IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO No. 84 of 2005 Judgment reserved on : 27.03.2009 Date of Decision : April 7th, 2009 Sh. Beant Singh Appellant Versus Sh. Balwant Singh and others. Respondents Coram: Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the appellant : Ms. Anita Dogra, Advocate, vice Mr. Ramakant Sharma, Advocate, for the appellant. For the respondents : Mr. Ramesh Sharma, Advocate, vice Mr. N.K. Thakur, Advocate, for respondents No. 1 and 2. Mr. Anand Sharma, Advocate, for respondent No. 3. Sanjay Karol, J. The claimant has filed the present petition seeking enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Una, in terms of award dated 1.7.2004, passed in MAC Petition No. 10/2001, titled Beant Singh versus Balwant Singh and others. 1 Whether reports of Local Papers may be allowed to see the judgment? 2 Facts necessary for the adjudication of the present petition are as under. On 30.1.2001, at about 6.15 P.M. claimant alongwith one Vijay Kumar were standing along side the road at village Panjuwana when a tempo bearing No. HP-20A-3457 owned by Shri Balwant Singh and driven by Shri Bal Kishan came in a rash and negligent manner, at a high speed and hit them. Resultantly, the claimant suffered multiple injuries and was taken to the Primary Health Centre Haroli from where he was referred to CMC Ludhiana. He remained admitted in the hospital from 30.1.2001 up to 15.2.2001. He undertook medical treatment, both as an indoor and outdoor patient, but could not fully recover and suffered permanent disability to the extent of 50% with regard to whole body. At the time of the accident the claimant was a student of 12th standard and had a monthly income of Rs. 3000/- from agricultural work as well as dairy farming. A petition under Section 166 of the Motor Vehicle Act, 1988 was filed claiming compensation of rupees six lacs. In the joint reply, both the owner and the driver took a plea that three persons were travelling on a scooter which skidded and the occupants sustained injuries. They requested that they be taken to the hospital at Haroli and respondent No.2, purely on humanitarian grounds brought them to Civil Hospital, Haroli but however later on a false, fabricated and concocted FIR was registered against him. The occurrence of the accident was denied. 3 The vehicle was insured with United India Insurance Company Limited who filed its reply, inter alia taking the objection that the driver was not possessed with a valid and effective driving licence and the vehicle was being driven in contravention of the terms and conditions of the insurance policy. Further the petition was filed in collusion with the respondents. Based on the pleadings of the parties the Tribunal framed the following issues: 1. Whether the petitioner has suffered injuries due to rash and negligent driving of tempo No. HP-20A-3457 by respondent Bal Kishan? OPP 2. In case issue No. 1 is proved in affirmative to what amount of compensation the petitioner is entitled to and from whom? OPP 3. Whether the petition is vague, incomplete and does not disclose cause of action? OPR-3 4. Whether the petition is not sustained in the eyes of law? OPR-3 5. Whether the driver of the alleged vehicle was not holding any valid and effective driving licence, if so its effect? OPR-3 6. Whether the vehicle was used in contravention of the terms and condition of the policy? OPR-3 7. Whether the petition is collusive, if so its effect? OPR-3 8. Relief. Appreciating the evidence (oral & documentary) on record the Tribunal came to the conclusion that through the statement of Shri Karnail Singh (PW-2) and Dr. G.S. Dhidra (PW-1), who proved F.I.R. Ext.PW2/A and Medical Certificate Ext.PW1/A, as also the statement of Shri Vijay Kumar (PW-3) it stood sufficiently proved that the 4 claimant suffered injuries due to rash and negligent driving on the part of Shri Bal Kishan who was driving tempo No. HP-20A-3457. Issues No. 3 and 4 were not pressed. Issues No. 5 and 6 were decided against the insurer as it was found that the driver was possessed with a valid and effective driving licence (Ext. RW1/A) and the vehicle being insured in terms of insurance policy (Ext. RX) the insurer was liable to indemnify the insured. On the question of compensation the Tribunal observed that the claimant, aged 17 years, was a student of 12th standard and doing agricultural and dairy farm work. Due to the accident claimant suffered injuries and incurred 50% permanent disability with regard to the whole body. Considering these factors the Tribunal awarded compensation as under: i. Towards reimbursement of expenses incurred for medical treatment (Annexures Ext.P1 to Ext.P64) Rs. 53,145.40p ii. On account of loss of future income on account