1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO (MVA) No. 18 of 2005 Date of Decision: 12th August, 2009 Rajiv Saini Appellant Versus Ashok Kumar and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr.Ramakant Sharma, Advocate. For the respondent: Mr.Deepak Bhasin, Advocate, for respondent No.3. Sanjay Karol, J. (Oral) It is the claimant’s appeal against the award dated 2.12.2004 passed by Motor Accident Claims Tribunal-II, Kangra at Dharamshala, titled as Rajiv Saini vs. Ashok Kumar and others, seeking enhancement of compensation awarded by the Tribunal. The facts necessary for filing the claim petition are as under:- The claimant filed petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) pleading that in a motor accident he sustained injuries on 26.9.1999. He had to undergo medical treatment at various hospitals and incurred an expenditure of more than rupees 2 lacs. As a result of the injury sustained by him in the accident he suffered permanent disability to the extent of 50%. He had just completed three years Whether the reporters of Local Papers are allowed to see the Judgment? 2 diploma from Govt. Polytechnical Education an Industrial Training, Amritsar and was earning an amount of Rs.10,000/- by running a shop. The petition was opposed by the owner and driver of the vehicle No.HR-25-0597, inter alia, on the ground that the accident occurred due to negligence of the petitioner himself, who was driving scooter No. PAH-4857. The truck having been insured with M/s National Insurance Company, the said Insurer opposed the petition by filing separate reply inter alia on the ground, that driver of the truck Shri Ashok Kumar was not possessing a valid and effective driving licence and hence the material terms and conditions of the Insurance Policy having been breached, the Insurer was not liable to indemnify the insured. Based on the pleadings of the parties, the Tribunal framed the following issues:- 1. Whether the petitioner sustained injuries on account of rash/negligent driving of the truck by respondent No.1? OPP 2. If issue No.1 is proved in affirmative, to what amount of compensation the petitioner is entitled and from whom? OPP 3. Whether the respondent No.1 was not holding a valid and effective driving licence? OPR 4. Whether the vehicle involved in the accident was insured with respondent No.3? OPR-3 5. Whether the petition is collusive? OPR-3 6. Whether the petition is bad for non-joinder of necessary parties? OPR-3 Opportunity to lead evidence was afforded to the parties and after due consideration of the material on record, the Tribunal found that the 3 petitioner had sufficiently proved that he had sustained injuries in a motor accident which took place on 26.9.1999. The accident occurred due to the rash and negligent driving on the part of Shri Ashok Kumar driver of Truck No. HR-21-0597. The tribunal also came to the conclusion that Insurer had failed to discharge the onus to prove that the driver and the owner had breached the terms and conditions of Policy and as such they were not liable to indemnify the insured. The claimant was held entitled to compensation which was directed to be paid by the insurer. While deciding Issue No.2, the Tribunal awarded the following compensation:- Towards medical treatment Rs. 64,265-00 Towards pain and suffering and Attendant charges Rs. 10,000-00 Towards loss of income Rs.1,92,000-00 The appellant has pressed for enhancement of compensation on the ground that the Tribunal has failed to take into account the evidence produced on record in support of his respective claims. In R.D.Hattangadi vs. Pest Control (India) Pvt. Ltd. and others, 1995 ACJ 366, the Apex Court has laid down the principles for determining the just compensation, which are reproduced as under:- “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 4 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.” The petitioner was firstly admitted in Ram Saran Das Kishori Lal Charitable Trust Hospital (Sehgal Hospital) on 26.9.1999 and discharged on 15.10.1999. Thereafter, he was admitted from 6.12.1999 upto 18.12.1999. For the third time he was admitted from 21.4.2000 upto 23.4.2000. In the hospital he was treated by Dr.S.S.Sandhu. The said fact stands evidently proved by Shri Jagdish Kehard (PW-7). Dr.Rajiv Sehgal (PW-2) initially examined the petitioner and according to him petitioner sustained “communited compound fracture right femur with fracture right both bone legs with fracture left femur with urethral injuries”. Similarly, Dr. Vishal Goel (PW-3) also treated the petitioner and has deposed as under:- “Stated that I am working with Dr.Sandeep Sharma as junior in D.M.C. Hospital, Ludhiana. I have brought the patient under admission record of D.M.C. Ludhiana of patient Rajeev Saini s/o Sh. Surjeet Singh, R/o Shahpur Kandi, District Gurdaspur. Rajeev