HIGH COURT OF UTTARAKHAND AT NAINITAL AO No. 128 of 2007 Himalaya, S/o Sri Bhav Singh, R/o 251/8 Military Colony, Jungle Area, Clement Town, Dehradun. Through his father and natural guardian Sri Bhav Singh. …….Claimant/Appellant Versus 1. Sudhir Shauri, S/o Prem Sagar, R/o 419-L, Model Town, Yamuna Nagar, District – Yamuna Nagar, Haryana. 2. Sri Alok Gaur, S/o Sri J. Gaur, R/o House No. 102 Ekta Colony, Pauntasahib, Himanchal Pradesh. 3. Bajaj Alienze, General Insurance Company Ltd., C – 31/32, First Floor, Cannaught place, New Delhi. …..Respondents Dated: 18.2.2008 Hon’ble Rajesh Tandon, J. Heard Sri L.K. Tiwari, learned counsel for the appellant and Sri Prabhat Pandey, learned counsel for the respondents. 2. By the present appeal, filed under Section 173 of the Motor Vehicles Act, 1988, appellant has prayed for enhancement of compensation as awarded by Additional District Judge, Dehradun in Motor Accident Claim Petition no. 145 of 2005 Himalaya Vs. Sudhir Shauri filed by appellant under section 166 of Motor Vehicles Act on account of the injuries received by him. 3. Briefly stated, claim petition was filed by the claimant / appellant being Motor Accident Claim Petition No. 145 of 2005 Himalaya Vs. Sudhir Shauri claimant a sum of Rs. 3,00,000/- towards compensation. 4. According to the claimant / appellant, on 09.11.2003, when the claimant along with his family members was going to Dehradun from Kalsi by Car No. UP 07 K 8065, which was being driven by Sri Khajan Singh in a moderate speed by his side, as soon as, they reached near Jharjhara Police chowki, Dehradun, one Santro Car no. HR 2 J 9997 which was coming from the opposite direction and was being driven rashly and negligently collided head on with the car of the claimant as a result of which, the claimant / appellant as well as two other persons, who were sitting in the car received grievous injuries. The claimant / appellant remained admitted in the C.M.I. Hospital, Dehradun from 09.11.2003 to 16.11.2003 and thereafter, she was under treatment for a long time. The claimant / appellant was engaged in the business of tailoring, weaving and sewing. At the time of accident, the claimant / appellant was 11 years of age and was studying in Class V. 6. The defendants no.1 and 2 have jointly contested the claim by filing a written statement Paper No. 53B/1. They have stated that offending vehicle was duly insured form 18.03.2003 to 17.03.2004 and the vehicle was being driven in moderate speed. 7. The defendant no. 3 has also contested the claim petition by filing a written statement Paper No. 58B/1. It has been stated that the claimant is bound to prove not only the accident and injuries received by her, but also the allegation that the accident was caused by the driver of the alleged vehicle on account of his rash and negligent driving. It has further been stated that the amount claimed towards compensation is excessive and has been claimed without any basis. 8. On the pleadings of the parties, the Claims Tribunal has framed the following issues. ^^1- D;k fnukad 09-11-2003 dks le; pkj cts lka;] LFkku & >k>jk iqfyl pkSdh ds ikl lSUVªks dkj u0 ,p0vkj0 02 ts0 9997 ds pkyd }kjk okgu dks rsth o ykijokgh ls pykrs gq, ;kph dh dkj u0 ;w0 ih0 07 ds 8065 dks VDdj ekj nh ftlls ;kph dks xEHkhj pksVs vkbZa\ 2- D;k dfFkr ?kVuk pkyd [ktku flsag }kjk dkj ua0 ;w0 ih0 07 ds 8065 dks rsth ,oa ykijokgh ls pykus ds dkj.k ?kfVr gqbZa \ 3- D;k ;kph {kfriwfrZ dh /kujkf’k izkIr djus dk vf/kdkjh gS\ ;fn gWk rks rc fdruh o fdl foi{kh ls\ 4- vU; vuqrks"k ftls ;kph ikus dk vf/kdkjh gksA^^ 9. Towards the documentary evidence, the claimant/ appellant has filed per list 6 Ga prescription of C.M.I. Hospital Paper No. 7 B , Pathology Report 8B to 11B, prescription of C.M.I. Hospital 12 B, prescription of Dr. Johari Paper No. 13B, Bill 14 B to 40 B, Pathology Report 41 B to 42 B, copy of driving licence Paper No. 43 C, copy of the registration certificate Paper No. 44 C, copy of the Insurance Cover Note Paper No. 45 C. Towards the oral evidence, Bhav Singh and Janak Singh have been examined as P.W.1 and P.W.2 respectively. 