Sanjay Karol, J.
1. The claimant has assailed, the impugned Award dated 22.11.2004 passed by the Motor Accidents Claims Tribunal, Hamirpur, H.P. in M.A.C Petition No. 02 of 2001 titled as Braham Dass v. Amrit Lal and Ors. wherein the claim petition filed under Section 166 of the Motor Vehicles Act (hereinafter referred to as 'the Act') stands dismissed. The petitioner claimed compensation of Rs. 5 lacs for the injuries sustained by him in a motor vehicle accident.
2. As per the pleadings, on 9.7.2000, petitioner was travelling in Jeep (Tralla) No. HP-23-2207 (hereinafter called to as the Jeep) and when the said vehicle reached at Bari Chowk, Hamirpur (H.P.) truck bearing registration No. HP-23-5457 (hereinafter called as a truck) came in a rash and negligent manner and while overtaking, hit the Jeep from behind. As a result of the accident petitioner fell down from the Jeep and sustained multiple grievous injuries on both of his legs. He undertook medical treatment initially at Primary Health Centre, Bharari, Tehsil Ghumarwin, Distt. Bilaspur and subsequently at the Indira Gandhi Medical College/State Hospital, Shimla, where he remained admitted from 10.7.2000 upto 4.8.2000. His leg was fractured and he had to be operated upon and an iron rod inserted in his right leg. He incurred an expenditure of Rs. 30,000/- towards his medical treatment. He was employed as a Mason and earning Rs. 4,000/- per month but however, as a result of the injuries sustained by him in the accident, he could not do any hard work thus impairing his earning capacity. The truck owned by Shri Amrit Lal (original respondent No. 1) was being driven by Shri Vikas Sharma (original respondent No. 2) and the said vehicle was insured with the United India Insurance Company Ltd. (original respondent No. 4).
3. The owner of the jeep, Shri Jeet Ram (original respondent No. 3) and its insurer M/s. National Insurance Company Ltd. (original respondent No. 5) were also impleaded as parties.
4. The owner and driver of the truck filed their joint reply inter alia pleading as under:
The accident has taken due to rash and negligent driving of respondent No. 3. It is submitted that the respondent No. 1 was driving the vehicle. It is incorrect that the respondent No. 2 was driving the vehicle. As a matter of fact he does now know driving and he is serving in the Indian Army. Allegations are totally wrong, hence denied. He has been wrongly and illegally impleaded as party in the instant case. The accident is result of rash and negligent of respondent No. 3 who was driving his vehicle in a most rash and negligent manner and at a very high speed.
(Emphasis supplied)
5. M/s. United India Insurance Company Ltd., insurer of the truck opposed the petition, inter alia pleading that since driver Vikas Sharma did not possess an effective and valid driving licence and that the truck did not have the necessary and valid route permits, hence, the material terms and conditions of the Insurance Policy stood violated and consequently they were not liable to indemnify the insured.
6. The owner and the driver of the Jeep Sh. Ajeet Singh, in its reply in effect supported the petitioner, but its insurer pleaded no liability on the ground of violation of the terms and conditions of the Insurance Policy.
7. Petitioner filed a rejoinder reaffirming that the accident in question took place due to the rash and negligent driving on the part of Shri Vikas Sharma respondent No. 2) who in fact was driving the truck.
8. The claim petition essentially was directed against the owner, driver and the insurer of the truck.
9. Based on the pleadings of the parties, the Tribunal framed the following issues:
1. Whether the petitioner received injuries in a motor vehicle accident due to rash and negligent driving on the part of respondent No. 2? ...OPP
2. If issue No. 1 is held in the affirmative, to what amount of compensation the petitioner is entitled and from whom? ....OPP
3. Whether respondent No. 2 was not having effective and valid driving licence and the vehicle was being driven in violation of the provisions contained under the Motor Vehicles Act and in contravention of the Insurance Policy, if so, to what effect? ....OPR-4
4. Whether the accident occurred due to the rashness and negligence on the part of respondent No. 3, if so, to what effect? ....OPRF 1 and 2.
