislation under which the compensation is provided by way of Award to the people who sustain bodily injuries or get killed in the vehicular accident. These people who sustain injuries or whose kith and kins are killed, are necessarily to be provided such relief in a short span of time and the procedural technicalities cannot be allowed to defeat the just purpose of the Act, under which such compensation is to be paid to such claimants."

56. It is also apt to reproduce relevant portion of para 12 of the judgment of the Apex Court in the case titled as Sohan Lal Passi versus P. Sesh Reddy and others, reported in AIR 1996 Supreme Court 2627, herein:

"12. ........................While interpreting the contract of insurance, the Tribunals and Courts have to be conscious of the fact that right to claim compensation by heirs and legal representatives of the victims of the accident is not defeated on technical grounds. Unless it is established on the materials on record that it was the insured who had wilfully violated the condition of the policy by allowing a person not duly licensed to drive the vehicle when the accident took place, the insurer shall be deemed to be a judgment-debtor in respect of the liability in view of sub-section (1) of Section 96 of the Act. It need not be pointed out that the whole concept of getting the vehicle insured by an insurance company is to provide an easy mode of getting compensation by the claimants, otherwise in normal course they had to pursue their claim against the owner from one forum to the other and ultimately to execute the order of the Accident Claims Tribunal for realisation of such amount by sale of properties of the owner of the vehicle. The procedure and result of the execution of the decree is well known."

57. It is apt to reproduce Rule 232 of the Rules herein:

"232. The Code of Civil Procedure to apply in certain cases:-

The following provisions of the First Schedule to the Code of Civil Procedure, 1908, shall so far as may be, apply to proceedings before the Claims Tribunal, namely, Order V, Rules 9 to 13 and 15 to 30; Order IX; Order XIII; Rule 3 to 10; Order XVI, Rules 2 to 21; Order XVII; Order XXI and Order XXIII, Rules 1 to 3."

58. In terms of the provisions of Rule 232 (supra), Order IX CPC is applicable.

59. Before I deal with the provisions relating to dismissal in default, restoration, limitation and other aspects, I deem it proper to reproduce the order of dismissal passed in the claim petition by the Tribunal on 27th May, 2004, herein:

“27.5.2004:

Present:          None.

Be called again.

Sd/-

MACT, Chamba.

Called again.

Present:             None.

The case has been called thrice during the day, but none appeared on behalf of the parties. Therefore, the petition is dismissed in default. Be consigned to the record room after due completion.

Announced in the open Court this

27th day of May, 2004

Sd/-

(P.D. Goel)

Motor Accident Claims Tribunal Chamba Division, Chamba (HP)”

60. The said claim petition was dismissed in absence of both the parties. Order IX Rule 4 CPC is applicable. It is apt to reproduce Order IX Rule 4 CPC herein:

"Order IX. Appearance of Parties and Consequence of Non-appearance.

.....................

4. Plaintiff may bring fresh suit or Court may restore suit to file. - Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfied the Court that there was sufficient cause for such failure as is referred to in rule 2, or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit."

61. While going through this provision of law, it mandates that in case a suit is dismissed in default in absence of both the parties, is not barred from filing a fresh suit, but within the period of limitation. Thus, the only fetter/restriction contained in this provision of law is that fresh suit can be filed provided it is not barred by time.

62. Admittedly, the fresh claim petition has been filed on 3rd June, 2004, i.e. within one month from the date of dismissal of the first claim petition and claim petition relates to accident, which has occurred on 3rd July, 2002.

63. Whether the second/fresh claim petition was barred? The answer is in the negative for the following reasons:

64. The application for restoration can be made in terms of Order IX Rule 4 CPC within thirty days. In the instant case, fresh claim petition has been filed on 3rd June, 2004. If we treat this as an application, it is within time, but instead of application for restoration, fresh claim petition came to be filed.

65. This Court in a latest judgment, dated 1st May, 2015, in the case titled as Oriental Insurance Co. Ltd. versus Shri Kishan Chand & others, being FAO No. 186 of 2008, held that fresh claim petition can be filed. It is apt to reproduce paras 12 and 15 of the judgment herein:

12. The next argument of the learned counsel for the appellant-insurer that the claim petition was not maintainable because the first claim petition came to be dismissed in default, was not restored, is not tenable for the reason that in terms of Order IX Rule 4 CPC, a fresh suit can be filed, provided it is not hit by limitation.