10. Towards the documentary evidence, nothing has been produced by the respondents. Towards the oral evidence, Sudhir Shauri has been examined as D.W.1. 11. While deciding issues no. 1 & 2 as to whether on 09.11.2003 at about 4 p.m. near Jhajhar police chowki a Santro Car No. HR 2 J 9997 was being driven rashly and negligently and dashed the car of the claimant no. UP 07 K 8065 and further as to whether the alleged accident had taken place due to rash and negligent driving of the driver of Car No. U.P. -07 Ka 8065, the Claims Tribunal has relied upon the decision of the M.A.C. Petition No. 143 of 2005 and has recorded a finding that in the alleged accident, there was contributory negligence of both the parties. The aforesaid issues have been decided accordingly. 12. While deciding issue no. 3 as to whether the claimant is entitled to get the amount of compensation, the Claims Tribunal taking into consideration the finding recorded while deciding issues no. 1 and 2, has recorded a finding that both the parties are liable to pay compensation to the extent of 50%. The Claims Tribunal has awarded the following amount: 1- fpfdRlh; mipkj ftles gkfLiVy [kpZ] nok [kpZ vkfn ’kkfey gS gsrq ,d eq’r {kfriwfZrZ 25]000@&: 2- 'kS{kf.kd vUrjky ds nkSjku gqbZ gkfu gsrq {kfriwfrZ 15]000@&: 3- nnZ ekufld izrkM+uk gsrq {kfriwfZrZ 10]000@&: 13. While deciding the issue no. 4 with regard to other reliefs, the claims Tribunal has recorded a finding that the claimant will be entitled to get a sum of Rs. 25,000/- out of the total amount awarded from the Insurance Company / respondent np.3. 14. Counsel for the appellant has submitted that the claims tribunal has failed to appreciate that due to accident the claimant could not appear in class V examination and lost his complete one year. 15. So far as the aforesaid argument of the counsel for the appellant is concerned, the claims tribunal has awarded a sum of Rs. 15,000/- for loss of education. 16. So far as issue with regard to the quantum of the compensation is concerned, counsel for the appellant has relied upon the judgment of R.D. Hattangadi Vs. Pest Contorl (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. 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 of compensation for non-pecuniary loss is not easy to determine but the award must reflect that different circumstances have been taken into consideration.” 17. I have gone through the bills submitted by the claimant/appellant with regard to his treatment, which are of more than Rs. 30,000/-, but the claims tribunal has awarded a sum of Rs. 25,000/- towards treatment. Further the claims Tribunal has not awarded any amount towards non pecuniary loss. In view of the above, I deem it fit and proper to enhance the amount to the following effect:- (a) Rs.30,000/- Medical treatment (b) Rs. 15,000/- Mental and Physical agony. (c) Rs.15,000/- Loss of Education. (d) Rs.15,000/- Non-pecuniary loss. 18. Thus, the claimants shall be entitled to get a total sum of Rs. 75,000/- towards compensation. Since the claims tribunal has recorded a finding that there was contributory negligence of both the parties, therefore, the claimant will be entitled to get a sum 50% of the awarded amount, which comes to Rs. 37,500/-. 19. Consequently, appeal partly succeeds and is allowed. (Rajesh Tandon, J.) 18.02.2008 SKS