5. Whether respondent No. 3 was not having valid and effective driving licence, if so, to what effect? ...OPRF 5
6. Relief.
10. Opportunity to lead evidence was afforded to the parties.
Appreciating the material on record (oral and documentary), the Tribunal held that the petitioner had failed to prove that the vehicle had been driven by Vikas Sharma (respondent No. 2), much less in a rash and negligent manner, as such, no compensation as claimed could have been awarded to the claimants.
11. Issue No. 3 was decided against Shri Vikas Sharma keeping in view of his own admission that he was not possessing any driving licence at the time of the accident.
12. While deciding issue No. 4, the Tribunal held as under:
Verdict on the issue has come on the record while determining issue No. 1. Therefore, without burdening the record, I conclude that the accident is not proved to have occurred on account of rash or negligent driving of respondent No. 3.
13. While deciding issue No. 5, the Tribunal found that there was no evidence to prove that Shri Jeet Ram was not possessing a valid and effective driving licence.
14. I have heard the learned Counsel for the parties and also perused the record.
15. In order to prove its case, the claimant examined the following witnesses:
Dr. T.S. Chandel (PW-1), Shri Santosh Raj (PW-2), claimant Shri Braham Dass (PW-3), Shri Mansa Ram (PW-4), Dr. L.R. Verma (PW-5).
In rebuttal, the respondents examined the following witnesses:
Shri Jai Ram (RW-1), Shri Vikas Kumar (RW-2), Shri Rakesh Kumar (RW-3) and Shri Jeet Ram (RW-4).
16. Disbelieving the testimony of the claimant's witnesses, the Court below dismissed the petition primarily on the following grounds: (i) FIR Ext.RW-1/A evidenced the fact that the Jeep was owned by claimant Braham Dass and in fact was being driven by one Sh. Rajesh Sharma. This fact was suppressed by him and wrongly mentioned that the Jeep was owned and driven by Sh. Jeet Ram (RW-4); (ii) From the testimony of Sh. Vikas Kumar (RW-2), it was evident that not only the truck was being driven by his father Sh. Amrit Lal but also he did not know how to drive a truck; (iii) Claimant Sh. Braham Dass (PW-3) and driver of the Jeep Sh. Jeet Ram (RW-4) had made contradictory statements with regard to the owner of the goods being carried in the jeep, hence the deposition of the witnesses were unworthy of any credence; (iv) Criminal case arising out of the FIRs Ext. RW-1/A and Ext.PW-2/A was pending in the Court of concerned Magistrate in which Sh. Amrit Lal was the accused which conclusively proved that the truck was not being driven by Sh. Vikas Sharma as was falsely alleged by the claimants. In effect the claim petition full of false averments was to be dismissed.
17. In my view the findings returned by the Tribunal are not based on correct and proper appreciation of the entire material on record.
18. It is the claimant's case that when the jeep in which the claimant was travelling from Ladrour to Dasmal (Tehsil Bhoranj) reached near Bari Chowk, truck being driven by Shri Vikas Sharma came at high speed and hit the jeep from behind. The accident occurred due to the rash and negligent driving on the part of Sh. Vikas Sharma. According to the claimant, jeep was being driven by Shri Jeet Ram.
19. Owner Shri Amrit Lal and driver Shri Vikas Sharma filed a joint reply specifically pleadings that the vehicle was being driven by its owner Shri Amrit Lal and not his son Shri Vikas Sharma who did not know driving and was serving in the Indian Army. The negligence was specially attributed to the driver of the jeep Shri Jeet Ram.
20. Shri Jeet Ram, on the contrary supported the case of the claimant and attributed negligence to Shri Vikas Sharma who was driving the truck at the relevant time.
21. M/s. United India Insurance Company Ltd., the insurer of the truck contested the petition on the ground that Shri Vikas Sharma was not possessed with a valid and effective driving licence. In effect it did not dispute the truck being driven by Sh. Vikas Sharma.
22. Thus from the pleadings, it is evident that except for the owner of the truck Shri Amrit Lal and his son Shri Vikas Sharma, all the parties took the plea that it was Shri Vikas Sharma who was driving the truck at the time of the accident and not Shri Amrit Lal. Importantly, none of the parties either relied upon the contents of the FIR or even remotely pleaded that the jeep was being driven by person other than Shri Jeet Ram, much less Shri Rajesh Sharma. With these pleadings, the evidence led by the parties needs to be appreciated.
