HIGH COURT OF UTTARAKHAND AT NAINITAL AO No. 125 of 2007 Khajan Singh, S/o Sri Maddi, R/o 41-A, South Vanasthali, Ballupur, Dehradun. ........Claimant/Appellant Versus 1. Sudhir Shaur, S/o Prem Sagar, R/o 419-L, Model Town, Yamuna Nagar, District – Yamuna Nagar, Haryana. 2. Sri Alok Gaur, S/o Sri J. Gaur, R/o House No. 102 Ekta Colony, Pauntasahib, Himachal Pradesh. 3. Bajaj Alienz, General Insurance Company Ltd., C – 31/32, First Floor, Cannaught Place, New Delhi. …..Respondents Hon’ble Rajesh Tandon, J. Heard Sri L.K. Tiwari, learned counsel for the appellant and Sri Prabhat Pandey, learned counsel for the respondents. 2. By the present appeal, filed under section 173 of Motor Vehicles Act, 1988, appellant has prayed for enhancement of compensation as awarded by Additional District Judge, Dehradun in Motor Accident Claim Petition no. 143 of 2005 Sri Khajan Singh Vs. Sudhir Shauri filed by appellant under section 166 of Motor Vehicles Act on account of the injuries received by him. 3. Briefly stated, a claim petition was field by the appellant being Motor Accident Claim Petition no. 144 of 2005 Sri Khajan Singh Vs. Sudhir Shauri claiming a sum of Rs. 7,00,000/- towards compensation. 4. According to the claimant on 09.11.2003, claimant along with his family members was coming from Kalsi to Dehradun by car no. UP 07 K 8065, which was being driven by the claimant himself near Jhajhara Police chowki, Dehradun one Santor Car no. HR 2 J 9997 which was being driven rashly and negligently, dashed the car of the claimant as a result of which, the applicant as well as tow other persons, who were sitting in the car, have also received injuries. 5. The claimant was taken to Doon Hospital and was admitted there from 09.11.2003 to 10.11.2003. Thereafter, he was admitted in various hospitals. The claimant is working as Assistant Manager at Central Bank of India, and his income is Rs. 18,553.66/- per month. According to the claimant, he could not attend his office for three months and there was loss of salary of Rs. 55,600/- on account of said injuries. Apart from this he received the amount of petrol for 45 litres which is Rs. 1800/- per month and for three months it comes to Rs. 5400/-. He was also treated by the doctors who declared 20% of disability with him. 6. Written statement was filed by defendants no. 1 and 2 namely Sudhir Shauri and Alok Gaur. They have stated that offending vehicle was duly insured from 18.03.2003 to 17.03.2004 and the vehicle was being driven in moderate speed. 7. Another written statement was filed by Bajaj Allianz respondent no. 3 General Insurance Company paper no. 54 B and he has admitted that the offending vehicle was insured with him but at the same time the Insurer has stated that the driver has violated the term of the policy, therefore, he is not entitled to compensation. 8. On the pleadings of the parties, the Claims Tribunal has framed following issues. ^^1- D;k fnukWd 09-11-2003 dks le; pkj cts lka;] LFkku & >k>jk iqfyl pkSdh ds ikl lSUVªks dkj u0 ,p0 vkj0 02 ts 9997 ds pkyd }kjk okgu dks rsth o ykijokgh ls pykrs gq, ;kph dh dkj u0 ;w0 ih0 07 ds 8065 dks VDdj ekj nh ftlls ;kph dks xEHkhj pksVsa vkbZ\ 2- D;k dfFkr ?kVuk ;kph }kjk Lo;a dh dkj u0 ;w0 ih0 07 ds 8065 dks rsth ,oa ykijokgh ls pykus ds dkj.k ?kfVr gqbZ] \ 3- D;k ;kph {kfriwfrZ dh /kujkf’k izkIr djus dk vf/kdkjh gS\ ;fn gkW rks rc fdruh o fdl foi{kh ls\ 4- vU; vuqrks"k ftls ;kph ikus dk vf/kdkjh gSA** 9. Claimant has filed documentary evidences, viz. Disability Certificate, Certificate issued by Central Bank of India, Medical prescription issued by Doon Hospital, X ray report, Medical prescription of Shivalik Hospital, Medical prescription of Dr. Johari, Bills and Receipts, Chik Report, FIR, Copy of Insurance, Copy of Tax, Copy of Driving License, Registration Certificate. 10. On behalf of claimant, claimant himself, one Sri Janak Singh and Dr. Y.S. Thapliyal have been examined as PW1, PW2 and PW3 respectively. 11. On behalf of respondents, respondent no.1 has been examined as DW 1 on behalf of respondents. 12. Respondent no. 1 has filed documentary evidences, such as, copy of MACP no. 44 of 2004, copy of FIR, photographs, chargesheet. 13. While deciding issue no. 1 as to whether on 09.11.2003 at about 4 p.m. near Jhajhar police chowki a Santro Car No. HR 2 J 9997 was being driven rashly and negligently and dashed the car of the claimant no. UP 07 K 8065. A finding has been recorded on the basis of statement of the claimant that both the cars contributed themselves in the accident and it is a case where the maxim res ipsa loquitur applies. 14. While deciding issues no. 3 and 4, the Tribunal has decided the issue to the extent that both the parties are entitled for 50% of the compensation. The Claims Tribunal has awarded following amount: 1- fpfdRlh; mipkj ftlesa gkfLiVykbZts’ku dks [kpZ nok [kpZ vkfn 'kkfey gS gsrq ,d eq’r {kfriwfrZ 25]000@&: 2- fpfdRlh; vodk’k ds nkSjku gqbZ gkfu ;krk;kr esa gqvk [kpZ gsrq {kfriwfrZ 15]000@&: 3- nnZ ekufld izrkM+uk gsrq {kfriwfrZ 10]000@&: 15. Counsel for the appellant has submitted that the Claims Tribunal has not considered that the claimant has suffered 20% permanent disability due to which he cannot perform field work and he is not able to drive his Car or Scooter. 16. So far as issue with regard to the quantum of the compensation is concerned, counsel for he appellant has relied upon the judgment of R.D. Hattangadi Vs. Pest Control (India) Pvt. Ltd. and others (1995) 1 SCC 551, the Apex Court the 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 calculate din 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 of life. 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.” 17. In view of the above, I deem it fit and proper that the claimants will be entitled to: (a) Rs.45,000/- Medical treatment (2) Rs.20,000/- Transportation (3) Rs. 20,000/- Mental and Physical agony. (4) Rs. 25,000/- Non-pecuniary loss. 18. Thus, the claimants shall be entitled to get a total sum of Rs. 1,10,000/- towards compensation. Since the claims tribunal has recorded a finding that there was contributory negligence of both the parties, therefore, the claimant will be entitled to get a sum 50% of the awarded amount, which comes to Rs. 55,000/-. 19. Appeal is partly succeeded and is partly allowed. (Rajesh Tandon, J.) 18.02.2008 SKS