1. Appellant Meghna Chaudhary, has filed the present appeal, under Section 173 of the Motor Vehicles Act, 1988 as amended upto date, (hereinafter referred to as the ‘M.V. Act’), against the award dated 31.12.2012, passed by learned Motor Accident Claims Tribunal, Una H.P., (hereinafter referred to as the ‘learned Tribunal’), in MAC Petition No.20 of 2010, titled as Meghna Chaudhary Versus The Ambala Syndicate Bus Service & Others, to the extent that less amount has been awarded, in favour of the appellant.

2. By way of the award dated 31.12.2012, the learned Tribunal has awarded a sum of Rs.8,52,457/-, along with interest @ 8% per annum, from the date of filing of the claim petition till the amount is deposited with the learned Tribunal. The ultimate liability to pay the amount of compensation has been put on respondent No.3, being insurer of the vehicle involved in the accident.

3. Parties to the present appeal, are hereinafter referred in the same manner, in which, they were referred to by the learned Tribunal.

4. Brief facts, leading to filing of the present appeal, before this Court, may be summed up as under:-

Petitioner Meghna Chaudhary, being minor, had filed the claim petition, through her mother and natural guardian Neetu Bala, under Section 166 of the M.V. Act, against the respondents, being owner, driver and insurer of Bus No.PB12-H- 2730 (hereinafter referred to as the ‘offending vehicle’).

4.1. The claim petition has been filed on the ground that on 28.9.2009, the petitioner, along with her father, mother and sister, aged about two years, was going on Honda Activa Scooter No.HP20B-9089, to their native place Lalhari, Tehsil Haroli, District Una, H.P.

4.2. The scooter, at the relevant time, was being driven by her father Ranbir Singh. When, they were standing by the side of road known as Anandpur Sahib-Nangal road, after coming from the link road of Village Ajouli, in the meanwhile, at about

7.50 p.m., the offending vehicle, being driven by respondent No.2, came there from Anandpur Sahib side.

4.3. Respondent No.2, was driving the offending vehicle at a high speed and hit the scooter. Consequently, the petitioner, her father, mother and younger sister fell down and sustained injuries. The right foot of the petitioner came in between the scooter and front tyre bumper of the offending vehicle. Her foot was badly crushed and also sustained fracture of thigh.

4.4. The accident, in question, has been stated to have occurred, on account of rash and negligent driving of respondent No.2, while driving the offending vehicle.

4.5. It is the further case of the petitioner that after the accident, the claimant was, firstly, taken to Gupta Hospital, Nangal, from where, after giving first aid, she was referred to PGI Chandigarh, but, she was taken to Fortis Hospital, Mohali on 28.2.2009. She was discharged, after one day and was taken to Sir Ganga Ram Hospital, Delhi, from where, she was taken to City Hospital, Delhi, where, she remained admit from 30.9.2009 to 20.10.2009. During the hospitalization, she underwent three major surgeries.

4.6. After getting discharged from the hospital, the petitioner was taken to Shergill Hospital, Nangal on the alternative day for dressing the wounds. Thereafter, she had to go to Delhi for getting the fixtures of wounds removed, through 4th operation. The petitioner again went to Sir Ganga Ram Hospital, Delhi after 15-20 days.

4.7. The information, regarding the accident was given to the Police of Police Station, Nangal, Tehsil Nangal, District Ropar, where FIR No.112, dated 29.9.2009, under Sections 279, 337, 338, 427 IPC was registered. The petitioner, at the time of accident is stated to be minor, aged about 6 years and was studying in first standard, in Mount Carmel School, Una.

4.8. Petitioner has also pleaded about her bright past and bleak future.

4.9. On all these submissions, she has prayed for the compensation of Rs.50,00,000/- with 12% interest, from the respondents.

5. When put to notice, the claim petition has been contested by the respondents.

6. Respondents No.1 and 2 have filed their joint reply, in which, they have taken the preliminary objections that the petitioner is estopped from filing the present petition as her father was tort-feaser; the petition is bad for non-joinder of necessary parties, as the insurer, owner and driver of Scooter No.HP20B-9089, have not been impleaded, as respondents.