23. Undoubtedly, the incidence of accident was reported to the police and an F.I.R. was registered with Police Station, Bharari. The document of registration of the FIR No. 100/2000 dated 9.7.200 (Ext.RW-1/A) stands exhibited by Snri Jai Ram (RW-1) MHC, Police Station, Bharari. However, he has clarified that the same was neither written by him nor does it bear his signatures. According to him, since the matter pertained to Police Station, Bhoranj, hence it was transferred to the concerned Police Station where further investigation was carried.
24. Shri Santosh Raj (PW-2) Head Constable, Police Station, Bhoranj has simply proved that pursuant to transfer of FIR Ext.RW-1/A from Police Station, Bharari, FIR No. 144/2000 dated 30.10.2000 (Ext.PW-2/A), was registered at Police Station, Bhoranj.
25. Importantly, none of these witnesses are neither the complainants nor the authors of the said FIRs. None of these witnesses have disclosed the outcome of the investigation of the FIR. Simply because the documents stand exhibited by the witnesses that by itself would not dispense with the requirement of proving the contents of the documents in accordance with law. [Narbada Devi Gupta v. Birendra Kumar Jaiswal and Anr. : 2003 (8) SCC 745].
26. Ext.RW-1/A records that the jeep owned by claimant Shri Braham Dass was being driven by Shri Rajesh Sharma. Complaint on the basis of which F.I.R. Ext.RW-1/A was registered, was written by one Shri Rajesh Sharma who has not been examined by any of the parties. Thus, there are two versions on record with regard to the issue in question. The duty of the Court becomes all the more onerous to separate the grain from the sheaf.
27. Shri Rakesh Kumar (RW-3) has proved on record the fact that a criminal case against Shri Amrit Lal arising out of the FIR (Ext.PW-2/A) is pending in the Court of JMIC (I), Hamirpur. What is the final outcome of the said case and what was the stand taken by Shri Amrit Lal in the said proceedings has not been brought on record. In fact Shri Amrit Lal has not stepped into the witness box to depose at all. Importantly, the complainant's evidence concluded on 22.9.2003 when the matter was adjourned for recording of the entire evidence of the respondents on 1.12.2003. The Court directed the parties to take steps within two weeks failing which the entire evidence was to be produced at their own responsibility. On 1.12.2003 the Court observed that no steps in compliance of earlier order dated 22.9.2003 had been taken. However, the evidence of insurer respondent No. 4 was recorded and on the request of the respondents the matter was adjourned for 23.2.2004. On 23.2.2004, the Presiding Officer was on leave hence the matter was adjourned for 9.3.2004, when the Court adjourned the matter for 5.6.2004 for recording of the evidence of the respondent. Shri Amrit Lal did not present himself for examination on 1.12.2003, 23.2.2004 and 9.3.2004. Unfortunately, he expired before the next date fixed i.e. 5.6.2004. A claim petition under the Act cannot be decided solely on the basis of the criminal proceedings initiated on the basis of the registration of an FIR.
28. No witness has deposed that the jeep in fact was being driven by Shri Rajesh Sharma. Further a positive and specific suggestion was put to Shri Jeet Ram by Shri Vikas Sharma that the accident took place due to the former's fault, totally negates and repells the presumption that sought to be propounded that the vehicle in fact was being driven by Shri Rajesh Sharma.
29. The Court below has heavily relied upon the contents of the FIR to disbelieve the testimony of the claimant's witnesses, which approach in my considered view, is not correct. Unless and until the author of the complaint, on the basis of which FIR was registered or the officer who had written the complaint were examined, the contents of the same could not have been relied upon to make out a totally new case. It is not that the contents of the FIRs have been made part of the pleadings by the parties. The purpose of proving the registration of the FIR was only to show the occurrence of the accident and nothing more. None of the parties had actually referred to and relied upon the contents of the FIR even during trial. [National Insurance Company Ltd. v. Rattni and Ors. : 2009 (2) SCC 75].
