IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO(MVA) No.433 of 2004 Decided on: 13.4.2011 Tulsi Ram …..Appellant. VERSUS Joginder Singh and others …..Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1No For the Appellant: Ms.Nishi Goel, Advocate vice Mr.Shrawan Dogra, Advocate. For the Respondents: Sh.J.S.Bagga, Advocate for respondent No.3. Deepak Gupta,Judge (oral) This appeal under Section 173 of the Motor Vehicles Act has been filed by the claimant claiming enhancement of compensation. No appeal has been filed by the owner of the Insurance Company, so, only those facts which are necessary to decide the issue of compensation are being set out in this judgment. In the motor vehicle accident, in question, which took place on 6.11.1997, the claimant suffered serious injuries. Both his legs were fractured. He was 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… taken to the Primary Health Centre, Ratti immediately after the accident. Thereafter, he was referred to the Zonal Hospital, Mandi and two days later, he was referred to IGMC, Shimla where he remained under treatment for one month till 9.11.1997. According to the claimant, he has suffered 50% disability and, therefore, filed a Claim Petition for grant of compensation. The learned Motor Accident Claims Tribunal awarded Rs.50,000/- only in all to the claimant. Hence the present appeal for enhancement of compensation. Unfortunately, the petitioner has not led full evidence. He has not produced any receipts of medical expenses or other detailed records in this regard. Therefore, the appeal has to be decided on the basis of the material on record. The material on record clearly shows that the claimant remained hospitalized at Shimla for one month. It is also not disputed that the claimant at the relevant time was a student of Class-X and was not earning. Therefore, the just compensation has to be assessed on the basis of the material which is on record. …3… It is apparent from the evidence of the claimant who appeared in the witness box as PW/2 that he remained admitted in the hospital for one month at Shimla. He claimed to have spent more than Rs.1 lac on his treatment till the date of his deposition in the Court. Even if this is not accepted as the gospel truth, keeping in view the nature of injuries and the extent of treatment, compensation will have to be assessed. PW/1 Dr.L.D.Vaidya proved the disability certificate which shows that the claimant has suffered 50% permanent disability. It is however, not clear whether this disability is qua the entire body or qua the legs only but the disability certificate, Ext.PW1/A which has been proved on record itself shows that the patient has suffered fracture of both femurs and right patella and was walking with the help of clutches and there was stiffness of both the knees. Here is a claimant who belongs to the rural area and who claims that he wanted to join the army or the police service. In a case of injuries, damages have to be assessed for both pecuniary as well as non-pecuniary loss. Under pecuniary head, there …4… would be expenses of treatment, gratuitous service, if any, rendered by the family members, attendant charges, actual loss of earning and estimated future loss of earning. Under the head of non-pecuniary losses, compensation has to be awarded for the pain and suffering suffered by the patient and also for the future impact which the disability may have on his day to day life other than the loss of earning capacity. Coming to medical and transportation expenses, the claimant claims that he spent Rs.1 lac. However, as observed above, the claimant has not furnished any proof other than making a bald statement in this regard. No medical bills or other documents have been placed on record. This however, does not mean that the claimant did not spend any amount whatsoever. It is the duty of the Motor Accident Claims Tribunal constituted under the Motor Vehicles Act and also the duty of this Court while hearing an appeal to ensure that just compensation is awarded and some element of guess work is necessarily involved when proper evidence is not led. …5… The claimant remained hospitalized at Mandi and Shimla for 33 days in all. When a person is hospitalized, at least two family members would have been looking after him. In fact, in Government hospitals more than two family members are required to look after a patient but since the evidence is lacking, it is presumed that only two persons were looking after the claimant. The accident took place in the year 1997 and the assessment has to be done keeping in view the daily wages prevalent at that time. The claimant could not have come to Shimla walking. He must have been brought in an ambulance. His attendants must have come by bus or by taxi. Similarly, they must have gone back by hiring a vehicle. Even the attendants may have had to travel from the village to Shimla time and again. The attendants at Shimla would have also to arrange for their own food and lodging and, therefore, taking the expenses of one attendant at Rs.100/- per day, the total expenses under this head are assessed at Rs.10,000/-. This Court cannot loose sight of the fact that once a person is admitted in the hospital, most …6… medicines are not provided free of cost even to patients belonging to the lower strata of society and medicines implants, i.e., rods etc. have to be purchased. The claimant made a statement that more than Rs.1 lac was spent on his treatment. Unfortunately, he did not give details of the same and also did not even file any bills for the same. Nevertheless, keeping in view the fact that both his legs were fractured and rods were inserted, it would not be unreasonable to assess the medical expenses even very conservatively at Rs.20,000/-. The claimant was not earning at that stge. Therefore, there is no loss of income but he remained totally bed ridden for about six months as per his statement which has not been subjected to any cross- examination in this regard. But there is no loss of income actually suffered by the claimant. Next coming to the question of compensation for pain and suffering. The facts which are proved on record show that the claimant suffered fracture of both legs, walks with crutches and has stiffness in both the knees. He remained hospitalized for one month and was still under treatment when he …7… appeared in the Court. Taking into consideration all these factors, it would not be unreasonable to award Rs.50,000/- for pain and suffering. Coming to the future loss of income. Again the claimant unfortunately has not led any evidence to show as to what is the actual impact of the disability on his earning capacity. Again some element of speculation is involved. The minimum wages in the year 1997 were about Rs. 50/- per day or Rs.1500/- per month. Even taking a very conservative approach, the claimant due to these injuries would have suffered a loss of earning capacity @ Rs.500/- per month or Rs.6000/- per year. Since the claimant was only a student, multiplier of 20 would be reasonable and he is awarded Rs.1,20,000/- under the head of loss of future income. Next coming to the question with regard to compensating the claimant for the future disability which he has suffered. Here is a young boy whose future is totally marred. He cannot run or walk around like normal human beings. He needs the support of a stick or a crutch to walk. He will be deprived of many things in life which a normal human being would …8… enjoy. Therefore, he is awarded Rs.50,000/- under this head. The marital prospects of the claimant are also bound to be affected and he is awarded Rs.10,000/- for loss of marital prospects. Keeping in view the aforesaid discussion, the compensation payment to the claimant is enhanced from Rs.50,000/- to Rs.2,60,000/-. The claimant shall also be entitled to interest on this amount @ 9% per annum from the date of filing of the Claim Petition till the deposit of the amount. Needless to say that the amount, if any, deposited by the Insurance Company shall be deducted from the aforesaid. The insurance Company is directed to deposit the balance amount in the Registry of this Court on or before 31.7.2011. The appeal is disposed of in the aforesaid terms. No order as to costs. April 13, 2011 ( Deepak Gupta ) (m) Judge