6.1. On merits, the factual position, as mentioned in the petition, has mainly been denied for want of knowledge. However, registration of the FIR has not been disputed, but, the FIR is stated to be false and fabricated and the same was got registered by twisting the real facts.

6.2. Apart from this, a stand has also been taken that the accident, in question, had taken place, due to rash and negligent driving of the father of the petitioner. Elaborating this fact, it has been pleaded that the father of the petitioner, all of a sudden, appeared on the main road, without seeing the traffic, and tried to cross the road, that too, without giving indication. He was driving the scooter, in a rash and negligent manner. Despite best efforts made by respondent No.2, the scooter, being driven by the father of the petitioner, struck on the rear portion of the offending vehicle.

7. Insurance Company-respondent No.3, has filed its separate reply by taking the preliminary objections that the driver of the offending vehicle was not having a valid and effective driving licence; the offending vehicle was being plied without a valid and effective route permit; the vehicle owned by respondent No.1, was driven, in violation of the terms and conditions of the Insurance Policy; the petition is stated to be not maintainable and the same is bad for non-joinder of necessary party.

7.1. On merits, the contents of the claim petition, have mainly, been denied for want of knowledge.

8. Thus, the respondents have prayed for the dismissal of the claim petition.

9. Petitioner has filed the rejoinder to the replies filed by the respondents by denying the preliminary objections, as well as, the factual position, which has been contested and controverted by the respondents.

10. From the pleadings of the parties, learned Tribunal has framed the following issues vide order dated 24.6.2011:

"1. Whether petitioner sustained injuries in accident due to rash and negligent driving of respondent No.2 Tajinder Singh while driving vehicle No.PB- 12- H-2730 OPP.

2. If issue No.1 is proved, to what amount of compensation the petitioner is entitled to and from whom OPP

3. Whether the petition is not maintainable OPR3.

4. Whether petition is bad for non joinder of necessary parties i.e. the owner, driver and insurer of scooter No. HP-20-B-9089 as alleged OPRs

5. Whether respondent No.2-driver of bus No.PB- 12-H-2730 was not holding valid and effective driving licence at the time of accident OPR3

6. Whether bus No. PB-12-H-2730 was being plied without valid and effective route permit, registration certificate and fitness certificate OPR3

7. Whether bus No PB-12-H-2730 was being driven in violation of the terms and conditions of the insurance policy OPR3.

8. Relief."

11. A perusal of the record shows that on 28.8.2012, an application under Section 170 of M.V. Act, moved by the Insurance Company, has also been allowed by enabling the Insurance Company to urge all grounds, which are necessary to resist the claim petition.

12. After framing the issues, the parties to the claim petition, have adduced their respective evidence.

13. After closure of the evidence, the learned Tribunal has decided the claim petition and has awarded the amount, as mentioned above.

14. Aggrieved from the said award, the petitioner has preferred the present appeal with a prayer to enhance the award, on the ground that the amount of compensation, which has been awarded to her, is on the very lower side, as the learned Tribunal has misinterpreted the pleadings, as well as, the oral and documentary evidence, placed on record.

15. The impugned award, is also stated to be based upon the surmises and conjectures. Petitioner has spent more than Rs.4,00,000/- on her treatment and other connected expenses.

16. On the basis of the grounds of appeal, Mr. Vaibhav Kanwar, Advocate appearing vice to Mr. Karan Singh Kanwar, Advocate, for the appellant has prayed that the award may kindly be enhanced, so that the same can come within the definition of ‘just compensation’.

17. Per contra, the prayer, so made by learned counsel for the appellant, has been opposed by Mr. Parneet Gupta, Advocate appearing for respondent No.3, on the ground that learned Tribunal has awarded the compensation, which is not only just, but, based upon the evidence, so adduced by the parties.