13. ...............

14. ..............

15. The claim petition is to be taken to its logical end without any delay, that too, summarily. The cumbersome procedure is not to be followed in view of the mandate of Sections 169 and 176 (b) of the MV Act."

66. The MV Act has been amended in the year 1994, it has gone through a sea change and provisions of Section 166 (3) of the Act stand deleted, which prescribed limitation period for filing claim petition. The purpose of deletion of the said provision was that the victim should get compensation and delay in filing the petition and limitation period should not come in his way. The Apex Court dealt with this issue in the case titled as Sohan Lal Passi's case (supra).

67. The limitation period is not prescribed for filing claim petition in terms of the mandate of Section 166 of the MV Act after deletion of Section 166 (3) of the MV Act. Therefore, claim petition can be filed at any time. Viewed thus, second claim petition was not barred in terms of mandate of Order IX Rule 4 CPC read with other laws applicable.

68. The Apex Court, while dealing with Section 166 (3) of the MV Act, in a case titled as New India Assurance Co. Ltd. versus C. Padma and another, reported in AIR 2003 Supreme Court 4394 : [2003(4) ALL MR 1148 (S.C.)], held that Court should be untrammelled by the technicalities and reach the injured-victim in order to achieve the goal of social legislation, the aim of which is to provide cheap, fast and speedy compensation to them in order to save them from social evils. It is apt to reproduce paras 7 and 12 of the judgment herein:

"7. In the instant case, at the time when the respondents had filed claim petition on 2-11- 1995, the situation was completely different. Sub-section (3) of Section 166 of the Act had been omitted by Act 53 of 1994 w.e.f. 14-11-1994. The result of the Act 53 of the Motor Vehicles (Amendment) Act, 1994 is that there is no limitation prescribed for filing claim petitions before the Tribunal in respect of any accident w.e.f. 14-11-1994.

8 to 11. ....................

12. Learned counsel for the appellant, next contended that since no period of limitation has been prescribed by the Legislature. Article 137 of the Limitation Act may be invoked, otherwise, according to him, stale claims would be encouraged leading to multiplicity of litigation for non-prescribing the period of limitation. We are unable to countenance with the contention of the appellant for more than one reason. Firstly, such an Act like Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, if otherwise the claim is found genuine. Secondly, it is a self contained Act which prescribes mode of filing the application, procedure to be followed and award to be made. The Parliament, in its wisdom, realised the grave injustice and injury being caused to the heirs and legal representatives of the victims who suffer bodily injuries/die in accidents, by rejecting their claim petitions at the threshold on the ground of limitation, and purposely deleted sub-section (3) of Section 166, which provided the period of limitation for filing the claim petitions and this being the intendment of the Legislature to give effective relief to the victims and the families of the motor accidents untrammelled by the technicalities of the limitation, invoking of Article 137 of the Limitation Act would defeat the intendment of the Legislature."

69. The Apex Court in a case titled as Mantoo Sarkar versus Oriental Insurance Company Limited and others, reported in (2009) 2 Supreme Court Cases 244 : [2009(2) ALL MR 475 (S.C.)], held that MV Act is a special statute; the jurisdiction and powers of the Tribunal are wider than Civil Court and it is for the Tribunal-Presiding Officer to try to achieve the goal as early as possible while keeping in view the mandate of Section and the words used. It is apt to reproduce relevant portion of para 11 herein:

"11. ................

The said Act is a special statute. The jurisdiction of the Tribunal having regard to the terminologies used therein must be held to be wider than the civil court."

70. The Andhra Pradesh High Court in a case titled as Hussain Pasha versus Andhra Pradesh State Road Trans. Corpn. & Anr., reported in II (2007) ACC 454, held that second claim petition is maintainable and dismissal of earlier claim petition cannot be the ground for dismissing the latter one. It is apt to reproduce relevant portion of para 4 of the judgment herein:

"4. ...............Therefore, I hold that the Tribunal was in error in dismissing the O.P. of the appellant on the ground that the earlier O.P. was dismissed for default and that his remedy is to file a petition for the restoration of earlier O.P. If a petition for restoration of the earlier O.P. were to be filed, either that O.P. or this O.P. has to be withdrawn because two O.Ps. are not maintainable in respect of same accident. Because the earlier O.P. was dismissed for default for non-prosecution, appellant can proceed with the prosecution of this O.P. the point is answered accordingly."

