HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) Description of the case A.O. No. 500 of 2005 State of Uttaranchal Vs. Sri Akshit Bhakuni and Another. Approved for reporting. Date of Decision:- 20.02.2008 Initial of Judge: ........................ ........................ ......................... HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. NO. 500 OF 2005 State of Uttaranchal, Through Secretary to Government, Rural Development Department, Uttaranchal Shasan, Dehradun ...................Appellants. Versus 1. Sri Akshit Bhakuni, S/o Sri Surendra Singh Bhakuni, R/o Hadoli, P.O. Bhasodi, Tehsil & District – Almora. Presently residing at Premrose, Tallital, Nainital. 2. Motor Accident Claims Tribunal / District Judge, District- Nainital. ..............Respondents. Dated: 20.2.2008 Hon’ble Rajesh Tandon, J. Heard Sri B.D. Kandpal, counsel for the appellant and Sri Naresh Pant, counsel for the respondent no. 1. Present appeal has been filed by the defendant/appellants. 2. By the present A.O. filed under Section 173 of the Motor Vehicles Act, 1988, appellant has prayed for setting aside the award dated 24.8.2005 passed by the Motor Accident Claims Tribunal / District Judge, Nainital in Motor Accident Claim Petition No. 398 of 2004 Akshit Bhakuni Vs. State of Uttaranchal, whereby the claimant has been awarded a sum of Rs. 1,00,000/- towards compensation along with interest @ 6% per annum from the date of filing of the claim petition upto the date of actual payment. 3. Briefly stated, a claim petition was filed by the Motor Accident Claim Petition No. 298 of 2004 Akshit Bhakuni Vs. State of Uttaranchal claiming a sum of Rs. 8,00,000/- towards compensation on account of the injuries received in the accident taken place on 21.11.2003. 4. According to the claimant, on 21.11.2003, when the claimant was going to Nainital from Almora on Motor Cycle No. U.P. 02-9766, which was being driven by the driver of the Motor Cycle in a moderate speed left side, as soon as he reached near Cemetery at (Nainital) at about 1 p.m., a Gipsy No. U.P. 02D-2790, which was coming from the opposite direction and being driven rashly and negligently by its driver dashed the Motor Cycle of the claimant. In this accident, the claimant received grievous injuries and was admitted at B.D. Pande Hospital, Nainital and thereafter, he was referred to Joshi Bone Hospital, Kaladhungi Road, Haldwani. The claimant remained admitted in the Hospital for 90 days and spent a sum of Rs. 400/- per day on his medicine and other expenses. The claimant has stated that till 28.7.2004, he spent a sum of Rs. 4,500,000/- on his treatment. The report of the said incident was lodged by the Chief Judicial Magistrate, Nainital. 5. Opposite parties/appellants have contested the claim by filing a written statement Paper No. 12 Kha stating therein that the driver of the Gipsy No. U.P. 02D-2790 was driving the vehicle in a moderate speed by his side, but at the bend of the Cemetery, the Motor Cycle came in a rash and negligent manner and dashed Gipsy No. U.P. 2D-2790. It has further been stated that the claimant was at fault and he violated the terms and conditions of the policy. 6. On the pleadings of the parties, the claims tribunal has framed following issues: “1& D;k ;kph vf{kr Hkkdquh dks fnukad „ƒ&ƒƒ&„003 dks ikbZUl 'ke’kku?kkV ds eksM+ ij fnu ds yxHkx ƒ cts okgu la[;k ;w0ih0 Œ„Mh&„‰‹Œ ftIlh ds pkyd }kjk ftIlh dks rsth o ykijokgh ls pykdj ;kph dh eksVj lkbZfdy ua0 ;w0ih0Œ„&‹‰ˆˆ esa VDdj ekjus ls pksVsa vkbZ \ 2& D;k mijksDr nq?kZVuk ;kph vf{kr Hkkdquh dh Lo;a dh xyrh ds dkj.k ?kfVr gqbZ ;fn gk¡ rks mldk izHkko \ 3& ;kph izfrdj ds :i esa fdruh /kujkf’k izkIr djus dk vf/kdkjh gS \” 7. On behalf of the claimant, he himself and Sri Digvijay Singh Bisht have been examined as P.W.1 and P.W.2 respectively. Towards the documentary evidence, the claimant has filed per list 5Ga/1 to 5Ga/6 fifty six documents, which contains copy of First Information Report and bills of the treatment. Per list 15 Ga, X ray plates and per List 17Ga/1 copy of the driving licence has been filed. 8. On behalf of the opposite parties, Affidavits of the driver-Harish Chandra Phulara, Planning Director, District Village Development Agency, Bhimtal, District Nainital has been filed. Towards the documentary evidence, the opposite parties have filed per list 12 Ga/1 four documents i.e. copy of the Photo along with negative of the Gipsy, copy of the First Information Report, and Patient Slip of Sri Harishchandra. 9. While deciding the issues as to whether on 21.11.2003 at the bend of Pines Cemetery at about 1 p.m., the driver of Vehicle No. U.P. 02D-2790 dashed the Motor Cycle No. U.P. 02-9766 by driving the vehicle in question rashly and negligently, in which the claimant received injuries and further as to whether the accident had taken place due to own fault of the claimant Akshit Bhakuni, claims tribunal has recorded a finding that the accident had taken place due to rash and negligent driving of the driver of Gipsy No. U.P. 02D-2790, which dashed the Motor Cycle NO. U.P. 02-9766 of the claimant, in which the claimant received injuries and there was no fault of the claimant in the said accident. While recording the aforesaid finding the claims tribunal has placed reliance on the statement of P.W.1 (claimant), the statement of Harish Chandra Fulara (Gipsy Driver) and the copy of the Driving Licence Paper No. 17Ga/2. 