18. In this case, the award has not been assailed by the respondents, as such, the controversy, in the present case, is confined to the fact, whether the compensation, which has been awarded by the learned Tribunal to the petitioner, falls within the definition of ‘just compensation’, as the endavour of the learned Tribunal, as well as, this Court, is to award just compensation.

19. The proceedings under the M.V. Act, are summary in nature, where, the liability of the tort-feaser can be fixed, on the principle of preponderance of probability. Strict Rules of Evidence Act are not applicable to the summary proceedings under the M.V. Act.

20. In order to decide the above question, the evidence of those witnesses, who have deposed about the treatment undergone by the petitioner, as well as, the petitioner is necessary.

21. PW-1 Dr. Pradeep Bageja, Consultant, Orthopedic Surgeon, Sir Ganga Ram Hospital, New Delhi deposed that petitioner was admitted in their hospital on 29.9.2009 and was discharged on 20.10.2009. She was diagnosed with crush injury right foot with fracture right tibia with multiple fracture right foot with vascular impairment. During her admission, in the hospital, three surgeries were done on 29.9.2009, 2.10.2009 and 5.10.2009.

22. On 13.10.2009, debridement and skin grafting was done by Dr. Mangal and this witness. Petitioner was discharged, in satisfactory condition, on 20.10.2009 with the advise to follow up. He has proved the discharge summary as Ext.PW1/A. He has also proved the document Ext.PW1/B, which contains the expenses incurred upon the treatment of the petitioner. This witness has also proved the documents Ext.PW1/C and Ext.PW1/D.

23. In the cross-examination, this witness has admitted that after 20.10.2009, the petitioner had come for follow up in OPD.

24. PW-2, Dr. Ritesh Panda, DNB Plastic Surgery, Sir Ganga Ram Hospital, deposed that the patient was admitted on 2.11.2011 with right foot deformity and was discharged on 8.11.2011. He has proved the discharge summary as Ext.PW2/A. The deformity was corrected by a free muscle flap (thigh)+skin grafting. Gross deformity of the foot was also removed. Petitioner was operated upon thrice. He has proved the bills Ext.PW2/B, Ext.PW2/C, Ext.PW2/D, Ext.PW2/E, Ext.PW2/F, as well as, the discharge summaries Ext.PW2/G, PW2/H and PW2/I.

25. This witness has specifically deposed that the plastic, cosmetic and reconstructive surgery of the patient is not yet complete and the deformity sustained by the petitioner, cannot be permanently eradicated, however, the same can be minimized, which requires 2-3 more surgeries. He has given the costs of one surgery, in their hospital, as Rs.50000/-. Three surgeries of the petitioner are required to be done before attaining the age of 18 years by the petitioner.

26. In the cross-examination, this witness has admitted that without surgery/treatment patient has improved and now she is able to walk, though, she limps for the same.

27. Mother of the petitioner Neetu Bala, has appeared in the witness-box as PW-3 and deposed as per the stand taken by the petitioner in the petition.

28. On the basis of the evidence discussed above, this Court is of the view that the learned Tribunal has to award the compensation, under the various heads, as culled out by the Hon’ble Apex Court in Raj Kumar versus Ajay Kumar & Another, (2011) 1 Supreme Court Cases, 343 [LQ/SC/1975/9] , whereas, the learned Tribunal has discussed the evidence and awarded the compensation, under different heads, in para 27 of the impugned judgment.

29. The findings, should have been given by the learned Tribunal under the different heads. In such situation, this Court has to venture to grant the compensation under various heads, which is assessed, as under:-

1. NON PECUNIARY DAMAGES:

(a) PAIN AND SUFFERING:

30. The accident, in question, had taken place on 28.09.2009 and after the accident, she was firstly taken to Gupta Hospital, Nangal, from where, she was shifted to Fortis Hospital, Mohali. Thereafter, she was shifted to Sir Ganga Ram Hospital, New Delhi on 30.9.2009, from where, she was shifted to City Hospital, Delhi, a sister concern of Sir Ganga Ram Hospital. She remained admit from 30.09.2009 to 20.10.2009. Her initial hospitalization has been proved from 29.9.2009 to 20.10.2009. Second time, she remained admit in Sir Ganga Ram Hospital, New Delhi from 2.11.2011 to 8.11.2011.

