IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO No. 443 of 2004 with FAO No. 442 of 2004 Date of Decision : 26th August, 2008 FAO No. 443 of 2004 Vijay Dhiman …………….appellant s Versus: Suneel Kumar and others ………. …respondents. FAO No. 442 of 2004 Sunil Dutt …………….appellant s Versus: Suneel Kumar and another ………. …respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No FAO No. 443 of 2004 For the appellant : Mr. Ashwani Kaundal, Advocate For respondent No.1: Mr.Ajay Chandel, Advocate. For respondent No.2: Mr. B. M. Chauhan, Advocate. For respondent No.3: Mr. Vinod Gupta, Advocate. FAO No. 442 of 2004 For the appellant : Mr. Ashwani Kaundal, Advocate For respondent No.1: Mr. Suneet Goel, Advocate. For respondent No.2: Mr. B. M. Chauhan, Advocate. Sanjay Karol, J (Oral). The present appeals arise out of the common Award dated 24.9.2004 passed by the Motor Accidents Claims Tribunal, 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 Hamirpur, H.P. in M.A.C. Petition No. 71 of 2002 titled as Vijay Dhiman v. Sunil Kumar & Others and M.A.C. Petition No. 76 of 2002 titled as Suneel Dutt v. Suneel Kumar and another. Therefore, they are being disposed of by a common judgment. The Tribunal awarded a sum of Rs.6122/- to claimant Shri Vijay Dhiman and a sum of Rs.7844/- to Shri Sunil Dutt. As a result of an accident which took place on 4.12.2001, the claimants sustained injuries and were admitted in the Govt. Hospital at Hamirpur and given medical treatment. The claimants filed claim petitions, which were consolidated and listed for hearing in terms of order dated 22.11.2003 passed by the Tribunal. Based on the pleadings of the parties, the Court below framed the following issues:- 1. Whether the petitioners received injuries in a motor vehicle accident on 4.12.2001 at Bus Stand, Hamirpur due to rash and negligent driving on the part of respondent No.1 as alleged? ..OPP 2. If Issue No.1 is held in the affirmative, to what amount of compensation, the petitioners are entitled and from whom? .OPP 3. Whether the accident has occurred due to rash and negligent driving of respondent No.3, if so, to what effect? …..OPR 1 & 2. 4. Whether respondent No.1 was not having effective and valid driving licence to drive Tata-sumo involved in the accident? 5. Relief. 3 After the parties adduced their common evidence and appreciating the material on record, the Tribunal held that Sunil Kumar was negligent in driving vehicle No. HP-01-8675 and as a result of the same, the claimants who were driving the Motor Cycle met with an accident and due to the collision, the claimants suffered injuries. Issues No. 1 & 3 were decided accordingly. The claimants were awarded a sum of Rs.6122/- and Rs.7844/- respectively and issue No.2 was decided as such. The liability to pay the compensation was fastened on the Insurance Company, namely, The New India Assurance Company Ltd., as the vehicle was insured. The present appeals have been filed by the claimants seeking enhancement of the compensation awarded by the Tribunal. No appeal/cross-objections has been filed either by the Insurance Company or by the owner/driver of the vehicle in question. The Apex Court in Divisional Controller K.S.R.T.C. vs. Mahadev Shetty {2003(7) SCC 197} has laid down the principles to be followed by the Court while determining the compensation payable to the claimant, who sustained injuries in an accident. I have perused the record and heard the learned counsel for the parties. Shri Vijay Dhiman (PW-2) has clearly deposed that he remained admitted in the hospital from 4.12.2001 upto 4 11.12.2001 where he had to undergo Surgery for the fracture of his nasal bones and he incurred an expenditure of Rs.25000/- for the medical treatment. However, he could only adduce documentary evidence, Marks A to I indicating that the total amount spent by him was Rs.1044/-. He has deposed that he was working as a Contractor and sustained loss of earnings due to the accident. Importantly, he has not been cross-examined on the point of money spent by him for taking medical treatment. From his medical report Ext.PW-2/A which is the discharge slip, it is evident that the claimant Vijay Kumar Dhiman received injuries and had to undergo treatment with respect to the fracture of his nasal bones. The Court below while passing the impugned Award has assumed that 50% of the expenditure incurred for medical treatment including transportation charges had been paid by respondent No.1. This is not borne out from the record. Even though the claimant has been able to prove the documentary evidence that he has