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YASHVIR SINGH RATHOR, J. –

1. This appeal has been instituted by claimant-appellant against the Award dated 22.01.2002 passed by Motor Accident Claims Tribunal, Hisar (for short “Tribunal”) in MACT Case No.29 of 1999 in a petition under Section 166 of Motor Vehicles Act, 1988 for enhancement of compensation vide which a sum of Rs.32,000/- has been awarded as compensation to the claimant/appellant along with interest 9% per annum on account of injuries suffered by him in a motor vehicular accident due to rash and negligent driving by respondent No.1 while driving three wheeler bearing No.HR-20-PA-0472 (for short ‘offending vehicle’), owned by respondent No.2.

2. It is pertinent to mention that the record of the present appeal and the Tribunal has got burnt in a fire incident in the High Court Registry and the present appeal has to be decided on the basis of the facts and evidence discussed by the Tribunal in the impugned award.

3. From the pleadings of parties, following issues were framed by the learned Tribunal:-

“1. Whether the accident resulting in the injuries to the claimant owing to rash and negligent driving of Auto Rickshaw No.HR-20-PA-0472 by Amar Singh respondents No.1?OPP

2. Whether Amar Singh was not holding an effective driving licence at the time of accident. If so, its effect?OPP

3. To what amount of compensation, the claimant is entitled and from whom?OPP

4. Relief.”

4. Thereafter, the parties led evidence in support of their case.

5. After hearing the parties and going through the material on the file, learned Tribunal awarded a sum of Rs.32,000/- as compensation to the claimant, on account of injuries suffered by him along with interest @ 9% per annum from the date of filing of claim petition till realization, payable by respondents No.1 to 3 jointly and severally.

6. Feeling aggrieved, the appeal in hand has been preferred. The material on file has been perused and parties have been heard.

7. The only issue required to be determined in the present appeal relates to the assessment of compensation. Therefore, the entire facts regarding the manner of the accident are not required to be reproduced in detail, as the Tribunal has already held under issue No.1 that the accident in question had taken place due to the rash and negligent driving on the part of respondent No.1. No appeal or cross-objections have been filed by respondents No.1 to 3, challenging the said finding and accordingly, finding on issue No.1 is not required to be interfered with and the same is affirmed.

8. Learned counsel for the appellants argued that the Tribunal has not appreciated the facts of the case and evidence on file in the correct perspective while assessing the compensation which is grossly inadequate. The compensation has not been awarded for the pecuniary and non-pecuniary damages as per settled law and the impugned award is thus liable to be modified and enhanced amount of compensation be awarded. In support of his contentions, learned counsel for the appellant has relied upon 2014 (1) RCR (Civil) 914 Sanjay Verma Vs. Haryana Roadways, 2017 (16) SCC 680 National Insurance Co. Ltd Vs. Pranay Sethi and Others and 2009(6) SCC 121- Sarla Verma and others Vs. Delhi Transport Corporation and Another,

9. On the other hand, learned counsel for respondents argued that the award in question is well reasoned and justified. The material on file has been appreciated in the correct perspective while assessing the compensation and no interference in the same is thus called for.

Assessment of Compensation

10. The claim petition has been instituted by the claimant for grant of compensation on account of injuries suffered by him in the accident. Stand of claimant while appearing in the witness box is that after he suffered injuries, he was shifted to Arora Hospital, where he remained admitted from 11.12.1998 to 28.12.1998. He suffered fracture and was operated upon for femur bone and a steel rod was inserted. His leg has shortened and he needs support of a stick to walk. His shoulder bone has also not been united properly and he cannot lift any weight beyond 5 kgs. After discharge from the hospital, he was again admitted in the Army Hospital, Jaipur where he remained admitted for 1 ½ months. He was sent on sick leave from 24.1.1999 to 20.2.1999 and remained confined to bed. He further stated that he needs assistance of one person for answering the call of nature. When he went to join the duty in the Army, he was again admitted in the Army Hospital for one month and then he was sent to his Unit. In case, he is discharged from the Army, he would be deprived of his salary of Rs.4,500/- per month besides other perks/ benefits and his future prospects of promotion have also got diminished.