30. Hence the Court below seriously erred in heavily relying upon the same for rejecting the petition. It cannot be said that the jeep was admittedly being driven by Sh. Rajesh Kumar and that the claimant had taken a false stand in the claim petition. The Court below seriously erred in relying upon the contents of the FIR and holding that the claimant had wrongly pleaded that it was Shri Rajesh Sharma who was driving the jeep and not Shri Jeet Ram. While dealing with the other issues I have further dealt with this issue later on in my judgment.-
31. It is true that Shri Braham Dass has not pleaded in the claim petition that at some point of time he had purchased the Jeep from its original owner Shri Roop Singh, but however, it is equally true that while deposing as PW-3, he has categorically stated that though he had purchased the vehicle from its original owner by executing an affidavit but however the said owner sold the same to Shri Jeet Ram. His statement stands corroborated by Shri Jeet Ram (RW-4), according to whom he had purchased the vehicle from Shri Roop Ram. The Registration Certificate (Ext.RW-4/D) further substantiates the fact that the vehicle was transferred by Shri Roop Ram in the name of Shri Jeet Ram. It is not the case of Sh. Amrit Lal or Sh. Vikas Sharma that Sh. Jeet Ram has falsely deposed in collusion with Braham Dass.
32. It cannot be held that the claimant had deliberately suppressed the information of the jeep having been owned by him.
33. Hence the Court below erred in discarding the complaint's statement on the ground that the claimant himself was the owner of the vehicle in question. Importantly the petition was preferred against the owner, the driver and the insurer of the truck.
34. In any event, the ownership of the jeep, in the present case, would loose significance if it is ultimately found that the truck in fact was being driven by Shri Vikas Sharma and that the accident took place due to his having driven the vehicle in a rash and negligent manner.
35. To prove that Shri Vikas Sharma was actually driving the truck and that too in a rash and negligent manner, there is sufficient evidence oh record.
36. Shri Braham Dass (PW-3) has categorically deposed that the jeep in which he was sitting was being driven by Shri Jeet Ram and when it reached near Bari Chowk truck bearing registration No. HP-23-5457 came at a high speed from behind and after striking the jeep dragged it for some distance. As a result of the accident, he fell down and became unconscious. The truck was being driven by Shri Amrit Lal and the accident occurred due to his mistake. Police had recorded his statement four months after the accident.
37. This statement of his stands corroborated by Shri Mansa Ram (PW-4) who happened to be at the spot at the time of the accident. He has categorically deposed that he was sitting in the shop of Pandit at Ban Chowk when he saw the truck come at high speed and hit the jeep from behind. Due to the collusion, Shri Braham Dass fell down from the jeep. The truck was being driven by Shri Vikas Sharma son of Shri Amrit Lal and the accident occurred due to his negligence. After the accident Shri Vikas Sharma drove away the vehicle for some distance. He had to be brought back with the help of local people. While cross-examining him, an attempt has been made by Shri Vikas Sharma to prove that this witness was not present at the spot at the time of occurrence. However, his testimony is unimpeachable and trustworthy. From his cross-examination, it cannot be said that he has falsely deposed. He had no reason to do that. Further his testimony that it was Shri Vikas Sharma who was driving the truck while Shri Amrit Lal was sitting besides him goes unrebutted. The suggestions put to him are self contradictory. Shri Vikas Sharma does not dispute his presence at the spot.
38. Even otherwise, Shri Jeet Ram (RW-4) has also corroborated the version of the claimant that it was Shri Vikas Sharma who was driving the vehicle at the time of the accident and the accident occurred due to his negligence. Importantly, this witness has been cross-examined by both Shri Vikas Sharma and legal heirs of Shri Amrit Lal. From the suggestion put to him, it is quite evident that the story sought to be propounded that it was Shri Rajesh Sharma who was driving the Jeep is false. For proper appreciation the relevant extract of his statement is reproduced as under:
This is incorrect that I was turning my vehicle at the time of accident. And that while turning the vehicle I struck my vehicle with the moving truck. This is incorrect that the accident had taken place due to my mistake. This is also incorrect that Vikas was not driving the vehicle. I am the owner as well as the driver of tralla.
