Master Ritik Verma (Minor) vs Sunita Kashyap And Others

Sandeep Sharma, J.

By way of appeal at hand, appellant has challenged award dated 27.10.2017 passed by Motor Accident Claims TribunalÂ4, Shimla in MAC Petition

RBT No. 96ÂS/2 of 2014/11 titled Master Ritik Verma vs. Smt. Sunita Kashyap and others, whereby compensation to the tune of Rs. 2,62,000//Â has

been awarded in favour of the claimantÂappellant (hereinafter, ‘claimant’) and against respondent No. 3 i.e. Bajaj Allianz General Insurance

Company Ltd. (hereinafter, ‘Insurance Company’) with interest at the rate of 7.5% per annum from the date of filing of petition till realization

of the entire amount, on the ground of inadequacy.

Before adverting to the factual matrix of the case, it may be noticed that neither the insurance company (respondent No. 3) nor owner and driver of

the vehicle i.e. respondents No. 1 and 2, who have been held liable, jointly and severally, to pay amount of compensation, have questioned the

impugned award on any ground, as such, same has attained finality qua them. It is further worthwhile to mention that even aforesaid respondents have

not filed crossÂobjections to the appeal and as such only question which needs to be determined in the appeal at hand is whether compensation

awarded is adequate or not?

In nutshell, the facts for having bird’s eye view, are that appellantÂinjured Master Ritik, who was studying in 4th standard, unfortunately met

with an accident on 4.6.2010 while he was going for Bhandara in temple alongwith other school children. Respondent No. 2, while driving the vehicle

bearing registration No. HPÂ52AÂ2958, Santro car, in a rash and negligent manner, came on wrong side of the road and hit Ritik, causing multiple

injuries on the body and fracture in right leg and right foot was also crushed under the vehicle. An FIR about the incident was registered at Police

Station, Dhalli vide FIR No. 99 dated 4.6.2010 under Sections 279 and 337 IPC. Injured remained admitted in the hospital with effect from 4.6.2010 to

1.7.2010 on account of injuries suffered by him. He suffered permanent disability to the extent of 40% as per Exhibit PWÂ3/A. On account of the

aforesaid injury suffered by the appellant, he preferred a claim petition under Section 166 of the Motor Vehicles Act for grant of compensation to the

tune of Rs. 15,00,000/Â. Claimant claimed that till the filing of the petition, he spent Rs. 85,000/Â on medicines and other expenses incurred outside

the home and a sum of Rs. 25,000/Â for special diet as advised by the doctor and Rs. 12,000/Â for petrol used in the vehicle for visiting the hospital.

Claimant also claimed that he was unable to perform his day to day routine work on account of injury suffered by him and was attended upon by an

attendant, on account of which, he paid Rs. 6,000/Â to the attendant. Claimant prayed for compensation to the tune of Rs. 15,00,000/Â alongwith

interest at the rate of 9% per annum on account of injuries suffered by him in the accident from the date of filing of the petition till its realization.

Learned Tribunal below, on the basis of pleadings of the parties, framed following issues:

“1. Whether the petitioner sustained injury on his person on account of rash and negligent driving of respondent No. 2, as alleged? OPP. 2.

Whether the petitioner is entitled for the grant of compensation, if so, then what should be the quantum and from whom? OPP.

Whether the petition is not maintainable in the present form, as alleged? OPR

Whether there is violation of terms and conditions of insurance policy, as alleged? OPR.

Whether the claimant himself was negligent and contributory to the accident, as alleged? OPR.

Relief.â€​

Learned Tribunal below, on the basis of evidence led on record allowed the petition and awarded a sum of Rs. 2,62,000/Â alongwith interest at the

rate of 7.5% per annum, thereby holding claimant entitled to the compensation under following heads:

Loss of future income come out to Rs.1,08,000/-be Rs.6,000/Â (15000 x 40/100 =6000) Compensation after multiplier of 18 as applicable = 60000 x

18

Compensation on account of pain Rs.50,000/- and suffering

Compensation on account of Rs.29,000/-Hospitalization Charges

Compensation on account of Rs.29,000/-attendant charges

Compensation on account of Rs.15,000/- transportation for coming and going to the hospital

Compensation in lieu of the Rs.6000/-services rendered by the helper

Being aggrieved and dissatisfied with the inadequate compensation awarded by the learned Tribunal below, claimant has approached this court in

the instant proceedings, praying therein for modification and enhancement of the award.