11. PW1 – Dr. Ashok Arora has also been examined who stated that on 11.12.1998, claimant was admitted in his hospital as he had suffered fracture of shaft femur right side and fracture clavicle left side with multiple injuries and he tendered MLR Ex.P1 as well as ruqa sent to the police Ex.P2. He stated that patient was discharged on 28.12.1998 vide discharge summary Ex.P3. He had charged Rs.6,700/- and hospital fee vide Ex.P4. Bills of medicines Ex.P5 to Ex.P21 have also been tendered by him. He further stated that another amount of Rs.5,000/- will be required to be spent for removal of rod/ implant.

12. PW3 – Dr. Joginder Kapoor has also been examined to prove the disability who deposed that claimant has suffered 70% disability.

13. Learned Tribunal, after appreciating the evidence on file, awarded him a total compensation of Rs.32,000/- which included Rs.12,500/- towards expenses incurred on treatment, Rs.10,000/- for pain and sufferings, Rs.5,000/- for special diet and transportation and Rs.4,500/- for loss of income. However, no amount was awarded on account of disability as the testimony of PW3 – Dr. Joginder Kapoor was disbelieved. However, the compensation awarded by the Tribunal, in my opinion is grossly inadequate.

14. The law is well settled that the compensation to be awarded for injuries suffered by victim in a motor vehicular accident should be just and equitable. Courts have consistently held that while money cannot erase the pain, suffering, or trauma but it is the only legal means to provide restitution and restore the victim to his previous position as far as possible for which ‘just compensation’ has to be assessed. It is also well settled that while it is impossible to fully compensate for the loss of limb, life, or quality of life, the compensation must be ‘Just’, meaning thereby, that it should be fair, reasonable, and equitable based on the evidence and not merely a ‘Windfall’ or a ‘Pittance’. The core objective is to put the injured/victim in the same position he would have been if the accident had not taken place, to the extent money can do so. This approach ensures that the law provides a realistic recompense for the trauma endured, rather than just providing normal relief.

15. Hon'ble Supreme Court in 2013 (3) RCR (Civil) 934 - G.Ravindranath @ R. Chowdary Vs. E. Srinivas and another, has held that in a case of accident resulting in injuries to the victim, the compensation in personal injury cases should be determined under the following heads:-

Pecuniary damages (Special damages)

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing expenditure. food and miscellaneous

(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on account of permanent disability

(iii) Future medical expenses.

Non-pecuniary damages (General damages)

(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life (shortening of normal longevity).

In routine personal injury cases, compensation will be awarded under heads (i), (ii) (a) and (iv) It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant that compensation will be granted under any of the heads (ii) (b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.

16. It has come in evidence that claimant had suffered fracture in his right leg and a surgery was performed and a rod was inserted. He had also suffered fracture of clavicle left side. He remained admitted in the hospital for around one month and even thereafter, it must have taken four months for the injuries to heal. It is a matter of common knowledge that pain component in such injuries is enormous which take a considerable time to heal and therefore, taking into consideration the severity of injuries, surgical interventions and long duration of treatment, claimant is held entitled to a sum of Rs.25,000/- on account of pain and sufferings.

17. Claimant has been awarded a sum of Rs.12,500/- for the expenses incurred on the treatment. However, it is a matter of common knowledge that patients or their attendants generally do not preserve all the bills and some amount of guess work thus has to be applied while assessing the expenses incurred on treatment. Even otherwise, some amount must have been spent on future treatment and accordingly, claimant is held entitled to a sum of Rs.20,000/- for the expenses incurred on treatment.

18. During the period of four months, claimant must have spent some amount on transportation, in engaging an attendant and on special diet. Accordingly, claimant is held entitled to a sum of Rs.7,500/- for the expenses incurred on transportation, Rs.7,500/- for special diet and Rs.10,000/- for engaging an attendant.