39. Thus it is evident that the stand taken by S/Shri Vikas Sharma and Amrit Lal while cross-examining the claimant's witnesses to the effect that it was one Shri Rajesh Sharma who was driving the vehicle, is in direct contradiction with the line of cross-examination and the suggestion put to Shri Jeet Ram. That Shri Rajesh Sharma and not Shri Jeet Ram was driving the jeep has not even been suggested to him.
40. In support of his case, Shri Vikas Sharma has only examined himself as RW-2. No doubt, he has denied the suggestion put to him by the other respondents and the claimant that it was he who was driving the vehicle at the time of accident, but has admitted that he was recruited in the Indian Army in August 2000. Hence, it is evident that as on the date of accident i.e. 9.7.2000 he was not employed in the Army. It is his version that he had not driven the truck on 9.7.2000 as he does not know driving. According to him his father used to drive the truck and was possessed with driving licence Ext.RW-2/A.
41. The Tribunal seriously erred in accepting the statement of Shri Vikas Sharma as gospel truth and holding that neither did he possess a driving licence nor did he know how to drive the vehicle.
42. His testimony does not inspire confidence for the reason that he has tried to even deny or not explain the circumstances and facts which were to his personal knowledge. After his father's death legal matters were handled by him. An application for bringing on record the legal heirs of late Sh. Amrit Lal was moved on his behalf. He has simply denied all the suggestions put to him, including the factum of registration of a criminal case against his father as a result of the said accident. He is not an illiterate and has been pursuing the case even after the death of his father Shri Amrit Lal.
43. In context, the testimony of the claimant's witnesses is absolutely believable and reliable.
44. From the record, it thus evidently stands proved that it was Shri Vikas Sharma who was driving the vehicle at the time of the accident. He has neither examined the author of the FIR, nor the officers who investigated the matter. He ought to have shown the stand taken by Shri Amrit Lal in the criminal case or at least placed on record the final outcome of the said case. Importantly, Shri Amrit Lal expired before 5.6.2004 and the statement of this witness was recorded on 5.11.2004. The case did not come to an end due to the death of Shri Amrit Lal and was still pending on 5.11.2004, the date of examination of Sh. Rakesh Kumar (RW-3), Ahlmad of the Court of J.M.I.C (I), Hamirpur, H.P., who has proved the pendency of the criminal case against Sh. Amrit Lal.
45. It stands established on record that it was Shri Vikas Sharma who was driving the vehicle at the time of the accident and not Shri Amrit Lal and further that the vehicle was being driven by him in a rash and negligent manner which was the cause of the accident. He drove the truck at a high speed in a rash and negligent manner, as a result of which, Sh. Braham Dass fell down from the Jeep and sustained injuries.
46. The ownership of the goods being carried in the jeep was not in issue. Contradiction with regard to the same in the statements of RW-4 and PW-3 hence is absolutely immaterial. Hypothetically presuming that the goods belong to Shri Braham Dass that fact would have no bearing on the adjudication of the dispute in question. The statements of the claimant's witnesses are absolutely trustworthy, reliable and worthy of credence.
47. The findings returned by the Tribunal are thus perverse warranting interference by this Court.
48. In my considered view, the Court below seriously erred in deciding issue No. 1 against the claimants. The findings are reversed and the issue decided in favour of the claimants.
49. The principles for assessing the compensation as payable to an injured person laid down by various Courts are now well settled. While assessing the same, the Court should have regard to the degree of deprivation and the loss caused by such deprivation. The compensation or damages assessed for the personal injuries should be substantial damages to compensate the injuries for the deprivation suffered by the claimant throughout his life. They should neither be meager nor a charity. They should be just, fair and reasonable. Under the head of non-pecuniary damages, the damages could be awarded for personal loss, damages of pain and sufferings, loss of amenities, personal inconvenience and discomfiture keeping in view the facts of each case. But, however, under the head of pecuniary damages, it is only the actual money spent on the treatment, transportation etc. actual loss of income and the estimated future loss of income which has to be awarded.
50. The Apex Court in R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. : 1995 ACJ 366 (SC), has held that:
Broadly speaking, while fixing the 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 shall include: (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in the 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 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.
