IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO No.188 of 2004 Judgment reserved on: November 18, 2008 Date of Decision : December 12, 2008 Kaur Chand …Appellant. Versus: Rajinder & Others …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. Jagdish Thakur, vice counsel For respondent No.9: Mr. Ashwani K.Sharma, Advocate SANJAY KAROL, JUDGE. Shri Kaur Chand (hereinafter referred to as ‘the claimant’) has filed the present appeal assailing the impugned Award dated 31.3.2004 passed by the Motor Accident Claim Tribunal (II), Una, H.P., in M.A.C. Petition No.37/94/93 titled as Kaur Chand vs. Rajinder & Others. The challenge to the appeal is on the ground that the Tribunal has ignored the material on record while determining the damages due and payable to the claimant and, as such, the amount of compensation needs to be enhanced. The claimant was travelling in vehicle No.HPK-2596, which met with an accident on 13.2.1993 due to the negligence 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 of its driver Shri Beeku, respondent No.8 herein. The claimant sustained multiple injuries in the accident and, as such, had to undertake medical treatment both as an indoor and out door patient w.e.f. 13.2.1993. In the claimant’s petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’), considering the material placed on record, the Tribunal awarded compensation of Rs.25,575/- to the claimant on following counts:- Non pecuniary damages i) Pain and suffering = Rs.7500/- ii) Loss of enjoyment of life = Rs.1500/- iii) Shortened expectation of life = -Nil- Pecuniary damages i) Loss of earning and earning capacity = Rs.5,400/- ii) Medical expenses = Rs. 675/- Miscellaneous charges i) Taxi charges = Rs.2,700/- ii) Special diet and attendant = Rs.7,800/- -------------------- Total Rs.25,575/- ------------------- The liability to pay the same was fastened on the insurer, namely, M/s. National Insurance Company (hereinafter referred to as ‘the Insurance Company’), as the vehicle in question was insured and the driver was found to have 3 possessed with an effective and valid driving licence (Ext.RW- 3/A) while driving the vehicle. That since the claimant alone has filed the present appeal, therefore, the scope is restricted only with regard to the enhancement of the compensation. Dr. S. M. Mehta (PW-1), Dr. Raj Kumar (PW-2) and Dr. D. N. Chadha (PW-6) have proved the fact that the claimant sustained injuries; was given medical treatment and sustained permanent disability to the extent of 20%. The accident took place on 13.2.1993 and the disability certificate is dated 6.11.1993. From the record, it is evident that the claimant sustained injuries of compression (50% of D7 & D11 Back Bone). However, Shri Anoop Thakur (RW-1), the witness examined by the Insurance Company has proved on record the certificate Ext.RW-1/A from which it is evident that as on 24.2.1998, the claimant at the time of confirmation of his regular appointment with the Irrigation Department of the State of Himachal Pradesh, had submitted a fitness certificate showing him to be physically fit. As to whether the disability certificate was procured and submitted for the purposes of getting the employment regularized or not, is not evident from the record. The fact of the matter is that on the claimant’s own showing he was found to be medically fit. It appears that the disability acquired in the year 1993 was over in the year 1998. There is 4 nothing on record to suggest that after 1998, the claimant has again acquired any disability arising out of the said accident. That the claimant was employed as a daily wager with the Irrigation Department of the State and drawing a salary of Rs.1400/- per month, is not disputed. Even after the injury he continued to get the same amount. But, however, it is a matter of record that the claimant continued to get the medical treatment as indoor patient w.e.f. 14.2.1993 up to 1.3.1993 and thereafter as an out door patient. It is also a matter of record that the claimant sustained injuries of compression 50% of D7 & D11 and, as such, suffered pain and agony and acquired disability of 20%, which was permanent in nature. Even though some miracle happened and the disability vanished, but yet he had to sustain pain and agony for the injuries suffered due to the accident. The spinal injury is bound to resurface, more so with the ageing of the human body. Therefore, in my view, instead of Rs.9,000/- awarded by the Tribunal towards non-pecuniary damages, a sum of Rs.75,000/- would be just and reasonable, which would cover all heads under the category non--pecuniary damages. With regard to the pecuniary damages and for the head of loss of earnings, the Tribunal, in my view, has rightly taken into account the period of four months while assessing the loss of income. The claimant must have taken much time to recover and report back for duty. The claimant was drawing a 5 salary of Rs.1400/- per month and was alleged to have had agricultural income to the tune of Rs.600/- per month. Even though there is no documentary evidence on record to support this additional source of income, yet the same was taken into account by the Tribunal. In my view, there is nothing wrong with the findings of the Tribunal in awarding Rs.5400/- towards loss of income after taking into account the necessary deductions required to be made in law. With regard to other amount, the Tribunal has rightly taken into account the material on record and awarded the compensation. I see no basis to enhance the same. For the aforesaid reasons, the appeal is partly allowed and it is held that the claimant shall be entitled to the following amount of compensation:- Non-pecuniary damages = Rs.75,000.00 (pain and sufferings, loss of enjoyment of life and all other heads). Pecuniary damages : (as awarded by the Tribunal) i) Loss of earning and earning capacity = Rs.5400.00 ii) Medical expenses = Rs. 675.00 Miscellaneous charges i) Taxi charges = Rs.2700.00 ii) Special diet and attendant = Rs.7800.00 ----------------------- Total = Rs.91,575.00 ------------------------- 6 The Award is modified accordingly. The claimant shall be entitled to interest as awarded by the Tribunal. ( Sanjay Karol ), Judge. December 12, 2008. (rana)