71. The High Court of Jharkhand at Ranchi in a case titled as Karmi Devi versus Satendra Kumar Singh and another, reported in 2010 ACJ 1661, held that plaintiff/claimant has two remedies, i.e. filing of fresh suit or application for restoration of the suit. It is apt to reproduce para 15 of the judgment herein:

"15. In the light of the provisions contained in Order 9 and the law discussed hereinabove, it can be safely concluded that in case of dismissal of suit under Order 9, rule 4, C.P.C. the plaintiff has both the remedies of filing of fresh suit or application for restoration of the suit. If he chooses one remedy he is not debarred from availing himself of the other remedy. Both these remedies are simultaneous and would not exclude either of them."

Applying the principle to the instant case, limitation is not applicable. Thus, the claimant has rightly filed fresh/second claim petition.

72. The High Court of Rajasthan, Jaipur Bench in a case titled as Savitri and others versus M.A.C.T.-cum-District and Sessions Judge, Jhunjhunu and others, reported in 2013 ACJ 1361, held that when a claim petition has not been decided on merits and was dismissed in default without entering into the merits, the Court should take pragmatic view rather than going into the technicalities and should decide the claim petition on merits enabling the claimant to reap the fruits. It is apt to reproduce relevant portion of para 5 of the judgment herein:

"5. The Act of 1988 being a beneficial legislation, the court has to, in a situation like this, take a pragmatic view of the matter rather than being too technical and, in the facts of this case, when it is clear that there was no adjudication on merits, the claimants cannot be left in the lurch without any remedy."

73. The Apex Court, in a case tilted as New India Assurance Co. Ltd. versus R. Srinivasan, reported in AIR 2000 Supreme Court 941, while dealing with a case of similar facts, which had arisen from a complaint under the Consumer Protection Act (68 of 1986), held that it is permissible to file a second case. It is apt to reproduce relevant portion of para 16 and para 20 of the judgment herein:

"16. ............The fact that the case was not decided on merits and was dismissed in default of non-appearance of the complainant cannot be overlooked and, therefore, it would be permissible to file a second complaint explaining why the earlier complaint could not be pursued and was dismissed in default.

17 to 19. .....................

20. In the instant case, the vital fact of there being an insurance cover in favour of the respondent is not disputed. The loss suffered by the respondent is not disputed and the claim of the respondent is also not questioned. The only point urged before the State Commission as also before the National Commission and, for that matter, before us is that on account of the first complaint having been dismissed in default and the complaint having not been restored, the second complaint would not lie. The interest of justice, in our opinion, cannot be defeated by this rule of technicality. The rules of procedure, as has been laid down by this Court a number of times, are intended to serve the ends of justice and not to defeat the dispensation of justice. The respondent had suffered loss which was squarely covered by the Policy of Insurance granted by the appellant. Since his claim is not being questioned before us on merits and is being sought to be defeated on the technical plea referred to above. We are not prepared to interfere with the orders passed by the District Forum, the State Commission and the National Commission, particularly as it is stated before us that the whole of the claim amount has already been paid to the respondent."

74. Having said so, the second claim petition was maintainable and the Tribunal has fallen in an error in holding that it was barred by time and was not maintainable.

75. The argument of the learned counsel for insurer that the claimant is caught by doctrine of res judicata, is not tenable for the reason that the doctrine of res judicata is applicable when there is a decision on merits.

76. It is apt to reproduce relevant portion of Section 11 of the CPC herein:

"11. Res Judicata. - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

.........................."

77. The claim petition was dismissed in default without entering into and discussing the merits. On the plain reading of Section 11 (supra), one comes to an inescapable conclusion that the doctrine of res judicata is not applicable.

78. However, this question was raised before the High Court of Jharkhand at Ranchi in Karmi Devi's case (supra). It is apt to reproduce paras 17 and 20 of the judgment herein:

"17. The principle of res judicata is based on the common law maxim nemo debet bis vexari pro una et eadem causa, which means that no man shall be vexed twice over the same cause of action. It is a doctrine applied to give finality to a lis. According to this doctrine, an issue or a point once decided and attains finality, should not be allowed to be reopened and reagitated in a subsequent suit. In other words, if an issue involved in a suit is finally adjudicated by a court of competent jurisdiction, the same issue in a subsequent suit cannot be allowed to be re-agitated. It is, therefore, clear that for the application of principle of res judicata, there must be an adjudication of an issue in a suit by a court of competent jurisdiction.