51. Pecuniary loss is capable of calculation in terms of money, and non-pecuniary loss, i.e., loss that cannot be easily assessed with accuracy. Pecuniary loss is the loss suffered by the victim due to the loss of earnings or other profits which he had been earning and was to earn in future at the same rate or at same promoted scale. Nonpecuniary loss consists of damages awarded for pain and sufferings, loss of amenities and loss of enjoyment of life and prospects. Under non-pecuniary loss, for want of accurate assessment, a reasonable figure could be arrived at and paid as compensation. Under pecuniary loss the assessment can be made easily by taking into consideration at least the monthly income actually earned by the victim and the difference between what he would be capable to earn on disablement. (Brestu Ram v. Anant Ram and Ors. 1989 (2) Sim. L.C. 298).
52. The aforesaid was reiterated by this Court in Munish Kumar v. State of H.P. and Ors. Latest HLJ 2007(HP) 1238, which further held as under:
It is well settled that in disablement cases compensation has always to be higher than even in cases of death since it is given to the living victim of the accident both for his personal loss and for economic loss. It can be said that the bodily injury is to be treated as a deprivation which entitled the victim to claim damages, which vary according to the gravity of the injury. Further, due to this injury, there can be loss of earnings, completely or partial due to the accident on his capacity to earn the same. Another consequence may be the loss he suffers on account of the enjoyment of life or full pleasures of living.
53. Further in Divisional Controller, KSRTC v. Mahadeva Shetty : (2003) 7 SCC 197, the Apex Court has held as under:
The damages for vehicular accidents are in the nature of compensation in money for loss of any kind caused to any person. The main principles of law on compensation for injuries were worked out in 19th Century, where railways accidents were becoming common and all actions were tried by the Jury. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance to the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for the mental and physical, loss, his or her life may have been shortened or that he or she cannot enjoy life which, has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time it has be to be borne in mind that the compensation is not expected to be a wind fall for the victim. Statutory provisions clearly indicate the compensation must be 'just' and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be 'just' compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of 'just' compensation which is the pivotal consideration. Though by use of the expression 'which appears to it to be just' a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness.
It is true that perfect compensation is hardly possible and money cannot renew a physique frame that has been battered and shattered. Justice requires that it should be equal in value, although not alike in kind. The object of providing compensation is to place the claimant as far as possible in the game position financially as he was before the accident. Broadly speaking, in the case of death basis of compensation is loss of pecuniary benefits to the dependants of the deceased which includes pecuniary loss, expenses, etc. and loss to the estate. The object is to mitigate hardship that has been caused to the legal representatives due to the 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 amount recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is decreed nor it should be a source of profit of the person in whose favour it is awarded.'
(Emphases supplied)
The aforesaid principles need to be applied to the material on record.
54. Claimant Shri Braham Dass has categorically deposed that in the accident he sustained injuries on both of his legs and one leg was fractured which was plastered. He was operated upon and a rod was fixed in the right leg which is still there. He remained admitted in Snowden Hospital (State Hospital IGMC, Shimla) for about 24-25 days. He was attended upon by his wife and father and advised heavy diet (nutritious) and meal. Due to the injury, he has confined to bed for a period of two years and can now only walk with the help of a stick. He is still undergoing medical treatment. After his discharge from the hospital, he visited Shimla 10 to 12 times for treatment. In all he incurred an expenditure of Rs. 1,50,000/- for his treatment and some of the bills for the same are exhibited as Ext.P-1 to Ext.P-21 as he was not able to keep all the bills of his treatment. Due to the injury, he cannot perform the work of a Mason and has pain while sitting and standing. He denied the suggestion put to him by the owner and the driver of the truck that the injury sustained by him on his right leg was not as a result of the accident. Importantly, it has been suggested to him by the respondents that he spent only Rs. 4,000/- to 5,000/- on his treatment. At the time of his deposition (16.6.2003), he was 42 years of age.