Saini remained indoor patient D.M.C. and Hospital, Ludhiana under treatment for injuries sustained on 26.9.1999 with old history of haematuria and inability to pass urine. Patient has multiple fracture i.e. both femur and fracture (sic) right side for which he had been operated for under S.A. (spinal anesthesia) recovery was uneventful. At the time of admission SPC was present. He was discharged from our hospital on 21.12.1999. Ext.PW-13/A is hospital bill of patient Rajeev Saini 5 issued by DMC Ludhiana (objected to). During his indoor admission and treatment he was prescribed various medicines as per patient indoor admission record No.29396 dated 19.12.1999. Photostat copy of indoor record of patient Rajeev Saini is Ext.PW-3/B. I know the handwriting of Dr. Sandeep Sharma. The signature of Dr. Sandeep Sharma are on the file. The Bill Ext.PW-3/A’s copy is also in my file and the said Ext.PW-3/A is a correct copy according to my record.” Due to said injury, the petitioner sustained disability to the extent of 20%, permanent nature is also evidently clear from the statement of Dr.Raj Kumar Sharma (PW-5). The fact that the petitioner was attended to by his father at the hospital is also evident from the statement of claimant Shri Rajeev Saini (PW- 10) and his father Shri Surjeet Singh (PW-9). Petitioner’s father Shri Surjeet Singh (PW-9) has deposed that he incurred an expenditure of Rs. 2 lacs on the treatment of his son. The claimant has placed on record the bills of expenditure being Exts. PW-2/A, PW-2/C, PW-2/D, PW-2/E, PW-6/A, PW-6/B, PW-6/C, PW-3/A, PW-4/A, PW-4/B, PW-4/C, PW-7/D, PW-7/E, PW-7/F, PW-7/G, PW-7/H, PW-7/I, PW- 7/J, PW-7/K, PW-7/L, PW-7/M, PW-7/N, PW-7/O, PW-7/P, PW-8/A, PW- 8/B, PW-8/C, PW-8/D, PW-8/E, PW-8/F, PW-10/B, PW-10/C, PW-10/D, PW-10/E, PW-10/F, PW-10/G, PW-10/H, PW-10/I, PW-10/J, PW-10/K, PW- 10/L, PW-10/M, PW-10/N, PW-10/O, PW-10/O, PW-10/P, PW-10/Q, PW- 10/R, PW-10/R-1, PW-10/R-2, PW-10/R-3, PW-10/R-4, PW-10/R-5, PW- 10/R-6, PW-10/R-7, PW-10/R-8, PW-10/R-9, PW-10/R-10, PW-10/R-11, PW- 10/R-12, PW-10/R-13, PW-12/A and PW-12/B, the total of which comes to Rs.1,50,427.40. The said bills stand proved by Dr. Vishal Goel (PW-3), Shri 6 Ram Singh (PW-4), Shri Gaurav Budhi Raja (PW-6), Shri Jagdish Kehard (PW-7), Shri Ashok Kumar (PW-8) and Shri Surjit Singh (PW-10). PW-9 has also deposed that he could not maintain the complete record of the total expenditure incurred by him. In the impugned award even though the Court has taken into account all the aforesaid bills for expenses for medical treatment, but, however, no reason has been assigned for awarding Rs.64,265/- only. Hence, in my considered view the claimant is entitled to reimbursement of all the bills proved on record amounting to Rs.1,50,427.40 or say Rs.1,50,427/-. The petitioner remained admitted in hospital on three different occasions over a period of time. It is evident that from the time of accident i.e. 26.9.1999 till at least February, 2000, he has been undertaking medical treatment. His father has been attending upon him and thus the claimant is also entitled to expenses towards attendant charges and special diet etc. Claimant thus would be entitled to Rs.10,000/- towards the same. In so far as the loss of income is concerned, learned counsel has fairly not pressed for further increase in the same. The Apex Court in Divisional Controller, KSRTC vs. Mahadeva Shetty and another, (2003) 7 SCC 197, has upheld the amount of Rs.50,000/- awarded by the Tribunal towards pain and suffering and mental agony for the body injury received by the claimant therein. With regard to pain and suffering, the compensation alongwith attendant charges of Rs.10,000/- awarded, in my view, is on the lower side. The claimant has been able to sufficiently prove that he has sustained injury to the extent of 20% which is of permanent nature. He was unmarried and young man of 24 years. He had to undergo operation twice as his legs got fractured and the rod had to be inserted. The injury is of such a nature that with the 7 passage of time his pain and suffering is bound to increase. His prospects of marriage stand marred. Hence in my considered view a sum of Rs.40,000/- towards the head of pain and suffering, instead of Rs.10,000/- would be just fair and reasonable. This would cover all other heads on which further enhancement of compensation is sought for by the claimant. Thus the claimant is entitled to compensation of Rs.1,50,427 towards medical expenses, Rs.10,000/- towards attendant charges and special diet and Rs.40,000 towards pain and suffering in addition to Rs.1,92,000/- towards loss of income as awarded by the Tribunal. The impugned award is modified to the aforesaid extent. The claimant shall be entitled to interest as awarded by the Tribunal. The appeal stands partly allowed. 12th August, 2009 (Sanjay Karol) (C) Judge.