1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CIVIL MISC. APPEAL No. 353 of 1997 LALIT KUMAR V/S M/S SOFTAX Mr. DILIP KAWADIA, for the appellant / petitioner Mr. JAGDISH VYAS, for the respondent Date of Order : 26.9.2008 HON'BLE SHRI N P GUPTA,J. ORDER ----- This appeal has been filed by the claimant, seeking to challenge the award of the Motor Accident Claims Tribunal, Rajsamand dated 20.2.1997, awarding a total compensation of Rs. 2,50,000/-, and directing the payment to be made within two months, failing which the amount shall carry interest @ 12% from the date of award till payment. Necessary facts are, that on 3.5.1992 the claimant along with two more persons was going to Nathdwara, while they reached Mandavar the delinquent car came from opposite direction being driven rashly and negligently, and hit against motor cycle, on which the claimant was traveling. Consequently the motor cycle fell down the culvert. The claimant received serious injuries on the leg, which ultimately had to be amputated. The claimant was 30 years of age at the time of accident, and alleged to be earning Rs. 4,000/- per month from marble business, and has claimed total compensation of Rs. 2 14,28,696/-, under different heads. The claim was contested by the insurer. The defendant no.2 did not file any reply, and defendant no.1 remained exparte. Deciding question of negligence, being issue no. 1, the learned Tribunal found, that the claimant had contributed in causing the accident to the extent of 20%. It was also found, that in the accident he suffered fractures of leg, and ultimately his leg was amputated from above the knee. This finding is not under challenge before me by either side. Then, deciding issue no. 2, the crucial issue regarding quantum, the learned Tribunal has found the claimant to be entitled to claimed amount of Rs. 700/-, being Jeep and ambulance expenditure incurred in carrying the victim from the place of accident to Amet hospital, and from Amet to Udaipur. Likewise, the claimed amount of Rs. 1500/-, for the expenses incurred for transportation of claimant from Udaipur to Ahmedabad has also been assessed to be payable. Then, the claim made on account of the expenditure of five family members, who had accompanied the victim from Udaipur to Ahmedabad in Jeep, charges for their have not been allowed as it was believed that they must have traveled in the same ambulance but this finding of the learned Tribunal has not been challenged before me. Then, various medical bills have been considered, and a total amount of Rs. 1,05,800/- has been assessed to be payable for the medical expenditure. 3 Then, the claimant had claimed Rs. 25,000/- by way of expenditure incurred in the boarding and lodging of family members who had to accompany him all this time has not been allowed, but this finding of the learned Tribunal has also not been challenged before me. Then, the amount of Rs. 36,080/- claimed for helper and attendant has also not been awarded, on the ground, that the attendant has not been produced. Then, regarding claim for Rs.1,50,000/- for the expected future medical treatment and medicines, it was found, that since the leg has already been amputated, and medical bills have already been considered, and it is not shown that any future medical expenses is likely to be incurred, therefore, no separate amount was awarded under this head. Then, under the head of loss of income, a sum of Rs. 1,50,000/- has been assessed to be payable. Then, the claim of Rs. 50,000/- under the head of sufferings and inconvenience of the family members has been disallowed, as it was found, that it is the victim who can only claim for compensation under this head. Then, for the permanent disablement, and mental pain and agony of the claimant, on account of the injury, a total sum of Rs. 30,000/- has been assessed to be payable. Then, the claim for repair of the motor cycle has not been accepted, on the ground, that no material has been produced on record, about repair of the motor cycle, and thus it is possible, that either the claimant has recovered the claim from the Insurer of the motor cycle, or motor cycle did not sustain much damage. Thus, the total compensation was assessed at Rs. 2,88,000/-, and after making a deduction of 20% being the extent of contribution of the victim, the compensation was assessed at Rs.2,30,400/-. Then, a sum of Rs. 19,600/- has 4 been awarded as a consolidated amount of interest on the compensation, for the period uptill the passing of the award. Thus, a total compensation of Rs.2,50,000/- has been awarded. Assailing the impugned award it is contended, that various medical bills were available on record, which have not been considered by the learned Tribunal, and the amounts thereof are also required to be awarded. Then, it was next contended, that the Tribunal was in error in denying the compensation claimed under the head of keeping helper, as the appellant had already produced receipts of payment of that amount, to Sumer Singh. It was then contended, that the Tribunal was in error in awarding consolidated amount of interest being Rs. 19,600/-. According to the learned counsel there is no legal basis for award of such consolidated amount, rather the interest should have been awarded from the date of claim uptill the passing of the award as well. Lastly it was contended, that the sum of Rs. 30,000/-, assessed as non-pecuniary compensation for the pain and suffering of the appellant, on account of the injuries and amputation etc. is grossly inadequate, and it is required to be substantially enhanced. For this learned counsel relied upon the judgment of this Court in Laduram Vs. Avtar Singh reported in MACD 2005(Raj.)