31. Thus, the period of hospitalization comes to 29 days.

The surgeries were done during her period of hospitalization. Certainly, the petitioner would have been taken atleast three months for convalescence. Meaning thereby, the period of about four months, on account of hospitalization and convalescence, must be painful and traumatic for her, for which, she is held entitled to a sum of Rs.2000x120= Rs.2,40,000/-, under this head.

(b) LOSS OF ENJOYMENT OF LIFE:

32. The petitioner, at the tender age, has been confined to bed. She was forced to remain on bed for about four months and according to PW-2, petitioner is able to walk, though she limps for the same. Meaning thereby, she could not enjoy the life, of a normal child, as she had suffered the injuries, which forced her to undergo surgeries. Those injuries also resulted into the impediment in her movement.

33. The petitioner has been forced to live rest of life with this impediment, which although, is not a disability, in stricto sensu, but, can be said to be the difficulty for a normal human being. No amount of compensation can be said to be adequate for a young child, who, with the passage of time, will flourish in the life. However, the some guess work has been done by this Court for grant of compensation, under this head.

34. Considering all these facts, this Court is of the view that a sum of Rs.5,00,000/- is required to be given to the petitioner under this head.

(c) SHORTEN EXPECTANCY OF LIFE:

35. There is no evidence on the record to prove or to suggest that on account of injuries and impediment in walking, the life span of the petitioner has been shortened.

2. PECUNIARY DAMAGES:

(a) MEDICAL EXPENSES:

36. The period of hospitalization, has been held to be 29 days and the period of convalescence has been held to be three months. Bills have been proved by PW-1 and PW-2, as PW-1/B to Ex.PW-1/D, PW-2/B to PW-2/F, P-1 to P-53, the total of which comes to Rs.5,85,287/-. Thus, the petitioner is entitled to Rs.5,85,287/-, as compensation under this head.

(b) TRAVELLING EXPENSES:

37. The petitioner has placed on record the Taxi Bills, which are mark-A to Mark-D. Although, these documents are only marked, but, taking the judicial notice of the fact that the petitioner is resident of District Una and was forced to go to Delhi for her treatment, as well as, for follow up, it would be just and appropriate for this Court to award a sum of Rs.50,000/-, under this head.

(c) SPECIAL DIET AND ATTENDANT CHARGES:-

38. During the period of hospitalization, as well as, convalescence, the petitioner might have taken a special diet and for the gratuitous services, rendered by her mother, some amount is liable to be awarded to her. Considering all these facts, a sum of Rs.25,000/- would be just and appropriate compensation under this head.

39. Keeping in view of the statement of PW-2, qua the fact that the petitioner requires 2-3 more surgeries, and cost of one surgery has been deposed as Rs.50,000/-, as such, it would be just and appropriate for this Court to grant a sum of Rs.2,00,000/-, on account of her future treatment.

40. Considering all these facts, the petitioner is held to be entitled to a sum of Rs.16,00,287/- (Rs.2,40,000/-+ Rs.5,00,000/-+ Rs.5,85,287/- + Rs.50,000/- + Rs.25,000/- +

Rs.2,00,000/-), along with interest @ 7.5% per annum, from the date of filing of the petition till its realization from respondent No.3.

41. With these observations, the appeal is allowed by modifying the award passed by the learned Tribunal and the amount of compensation is enhanced from Rs.8,52,457/- to Rs.16,00,287/-, along with interest @ 9% per annum, from the date of filing of the petition, till the realization of the whole amount, with upto date interest.

42. However, keeping in view the facts and circumstances, there shall be no order so as to costs.

43. Memo of costs be prepared.

44. Pending application(s), if any, are also disposed of.

Record be sent back.