19. During this period of four months, the claimant would not have been able to do any work and the Tribunal has awarded a sum of Rs.4,500/- for loss of income. No interference in the same is called for.

20. While denying any compensation on account of permanent disability, the Tribunal has held as under:-

“26. For permanent disability Dr. Joginder Kapoor as PW3 has stated that there is shortening of leg and he was examined by the medical board and 70% disability vide Ex.P23 has been shown. On the other hand counsel for the respondent has allowed that Dr. Ashok Arora who has examined the petitioner in whose hospital he was admitted and operated upon, he has categorically stated that there was no shortening of leg shown at that time. As in cross examination PW1 admitted. So, how the shortening of leg came later on. That shows the falsehood of disability certificate and the disability has been given no higher side. Moreover, the disability if spread over to whole body comes out to be less and the disability is 70% is qua the limb only.

27. I have given thoughtful consideration.

28. Admittedly the petitioner when was discharged by Dr. Ashok Arora there was no defect in moving as he admitted in cross examination by Dr. Ashok Arora and also there was no shortening of leg at that time when he was discharged. However, Dr. Joginder Kapoor P3 has stated and proved disability certificate Ex.P23 showing disability to be 70% for the old case of traumatic injury right lower limb. So, in these circumstances, the disability seems to be given on higher side. The statement of PW3 Joginder Kapoor has been totally shattered because he could not tell how much shortening was there. He also could not tell whether the injury was 10, 12, 20 years old or 6 months old. He has not treated the patient. Moreover, when Dr. Ashok Arora has discharged he was O.K and there was no shortening of leg. It cannot be held that when earlier the doctor has discharged him and he was O.K. but later on it is said that there was shortening of leg. The other aspect that he is in service in military and again had taken in the unit. Moreover, had there been some permanent disability the petitioner who is working in the military service how he has been remained in the service. Only a fit person can remain in the military and that is the thing that PW2 Pardeep has stated that in examination in chief that he has been admitted in the military hospital and after that he was sent to his unit. It means he was O.K when he was sent to unit for job. In these circumstances, the disability certificate seems to be procured. So, on account of permanent disability, no amount is awarded to the petitioner.”

21. As such, learned Tribunal has disbelieved the testimony of Dr. Joginder Kapoor, PW3 regarding shortening of leg and permanent disability to the tune of 70% as the treating doctor namely Dr. Ashok Arora PW1 had stated that there was no shortening of leg and when he was discharged from the hospital of Dr. Ashok Arora, there was no defect in the movements of the claimant. Even PW3 – Dr. Joginder Kapoor who had assessed the disability failed to tell as to how much shortening of leg has occurred. Tribunal has also rightly observed that claimant is serving in the Army and had he suffered any permanent disability, he would not have remained in service and would have been discharged as only a physically fit person can be allowed to continue in service in the Army and even claimant has admitted that he was sent to his Unit after he was discharged from the Military Hospital. As such, the version of claimant and testimony of Dr. Joginder Kapoor that claimant has suffered shortening of leg and 70% permanent disability has rightly been disbelieved and claimant is thus not entitled to any compensation under the said head.

22. Resultantly, the compensation to be paid is assessed as under:-

23. As a result of afore-said discussion, the present appeal is partly accepted with costs and the claimant-appellant is held entitled to enhanced compensation of Rs..42,500/- (Rs.74,500/- - Rs.32,000/-) over and above the compensation awarded by Tribunal, payable by respondents jointly and severally, along with interest @ 9% per annum, from the date of filing of claim petition i.e. 23.02.1999, till realization.

24. Registry is directed to email the authenticated copy of the award to the respondent Insurance Company in terms of directions issued by the Hon’ble Supreme Court in Writ Petition (Civil) No.534 of 2020 titled Bajaj Allianz General Insurance Company Versus Union of India and others, decided on 16.03.2021 and Insurance Company shall comply with the directions as issued under Clause (F) of the said judgment.

25. Pending miscellaneous application(s), if any, shall also stand disposed of.

Appeal is partly accepted.

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