1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CIVIL MISC. APPEAL No.1325/2006 (arising out of Claim No.663/2005 (318/2004) PADAM CHAND JAIN V/s DAYARAM & Ors DATE OF JUDGMENT ::::: MAY 27, 2008 PRESENT HON'BLE MR. JUSTICE GUMAN SINGH Shri Sandeep Jain,for claimant-appellant. Shri Virendra Agarwal, for respondents. BY THE COURT : (Oral) 1. This appeal u/s 173 of the Motor Vehicles Act, 1988 has been preferred by injured Padam Chand Jain, the appellant/claimant herein, for enhancement of compensation against the order dated December 2, 2004 passed by the learned Judge, Addl. District Judge (Fast Track) No.3, Tonk whereby a sum of Rs.29,000/- was awarded by way of compensation 2. On 4.1.2004 at about 7.30 P.M. injured Padam Chand Jain was traveling as pillion rider on Scooter and near Chanda Talkies the scooter was hit by motor-cycle RJ 26 3M 362 and causing fracture of shaft of femur bone on right leg resulting 12% permanent disability causing restriction of 2 movement of knee joint and was found to be handicapped in squatting, sitting cross leg. 3. Learned counsel for the appellant/claimant submits that in the instant appeal the learned Tribunal erred in not awarding adequate compensation. He submits that 12% disability of the injured was found by the doctor on account of fracture of femur bone of right leg of complainant which resulted in causing difficulty in walking and squatting. Learned counsel for the appellant/claimant further submits that the learned Tribunal has erred in awarding the compensation without considering the various factors based on concept of pecuniary and non-pecuniary damages as delineated by the Hon'ble Supreme Court in R.D. Hattangadi v/s Pest Control (India) Pvt. Ltd. and others (1995 ACJ 366. 4. Per contra, learned counsel for the respondents argued that the award in the instant case has been passed by the learned Tribunal on the basis of the evidence adduced before the Tribunal and calls for no interference. 5. In view of the rival submissions, it may be noted that the learned Tribunal has 3 failed to consider the pecuniary and non- pecuniary loss suffered by the claimant as observed by the Hon'ble Supreme Court in R.D. Hattangadi's case (supra), 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 up to the date of trial; (iii) other material loss. So far as 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 in life.” 4 6. On application of the aforesaid guidelines in the facts and circumstances of the present case, it is revealed that the injured was Government servant and his income would not be adversely effected on account of disability but in view of the aforesaid disability he has to undergo pain and suffering in his day to day life. The appellant was 33 years of age at the time of accident and on account of the disability he shall come across discomfort, disappointment, frustration and mental stress in his day to day life and even in discharging his normal social obligations. Therefore, in view of all these factors, the amount of compensation awarded deserves to be enhanced from Rs.29,000/- to Rs.1,00,000/- from the date of filing of appeal i.e. 23.3.2006. 7. Accordingly, while maintaining the terms of award upto the date of filing appeal, the amount of the award is enhanced to Rs.1,00,000/- with interest @ 6% p.a. from the date of appeal with the condition that failure to make payment under the award within a period of three months from this order shall entail interest @ 9% p.a. from the 5 date of appeal. 8. The award stands modified and appeal is disposed of accordingly. (Guman Singh), J. chauhan/