Findings returned on issues No. 1, 2 and 3 are not in dispute, rather, have attained finality as insurer or the insured/owner/driver have not laid any

challenge to the same as such, same are upheld. Onus to prove issues No. 3, 4 and 5 was on the respondents, however, they failed to discharge the

onus by leading cogent and convincing evidence and as such, same were decided against them. Respondents being aggrieved, if any, with the findings

returned on issues No. 3 to 6, have not laid any challenge and as such, same have already attained finality against them.

Having carefully perused the pleadings visÂÃ Âvis evidence available on record, this Court finds considerable force in the arguments of Mr. B.S.

Thakur, learned counsel representing the claimant that Master Ritik, who at the relevant point of time was nine years old and studying in fourth

standard, suffered multiple injuries in the accident. It stands duly proved on record that illÂfated vehicle bearing registration No. HPÂ52AÂ 2958,

Santro Car was being driven rashly and negligently by respondent No.2. Learned Tribunal below taking note of the fact that claimant suffered 45%

permanent disability though arrived at a conclusion that injured has suffered locomotor permanent moderate disability to the extent of 40% in relation

to his right foot, which has definitely affected his earning capacity, but failed to award any compensation on this count. Similarly, learned Tribunal

below though arrived at a conclusion that the claimant is still experiencing pain and suffering due to pain and disability in his leg and is not leading a

normal life, but omitted to award compensation on account of loss of future earning on account of permanent disability. Similarly, this Court is

persuaded to agree with Mr. B.S. Thakur, learned counsel representing the claimant that a meager amount has been awarded on account of pain and

suffering and no amount has been awarded on account of loss of amenities (and/or loss of prospects of marriage and loss of expectation of life).

It would be appropriate to take note of the following paragraphs of impugned award:

“33. In the case in hand, it is contention of the petitioner that injured Ritik Verma has suffered 40% permanent disability and placed on record

disÂ​ability certificate Ext. PWÂ​4/A.

In order to prove his case petitioner has examined Dr. Lokinder Sharma, Senior Orthopedic Surgeon, DDU Shimla as PW4. He has stated that on

dated 12.9.2014 he examined injured Ritik Verma about 9 years old and on examination he found 40% permanent disÂability and issued permanent

dis ability certificate Ext. PWÂ4/A, which bears his signature. No evidence has been led by the respondent to rebut the aforesaid plea of the

petitioner that he has sustained 40% permanent disability due to the injuries sustained in the accident.

Since it has been proved on record that injured has suffered locomotor permanent moderate disability to the extent of 40% in relation to his right

foot which has definitely affected his earning capacity. The petitioner is still experiencing pain and suffering due to in jury/disability in his leg and is

not leading a normal life. Thus keeping in view the principles laid down by Apex Court reported in Sarla Verma versus DTC 2009(6) SCC 126 and

Hon'ble High Court of H.P. In 2010(1) HIM.L.J.266 Naina Thakur versus Punjab Workman Welfare College Members, the peti tioner has been

found to be disabled to the extent of 40%, so the net loss of earning capacity of the petitioner would be Rs.6000/Â. (15000X40%). By re lying upon

the aforesaid authorities, cited supra, the multiplier of 18 is applicable in the present case. Keeping in view of age of injured i.e 9 years, the net loss of

future income of petitioner on account of accident comes to Rs.1,08,000/Â​ (6000 x 18= 1,08,000/Â​) can be awarded to the petitioner as compensation.

He is held entitled to Rs.1,08,000/Â​, on account of loss and future inÂ​ come.

Keeping in view the discharge slip Ext. PWÂ3/B and disability certificate Ext. PWÂ3/A on record by the petitioner, coupled with the fact that the

petitioner remained indoor patient at least for 29 days as evident from discharge slip Ext. PWÂ3/B. He had to spent money even on his attendant and

other miscellaneous expenditure. Stay in the hospital thus entails expenditure. It may be well inferred that petitioner must have spent at least Rs.

1000/Â per day. It thus shall be convenient and in the interest of justice that a lump sum amount is awarded to the petitioner for 29 days @ of Rs.

