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. 381 of 2007 (Old No. 934/98) Chandra Lal Shah Vs. Mohan Singh Rawat. Approved for reporting Not Approved for reporting Date of Decision: - 11-02-2008. Initial of Judge: HIGH COURT OF UTTARAKHAND AT NAINITAL A.O. NO. 381 OF 2007 (Old No. 934 of 1998) Chandra Lal Shah, S/o Bhawani Lal Shah, R/o Jakhan Devi, District – Almora. ........Defendant/Appellant. Vs. Mohan Singh Rawat S/o Sri Trilok Singh Rawat, R/o Uderia, Rawat Shera, Patti Kamayar, District-Almora. ...........Claimant/Respondent. Dated: 11.2.2008 Hon’ble Rajesh Tandon, J. Heard Sri Pooran Singh Rawat, counsel for the appellant. This is an appeal filed by the Insured. 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 1.9.1998 passed by the Motor Accident Claims Tribunal/District Judge, Pithoragarh in M.A.C.C. No. 3 of 1994 Mohan Singh Rawat Vs. Chandra Lal Shah, whereby the claimant/respondent has been awarded a sum of Rs. 50,000/- towards compensation. 3. Briefly stated, a claim petition was filed by the claimant / respondent being M.A.C.C. No. 3 of 1994 Mohan Singh Rawat Vs. Chandra Lal Shah claiming a sum of Rs. 1,25,000/- towards compensation. 4. According to the claimant/ respondent, on 7.8.1993 at about 6.30 p.m. when he was going on foot his home by his side from Berinag along with one Jagdish Singh Rawat, all of a sudden a truck No. U.P. D. 995 came in a fast speed from the side of Berinag on the wrong side and dashed the injured and crushed his right foot. The injured sustained grievous injuries in that accident and was taken to District Hospital Almora for treatment, where he remained admitted for a long time. X ray was done as there was fracture in his right foot. He remained admitted in the Hospital for the period from 7.8.1993 to 10.11.1993 and thereafter from 17.12.1993 to 19.12.1993 and incurred expenses of Rs. 25,000/- on his treatment. At the time of accident, the injured was 50 years of age and was earning a sum of Rs. 3,000/- per month. 5. Chandra Lal Shah / appellant has contested the claim by filing a written statement stating therein that his truck was stationary and its driver was not in the truck. A jeep (taxi) had come from opposite direction given rashly and negligently and it rubbed the side of the truck and a person sitting with his leg hanging out of the jeep suffered injuries. 6. On the pleadings of the parties, claims tribunal has framed following issues: “1. Whether the accident took place on 7.8.1993 at about 6.30 p.m. near Kailukhan between Berinag Chauk ri Motor Road and due to rash and negligent driving of Truck No. U.D. 995 by its driver? 2. Whether the accident in question took place in the manner as alleged in the para No. 12 of the written statement? 3. To what amount and relief, if any, is the claimant entitled?” 7. So far as the Issues No. 1 and 2 are concerned, both were decided together. The claimants has examined himself as P.W.1. He has deposed that on 7.8.1993, he and Jagdish Singh came to Berinag by Taxi and from there they were going on foot to their Village. They had barely moved 10 to 15 yards then a truck No. UD 995 came from Berinag side driver at a fast speed 60 Km./h rashly and negligently and passed over his right foot causing severe grievous injuries and fracture. The assertion of the claimant Mohanj Singh P.W.1 regarding his sustaining injuries in the manner alleged is reported by medical evidence and injury report. The defendant has not produced the driver of the truck or the driver of the Jeep or any other evidence to support his pleadings that Mohan Singh was injured in the manner pleaded by him. Further Dr. Vinod Kumar Pandey P.W.2 has stated that the injuries sustained by Mohan Singh could not have been caused in the manner pleaded by the defendant. P.W.1 Chandra Lal Shah is not an eye witness. His statement shows that he is saying just what he has heard. The evidence is reliable and also supported by the fact that F.I.R. was promptly lodged. After relying upon the aforesaid documents as well as the statements, claims tribunal has recorded a finding that the accident in which Mohan Singh sustained injuries on 7.8.1993 at about 6.30 p.m. near Kallukhan was caused due to rash and negligent driving of the truck No. U.P.D.-995 by its driver. It could not be proved that the accident in question took place in the manner alleged in paragraph 12 of the written statement filed by the appellant. Aforesaid issues have been decided in favour of the claimant. 8. In view of the above, I do not find any infirmity with the aforesaid finding with regard to rash and negligent driving. 