1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: FAO.No.324/2004. Date of Decision: September 15,2008. Raju. …Appellant. Versus: Sardar Jasbir Singh and others. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting?1 . For the appellants: Mr.C.P Sood, Advocate. For the respondent No.1. Mr.Balwant Kukreja, Advocate For respondent No.3. Mr.Lalit Sharma, Advocate. Sanjay Karol, J(Oral). The present appeal arises out of the impugned award dated 28th July, 2004 passed by Motor Accident Claims Tribunal, Shimla, H.P. in M.A.C. Case No.80-S/2 of 1999 titled as Raju Vs. Sardar Jasbir Singh and others, awarding compensation of Rs. 2,20,000/- to the claimant who sustained injuries and permanent disability to the extent of 45% on both the lower limbs. The claimant has filed the present appeal seeking enhancement of the compensation awarded by the tribunal. Petition under Section 166 of the Motor Vehicles Act, 1988 was filed by appellant-Sh.Raju (hereinafter referred 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 to as the ‘claimant’), averring that he was travelling in truck bearing registration No.HP-07-2202 being driven Sh. Shyam Lal-respondent No.2 (hereinafter referred to as the ‘driver’) and owned by Sh. Jasbir Singh-respondent No.1 (hereinafter referred to as the ‘owner’). On 11th March, 1999 due to the “drivers” negligence, rash and negligent driving the vehicle met with an accident in which the claimant sustained injuries. The claimant who was working as a Conductor was earning Rs.2,100/- per month. The petition was contested by the respondents, separately on different grounds and based on the pleadings of the parties, the Tribunal framed the following issues: 1. Whether the petitioner suffered injuries because of rash and negligent driving of truck No.HP-07- 2202, by respondent No.2?. OPP. 2. In case issue No.1 is proved in affirmative, to what amount of compensation the petitioner is entitled as from whom?. OPP. 3. Whether the truck, in question, was being run in violation of the terms and conditions of the insurance policy and consequently the Insurance Company is not liable to satisfy the award?. OPR-3. 4.Relief. On the basis of the evidence adduced by the parties, the Tribunal found the “driver” to have negligently resulting into the accident in which claimant sustained injuries. 3 On issue No.2, the Tribunal found that the “claimant” was having a monthly income of Rs. 2,000/- but, however, since his disability was proved to the extent of 45 percent in both the lower limbs, therefore, taking the same into account the loss of income and earning was determined to be Rs. 1,80,000/- i.e. 45% of the total income. Rs. 20,000/- each was also awarded towards (i) cost of treatment, attendant and transportation charges and (ii) compensation for pain, shock and sufferings. Thus, a total sum of Rs. 2,20,000/- along with interest at the rate of 9% per annum was awarded in favour of the “claimant”. The vehicle being insured with the Oriental Insurance Company Limited (hereinafter referred to as the “Insurance Company”) and the “driver” having a valid and effective driving license at the time of the accident and there being no breach of the terms and conditions of the policy, the “Insurance Company” was held liable to indemnify the “owner” for the awarded amount of compensation. The “claimant” alone has filed the present appeal for enhancement of compensation. No cross objections have been filed by the respondents. Mr.C.P.Sood, learned counsel for the appellant has argued that the Tribunal has erred in awarding the compensation by restricting it to the percentage of disability and since it has come on record that the claimant cannot do any work; has no independent income whatsoever; and is totally dependant upon his brother, therefore, the 4 compensation (pecuniary and non pecuniary) awarded needs to be enhanced. Per contra, Dr. Lalit Sharma, while agreeing that the scope of the present appeal is limited has supported the award for the reason stated therein. That the “claimant” has sustained disability to the extent of 45 percent on both the lower limbs is not disputed. In any case the same is evident from disability certificate (Ext.PW-2/A) issued by the Orthopedic Surgeon, Indira Gandhi Medical College Hospital, Shimla. Dr. Manoj Thakur (PW-2) and Dr. R.S.Yadav (PW-5) have also proved the fact that the disability is permanent in nature and on both the lower limbs as the claimant had suffered “fracture on the left thigh bone with stiffness of knee and hip joint with chronic osteomyelitis shaft femur” It has also been proved by these doctors that the claimant cannot perform the work of Conductor, driver or labourer anymore. Importantly, there is no cross objection on this point also by the respondents. Be that as it may be, Sh.Raju (PW-3) has also proved that he has not fully recovered from the injuries and even at the time of his deposition (2003), he was still undergoing medical treatment and his wounds have not healed properly. He has also proved that while on job as a Conductor, he had learnt how to drive the heavy vehicle and had all plans of purchasing a vehicle in his own name but, however, due to the injury, he cannot even do the work of a labourer. 