1000/Â per day, amounting to Rs. 29000/Â on account of expenditure incurred by him while in the hospital. This Tribunal is of the opinion that

petitioner is held entitled for Rs.29000/Â​ under this head.

Though petitioner has not placed any receipt or document regarding transportation charges but keeping in view of the fact that the petitioner was

taken to CHC Chail and thereafter to IGMC, Shimla and he remained admitted in IGMC, Shimla for 29 days and for that he might have arranged

some vehicle and must have incurred some expenditure in this regard. The petitioner is awarded Rs.15000/Â on the head for transportation charges.

Further, the petitioner who was a small child and remained admitted in the hospital, might have been attended by others and as such, peti tioner is

also awarded Rs. 29000/Â​ on account of attendant charges.â€​

Though, having perused impugned award passed by the learned Tribunal below on account of loss of future income, this Court sees no illegality as

far as awarding of compensation to the tune of ` 1,08,000/Â is concerned, because admittedly on account of permanent disability suffered by the

claimant to the extent of 40%, loss of earning capacity has rightly been calculated taking income of the injured to be `15,000/Â being a nonÂearning

person, as set out in the 2nd Schedule to the Motor Vehicles Act, however, there appears to be force in the arguments of the learned counsel

representing the claimant that in view of the latest law laid down by Hon'ble Apex Court in Mangla Ram Vs. The Oriental Insurance Company Ltd. &

Ors. [Civil Appeal Nos. 24992500 of 2018 arising out of SLP(Civil) Nos. 2814142 of 2017], decided on 6.4.2018, , an addition of 40% of the actual

income towards future prospects is also required to be made and as such, compensation awarded on account of loss of future prospects needs to be

reassessed i.e. loss of earning capacity = Rs.6,000/Â and 40% addition would be Rs.2400/Â thus totaling to Rs. 8400/Â and after applying multiplier

of 18, the total loss of income comes to Rs. 1,51,200/Â​.

At this stage, it would be appropriate to take note of following paragraphs of judgment in Mangla Ram(supra):

“25. The next question is about the quantum of compensation amount t be paid to the appellant. The Tribunal noted the claim of the appellant that

he was getting Rs.1500/per month towards his salary and Rs.600/per month towards fod allowance from Bhanwar Lal. The fact that the appellant had

possessed heavy transport motor vehicle driving licence has not been doubted. The driving licence on record being valid for a limited period, cannot be

the basis to belie the claim of the appellant duly supported by Bhanwar Lal, that the appellant was employed by him on his new truck.

Besides the said income, the appellant claimed to have earning of Rs.1000/per month from farming fields. In other words, e find that the Tribunal has

not analysed this evidence in proper perspective. The Tribunal, however, pegged the loss of monthly income to the appellant at Rs.520/per month

while computing the compensation amount on the finding that there was no convincing evidence about complete nonemployability of the appellant.

Further, no provision has been made by the Tribunal towards future prospects. The Tribunal, therefore, should have computed the loss of income on

that basis. Additionally, the appellant because of amputation of his right leg would be forced to permanently use prosthetic leg during his life time. No

provision has been made by the Tribunal in that regard. On these heads, the appellant is certainly entitled for enhanced compensation.

The next question is about the liability of insurer to pay the compensation amount. The Tribunal has absolve the insurance company on the finding

that no premium was received by the insurance company nor any insurance policy was ever issued by the insurance company in relation to the

offending vehicle. The respondents no. 2 and 3 had relied on a Cover Note which according to respondent No.1 â€" Insurance Company was

fraudulently obtained from the then Development Officer, who was later on sacked by respondent No.1 Insurance Company. The possibility of misuse

of some cover notes lying with him could not be ruled out. The respondent Nos. 2 & 3 have relied on the decision of this Court in Rule (supra).

This Court is in agreement with the contention raised by Mr. Jagdish Thakur, learned counsel representing the insurance company that amount

awarded by the Tribunal below on account of hospitalization charges, attendant charges, transportation charges and in lieu of services rendered by

helper, are strictly in terms of the evidence led on record, because assessment made by the Tribunal below is purely based upon the bills placed on

record by the claimant as such, this Court sees no reason to interfere with the same. However, having taken note of the fact that right foot of the

claimant was crushed and he suffered 40% locomotor permanent moderate disability as stands duly proved on record, impugned award on account of

shock, pain and suffering i.e. Rs. 50,000/Â and discomfort appears to be on lesser side, especially when it stands duly proved on record that claimant

having suffered multiple injuries remained admitted in hospital for twenty nine days.

