1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER Kumari Nidhi Singh Vs. Kalicharan & another. SB CIVIL MISC. APPEAL NO. 706/1999. Under Section 173 of the Motor Vehicles Act, 1988. DATE OF ORDER: 4th November, 2008. PRESENT HON'BLE MR. JUSTICE S.P. PATHAK Mr. K.N. Tiwari for the appellant. Mr. B.C. Rawat for the respondent. BY THE COURT: In an accident occurred on 18.3.1993 involving a motor-cycle bearing no. RRA 7323 driven by respondent Kalicharan son of Dilawar Singh rashly and negligently, the claimant appellant, a young girl of 11 years at the time of accident, sustained compound fracture of her right leg and other injuries on the left leg resulting in permanent disability of her lower limb shortening by 3/4”, preferred a claim petition before the learned Motor Accident Claims Tribunal (in short to be referred as, 'the Tribunal') which vide its judgment and award dated 30.3.1999 awarded a total compensation of Rs.12,000/- along with interest @ 12% p.a. from the date of filing of the claim petition. The facts of the case in brief are that on 18.3.1993 in the noon while the appellant-claimant was standing near Devi Nagar Mod, Jaipur, at that time from Sodala side a motor cycle 2 bearing no. RRA 7323 came at fast speed being driven rashly and negligently hit the appellant as a result of which she sustained injuries on her legs. In all compensation of Rs.4,65,000/- was claimed. The respondent no.1 who was driving the motor cycle did not appear before the learned Tribunal, therefore, exparte proceedings were drawn against him. On behalf of respondent no.2- Oriental Insurance Company Limited, reply to the claim petition was filed wherein several objections were raised. The learned Tribunal on the basis of the pleadings of the parties framed three issues in support of the claim petition. The appellant- claimant examined herself as AW-1 and three other witnesses namely; Maharaj Singh, Gaurav Singh and Dr. M.K.Mathur and three documents were tendered in evidence. No evidence was adduced on behalf of the respondents. The learned Tribunal, therefore, in all awarded compensation of Rs.12,000/- along with interest as stated here-in-above. It has been contended by the learned counsel that the young girl of 11 years of age has sustained permanent disability of 18% and under non-pecuniary and pecuniary head a sum of Rs.6,000/- each has been awarded which is at lower side. It is contended that in fact the learned Tribunal finding that the injury by which the leg was shortened by 3/4” was grievous in nature, therefore, it was not proper to award compensation of Rs.6,000/-. According to the learned counsel in view of the decision rendered by the Hon'ble Apex Court in the case of R.D. Hattangadi Vs. Pest 3 Control (India) Pvt. Ltd. and others- 1995 A.C.J. 366, the learned Tribunal was required to consider the non-pecuniary and pecuniary damages sustained by the claimants. It has been contended that the learned tribunal has awarded compensation at the lower side which needs to be enhanced. It is also contended that with the disability the girl shall have to live throughout her life and on account of shortening of her leg by 3/4”, she cannot play any games and there will be difficulty in finding suitable match for her. On the other hand, learned counsel for the respondent has contended that the learned tribunal has properly appreciated the matter, therefore, no enhancement of compensation is required to be made in the present matter. I have considered the submissions made by both the sides. In the instant case, the point for determination is as to whether the compensation awarded is at the lower side and needs to be enhanced? It appears that in the instant case no evidence has been led by the respondents. The respondent no.1 who was driving the motor-cycle and responsible for the accident has not appeared before the tribunal and has not participated in the proceedings. The respondent no.2, the insurance company, though has appeared but no evidence has been adduced. The learned tribunal framed three issues. Issue no.1 was in relation to 4 rash and negligent driving by respondent no.1 which resulted in injuries on the person of the appellant. The learned tribunal on the basis of the evidence adduced by the appellant found that the respondent no.1 was driving the vehicle in rash and negligent manner. A first information report was also lodged in relation to the accident. The site plan Ex.P-14 was prepared. From the perusal of the site plan, it appears that while the claimant was standing on the left side of the road, the motor-cycle came and hit the appellant. Thus, it appears that the finding in relation to issue no.1 has been correctly recorded. Issue no.2 was in relation to several objections raised by the insurance company in its reply. The insurance company did not produce any evidence and this issue was also not pressed by the insurance company. Issue no.3 was in relation to entitlement of the compensation amount by the appellant. The learned tribunal in this regard considering the evidence of the appellant and the statement of AW-4 Dr. M.K. Mathur wherein he has stated that there was fracture of left femur bone of right leg as a result of which her leg was shortened by 3/4”. He has further stated that there would be further restriction of the hip movement permanently. He has stated that the appellant has suffered 18% permanent disability. The injury report Ex.P-16 and X-ray Ex.P-20 have been considered by the learned tribunal. The learned tribunal, thus, has awarded a sum of Rs.6,000/- in relation to injuries and since the appellant had to undergo operation and she was admitted in the hospital for couple of days, 5 therefore, for medicines, mental agony etc. a sum of Rs.5,000/- has been awarded and a sum of Rs.1,000/- has been awarded on diet. In my opinion, the compensation which has been awarded is at the lower side in view of the decision rendered by the Hon'ble Apex Court in R.D. Hattangadi (supra). It has been held by the Hon'ble Apex Court in the above case that the determination of the amount of compensation in the cases of accident involves some guess work, some hypothetical consideration some amount of sympathy, linked with the nature of the disability caused. The learned tribunal considering the injury to be grievous in nature has awarded a sum of Rs.6,000/- though the appellant's left leg has been shortened by 3/4”. In such type of matters, the tribunals are required to assess damages taking into consideration the principles laid down by the Hon'ble Apex Court in R.D. Hattangadi's case. The damages which are claimed are of two types; one is pecuniary damages and other is non-pecuniary damages. The pecuniary damages may include expenses incurred by the claimant in medical treatment, loss of earning and other material loss. The non-pecuniary damages may include damages for mental and physical shock, pains and sufferings already suffered or likely to be suffered in future and damages for loss and amenities of life, inconvenience, hardship, discomfort and disappointment etc. In the case of Kumari Jaishree Vs. Nathu Mal and others- 1991(1) TAC 356 (Raj.), this court while considering the 6 matter where a girl aged 14 years sustained permanent dis- figuration of head and face to the extent of 21.9% where the learned tribunal awarded a total compensation of Rs.45,000/- enhanced amount up to Rs.1,00,000/-. In the instant case, the claimant-appellant has suffered a permanent disability to the extent of 18%. Obviously, she will suffer the ailment through-out the life and shall be deprived of participating in the games at school and further possibility cannot be ruled out that it would be not so easy to find out a suitable match for her looking to the permanent disability sustained by her in the leg. In my opinion, in all she should be awarded Rs.50,000/- instead of Rs.12,000/- as awarded by the learned tribunal. No other point was raised before me. In the result, the appeal is partly allowed. The total amount of compensation is enhanced to Rs.50,000/- from that of Rs.12,000/- as awarded by the learned tribunal. The interest shall be payable on the extended amount @ 6% per annum from the date of passing of the award by the learned tribunal. The award of the learned tribunal stands modified to the above extent. (S.P. PATHAK),J. bblm