1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CIVIL MISC. APPEAL No.619/2006 (arising out of Claim No.402/2005 (2395/2001) KULDEEP V/s BHANWAR LAL & ORS. DATE OF JUDGMENT ::::: MAY 28, 2008 PRESENT HON'BLE MR. JUSTICE GUMAN SINGH Shri Sandeep Jain, for appellant/claimant. Shri O.P. Jain for respondent owner. Shri Rishipal for Oriental Insurance Company Ltd. BY THE COURT : (oral) 1. No one is present on behalf of Oriental Insurance Company despite service. Shri Rishi Pal who is present in court, is directed to argue the matter. 2. Heard. 3. This appeal u/s 173 of the Motor Vehicles Act, 1988 (for short “the Act”) has been preferred by the injured appellant/claimant, for enhancement of compensation against the order dated November 25, 2005 passed by the learned Judge, Addl. District Judge (Fast Track) No.3, Tonk (Motor Accident Claims Tribunal) (for short “the Tribunal) whereby a sum of Rs.41,000/- was 2 awarded to the injured by way of compensation. 4. On November 18.11.2000, the appellant/claimant was coming in jeep RJR 5049 from Sirohi to Deoli and met with an accident by road ways bus RJ 26 P 0479 wherein the injured sustained injuries resulting into 8.5% permanent disability. 5. Learned counsel for the appellant submits that the injured is a Government employee and he has not been adequately compensated for pain and suffering and loss of income on account of disability. Learned counsel for the appellant-claimant further submitted that on account of this grievous injury he was found with 8.5% permanent disability resulting in difficultly in walking, and doing manual work. The appellant was rendered handicapped for whole of the life. Learned counsel for the appellant/claimant further submits that the learned Tribunal has erred in awarding the compensation without considering the various factors based on concept of pecuniary and non-pecuniary damages as delineated by the Hon'ble Supreme Court in R.D. Hattangadi v/s Pest Control (India) Pvt. Ltd. and others 3 (1995 ACJ 366. Learned counsel submitted that the salary submitted that the salary of the injured has been wrongly scaled down by deducting LIC, CPF and ESI etc. while calculating loss of income on account of im- mobilization for 7 months. 6. Per contra, learned counsel for the Oriental Insurance Company Limited argued that the award in the instant case has been passed by the learned Tribunal on the basis of the evidence adduced before the Tribunal and calls for no interference. 7. In view of the rival submissions, it may be noted that the learned Tribunal has failed to consider the pecuniary and non- pecuniary loss suffered by the claimant as observed by the Hon'ble Supreme Court in R.D. Hattangadi's case (supra), 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 4 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.” 8. On application of the aforesaid guidelines in the facts and circumstances of the present case, it is revealed that the injured was of 34 years age at the time of accident. He was a Govt. employee and he sustained 8.5% permanent disability on account of three fractures sustained in left leg and one fracture was of tibia bone and thereby his movements are found to be restricted. It appears that though the injured is stated to be a Govt Employee, there is no loss of income directly as such. However, he has to be adequately compensated 5 for pain and suffering as he has to come across difficulties on account of restriction by movements and has to face discomfort, disappointment, frustration and mental stress in his day to day life and even in discharging her normal social obligations. Therefore, in view of the above discussion, a sum of Rs.40,000/- is required to be awarded for pain and sufferings plus Rs.7,987/- on account of the amount wrongly deducted from the salary while awarding compensation for im- mobilization for 7 months. Thus the amount of compensation awarded deserves to be enhanced from Rs.41,000 to Rs.88,987/- from the date of filing of appeal i.e. 2.2.2006. 9. Accordingly, while maintaining other terms of award upto the date of filing appeal, the amount of the award is enhanced to Rs.88,987/- with interest @ 6% p.a. from the date of appeal with the condition that failure to make payment under the award within a period of three months from this order shall entail interest @ 9% p.a. from the date of appeal. 6 10. The award stands modified and appeal is disposed of accordingly. (Guman Singh), J. Chauhan/