9. So far as the quantum of compensation is concerned, while deciding the same it has come on the record that he was treated at Base Hospital from 1.8.1993 to 19.11.1993 and his son and other family members had to stay with him. He suffered mental and physical pain and agony. He was again admitted to the hospital on 17.12.1993 and remained there till 22.12.1993. He has further deposed that injury has not healed even now. According to the claimant, a sum of Rs. 30,000/- were spent on his treatment and he has paid a sum of Rs. 1500/- for the taxi and took him to Almora. Dr. Vinod Pandey has supported the version of the claimant / respondent. Skin- grafting was also done. He was admitted in the hospital on 17.12.1993 and remained there upto 22.12.1993. According to the Doctor, he has become permanently disabled to the extent of 40% and his foot has become disfigured. Cash memo and bills vide list 25 Ga 1 were filed. Considering the over all circumstances of the case, the claims tribunal has awarded a sum of Rs. 50,000/- towards compensation along with simple interest @ 12% per annum. 10. Counsel for the appellant has submitted that the disability certificate has not been proved. 11. I have gone through the statement of P.W.2 Dr. Vinod Pandey, who has stated to the following effect: “eSaus budk bykt fd;k ;g rc ls 19-11-93 rd bUgha pksVksa ds lEcU/k esa HkrhZ jgsA buds lh/ks iSj esa Febula gM~Mh o Calcamium gM~Mh VwVh FkhA ;g V[kus ¼lh/ks½ ij gM~Mh rd xgjk t[e FkkA nh[k jgh FkhA ;g injury fdlh okgu ls mlh fnu okgu ds iSj esa vkus o dqpyus ls vk ldrh FkhA 2& budk ikao dk eSaus operation fd;k iM+k FkkA nwljk vkijs”ku 5-11-93 dk buds ikao ij skin grafting dh FkhA fn0 17-12-93 ls fn0 22-12-93 rd blh pksV ds fy, HkrhZ FksA lfVZfQdsV dkxt ua0 9x esjs ys[k o nLr[kr esa gSA ejht us Hkh blesa esjs lkeus nLr[kr fd;s gSaA Ex d gSA ;g vLirky esa HkrhZ ds nkSjku pyus fQjus ;ksX; ugha FksA bls vLirky esa [kwu p<+k;k FkkA vLirky esa bl ejht dks [kwu Hkh p<+k;k FkkA ejht ds lkFk mlds feyus okys yksx ?kj ds yksx vLirky esa jgrs FksA tks fd ejht dh ns[kHkky ds fy, jgrs Fks 3& dkxt la0 26x@5] 26x@8 ijps esjs prescriptions bLrsekyh esh lykg ij [kjhns x;s nokvksa dh gSA bu ipksZa ds ek/;e ls [kjhnh nok;sa bl ejht ds mi;ksx esa vk;h gSa fn0 8-8-93 dks 12-30 cts eSyusa blds lh/ks ikao dk X ray fd;k Fkk ftldh ewy fjiksVZ esjs gkFk dh fy[kh o nLr[krh gSA bldh QksVks izfr n[ky gSA ¼izn”kZ &2½ 4& bldk iSj bl pksV ds dkj.k disfigure gks x;k gSA bldh permanent disability 40% gSAfQj dgk fd bldh disability 40% ls de gSA ;g LFkk;kh gSA” 12. As will appear from the aforesaid statement that the disability certificate has fully been proved, I find no illegality or infirmity in the award passed by the claims tribunal concerned as Doctor himself has stated that the disability is to the extent of 40% as has come in the disability certificate. 13. In R.D. Hattangadi Vs. Pest Control (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 accoaunt 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 of compensation for non-pecuniary loss is not easy to determine but the award must reflect that different circumstances have been taken into consideration.” 14. Further counsel for the appellant has submitted that the interest is on the higher side. 15. In Managing Director, T.N.S.T.C. Vs. Sripriya and others [2007(67) ALR 813] Supreme Court, the Apex Court has observed as under; “10. In regard to choice of the multiplicand the Halsbury’s Laws of England in Vol. 34, para 98 stats the principle thus: “98. Assessment of damages under the fatal Accidents Act, 1976. – The Courts have evolved a method for calculating the amount of pecuniary benefit that dependants could reasonably expect to have received from the deceased in the future. First the annual value to the dependants of those benefits (the multiplicand) is assessed. In the ordinary case of the death of a wage- earner that figure is arrived at by deducting from the wages the estimated amount of his own personal and living expenses. The assessment is split into two parts. The first part comprises damages for the period between death and trial. The multiplicand is multiplied by the number of years which have elapsed between those two dates. Interest at one-hald the short-term investment rate is also awarded on that multiplicand. The second part is damages for the period from the trial onwards. For that period, the number of years which have based on the number of years that the expectancy would probably have lasted; central to that calculation is the probable length of the deceased’s working life at the date of death.” 15. Considering the age of the deceased appropriate multiplier would be 12. The income fixed by the Tribunal and the deduction for personal expenses do not warrant any interference. Worked out on that basis, the entitlement of the loss of income is Rs. 5,76,000. The other expenses awarded unaltered. In other words, total entitlement of the claimant is fixed at Rs. 6,00,000. It would be appropriate to fix the rate of interest at 7.5% instead of 9% as done by the Tribunal and maintained by the High Court. 16. In view of the aforesaid, the interest shall be payable @ 9% per annum in place of 12% per annum in case amount of the award has not already been paid. 17. Subject to aforesaid modification in the rate of interest, A.O. lacks merit and is dismissed. No order as to costs. (Rajesh Tandon, J.) 11.2.2008 Rathour