S.K. Gangele, J.
1. This is a claimant's appeal for enhancement of amount of compensation against the award passed by the Addl. Motor Accidents Claims Tribunal, Guna in Claim Case No. 53 of 1998.
2. On 6.2.1998 the claimant along with his father was travelling in a truck bearing registration No. HR 29-C 1555 (hereinafter referred to as 'truck No. 1555'). He was going from Guna to Badarwas. Near Bila-Bawadi at A.B. Road another truck bearing registration No. MP 06-E 0325 (hereinafter referred to as 'the truck No. 0325') dashed with truck No. 1555 and in the aforesaid accident claimant and his father suffered serious injuries. There were injuries on both the legs of claimant and his teeth were also damaged. He was admitted two times at District Hospital, Guna, also sent for examination to Indore. The medical experts certified 40 per cent disability to claimant. He filed a claim application claiming compensation of Rs. 2,05,000.
3. The truck No. 1555 was insured with Oriental Insurance Co. Ltd., respondent-non-applicant No. 2 and the owner and driver of truck No. 1555 were respondent Nos. 1 and 3 respectively. Truck No. 0325 was insured with New India Assurance Co. Ltd., respondent-non-applicant No. 5 and owner and driver of truck No. 0325 were respondents-non-applicant Nos. 4 and 6 respectively. The driver of truck No. 1555, respondent-non-applicant No. 3 and driver of the truck No. 0325, respondent-non-applicant No. 6 were absent before Claims Tribunal, hence they were proceeded ex parte.
4. Oriental Insurance Co. Ltd., the non-applicant No. 2, in its written statement pleaded that it is not responsible for payment of compensation because the vehicle under its insurance was used contrary to the terms and conditions of the insurance policy because the claimant was travelling in the vehicle on hire basis. It has further been submitted that the driver of the vehicle had no valid licence and another truck which was driven rashly and negligently by the driver, dashed against the truck which was under insurance of New India Assurance Co. Ltd., the respondent No. 5, which is insurer of truck No. 0325. The respondent No. 5 in its written statement pleaded that the driver had no valid licence and the accident occurred due to contributory negligence, hence other insurance company and the driver of the other truck are also responsible.
5. In support of the claim, appellant-claimant examined himself as AW 1; his mother, Mithlesh as AW 2 and his father, Mahesh K. Sharma as AW 3. Dr. N.K. Sharma has been examined as AW 4 and Dr. Pramod Pathak as AW 5. Nobody has been examined before Claims Tribunal on behalf of respondent No. 5 and the other respondents. Respondent No. 2 examined one Goverdhan Singhal, DW 1, in support of its case.
6. The Claims Tribunal after appreciation of evidence on record has held that the accident was caused due to composite negligence of both the drivers of the trucks. Because no specific evidence was led by both the parties before the Tribunal as to what extent each of the driver of the vehicle was responsible for the accident, hence apportionment of the liability could not be ascertained. Learned Claims Tribunal further held that the claimant and his father paid fare to the driver of the truck hence the insurance company, respondent No. 2 was not responsible for payment of compensation because the vehicle was being used contrary to the terms and conditions of the insurance policy and awarded a compensation of Rs. 63,500 after holding that claimant suffered 40 per cent disability and other respondents except respondent No. 2 have been held jointly and severally liable for payment of compensation. The Claims Tribunal awarded compensation on the following heads:
(1) For permanent disability Rs. 50,000(2) For transportation, diet,medicine, attendant, etc. Rs. 11,500(3) For pain and suffering Rs. 2,000Total Rs. 63,500
7. Learned Counsel for the appellant-claimant has submitted that the compensation awarded by the Claims Tribunal is at lower side. The claimant at the time of accident was aged about 11 years and his whole life has been ruined, hence a proper compensation has to be awarded. In support of his contentions the learned Counsel relied upon the judgments reported in Neha Agrawal v. Ashok Kumar Mehta ; United India Insurance Co. Ltd. v. Yallappa Bhimappa Alagudi 2006 (3) TAC 907 (Kant); M.S. Grewal v. Deep Chand Sood : AIR2001SC3660 ; National Insurance Co. Ltd. v. Kamla Prasad : 2003(1)MPHT406 and Vijay Kumar Gupta v. B.G. Khosale .
8. Contrary to this the learned Counsel for the respondent No. 5 has submitted that there was contributory negligence as held by Claims Tribunal, hence the respondent No. 5 is liable to pay compensation as per the apportionment of negligence of the driver of truck No. 0325, respondent No. 6 and for rest of liability the driver, owner and insurance company of truck No. 1555 are liable. In support of his contention the learned Counsel for the respondent No. 5 relied upon the judgment of Full Bench of this court in Sushila Bhadoriya v. Madhya Pradesh State Road Trans. Corporation : 2005(1)MPHT486 . Counsel for respondent No. 2 has submitted that the insurance company has rightly been exonerated because the passengers were travelling contrary to the terms and conditions of the insurance policy. In support of his contention learned Counsel relied upon the judgment of the Hon'ble Apex Court in National Insurance Co. Ltd. v. Bommithi Subbhayamma : (2005)12SCC243 .
