IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO (MVA) No.79 of 2004 Date of Decision: 23rd September, 2008 Som Nath Appellant Versus Dr. Chander Mohan and another Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes For the appellant: Mr.Virender S. Chauhan, Advocate. For the respondent: Dr.Lalit Sharma, Advocate, for respondent No.2. Sanjay Karol, J. (Oral) The Claimant has filed the present appeal seeking enhancement of compensation awarded by the Motor Accident Claims Tribunal, Solan, in terms of award dated 9.1.2004 passed in MAC Petition no. 2-S/2 of 2003, titled as Som Nath vs. Dr. Chander Mohan and another, awarding a compensation of Rs.35,000/-. The claimant filed a petition under Section 166 of the Motor Vehicles Act, 1988, (hereinafter referred to as the Act), on the ground that on 21.6.2002, he was hit by vehicle No. CH-03-3774, owned and driven by Dr. Chander Mohan, respondent No.1 herein. Since the claimant sustained injuries and had to undergo medical treatment, he claimed compensation to the tune of Rs. 4 lacs. Whether the reporters of Local Papers are allowed to see the Judgment? 2 On the pleadings of the parties, the Tribunal framed the following issues:- 1. Whether the petitioner has sustained injuries on account of rash and negligent driving by respondent No.1, as alleged? OPP 2. Whether petitioner is entitled for compensation, if so, how much and from whom? OPP 3. Whether vehicle in question was not insured with respondent No.2? OPR-2. 4. Whether respondent No.1 was not having valid and effective driving licence at the relevant time, if so, its effect? OPR-2. 5. Relief. Opportunity of adducing evidence was given to the parties and based on the evidence (oral and documentary), the Tribunal answered Issue No.1 by holding that the vehicle in question was being driven in a rash and negligent manner by Dr. Chander Mohan, which resulted into the occurrence of the accident causing injury to the claimant. On Issue No.2, the Tribunal held that most of the expenses incurred towards medical treatment stood reimbursed by the complainant’s employer, therefore, the claimant was entitled to compensation towards medical expenses as special diet which was quantified at Rs.8000/-. Since the complainant was a government employee working with the S.S.B., no loss of earning was proved, but, however, Rs.2000/- was awarded on the said account. With regard to non-pecuniary damages, the Tribunal awarded Rs.15,000/- towards pain and suffering and Rs.10,00/- towards loss of amenities. 3 Issues No.3 and 4 were decided in favour of the owner and it was so held that driver was having valid and effective driving licence at the time of occurrence of the accident and as such in the absence of any breach of terms of the Insurance Policy, the Insurance Company was liable to indemnify and pay the compensation. The claimant alone has filed the appeal and no cross- objections have been filed either by the owner or by the Insurance Company. I have heard the learned counsel for the parties and also gone through the record. Learned counsel for the appellant has fairly not sought enhancement on account of loss of earnings and also medical expenses and submitted that his client is satisfied with the amount already awarded by the Tribunal. In Rashila Ram Kaushal vs. Ranjit Singh and others, 2004 ACJ 1891, this Court in addition to the compensation awarded by the Tribunal awarded Rs.37,000/- on account of claimant having suffered 20% permanent disability. The Court held that while awarding compensation if the permanent disability suffered by the claimant is such that it has adverse affect and impact on the enjoyment of the life and its amenities for the rest of the life the claimant ought to be adequately compensated. In R.D.Hattangadi vs. Pest Control (India) Pvt. Ltd. and others, 1995 ACJ 366, Apex Court has laid down the following criteria for awarding the compensation:- 4 “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 in life.” With regard to non-pecuniary damages, claimant Shri Som Nath (PW-1) has deposed that due to the accident he suffered a fracture on his leg and had to be hospitalized initially from 21.6.2002 to 2.8.2002 and thereafter from 16.11.2002 to 24.11.2002. He had to undergo operations twice and a rod had to be fitted in his leg. Due to the said injury and operations he suffered pain and agony and also sustained disability in terms of disability certificate Ext.PW-1/B. The said certificate proves that the claimant’s disability is to the extent of 30% permanent in nature. The claimant has also proved that due to the injury he cannot lift heavy objects. Importantly, there is no serious cross-examination on this point. His wife Smt. Shakuntla (PW-3) has also supported the version of the claimant. 5 While awarding the compensation the tribunal has considered the statement of Dr.Anil Bansal (PW-4), according to whom the disability qua whole body is 15% and mild in nature. This weighed with the Tribunal in awarding the compensation as stated hereinabove. In my view, the Tribunal has seriously erred in correctly appreciating the evidence on record. No doubt PW-4 has deposed that disability qua whole body is 15% but from the disability certificate, issued by the Board constituted for ascertaining the disability, it is evident that the disability is permanent in nature and to the extent of 30%. It is this disability certificate which has to be considered while awarding non- pecuniary damages. The claimant has deposed that he cannot walk properly and injury has impaired the enjoyment of his life and caused pain and suffering as he had to be admitted in the hospital and undergo operations twice. A rod had to be fitted in the leg and the claimant has to take special care of the said injury throughout his life. He is a young man and has a long life ahead. In my view, for the non-pecuniary damages, instead of Rs.25,000/- (pain and suffering and loss of amenities so awarded by the Tribunal), ends of justice would be met if the compensation is enhanced to Rs.65,000/-. For the foregoing reasons, the appeal is partly allowed. The award is modified to the aforesaid extent. Needless to say that rest of the award shall remain intact. 23rd September, 2008 (Sanjay Karol) (C) Judge. 6