18. ...............

19. ...............

20. From a plain reading of the term 'decree', it is manifestly clear that to constitute a decree, there must be a formal expression of an adjudication which conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit, but the decree shall not include any adjudication from which an appeal lies as an appeal from an order or any order of dismissal for default. It is, therefore, evidently clear that a dismissal of a suit or application for default particularly under Rule 2 or Rule 3 of Order 9, C.P.C., is not the formal expression of an adjudication upon any right claimed or the defence set up in a suit. An order of dismissal of a suit or application in default is also not appealable order as provided under Order 43 of the Code of Civil Procedure. If we read Order 43, C.P.C., we will find that orders passed under Order 9, Rule 9, C.P.C. or Order 9, Rule 13, C.P.C., are made appealable but an order passed under Order 9, Rule 4, C.P.C. is not appealable. It is, therefore, clear that an order of dismissal of a suit or application in default under Rule 2 or Rule 3 of Order 9, C.P.C, is neither an adjudication or a decree nor it is an appealable order. If that is so, such order of dismissal of a suit under Rule 2 or Rule 3 of Order 9, C.P.C, does not fulfil the requirement of the term 'judgment' or 'decree', inasmuch as there is no adjudication. In my considered opinion, therefore, if a fresh suit is filed, then such an order of dismissal cannot and shall not operate as res judicata."

79. The Apex Court has dealt with this issue in a case titled as Sheodan Singh versus Daryao Kunwar, reported in AIR 1966 Supremem Court 1332 : [2010 ALL SCR (O.C.C.) 129].

80. The Apex Court in a latest judgment in the case titled as Erach Boman Khavar versus Tukaram Shridhar Bhat and another, reported in 2014 AIR SCW 61 : [2014 ALL SCR 683], held that there should be a conscious adjudication of an issue and the plea of res judicata cannot be taken aid of unless there is an expression of an opinion on merits. It is apt to reproduce relevant portion of para 34 of the judgment herein:

"34. From the aforesaid authorities it is clear as crystal that to attract the doctrine of res judicata it must be manifest that there has been conscious adjudication of an issue. A plea of res judicata cannot be taken aid of unless there is an expression of opinion on the merits...................."

81. Thus, the argument of the learned counsel for the insurer that the claim petition is caught by law of res judicata and barred by limitation and other provisions of law, is devoid of any force and is rejected.

82. Viewed thus, it is held that the Tribunal has fallen in an error in dismissing the claim petition. Point No. 3 is replied and decided accordingly.

83. Delay has crept-in because of the fact that the Tribunal has wrongly applied the procedure and rules, which have defeated the very purpose of the MV Act. Rules and procedure are meant for achieving the purpose of the Act and not to defeat the same. Unfortunately, rules have been applied, which have not only defeated the very purpose of the Act, but has made the claimant-injured to run from pillar to post and post to pillar. The delay caused in the case in hand is really a terrible commentary and suggests how we have reached the claimant-injured, who is the victim of a road traffic accident. It pains me to record herein that delay has taken away the settings of the law.

84. The claimant-injured has claimed compensation to the tune of ' 12,00,000/-, as per the details given in the claim petition, however, while making the assessment (supra), it appears that the claimant-injured is entitled to compensation more than claimed.

85. The question is - Whether the Tribunal or Appellate Court is/are within its/their jurisdiction to grant more compensation than what is claimed?

86. It would be profitable to reproduce Section 168 (1) of the MV Act herein:

"168. Award of the Claims Tribunal. - On receipt of an application for compensation made under section 166 , the Claims Tribunal shall, after giving notice of the application to the insurer and after giving the parties (including the insurer) an opportunity of being heard, hold an inquiry into the claim or, as the case may be, each of the claims and, subject to the provisions of section 162 may make an award determining the amount of compensation which appears to it to be just and specifying the person or persons to whom compensation shall be paid and in making the award the Claims Tribunal shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of them, as the case may be:

......................"