9. Before dealing with the quantum of compensation it would be just and proper to decide the points raised by the learned Counsel for the insurance company, respondent No. 2 and respondent No. 5. The respondent No. 2 is the insurance company which insured the truck No. 1555. Claimant himself and his father, Mahesh Sharma, AW 3, clearly deposed in their deposition that they paid fare to the driver and admittedly the truck was insured as goods vehicle. In such circumstances, in my opinion, Claims Tribunal has rightly exonerated the respondent-non-applicant No. 2 from liability of payment of compensation as per the judgment in National Insurance Co. Ltd. v. Bommithi Subbhayamma : (2005)12SCC243 .
10. With regard to another contention raised by the learned Counsel for respondent No. 5 as per the findings of the Claims Tribunal the accident had occurred due to contributory negligence of drivers of both the trucks and looking to the facts of the case the negligence of each of the driver could be ascertained, hence as per the Full Bench judgment of this High Court in Sushila Bhadoriya v. Madhya Pradesh State Road Trans. Corporation : 2005(1)MPHT486 , the insurance company, respondent No. 5, is liable to pay compensation up to the extent of negligence of the driver of truck No. 0325. It is true that the Full Bench of this court in para 25 of the judgment in Sushila Bhadoriya's case (supra), has held that if there is sufficient evidence regarding the act of each tortfeasor and if it is possible for the court to apportion the liability then the claim can be apportioned. The relevant findings are as under:
(25) When injury is caused as a result of negligence of two joint tortfeasors, claimant is not required to lay his finger on the exact person regarding his proportion of liability. In the absence of any evidence enabling the court to distinguish the act of each joint tortfeasor, liability can be fastened on both the tortfeasors jointly and in case only one of the joint tortfeasors is impleaded as party, then entire liability can be fastened upon one of the joint tortfeasors. If both the joint tortfeasors are before the court and there is sufficient evidence regarding the act of each tortfeasor and it is possible for the court to apportion the claim considering the exact nature of negligence by both the joint tortfeasors, it may apportion the claim. However, it is not necessary to apportion the claim when it is not possible to determine the ratio of negligence of joint tortfeasors. In such cases, joint tortfeasors will be jointly and severally liable to pay the compensation.
11. But, in the present case from the record it is clear that both the drivers have not been examined before the Tribunal. Respondent No. 5 has also not examined any of its officers with regard to its claim that up to what extent the driver of another vehicle was responsible for the accident, neither it has summoned the driver of the vehicle. In such circumstances when there is no evidence on record, in my opinion, the Tribunal has rightly held that liability for payment of compensation would be jointly of all the tortfeasors.
12. With regard to amount of compensation the claimant in his evidence has stated that he received severe injuries at the time of accident and he became unconscious. He was admitted at District Hospital, Guna and there was fracture in his both legs and he also received injuries in his knee. He was also treated at Indore. Due to the aforesaid accident he could not walk without support of stick. He further stated that he remained unconscious for near about 15 days. The mother of the claimant, Mithlesh, AW 2, has deposed that her son was unconscious at the time of accident and he received fracture injuries in both legs and due to the injuries her son could not attend school for near about two years, he could not walk properly without support of stick. His education has been affected badly after the accident. Same facts have been narrated by the father of the claimant. He was also travelling in the truck and he also received injuries in the said accident. He further stated that he is a poor person and has only two acres of land for cultivation and he has no other business. After the accident his whole family has been ruined and he has spent about Rs. 2,00,000 in the treatment of his son.
13. Dr. N.K. Sharma, AW 4, deposed that he was posted on 6.2.1998 at District Hospital, Guna when the claimant was brought to the District Hospital, Guna. His condition was not good. He received injuries in both his legs and chest and also on his face. The aforesaid doctor initially treated the claimant. Another doctor, Dr. Pramod Pathak, AW 5, was also posted as Orthopaedic Surgeon at District Hospital, Guna and he was one of the signatories of the disability certificate. The aforesaid disability certificate has been issued by the District Medical Board and Dr. S.K. Shri-vastava, Dr. B.S. Kushwaha, Dr. Rajesh Diwakar and Chairman, District Medical Board, Civil Surgeon Dr. Patni signed the disability certificate, Exh. P10C. As per the doctor there was deformity in left tibia of the claimant and the claimant could not move his left leg freely that is why there was a disability to the claimant due to the deterioration of muscles. He further deposed that claimant could not walk independently without assistance of a walker or stick. He further deposed that he had a suspicion that whether the claimant could recover completely in future because he received crush injuries. The claimant has also filed X-ray reports, various medical receipts, cash memos and the permanent disability certificate issued by the District Medical Board of District Hospital, Guna. Claimant was admitted for two times at District Hospital, Guna and he was also treated at Indore. On the basis of above evidence, in my opinion, the Claims Tribunal has rightly held that claimant suffered 40 per cent permanent disability because he examined in support of his claim the doctor who was an Orthopaedic Surgeon working in the District Hospital, Guna and also produced a disability certificate which was issued by the District Medical Board constituted by four doctors of District Hospital, Guna including the civil surgeon.