-258 and Sunil Kumar Vs. Asu & Ors. reported in MACD 2006(2) (Raj.)-1038. Learned counsel for the respondent, on the other hand submitted, that from a joint perusal of the record by both the learned counsel, it does transpire, that some of 5 the medical bills have not been taken into consideration. Then, the other amounts awarded have been contended to be adequate requiring no interference. I have considered the submissions, and have gone through the record. In my view, from the perusal of the record it is clear, that the Tribunal has not considered the documents Ex. 91 to 158, and Ex. 243 to 257 being the documents regarding expenditure incurred by the appellant as medical expenditure, and learned counsels inform, that these documents total to Rs. 32,589/-. Accordingly, in the sum of Rs. 1,05,800/- as awarded by the learned Tribunal under the head of medical expenditure, this amount of Rs. 32,589/- is also required to be added as an enhancement. Coming to the claim of the attendant, the learned Tribunal has found, that the person who was engaged as attendant has not been examined, while according to the learned counsel for the appellant, the claimant has produced the receipts as Ex. 159 to 166 in this regard. I have gone through these documents. They only purport to be receipts given by Sumer Singh, about having received salary @ Rs. 900/- per month for attending the claimant for different periods from the date of accident to 31.12.1994. But then, a look at the statement of the claimant himself shows, that all that he has deposed is that he had engaged one Sumer Singh as a servant at a salary of Rs. 900/- per month, for which he has receipts, 6 but he has not deposed as to for what length of time the servant was kept, nor has he proved those receipts. They are marked exhibit, only because, in earlier part of his statement, he has deposed to have produced police papers, papers about treatment, and papers about medical bills, as Ex. 10 to 310. Obviously he does not mean to prove these documents as receipts obtained from Sumer Singh. He has also not deposed as to when his leg has been amputated, except simply deposing that despite long treatment the bones did not re-unite, therefore, his right leg was required to be amputated, and the Court noticed, that his right leg is amputated from above the knee. In such circumstances, to say the least, it is not proved, that the above expenditure as claimed has been incurred by the claimant; more so, when the family members of the appellant were attending the victim. As such, I do not find any error in not awarding any amount under this head. Then, so far as the amount awarded being Rs. 30,000/- as non-pecuniary compensation is concerned, in my view, this amount obviously is grossly inadequate. The two judgments cited by the learned counsel for the appellant fully supports the contention of the learned counsel. Obviously, for assessing non-pecuniary damages, various factors are required to be considered, including damages for physical pain, inconveniences, disablement, and loss of amenities of life, which may include variety of factors, like day to day inconveniences to be faced by the claimant. Then, damages for loss of expectation of life, on account of injury, as on account of injury the normal longevity of the person concerned is shortened is also to 7 be considered, inconvenience, hardship, discomfort, disappointment, frustration and mental stress, to be felt by the victim, for rest of the life on account of the continued feeling of invalidity sustained by him, on account of accident is also required to be considered, for computing the amount of compensation to be awarded. In the present case, it is alleged, that the accident occurred on 3.5.1992. The appellant has produced Ex. 259, a certificate by Orthopedician, that his leg was amputated on 14.10.94 on upper thigh, leaving stump of 7-8 inch. The documents regarding treatment, as are available on record, show that the appellant had undergone treatment at Udaipur, Ahmedabad and Bombay spread over the period upto 1994, and had been operated upon for more than once, it is clear, that the appellant had suffered agony of operations and treatment, from 3.5.1992 to 14.10.1994, say practically 2 ½ years, and then, being the age in 30's is to suffer agony for rest of the life, including the inconveniences as cataloged above. In such circumstances, in my view, this amount of Rs. 30,000/- as awarded by the Tribunal is required to be enhanced to Rs. 2,50,000/-. Then, taking up the award of interest, in my view, there is no legal basis for awarding such amount as consolidated amount, rather the interest was required to be awarded at such reasonable rate, as may be thought proper by the learned Tribunal. It is informed, that the amount, as awarded, has already been paid to the claimant, soon after passing of the award i.e. in April, 1997 itself. In such circumstances, in my view, instead of consolidated amount of Rs. 19,600/-, the claimant may be 8 awarded interest pendente-lite at the rate of 8% per annum. Accordingly, the appeal is allowed, in the manner, that the total assessed compensation of Rs. 2,88,000/- is enhanced by another amount of Rs. 2,52,589/-. Thus, the total compensation is assessed at Rs. 5,40,589/- out of which deducting 20% the extent of contribution of the injured in causing the accident, being a sum of Rs. 1,08,118, the payable compensation is assessed at Rs. 4,32,471/- rounded to Rs. 4,32,500/-. This amount shall carry interest @ 8% p.a. pendente-lite, and till payment, after adjustment of whatever amounts have already been paid to the claimants. The parties shall bear their own costs. ( N P GUPTA ),J. /Sushil/