87. The mandate of Section 168 (1) (supra) is to 'determine the amount of compensation which appears to it to be just'.

88. The word "just' has been defined in the Webster's Encyclopedic Unabridged Dictionary of the English Language, Deluxe Edition, at page No. 1040, herein:

"just, adj. 1. guided by truth, reason, justice, and fairness: We hope to be just in our understanding of such difficult situation. 2. done or made according to principle; equitable; proper: a just reply. 3. based on right; rightful; lawful; a just claim. 4. in keeping with truth or fact; true; correct: a just analysis. 5. given or awarded rightly; deserved, as a sentence, punishment, or reward: a just penalty. 6. in accordance with standards or requirements; proper or right: just proportions. 7. (esp. in Biblical use) righteous. 8. actual, real, or genuine.-adv. 9. within a brief preceding time; but a moment before: The sun just came out. 10. exactly or precisely: This is just what I mean. 11. by a narrow margin: barely: The arrow just missed the mark. 12. only or merely: he was just a clerk until he became ambitious. 13. actually; really; positively: The weather is just glorious."

89. In the Oxford Advanced Learner's Dictionary, the word "just" has been defined at page No. 702, as under:

"just. - adv. 1. exactly, 2. at the same moment as, 3. as good,nice, easily, etc., 4. after, beefore, under, etc. sth, 5. used to say that you/sb did sth very recently, 6. at this/that moment, 7. about/going to do sth, 8. simply, 9. (informal) really; completely, 10. to do sth only, 11. used in orders to get sb's attention, give permission etc., 12. used to make a polite request, excuse etc., 13. could/might/may - used to show a slight possibility that sth is true to will happen, 14. used to agree with sb..........

adj. 1. that most people consider to be morally fair and reasonable, 2. people who are just 3. appropriate in a particular situation."

90. It is for the Tribunal or the Appellate Court to determine what is just compensation. The claimant-injured is a rustic villager, illiterate, hailing from a rural area, i.e. District Chamba, which is a tribal area, can he be deprived of the higher compensation, to which he is entitled to, which appears to the Court to be just. The answer is in negative.

91. Keeping in view the object of granting of compensation and the legislature's wisdom read with the amendment made in the MV Act in the year 1994, it is for the Tribunal or the Appellate Court to assess the just compensation and is within its powers to grant the compensation more than what is claimed for the following reasons:

92. This Court in a case titled as United India Insurance Company Ltd. versus Smt. Kulwant Kaur, reported in Latest HLJ 2014 (HP) 174, held that the Tribunal as well as the Appellate Court is/are within the jurisdiction to enhance the compensation and grant more than what is claimed. It is apt to reproduce paras 41 to 45 of the judgment herein:

"41. Before I determine what is the just and adequate compensation in the case in hand, it is also a moot question - whether the Appellate Court can enhance compensation, even though, not prayed by the medium of appeal or by cross-objection.

42. The Motor Vehicles Act, 1988 (hereinafter referred to as "the MV Act") has gone through a sea change in the year 1994 and sub-section (6) has been added to Section 158 of the MV Act, which reads as under:

"158. Production of certain certificates, licence and permit in certain cases. -

...................................

(6) As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer incharge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and Insurer."

In terms of this provision, the report is to be submitted to the Tribunal having the jurisdiction.

43. Also, an amendment has been carried out in Section 166 of the MV Act and sub-section (4) stands added. It is apt to reproduce sub-section (4) of Section 166 of the MV Act herein:

"166. Application for compensation.-

.......................................

(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under this Act."

It mandates that a Tribunal has to treat report under Section 158 (6) (supra) of the MV Act as a claim petition. Thus, there is no handicap or restriction in granting compensation in excess of the amount claimed by the claimant in the claim petition.

44. Keeping in view the purpose and object of the said provisions read with the mandate of Section 173 of the MV Act, I am of the view that the Appellate Court is exercising the same powers, which the Tribunal is having. Also, sub-clause (2) of Section 107 of the Code of Civil Procedure (hereinafter referred to as "the CPC") mandates that the Appellate Court is having all those powers, which the trial Court is having. It is apt to reproduce Section 107 sub-clause (2) of the CPC herein:

"107. Powers of Appellate Court. -

.................................

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein."