14. The appellant-claimant was a boy aged 11 years at the time of accident, hence certainly it could not be ascertained as to what was the loss in future earnings. However, as observed by the Hon'ble Supreme Court in Kapil Kumar v. Kudrat Ali : AIR2002SC1813 , as under with regard to a case of partial disability of a child:
(3) It is contended that the compensation awarded under the first head is too low having regard to the nature and gravity of injury. The evidence of medical experts (PWs 3 to 5) discloses that three bones of appellant were fractured and surgery had to be performed. According to PW 5, an orthopaedic expert, appellant's right hand became irregular in shape and its movement became restrained and he cannot lift heavy articles with the right hand. The normal movement will be painful. However, the disability sustained was assessed at 20 per cent. As rightly observed by the High Court, the loss of earning capacity on account of permanent partial disability suffered by the appellant cannot be calculated in terms of percentage only. It will have serious repercussions on his studies as well as prospects of earning. He will have to face other handicaps in life...
The Supreme Court further in Divisional Controller, Kamataka State Road Trans. Corporation v. Mahadeva Shetty : AIR2003SC4172 , has observed as under after considering various judgments with regard to grant of damages in accidents:
(12) It is true that perfect compensation is hardly possible and money cannot renew a physical frame that has been battered and shattered, as stated by Lord Morris in H. West & Son Ltd. v. Shephard 1958-65 ACJ 504 (HL, England). Justice requires that it should be equal in value, although not alike in kind. Object of providing compensation is to place the claimant as far as possible in the same position financially as he was before accident. Broadly speaking, in the case of death, basis of compensation is loss of pecuniary benefits to dependants of the deceased which includes pecuniary loss, expenses, etc. and loss to the estate. Object is to mitigate hardship that has been caused to the legal representatives due to sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be unreasonable, excessive, nor deficient. There can be no exact uniform rule for measuring value of human life and the measure of damage cannot be arrived at by precise mathematical calculation; but the amount recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is decreed nor should be a source of profit of the person in whose favour it is awarded. Upjohn, L.J. in Charter House Credit v. Jolly (1963) 2 CB 683, remarked: 'the assessment of damages has never been an exact science; it is essentially practical'.
(13) The damages for vehicular accidents are in the nature of compensation in money for loss of any kind caused to any person. In case of personal injury the position is different from loss of property. In the latter case, there is possibility of repair or restoration. But in case of personal injury, the possibility of repair or restoration is practically non-existent. In Perry v. Cleaver 1969 ACJ 363 (HL, England), Lord Morris stated as follows:
To compensate in money for pain and for physical consequences is invariably difficult, but...no other process can be devised than that of making monetary assessment.'
xxx xxx xxx(18) A person not only suffers injuries on account of the accident but he also suffers in mind and body on account of the accident throughout his life and a feeling is developed that he is no more a normal man and cannot enjoy the amenities of life as another normal person can. While fixing compensation for pain and suffering as also for loss of amenities of life the features like his age, marital status and unusual deprivation he has undertaken in his life have to be reckoned.
15. Looking to the above facts and circumstances of the case, in my opinion, it would be just and proper to grant compensation of Rs. 1,00,000 (rupees one lakh) to the claimant-appellant on account of loss of future earnings looking to 40 per cent disability suffered by him.
16. Because the claimant is a boy and as per evidence he could not attend school for two years and he remained unconscious for near about 15 days and also he could not walk properly without assistance of stick or walker after the accident also, in my opinion, it would be just and proper to award a compensation of Rs. 25,000 (rupees twenty-five thousand) for pain and suffering.
17. With regard to medical expenses the Claims Tribunal has rightly granted Rs. 9,000 on the basis of bills/cash memos. However, looking to the fact that claimant-appellant was admitted in the hospital two times and he was also examined at Indore, hence for conveyance and other charges, in my opinion, it would be just and proper to award a compensation of Rs. 10,000 (rupees ten thousand).
18. Consequently, appellant-claimant would be entitled for a total compensation of Rs. 1,44,000 (rupees one lakh and forty-four thousand), rounded off to Rs. 1,45,000 (rupees one lakh and forty-five thousand), Rs. 63,000 has already been granted by the Claims Tribunal. Thus, appellant-claimant would be entitled to the enhanced amount of compensation of Rs. 82,000 (rupees eighty-two thousand) with interest at the rate of 7.5 per cent per annum from the date of filing the claim application before the Tribunal. The liability with regard to payment of compensation would be jointly of respondent Nos. 1 to 6 except respondent No. 2.
19. Thus, the appeal is allowed to the extent indicated hereinabove. Looking to the facts of the case parties are directed to bear their own costs.