of permanent disability Rs. 1,00,000/- iii. Towards mental pain and suffering including loss of amenities of loss of life Rs. 50,000/- Total : Rs. 2,03,145.40p The claimant has filed the present appeal seeking enhancement of the awarded amount of compensation. I have heard learned counsel for the parties and also perused the record. The findings of the Tribunal with regard to (i) the occurrence of the accident, (ii) negligence of the driver Shri Bal Kishan, (iii) the 5 vehicle in question being owned by Shri Balwant Singh and (iv) insured with United India Insurance Company Limited is not disputed. It is also not in dispute that Shri Beant Singh sustained injuries in the said accident and undertook medical treatment both as an indoor and outdoor patient and suffered permanent disability to the extent of 50% of the whole body. In support of his claim claimant examined Dr. G.S. Dhidra (PW-1), Shri Karnail Singh HHC (PW-2), spot witness Shri Vijay Kumar (PW-3), claimant’s father Shri Ajit Singh (PW-4) and Shri Jiwan Kumar (PW-5) In rebuttal driver of the vehicle Shri Bal Kishan examined himself as RW-1. No evidence was led by the insurer or the owner. The accident took place on 30.1.1001 and the claimant was immediately taken to Primary Health Centre, Haroli where PW-1 examined him and made the following observations: “1. Clean lacerated wound over right eye and fronto parietal area. Bonny tissues visible. Pressure bandage applied and stitches were not applied for the sake of convenience of surgeon. No peculiar smell from his breath. 2. Clean lacerated wound over right hand, tender and swollen.” PW-3 also deposed that the claimant suffered injuries on his head and arm. PW-4 has deposed after first aid was provided to the claimant he was taken to Christian Medical College, Ludhiana where he 6 remained admitted from 30.1.2001 to 15.2.2001. The claimant was operated on his arm, nose, eye and hand and regained consciousness only after eleven days. In all a sum of Rs. 1,50,000/- was spent towards medical treatment, attendant charges and special diet and Rs. 20,000/- was spent towards conveyance charges for taking the claimant for treatment to Ludhiana. He proved medical bills and the bills for conveyance (Ext. P1 to Ext. P66). PW-4 was working in Dubai but had to stay in India for a period of five months to ensure recovery of his son. Claimant was a student of 12th standard but however due to the injuries, neither could he clear the examination nor could pursue his studies any further. As per the disability certificate Ext. PW5/A the claimant suffered physical disability of permanent nature to the extent of 50% in relation to whole body which is “due to head injury and impaired mental function”. Claimant had cleared his matriculation examination in second division as is evident from certificate issued by the Himachal Pradesh Board of School Education (Ext. P68). He could not clear his 12th standard. As per the character certificate dated 20.6.2001(Ext. P67) the general behavior of the claimant was rated to be good. Therefore there is no doubt that, but for the accident, the claimant would have continued with his higher studies which, unfortunately he had to give up due to the accident in question. The bills for purchase of medicines and treatment (Ext.P1 to Ext.P62) and for hiring of conveyance (Ext.P63 to Ext.P66) amount 7 to Rs. 53,000/-. Compensation towards the same stand awarded. However the Tribunal has not awarded any thing with regard to attendant charges and special diet. The receipts issued by the Christian Medical College and Hospital, Ludhiana indicate that the claimant undertook treatment even up to May, 2001 but bills for the conveyance (taxi) are available only up to the month of February, 2001. The father of the claimant has deposed that he spent a sum of Rs. 1,50,000/- on the medical treatment. Keeping in view the fact that the claimant belongs to rural background it is quite possible that they may not have kept all the receipts of the expenses incurred by them. I am of the considered view that over and above a sum of Rs. 53,000/- awarded by the Tribunal, the claimant shall also be entitled to lump sum amount of Rs. 25,000/- towards diet money, attendant charges and expenses incurred for visiting the CMC Hospital, Ludhiana in the month of May, 2001. After all parents had to travel to Ludhiana which is in Punjab and at a far off place. Some expenses for staying at Ludhiana must have also been incurred by them. It is now a settled law that damages payable to the injured in an accident are divided into two parts. (i) Pecuniary damages capable of calculation in terms of money and other is the (ii) non- pecuniary damages. Pecuniary damages is the loss suffered by the victim due to loss