45. Thus, in the given circumstances, the Tribunal as well as the Appellate Court is within the jurisdiction to enhance the compensation. "

93. The same view was taken by the Apex Court in the case of Nagappa versus Gurudayal Singh and others, reported in AIR 2003 Supreme Court 674 : [2014 ALL SCR (O.C.C.) 17]. It is apt to reproduce paras 7, 9 and 10 of the judgment herein:

"7. Firstly, under the provisions of Motor Vehicles Act, 1988, (hereinafter referred to as "the MV Act") there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case where from the evidence brought on record if Tribunal/Court considers that claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. Only embargo is - it should be 'Just' compensation, that is to say, it should be neither arbitrary, fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the M.V. Act. Section 166 provides that an application for compensation arising out of an accident involving the death of or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both, could be made (a) by the person who has sustained the injury; or (b) by the owner of the property; (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. Under the proviso to sub-section (1), all the legal representatives of the deceased who have not joined as the claimants are to be impleaded as respondents to the application for compensation. Other important part of the said Section is sub-section (4) which provides that "the Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of Section 158 as an application for compensation under this Act." Hence, Claims Tribunal in appropriate case can treat the report forwarded to it as an application for compensation even though no such claim is made or no specified amount is claimed.

8. ..........................

9. It appears that due importance is not given to sub-section (4) of Section 166 which provides that the Tribunal shall treat any report of the accidents forwarded to it under sub-section (6) of Section 158, as an application for compensation under this Act.

10. Thereafter, Section 168 empowers the Claims Tribunal to "make an award determining the amount of compensation which appears to it to be just". Therefore, only requirement for determining the compensation is that it must be 'just'. There is no other limitation or restriction on its power for awarding just compensation."

94. In the case titled as State of Haryana and another versus Jasbir Kaur and others, reported in AIR 2003 Supreme Court 3696 : [2003(4) ALL MR 742 (S.C.)], the Apex Court has discussed the expression 'just'. It is apt to reproduce para 7 of the judgment herein:

"7. It has to be kept in view that the Tribunal constituted under the Act as provided in S. 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate the compensation must be "just" and it cannot be a bonanza; nor a source of profit; but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just. (See Helen C. Rebello v. Maharashtra State Road Transport Corporation (AIR 1998 SC 3191)."

95. The same view has been taken by the Apex Court in a case titled as The Divisional Controller, K.S.R.T.C. versus Mahadeva Shetty and another, reported in AIR 2003 Supreme Court 4172.

96. The Apex Court in a case titled as A.P.S.R.T.C. & another versus M. Ramadevi & others, reported in 2008 AIR SCW 1213 : [2008 ALL SCR 696], held that the Appellate Court was within its jurisdiction and powers in enhancing the compensation despite the fact that the claimants had not questioned the adequacy of the compensation.

97. The Apex Court in the case titled as Oriental Insurance Co. Ltd. versus Mohd. Nasir & Anr., reported in 2009 AIR SCW 3717 : [2009(4) ALL MR 938 (S.C.)], laid down the same principle while discussing, in para 27 of the judgment, the ratio laid down in the judgments rendered in the cases titled as Nagappa v. Gurudayal Singh & Ors, (2003) 2 SCC 274 : [2014 ALL SCR (O.C.C.) 17]; Devki Nandan Bangur and Ors. versus State of Haryana and Ors. 1995 ACJ 1288; Syed Basheer Ahmed & Ors. versus Mohd. Jameel & Anr., (2009) 2 SCC 225 : [2009(1) ALL MR 914 (S.C.)]; National Insurance Co. Ltd. versus Laxmi Narain Dhut, (2007) 3 SCC 700 : [2007(3) ALL MR 834 (S.C.)]; Punjab State Electricity Board Ltd. versus Zora Singh and Others (2005) 6 SCC 776; A.P. SRTC versus STAT and State of Haryana & Ors. versus Shakuntla Devi, 2008 (13) SCALE 621.

98. The Apex Court in another case titled as Ningamma & another versus United India Insurance Co. Ltd., reported in 2009 AIR SCW 4916 : [2010(1) ALL MR 441 (S.C.)], held that the Court is duty bound to award just compensation to which the claimants are entitled to. It is profitable to reproduce para 25 of the judgment herein:

"25. Undoubtedly, Section 166 of the MVA deals with "Just Compensation" and even if in the pleadings no specific claim was made under section 166 of the MVA, in our considered opinion a party should not be deprived from getting "Just Compensation" in case the claimant is able to make out a case under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the Court is duty bound and entitled to award "Just Compensation" irrespective of the fact whether any plea in that behalf was raised by the claimant or not. However, whether or not the claimants would be governed with the terms and conditions of the insurance policy and whether or not the provisions of Section 147 of the MVA would be applicable in the present case and also whether or not there was rash and negligent driving on the part of the deceased, are essentially a matter of fact which was required to be considered and answered at least by the High Court."