55. The fact that the claimant received injuries stands proved by Dr. L.R. Verma (PW-5), Asstt. Professor, Department of Orthopaedics, IGMC, Shimla, who has deposed that the claimant was admitted in the hospital on 10.7.2000 vide C.R. No. 176229/2K and was discharged on 4.8.2000 as per discharge slip (Ext.PW-5/A). The claimant had developed fracture in the right side femur bone for which open reduction and internal fixation with K. Nail was performed on 11.7.2000 and skin grafting on 1.8.2000. The claimant came for check up on 4.10.2000, 13.11.2000 and 18.11.2000 after discharge from the hospital. According to him, any patient suffering fractures of the nature sustained by the claimant would take 4 to 6 months for recovery.
56. Even Shri Jeet Ram (RW-4) has deposed that the claimant had sustained injuries in the accident.
57. As is evident from the bills Ext.P-1 to Ext.P-21, it is proved on record that a total sum of Rs. 4,294/- was spent by the claimant. Unrebutted testimony is also to the effect that all bills have not been retained. Claimant is a mason and not aware of the need, significance and relevance of retaining the bills. Hence, some guess work is required to be carried out. He had to remain admitted in the hospital for 25 days and had to further visit the hospital on atleast three occasions. His wife and father accompanied him. He was also advised special diet. Considering that he was having two full time attendants he would have spent atleast Rs. 100/- per day each on lodging and boarding. The total money spent for the same comes to 25 x 200 = Rs. 5,000/-. The claimant is a resident of District Hamirpur which is at a far off place from Shimla. Some money must have also spent on conveyance also. Hence, in my view, a total sum of Rs. 20,000/- would be appropriate towards medical expenses which would also include diet money conveyance and attendant charges.
58. It is averred in the claim petition that the claimant was working as a mason. Even though specifically not pleaded but he has claimed compensation for loss of income @ Rs. 4,000/- per month. In his statement he has deposed that he was working on minimum daily wages @ Rs. 150/- per day. The same works out to be Rs. 4,500/- per month. However, Dr. L.R. Verma (PW-5) has also deposed that the patient had stated his income to be Rs. 600/- per month. At the time of the accident, the minimum wages prescribed by the State Government to the labourer employed by the State was atleast Rs. 75/- per day. Taking this to be the basis of the income of the claimant loss of income is to be assessed.
59. Even though claimant deposed that he was confined to bed for two years but however PW-5 has deposed that the patient can recover in 4-6 months. The claimant's treatment continued from July upto November, 2000. Hence, his actual loss of income is assessed at Rs. 75 X 30 = Rs. 2250 x 6 months = Rs. 13,500/-.
60. The claimant has categorically deposed that he cannot do the work of mason as he has pain while sitting and standing. However, it is not that he cannot do any work or is bed ridden. But finding jobs is a problem and considering the injury he cannot do any hard work.
61. Hence, considering the entire circumstances, in my considered view, a token sum of Rs. 10,000/- is awarded towards loss of future income.
62. In the present case, the claimant has suffered mental pain and agony. He remained admitted in the hospital for 25 days and continued to undergo further treatment. He can only walk with a help of a stick. His agony and mental pain can really never be compensated. The nature of injury being such though with the passage of time his pain and suffering is likely to increase. Hence taking into account the overall circumstances, a sum of Rs. 50,000/- is awarded towards pain and suffering and mental agony.
63. Taking into account the totality of the circumstances, the claimant thus shall be entitled to the following compensation:
Medical expenses, special diet,conveyance and attendant charges. Rs. 20,000/-Loss of actual income Rs. 13,500/-Loss of future income Rs. 10,000/-Pain and suffering Rs. 50,000/--------------Total Rs. 93,500/--------------
64. It is the case of Shri Vikas Sharma himself that he was not possessed with any driving licence. Even though the vehicle was insured but however in the absence of any driving licence, the material terms and conditions of the policy stood breached. Hence only Shri Amrit Lal (now his legal heirs) and Shri Vikas Sharma alone are liable to pay the compensation to the claimant.
65. The appeal is allowed. The award in favour of the claimant is passed holding him entitled to a sum of Rs. 93,500/- as compensation. The claimant shall also be entitled to interest @ 9% from the date of the petition upto the date of realization.
The impugned award is modified accordingly.