A Coordinate Bench of this Court in case Smt. Chandra Wati V/s Tek Chand & others, Latest HLJ 2014 (HP) 288, while dealing with the

question as to how to grant compensation in injury cases, has held as under:

I have gone through the impugned award. The Tribunal has awarded a meager amount while ignoring the injuries suffered by the claimant/victim

and affect of the said injuries, which has made her life miserable and dependant throughout her life. The said injuries also destroyed her matrimonial

home, snatched the amenities and charm of her life and she has to be dependent on others throughout her life. She has undergone pain and suffering

and has to undergo it forever. Not only this, it has also affected her privacy.

Now, the question is how to grant compensation in such injury cases. The concept of granting compensation is outcome of Law of Torts. The

Tribunals, while examining a case of an injured and awarding compensation to him/her, have to do some guess work, sympathetically, keeping in view

the fate and physical frame of the injured/victim.

The Apex Court in case titled as R.D. Hattangadi versus M/s Pest Control (India) Pvt. Ltd. & others, reported in AIR 1995 SC 755, had

discussed all aspects and laid down guidelines how a guess work is to be done and how compensation is to be awarded under various heads. It is apt

to reproduce paras 9 to 14 of the judgment hereinbelow:

“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 is capable of being

calculated in terms of money; whereas nonÂpecuniary 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 nonÂpecuniary damages are concerned, they may include: (i) damages for mental and physical

shock, pain 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.

It cannot be disputed that because of the accident the appellant who was an active practising lawyer has become paraplegic on account of the

injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the

appellant and for having become a life long handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it

has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is

to compensate such injury ""so far as money can compensate"" because it is impossible to equate the money with the human sufferings or personal

deprivations. Money cannot renew a broken and shattered physical frame.

In the case Ward v. James, 1965 (1) All ER 563, it was said:

Although you cannot give a man so gravely injured much for his ""lost years"", you can, however, compensate him for his loss during his shortened

span, that is, during his expected ""years of survival"". You can compensate him for his loss of earnings during that time, and for the cost of treatment,

nursing and attendance. But how can you compensate him for being rendered a helpless invalid?

He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to back injury, be unable to rise from his bed. He has lost

everything that makes life worthwhile. Money is no good to him. Yet Judges and Juries have to do the best they can and give him what they think is

fair. No wonder they find it wellnigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a

conventional sum. The Judges have worked out a pattern, and they keep it in line with the changes in the value of money.

In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work,

some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be

viewed with objective standards.

This Court in the case of C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376, in connection with the Fatal Accidents Act has

observed (at p. 380):

In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is

inevitable."" 14. In Halsbury's Laws of England, 4th Edition, Vol. 12 regarding non pecuniary loss at page 446 it has been said : ""NonÂpecuniary

loss : the pattern. Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which

society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional

principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular

injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the

actual amount of the award. The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of

damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases.

The said judgment was also discussed by the Apex Court in case titled as Arvind Kumar Mishra versus New India Assurance Co. Ltd. & another,

reported in 2010 AIR SCW 6085, while granting compensation in such a case. It is apt to reproduce paraÂ​7 of the judgment hereinbelow:

“7. We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the

basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was in so far

as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of

the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered. In some cases for personal injury, the

claim could be in respect of life time's earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial

loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and

reasonable sum. The conventional basis of assessing compensation in personal injury cases  and that is now recognized mode as to the proper

measure of compensation Â​ is taking an appropriate multiplier of an appropriate multiplicand.â€​

The Apex Court in case titled as Ramchandrappa versus The Manager, Royal Sundaram Aliance Insurance Company Limited, reported in 2011

AIR SCW 4787 also laid down guidelines for granting compensation. It is apt to reproduce paras 8 & 9 of the judgment hereinbelow:

“8. The compensation is usually based upon the loss of the claimant's earnings or earning capacity, or upon the loss of particular faculties or

members or use of such members, ordinarily in accordance with a definite schedule. The Courts have time and again observed that the compensation

to be awarded is not measured by the nature, location or degree of the injury, but rather by the extent or degree of the incapacity resulting from the

injury. The Tribunals are expected to make an award determining the amount of compensation which should appear to be just, fair and proper.