of earning or other profits including the medical expenses on his treatment whereas the non-pecuniary damages are those which are incapable of being assessed by arithmetical 8 calculations. They normally include damages for pain and sufferings, damages for loss of amenities of life, expectation or life and inconvenience, hardship caused to the injured on account of such accident. This view has been taken in the case of R.D. Hattangadi versus Pest Control (India) Pvt. Ltd. and others, 1995 ACJ 366. The Court while assessing the compensation should have regard to the degree of deprivation and the loss caused by such deprivation. The compensation for the personal injuries should be assessed so as to compensate for the deprivation suffered throughout the life. Damages could be awarded for personal loss, damages of pain and suffering, loss of amenities, personal inconvenience and discomfiture, actual money spent on the treatment, transportation etc., actual loss of income and the estimated future loss of income. The Division Bench of this Court in Munish Kumar versus State of H.P. and others, Latest HLJ 2007 (HP) 1238, after taking into account the ratio of law laid down in H. West & Son Ltd. Versus Shephard, 1958-65 ACJ 504 (HL, England); Ward Versus James, (1965) 1 All ER 563; Basavaraj versus Shekhar, 1987 ACJ 1022 (Karnataka); R.D. Hattangadi versus Pest Control (India), Pvt. Ltd., 1995 ACJ 366 (SC); Phillips versus Western Railway Co.,l (1874) 4 QBD 406; Mediana, (1900) AC 113; Perry versus Cleaver, 1969 ACJ 363 (HL, England); Fair Versus London and North Western 9 Railway Co., (1989) 21 LT 326; Concord of India Insurance Co. Ltd. Versus Nirmala Devi, 1980 ACJ 55(SC); Brestu Ram versus Anant Ram and others, 1989 (2) Sim. L.C. 298 has held as under: “44 . Besides, the court is well advised to remember that the measures of damages in all these cases “should be such as to enable even a tortfeasor to say that he had amply atoned for his misadventure.” The observation of Lord Devlin that the proper approach to the problem or to adopt a test as to what contemporary society would deem to be a fair sum, such as would allow the wrongdoer to “hold up his head among his neighbours and say with their approval that he has done the fair thing”, is quite apposite to be kept in mind by the court in determining compensation in person injury cases.” “47. It is well settled that in disablement cases compensation has always to be higher than even in cases of death since it is given to the living victim of the accident both for his personal loss and for economic loss. It can be said that the bodily injury is to be treated as a deprivation which entitle the victim to claim damages, which vary according to the gravity of the injury. Further, due to this injury, there can be loss of earnings, completely or partial due to the accident on his capacity to earn the same. Another consequence may be the loss he suffers on account of the enjoyment of life or full pleasures of living.” With regard to the future loss of income the Tribunal has awarded a lump sum amount of Rs. 1 lac. PW-4 has deposed that 10 the claimant was attending to agricultural work and dairy farm and thus earning Rs. 3000/- per month. There is nothing to prove the same but however, considering the fact that the claimant would have completed his studies and taken up some job and earn some money. Even though as per the disability certificate the disability is 50% but it is noticeable that the disability is of “Head Injury with impaired mental function”. Hence the claimant cannot take up any job and disability for the purpose of loss of income is near total. In the year 2001 the State Government was paying Rs. 55/- per day as wages to the persons engaged on daily wages. Taking the same to be the bare minimum which the claimant would have earned, by deducting one third from the same the future loss of income can reasonably be assessed to be Rs. 55 – 1/3rd of Rs. 55 = Rs. 36.66/- per day or Rs. 1100/- per month or Rs. 13,200/-per year. The claimant was just 17 years of age and therefore, by applying the multiplier of 16, the claimant would be entitled to 1100 X 12 X 16 = Rs. 2,11,200/- towards loss of income. Towards pain and suffering and loss of marital prospects the sum of Rs. 50,000/- is slightly on the lower side and is enhanced to Rs. 1 lac. He had to give up his studied. With 50% permanent disability of the nature referred to hereinabove his marital prospects almost stand nil. 11 Thus keeping in view the above discussions, claimant is held entitled to a total compensation of Rs. 78,000/- + Rs. 2,11,200/- + Rs. 1,00,000/- = Rs. 3,89,200/-. The impugned award is modified accordingly. Appeal is allowed. (Sanjay Karol), Judge. April 7th , 2009 (PK)