10. While deciding the issue with regard to quantum of compensation, the claim tribunal has taken into consideration the bills of treatment and medicines amounting to Rs. 48,000/- and has disbelieved the statement of the claimant that the spent a sum of Rs. 4,50,000/- on his treatment. Further under the head of physical and mental agony and for loss of income, the claims tribunal has further awarded a sum of Rs. 52,000/-. Thus, the claims tribunal has awarded a total sum of Rs. 1,00,000/- (Rupees One Lac Only)along with interest @ 6% per annum. 11. Counsel for the appellant has submitted that the license having been issued on 9.1.2004 whereas the incident occurred on 21.11.2003 and, therefore, the motor cyclist has no driving license when the accident had taken place. The claims tribunal has disbelieved the point against the offending vehicle on the ground that before issuing the license on 9.1.2004 there must have been a learning driving license. In fact, once finding has been recorded that the driver of the offending vehicle was driving the vehicle rashly and negligently, the question of having the driving license has no importance. Therefore, I do not find any infirmity in the findings recorded by the claims tribunal. 12. So far as quantum of compensation is concerned, it has come on the record that the claimant has spent a sum of Rs. 48,000/- towards medical expenses. The medical receipts are on the ground. Apart from that, the statement of P.W.1 i.e. the claimant himself shows that he was admitted in the Joshi Bone Hospital and he was operated thrice and he remained in the hospital right from 21.11.2003 to 28.7.2004 and he could not attend the routine work and he was deprived even from the private tuitions and has suffered the non-pecuniary damages. The claims tribunal, therefore, has awarded a sum of Rs. 48,000/- towards medical expenses and rest 52,000/- towards mental agony. 13. In R.D. Hattangadi Vs. Pest Contorla (India) Pvt. Ltd. and others (1995) 1 SCC 551, the Apex Court has observed as under:- “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 are 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 upto 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 and 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 of life. 17. The claim under Sl. No. 16 for pain and suffering and for loss of amenities of life under Sl. No. 17, are claims for non-pecuniary loss. The appellant has claimed lump sum amount of Rs. 3,00,000/- each under two heads. The High Court has allowed Rs. 1,00,000/- against the claims of Rs. 6,00,000/-. When compensation is to be awarded for pain and suffering and loss of amenity of life, the special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he has suffered, the effect thereof on his future life. The amount compensation for non-pecuniary loss is not easy of determine but the award must reflect that different circumstances have been taken into consideration.” 14. In R.D. Hattangadi Vs. Pest Control (India) Pvt. Ltd. and others (1995) 1 SCC 551, it has been held that the claimant is entitled for pecuniary loss as well as for the non-pecuniary loss and, therefore, taking into consideration the statement of the claimant that he could not attend his regular work right from November, 2003 to July, 2004 and, therefore, I do not find any illegality in the finding recorded by the claims tribunal while awarding a sum of Rs. 52,000/- towards non- pecuniary damages. 15. The Additional Advocate General, Shri Bindesh Kumar Gupta has submitted that in view of the finding that the motorcyclist was driving the vehicle without driving license and the license having been issued on 9.1.2004 and there was no material on the record to support that there was any driving license. 16. In view of the aforesaid facts and circumstances, penalty of Rs. 5,000/- is imposed upon the motorcyclist which shall be recovered by the State out of the amount which has been deposited in compliance of the court order as well in the direction given by the tribunal for depositing the said amount in the tribunal. 17. Shri Rajesh Joshi has disputed the contention regarding the driving license having been issued on 9.1.2004. His contention is that for earlier 6 months, the driving license was learner’s license and, therefore, it is clear that there was a driving license in favour of the claimant. 18. However, without disputing the aforesaid contention, a sum of Rs. 5,000/- is imposed as penalty which shall be recovered by the State out of the amount deposited by the State in compliance of the order passed by the claims tribunal. 19. Subject to the aforesaid modification by imposing a penalty of Rs. 5,000/- on the claimant-respondent, the appeal lacks merit and is dismissed. No order as to costs. (Rajesh Tandon, J.) 20.0.2008 Avneet