99. The Apex Court in a latest judgment in a case titled Sanobanu Nazirbhai Mirza & others versus Ahmedabad Municipal Transport Service, reported in 2013 AIR SCW 5800 : [2013(6) ALL MR 981 (S.C.)], has specifically held that compensation can be enhanced while deciding the appeal, even though prayer for enhancing the compensation is not made by way of appeal or cross appeal/objections. It is apt to reproduce para 9 of the judgment herein:

"9. In view of the aforesaid decision of this Court, we are of the view that the legal representatives of the deceased are entitled to the compensation as mentioned under the various heads in the table as provided above in this judgment even though certain claims were not preferred by them as we are of the view that they are legally and legitimately entitled for the said claims. Accordingly we award the compensation, more than what was claimed by them as it is the statutory duty of the Tribunal and the appellate court to award just and reasonable compensation to the legal representatives of the deceased to mitigate their hardship and agony as held by this Court in a catena of cases. Therefore, this Court has awarded just and reasonable compensation in favour of the appellants as they filed application claiming compensation under Section 166 of the M.V. Act. Keeping in view the aforesaid relevant facts and legal evidence on record and in the absence of rebuttal evidence adduced by the respondent, we determine just and reasonable compensation by awarding a total sum of Rs. 16,96,000/- with interest @ 7.5% from the date of filing the claim petition till the date payment is made to the appellants."

100. The Apex Court in a latest judgment in the case titled as Smt. Savita versus Bindar Singh & others, reported in 2014 AIR SCW 2053 : [2014 ALL SCR 1688], has laid down the same proposition of law and held that the Tribunal as well as the Appellate Court can ignore the claim made by the claimant in the application for compensation. It is apt to reproduce para 6 of the judgment herein:

"6. After considering the decisions of this Court in Santosh Devi as well as Rajesh v. Rajbir Singh (supra), we are of the opinion that it is the duty of the Court to fix a just compensation. At the time of fixing such compensation, the court should not succumb to the niceties or technicalities to grant just compensation in favour of the claimant. It is the duty of the court to equate, as far as possible, the misery on account of the accident with the compensation so that the injured or the dependants should not face the vagaries of life on account of discontinuance of the income earned by the victim. Therefore, it will be the bounden duty of the Tribunal to award just, equitable, fair and reasonable compensation judging the situation prevailing at that point of time with reference to the settled principles on assessment of damages. In doing so, the Tribunal can also ignore the claim made by the claimant in the application for compensation with the prime object to assess the award based on the principle that the award should be just, equitable, fair and reasonable compensation."

101. I have discussed hereinabove, what is the just and appropriate compensation, which is to be awarded to the claimant-injured in the instant case.

102. Having glance of the above discussions, the impugned award is set aside, the claim petition is granted and the claimant is held entitled to compensation to the tune of Rs.14,88,000/- (i.e. Rs.6,48,000/- + Rs.1,00,000/- + Rs.1,00,000/- + Rs.1,00,000/- + Rs.3,00,000/- + Rs.1,00,000/- + Rs.30,000/- + Rs.10,000/- + Rs.1,00,000/-) with interest @ 7.5 % per annum from the date of the claim petition on Rs.3,40,000/- {i.e. medical expenditure already incurred + transportation charges + attendant charges} and on remaining amount, from the date of the impugned award till its realization. The insurer-respondent No. 3 is saddled with liability and is directed to deposit the same within six weeks before the Registry.

103. On deposition, Registry is directed to release 50% of the awarded amount in favour of the claimant-injured through payee's account cheque on proper identification and the remaining 50% is to be deposited in fixed deposits for a period of six years.

104. Viewed thus, the appeal is allowed, the impugned award is set aside and the claim petition is granted, as indicated hereinabove.

105. Send down the record after placing copy of the judgment on Tribunal's file.

Appeal allowed.