IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO No. 261 of 2004. Date of decision: 30.3.2011. Sunil Kaundal …Appellant. Versus Sher Singh & Ors. …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the appellant: Mr. B.B. Vaid, Advocate. For the respondent No.1: Ms. Salochna Kaundal, Advocate. For the respondents 2 & 3: Mr. H.S. Rawat, Advocate Deepak Gupta, J. (Oral) 1. This appeal by the claimant is directed against the Award of the learned Motor Accidents Claims Tribunal, (MACT) Hamirpur, in MAC Petition No. 48 of 2001, decided on 26.4.2004 whereby the learned Tribunal assessed the compensation payable to the claimant at Rs. 60,000/-, but held the claimant himself liable for contributory negligence in causing the accident and thereafter awarded only a sum of Rs. 30,000/-. 2. The facts which are not in dispute are that on 10.12.2000 the claimant was driving scooter No. HP-20-2016. He was coming from Bassi hospital and was going to Tal. On the 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. way, he gave lift to one Shri Rakesh Kumar. The allegations of the claimant is that bus No. HP-22-569 owned by the Himachal Road Transport Corporation (HRTC) and driven by Sher Singh came from the opposite side. It was alleged that this bus was being driven in a rash and negligent manner by driver Shri Sher Singh and there was a collusion between these two vehicles, as a result of which, Rakesh Kumar unfortunately died and the claimant suffered injuries. The claimant filed Claim Petition claiming compensation for the injuries being suffered by him. 3. The first argument raised by Mr. B.B. Vaid is that the learned Tribunal gravely erred in holding that the claimant had contributed to the accident and was guilty of contributory negligence. As far as this contention is concerned, the record shows that immediately after the accident the First Information Report (FIR) was lodged by Sher Singh driver of the bus. No doubt, he may have tried to shift the burden, but from the evidence of PW-5 Sh. Pawan Kumar, the sole eye witness other than the claimant, it is apparent that the scooter was coming downhill, whereas the bus was going up. It appears that both sides were on a high speed. Therefore, the learned Tribunal rightly held the claimant guilty of contributory negligence. 4. Coming to the issue of quantum. To say the least, the Award of the learned Tribunal is extremely on the lower side. We are here concerned with the case of a claimant who suffered injury in the year 2000. He was immediately taken to the hospital where he was operated upon, and was diagnosed with fractures in both bones of the right lower leg. He was operated upon and discharged from hospital, almost after three months on 19.2.2001. He was again re-admitted in the hospital for insertion of rods and plates in the month of March, 2001. After one year he was again admitted in the hospital on 8.3.2002 when the rods and plates were removed and he was finally discharged on 6.4.2002. Therefore, factually he remained in the hospital for more than three months. This is evident from the statement of the doctors and other documentary evidence produced on record. PW-1 Dr. K.S. Dogra, Medical Officer, Zonal Hospital, Hamirpur has also proved the disability certificate issued by the Medical Board which shows that the claimant had suffered 40% disability to his entire body because of the injuries caused to him in the accident. It is true, as observed by the learned Tribunal, that the claimant has not had to pay for medical expenses, since he being a government servant has been reimbursed medical expenses. However, this does not mean that the claimant is not entitled to other expenses. 5. It is settled law that in cases of injuries both pecuniary damages and non pecuniary damages have to be awarded. As per the statement of PW-4 Shri Sunil Kumar, he has undergone seven operations in all. He was a long-jump champion and was an active sportsman. All these facts have to be taken into consideration while assessing the compensation. From the evidence on record as observed, the claimant remained on leave for almost three months. He was a constable and assuming his salary to be Rs. 5,000/- per month, he would be entitled to 4 months salary for leave he would have taken, and on this account he is entitled to Rs. 20,000/-. The claimant would also be entitled to the service of attendant to look-after him. Even taking a very conservative view of the matter keeping in view the fact that the accident took place in the year 2000, it would not be unjust to assess the compensation for attendant charges at Rs. 2,500/- per month i.e. Rs. 10,000/- in all. 6. The learned Tribunal while assessing the compensation has not taken into consideration the fact that the claimant is serving in an uniformed force. He, at the relevant time, was a police constable. It is true, that he continues to be in job, but one cannot be oblivious to the fact that a police official who is suffering from 40% disability that too to his leg will suffer during service and his promotional avenues etc. may be jeopardized because of the injury suffered by him. Unfortunately, the claimant has led virtually no evidence in this regard other than making a bald statement. Therefore it is for the Court to assess the compensation under this head. Even if a conservative view is taken, I feel that the claimant would suffer delay in promotion etc. during the course of his career. He is therefore awarded a sum of Rs. 50,000/- under this head. This amount is awarded keeping in view the fact that the claimant was an active sportsman and serving in the police force. 7. In addition thereto while the claimant might have been reimbursed the medicines etc. this Court cannot loose sight of the fact that the claimant remained/admitted in the hospital and was taking a number of medicines and supplementary diets which are not covered by medical reimbursement. Keeping in view the long treatment of the claimant, it would not be unjust to award a sum of Rs. 10,000/- for medical expenses in addition to the amount already reimbursed to him. 8. Now, coming to the most important question of compensating the claimant for the non pecuniary damages. He has undergone seven operations and remained admitted in hospital for 4 months over a period of 2 years. He has suffered extreme pain and suffering during this period and therefore he is awarded Rs. 30,000/- on this count. The claimant also has to be compensated for the future loss which he shall suffer due to his disability. One has to compensate him for the difficulties he will face in life due to this disability. He cannot walk like a normal human being. He cannot run and jump as he used to do before the accident. He throughout his life has to live like a crippled person. Taking all the factors into consideration it would be appropriate to award him Rs. 50,000/- under this head. 9. The total compensation, therefore payable to the claimant works out to Rs. 1,70,000/-, but since he has been held to be guilty of contributory negligence, he is entitled to Rs. 80,000/- only. 10. In view of the above discussion, the Award of the learned Tribunal is modified and the compensation is enhanced from Rs. 30,000/- to Rs. 85,000/-. The HRTC is directed to deposit the enhanced amount of compensation along with interest @ 9% per annum w.e.f. 16.5.2001, i.e. the date of filing of the claim petition till the amount is deposited/paid in the Registry of this Court within 12 weeks from today. No costs. (Deepak Gupta) Judge 30th March, 2011. (Krn Guleria)