incurred an expenditure of Rs.2244/- only but however considering that he was hospitalized and some amount must have been spent for other expenditure including the expenditure incurred by the attendant. Therefore, on this count, a sum of Rs.5000/- is awarded as compensation for having incurred medical expense, transportation charges and charges of the attendant. On account of pain and suffering, it has been proved 5 that there was a fracture of nasal bones. The Tribunal has awarded a sum of Rs.5000/-, which in my considered view, is on the lower side and should be Rs.10,000/-. Therefore, there is an enhancement on this account by Rs.5000/-. Claimant Vijay Dhiman has filed CMP No.1203 of 2004 in FAO No. 443 of 2004 for placing on record his income tax return for the year 2001-2002. The document is taken on record and the application is allowed. From the document on record, it is evident that he was having an annual income of Rs.1,00,076/-. This document is not being considered for determination of the compensation but the fact of the matter is that the claimant has deposed that he is a Contractor and having some income. He was hospitalized and thereafter there is loss of income which is quantified to be Rs.6,000/-. Thus in all, claimant Vijay Dhiman is entitled for compensation as under:- 1. Amount spent on treatment : Rs. 2,000.00 2. Attendant charges : Rs. 550.00 3. Transportation charges : Rs. 2,450.00 4. Pain and suffering Rs.10,000.00 5. Loss of earning due to Rs. 6,000.00 hospitalization : ------------------- Total Rs.21,000.00 ------------------- The Court below has awarded a sum of Rs.7844/- to the claimant Sunil Dutt including medical treatment, attendant charges and transportation charges. In my view, the Tribunal has seriously erred in awarding so. From the statements of PW-3 6 & RW-1 it is evident that some amount has been spent for incurring medical expense, transportation charges and also purchase of fruits vide receipt Ext.PW-6/A to Ext.PW-6/G as a special diet. Receipt Ext.4/A for a sum of Rs.2450/- towards transportation charges has been proved in accordance with law. PW-3 has categorically deposed that he has incurred an expense of approximately Rs. One lac. The witness has been cross- examined on this point and from the documentary evidence on record, it is evident that the claimant incurred an expense of Rs.2450/-, Rs.4488/- and Rs.12163/-. The Tribunal has disbelieved the said receipts for the reason that there is no corroborative evidence to substantiate that a special diet has been prescribed by the doctor. It is, however, evident that the claimant Sunil Dutt was admitted in the hospital at Hamirpur from 4.12.2001 to 19.12.2001 and had undergone treatment for fracture of shaft femur, some expenditure must have been incurred by the attendant during his hospitalization and, therefore, in my considered view, these sums ought to have been awarded. Towards pain and suffering Rs.10,000/- instead of Rs.5000/- as awarded by the Tribunal would be reasonable compensation. In so far as the loss of earning is concerned, there is nothing on record but however, it is admitted fact that claimant Sunil Dutt remained in the hospital for 15 days. The 7 claimant was working as a Contractor and was having some income. Claimant Sunil Dutt filed CMP No.1201/2004 in FAO No. 442/2004 to place on record the statement of account issued by the State Bank of Patiala, Hamirpur. The same is allowed and the document is taken on record. The bank statement, however, does not disclose the income of the claimant Sunil Dutt, therefore, the same is not being considered for the purpose of determining the compensation. The Tribunal has determined his income to be Rs.15000/- per annum which I feel is on the lower side and should be approximately Rs.2300/- per month. Therefore, in my view, a sum of Rs.6,000/- would be appropriate amount for loss of earning due to hospitalization. Claimant Sunil Dutt is held entitled to compensation as under:- 1. Amount spent on treatment : Rs. 2,000.00 2. Attendant charges : Rs. 550.00 3. Transportation charges : Rs. 2,450.00 4. Pain and suffering Rs.10,000.00 5. Loss of earning due to Rs. 6,000.00 hospitalization : ------------------- Total Rs.21,000.00 ------------------- Both the claimants would be entitled total compensation of Rs.21,000/- each including the compensation already awarded by the Tribunal. 8 The award is modified to the aforesaid extent. The claimants shall be entitled to all other benefits as awarded by the Tribunal. The appeals are disposed of. ( Sanjay Karol ), Judge. August 26, 2008 (rana)