The term ""disability"", as so used, ordinarily means loss or impairment of earning power and has been held not to mean loss of a member of the body.

If the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same ease as before he

was injured or is unable to do heavy work which he was able to do previous to his injury, he will be entitled to suitable compensation. Disability

benefits are ordinarily graded on the basis of the character of the disability as partial or total, and as temporary or permanent. No definite rule can be

established as to what constitutes partial incapacity in cases not covered by a schedule or fixed liabilities, since facts will differ in practically every

case.â€​

The Apex Court in case titled as Kavita versus Deepak and others, reported in 2012 AIR SCW 4771 also discussed the entire law and laid down

the guidelines how to grant compensation. It is apt to reproduce paras 16 & 18 of the judgment hereinbelow:

“16. In Raj Kumar v. Ajay Kumar (2011) 1 SCC 343, this Court considered large number of precedents and laid down the following propositions:

“The provision of the motor Vehicles Act, 1988 ('the Act', for short) makes it clear that the award must be just, which means that compensation

should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to

make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the

Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with

reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the

loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those

normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. The

heads under which compensation is awarded in personal injury cases are the following:

“Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and

miscellaneous expenditure. (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. NonÂpecuniary

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 only 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.â€​

………………………….

In light of the principles laid down in the aforementioned cases, it is suffice to say that in determining the quantum of compensation payable to the

victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for

the physical injury and treatment, but also for the loss of earning and inability to lead a normal life and enjoy amenities, which would have been enjoyed

but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with

the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses.â€​

Admittedly, the claimant/victim was a house wife, who was maintaining her family, domestic home, looking after cows and selling milk; her income

was about Rs.5,000/Â per month and was of the age of 55 years at the time of accident. This fact is not denied by the other side nor there is a

rebuttal.

Even otherwise, a domestic wife is the backbone of a home, maintaining the domestic home and takes all steps to keep her husband, children and

other family members united, in good health and joyous mood. If anyone has to engage a helper for domestic help, the minimum wages which has to

pay, is not less than Rs.3,000/Â per month plus clothing and food. She has not only been deprived of the income from domestic work, but also lost her

income by maintaining cows and selling milk. It is unrebutted, as discussed by the Tribunal in the impugned award, that she has become permanently

disabled, helpless, hapless and a burden on others, has to suffer 45% permanent disability throughout her life and has lost her income, which was about

Rs.5,000/Â per month. The Tribunal also held that due to her dependency on others, she engaged a helper, to whom she is paying Rs.1500/Â per

month. She has produced that lady Smt. Chinta as a witness, who has proved and stated that she is receiving Rs.1500/Â per month from the claimant

as wages.

The Tribunal awarded Rs.75,000/Â under the head of pain and suffering, which is too meager, while taking the physical frame of the claimant and

other factors in consideration and in view of the judgments of the Apex Court, referred hereinabove, read with the judgment of the Apex Court in case

titled as Nizam’s Institute of Medical Sciences versus Prasanth S. Dhananka & others, reported in 2009 AIR SCW 3563.â€​

Applying the ratio of law laid down in the judgment supra and parameters laid down, this Court deems it fit to enhance amount awarded under

head of pain and suffering to Rs. 1,00,000/Â​ instead of Rs. 50,000/Â​.

The learned Tribunal below, while determining the compensation on account of injury suffered by claimant has taken note of judgment rendered by

Hon'ble Apex Court in G. Ravindranath alias R. Chowdary vs. E. Srinivas & anr, AIT 2013 SC 2974, wherein it has been held that 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 food and miscellaneous expenditure.

II. Loss of earning (and other gains) which the injured would have made had he not been injured comprising: Â​

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 and 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)

Under the head of “nonÂpecuniary damages†i.e. general damages, provision has also been made for loss of amenities (and/or loss of prospects

of marriage and loss of expectation of life (loss of longevity). Though in the aforesaid judgment, Hon'ble Apex Court has held that in personal injury

cases, compensation shall be awarded only under headÂI, II a) and IV, as noticed herein above, however, Hon'ble Apex Court while holding above

has carved out an exception by stating that compensation shall be granted under any of the heads (II)(b), (III), (V) and (VI), where there is specific

medical evidence regarding loss of future income, on account of physical disability, medical expenses, loss of amenities and/or loss of prospects of

marriage, loss of expectation of life.