5 On the point of income, there is no serious dispute as the owner of the vehicle Sh.Jasbir Singh (RW-1) himself has deposed that he was paying Rs.1500/- per month to the claimant as his wages in addition to Rs.20/- per day as diet money. This is the only evidence on record with regard to the injury and the income of the claimant. The claimant undisputedly was 22 years of age at the time of the accident. In Ward Vs. James, (1965) 1 All ER. 563, it is held as under: 11.Although you cannot give a man so gravely injured much for his ‘lost years’, you can, however, compensate him for his loss during his shortened span, that is, during his expected ‘years of survival’. You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to the brain injury, be rendered unconscious for the rest of his days, or, owing to a back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet judges and juries have to do the best they can and given him what they think is fair. No wonder they find it well-nigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The judges have worked out a pattern and they keep it in line with the changes in the value of money”. The apex court in R.D.Hattangadi Vs. Pest Control (India) Pvt. Ltd. And others, 1995 ACJ 366, while dealing with 6 the damages to the victims of the accident who have suffered injuries to their person has held 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 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 up to the date of trial; (iii) other material loss, so far as 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.” This Court while considering a case of permanent disability of 42 per cent of a student, aged 20 years awarded Rs.4,00,000/- towards the pecuniary and non-pecuniary damages. { New India Assurance Co. Vs.Miss Kanchan Kumari and others, Latest HLJ 2007 (HP) 12).} 7 The apex Court in Ashwani Kumar Mishra Vs. P.Muniam Babu and others (1999) 4 SCC 22 while reiterating the principles of law laid down in R.D.Hattangadi (supra) awarded Rs. 5,00,000/- as compensation to a young person of 23 years who suffered serious damage to the spinal cord. It was reiterated that where the Tribunal is required to fix the amount of compensation in cases of accident, it involves some guesswork, hypothetical consideration and some amount of sympathy linked with the nature of the disability caused to be viewed with objective standards. In Divisional Controller, Karnataka State Road Transport Corporation Vs. Mahadeva Shetty and another, 2003 ACJ 1775, the apex Court while again reiterating the principles of law laid down in R.D.Hattangadi (supra) awarded Rs.4,50,000/- to the claimant who was having an income of Rs. 3,000/- per month and sustained 100 percent disability. The Court reiterated that the pecuniary damages are to be valued on the basis of ‘full compensation’ which is to be just, fair and reasonable. Now, applying the aforesaid principles to the present case, it has been proved by the claimant that he is totally incapacitated and is unfit to perform any work. He has sustained injury on both the lower limbs and has to move on crutches. He cannot walk properly, enjoy the fruits, advantages and amenities of life and is virtually bed ridden and totally dependant upon others. No doubt, claimant is illiterate but he had shown enterprise and was working as a conductor 8 with a hope of driving his own vehicle one day. He had a bright future and prospect of having a good earning. He was un- married but his marriage prospect was bright. The Tribunal has awarded the following damages: “Cost of treatment, attendant Rs. 20,000/-. and transportation charges: Compensation for loss of earnings: Rs.1,80,000/- Compensation for pain, shock sufferings: Rs. 20,000/- Rs.2,20,000/-.” The Tribunal has awarded a sum of Rs. 20,000/- towards cost of treatment, attendant and transportation charges. The claimant has no grievance with regard to the same but, however, for the recurring medical expenditure it is argued that Rs.50,000/- be awarded . In the year 2003 at the time of recording of his statement, the claimant categorically deposed that even then he was undergoing medical treatment. His wound is still fresh. There is no cross examination to the said deposition. He is a resident of village Patyog and is undergoing treatment at the I.G.M.C. Hospital at Shimla. He has to be accompanied with an attendant and in a hilly terrain to travel in a public transport is difficult. In my view a sum of Rs. 15,000/- should be awarded towards the said account. Ordered accordingly. While awarding compensation for the loss of earning, the Tribunal has determined the income to be Rs. 2,000/- per month but after deducting the percentage of 9 disability which is 45 percent, has arrived at a figure of Rs.1,000/- per month and by applying the multiplier of 15 has calculated the compensation to be Rs.1,80,000/-. (Rs. 1000/- x 12 = Rs. 12,000/- x 15 = Rs.1,80,000). As discussed herein-above, the claimant is totally dependant and cannot do any work. He has lost his job. His dreams and plans of setting up his own vehicle stands shattered. He is totally dependant upon his brother for all practical purposes. He has deposed that he cannot perform any job. In effect, his disability is 100% for the purpose of loss of income. Therefore, the deduction as made by the Tribunal, in my view, is not justified and the compensation for the loss of earning keeping in view the totality of the circumstances is assessed to be Rs.3,00,000/- instead of Rs.3,60,000/- as prayed for by the learned counsel for the claimant. The claimant, undoubtedly, had potential of increasing his income and getting married. Since the date of the accident he could not fully recover. He has suffered a permanent disability which is a special circumstance to be taken into account for considering the deprivation affecting his future life. Therefore damages for, mental, physical, shock, pain and sufferings already suffered and likely to be suffered in future; loss of amenities of life; loss of expectation of life; inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life, in my view, needs to be enhanced from Rs.20,000/- (as awarded by the Tribunal) to a lump sum amount of Rs.1,50,000/-. I have taken into account 10 the age, future prospects of earnings and all mitigating factors and only after balancing the equities arrived at such a conclusion. The claimant, thus, shall be entitled to Rs.20,000/- + Rs.15,000/- towards treatment, attendant and transportation charges, Rs. 3,00,000/- for loss of earnings and Rs.1,50,000/- composite amount under all other heads. The claimant shall be entitled to interest as awarded by the Tribunal. For the aforesaid reasons, the appeal is allowed and the impugned award is modified accordingly. (Sanjay Karol), Judge. September 15, 2008(R)