It is not in dispute that claimant was 9 years old at the time of accident and his right foot was also crushed under the car. On account of injury

suffered by claimant, he remained admitted in hospital for twenty nine days, as is evident from discharge slip, exhibits PWÂ1/A and PWÂ1/B.

Similarly, Dr. Lokinder Sharma, Senior Orthopaedic Surgeon, DDU Shimla, PWÂ4, categorically deposed that he had examined injured Ritik Verma

and on examination, he found 40% permanent disability and in this regard, he issued permanent disability certificate exhibit PWÂ4/A. Though learned

Tribunal below taking note of the disability suffered by injured, returned definite finding that disability suffered by claimant has affected his earning

capacity, but failed to award any amount on account of loss of income and life expectancy to the claimant on the ground that no evidence has been led

on record.

This Court can not lose sight of the fact that on account of the permanent disability suffered by claimant, he would not be able to lead a normal

life, this Court intends to agree with Mr. B.S. Thakur, that claimant would not be able to get a job in Army, paraÂmilitary forces and as such, learned

Tribunal below ought to have awarded adequate compensation on account of loss of amenities, loss of expectation of life and loss of prospects of

marriage. Similarly, claimant may find it difficult to be selected for marriage on account of permanent disability suffered by him. Had he not suffered

permanent disability, he would have greater chances of getting a lucrative job, which would have definitely enhanced his prospects of marriage.

Hence, having perused facts of the case visÂÃ Âvis evidence available on record, this Court has no hesitation to conclude that learned Tribunal

below, while determining compensation, has failed to appreciate material evidence available on record, in its right perspective and as such erred in not

awarding any compensation on account of loss of amenities, loss of prospects of marriage and loss of expectation of life and as such, award needs to

be modified accordingly. Otherwise also, the Hon’ble Apex Court in Ranjana Prakash and others vs. Divisional Manager and another (2011) 14

SCC 639, has held that amount of compensation can be enhanced by an appellate court, while exercising powers under Order 41 Rule 33 CPC. It

would be profitable to reproduce following para of the judgment herein:Â​

“Order 41 Rule 33 CPC enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further

or other order as the case may require, even if the respondent had not filed any appeal or crossÂobjections. This power is entrusted to the appellate

court to enable it to do complete justice between the parties. Order 41 Rule 33 CPC can be pressed into service to make the award more effective or

maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger

or higher relief. For example, where the claimants seek compensation against the owner and the insurer of the vehicle and the tribunal makes the

award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable

to pay the compensation, alongwith the owner, even though the claimants had not challenged the nonÂ​grant of relief against the insurer.â€​

Having perused material available on record, especially the disability suffered by the claimant in the accident, this Court deems it fit to award an

amount of Rs. 1,00,000/Â​ on account of loss of amenities and loss of expectation of life and/or loss of prospects of marriage.

Consequently, in view of aforesaid modification made herein above, appellantÂ​claimant is held entitled to following amount under various heads:

Loss of future income come out to 151200

 be Rs.6,000/Â​ (15000 x 40/100 =

 6000) plus loss of future prospects

 40% of actual income (Rs.2400)

 = 8400/Â​ Compensation after

 multiplier of 18 as applicable = 8400 x 18

Compensation on account of pain         100000

 and suffering

Compensation on account of              29000

 Hospitalization Charges

Compensation on account of         29000

 attendant charges

Compensation on account of           15000

 transportation for coming and

 going to the hospital

Compensation in lieu of the               6000

 services rendered by

 the helper

Compensation on account of loss of    100000

 amenities (and/or loss of expectation

 of life and loss of

 prospects of marriage)               Total 4,30,200/-

This Court however does not see any reason to interfere with the rate of interest awarded on the amount of compensation and as such, same is

upheld.

Consequently, in view of detailed discussion made herein above and law laid down by the Hon'ble Apex Court, present appeal is allowed and

award dated 27.10.2017 passed by Motor Accident Claims TribunalÂ4, Shimla in MAC Petition RBT No. 96ÂS/2 of 2014/11, is modified to the above

extent only.