H. N. TILHARI, J. ( 1 ) THIS appeal under Section 110-d of the Motor Vehicles Act, 1939, arises from the judgment and order awarding compensation dated 2-9-1991, delivered by the motor accidents claims tribunal, hassan in m. v. c. No. 83 of 1984. The appellant-insurance company and the owner of the vehicle have preferred this appeal. ( 2 ) THE facts of the case in brief are that the petitioner-respondent 1, in the appeal was the driver of the autorickshaw bearing No. Myh 5897, while he was driving that autorickshaw at about 9 a. m. on 23-11-1983, in the accident that has taken place by lorry bearing No. Myc 4615 driven by respondent 2, in the present appeal, hit the autorickshaw and completely damaged the autorickshaw of respondent 1. That respondent 1, sustained five injuries which have been mentioned by the tribunal, while discussing issues 3 to 5. Out of those five injuries, one has been the fracture of the left clavicle in the lower lateral one third, while injury nos. 2, 4 and 5 have been lacerated wounds and injury No. 3 has been an abrasion over the middle of the upper lip with fresh bleeding. The claimant-respondent 1-the autorickshaw driver filed the claim petition under Section 110-a of the Motor Vehicles Act claiming compensation in total to the tune of Rs. 68,000/ -. ( 3 ) ON the notice of the claim petition being issued, the respondents in the claim petition namely, present appellants 1 and 2 as well as present respondent 2, in the appeal filed the written statement. By order dated 6-2-1987, the claim petition was allowed and a compensation to the tune of Rs. 15,700/-, was awarded against respondents 1 and 2, in those proceedings and the interest at the rate of 12% was also allowed. Subsequently, an application under order 9, Rule 13, Civil Procedure Code, was made by respondents 1 and 2 for the setting aside of the said award which was said to be ex parte, and the award dated 6-2-1987, was set aside. Subsequently, an application under order 9, Rule 13, Civil Procedure Code, was made by respondents 1 and 2 for the setting aside of the said award which was said to be ex parte, and the award dated 6-2-1987, was set aside. After the setting aside of the order dated 6-2-1987, the respondents 1 and 2 filed their common written statement and effort was made to take the plea that autorickshaw was coming in a rash and negligent manner and dashed against the moving lorry and it was asserted that accident took place solely due to the rash and negligent driving of the autorickshaw by the petitioner claimant alone. It was further averred that if court comes to the conclusion that petitioner has been and has to be entitled to compensation, the 3rd respondent-insurer company is liable to pay the said compensation. In the common statement, it was stated that the petitioner sustained injuries primarily abrasions and not grievous injuries. ( 4 ) ON the basis of the pleading of the parties, the tribunal framed the following five issues:1. Whether the petitioner proves that on 23-11-1983 at 9 a. m. on salagame road, at hassan, while the petitioner was driving his autorickshaw myh 5897, the 1st respondent drove the lorry myc 4615 in a rash or negligent manner and had dashed the lorry against the autorickshaw?2. Whether the petitioner proves that as a result of the accident, he had sustained injuries as noted in the application and his autorickshaw had badly damaged?3. Whether the petitioner proves that he has spent Rs. 800/- towards medical expenses and Rs. 4,000/- to get the autorickshaw repaired?4. Whether the petitioner proves that the lorry in question has been insured with the 3rd respondent? ( 5 ) WHETHER the petitioner is entitled to get compensation and if so, to what extent and from whom?5. The tribunal considered the material on record and recorded the following findings: that the evidence on record shows that accident took place on account of rash and negligent driving of the lorry by its driver, the first respondent. The tribunal did not rely on the evidence of r. w. 1 which was to the effect that accident took place only on account of rash and negligent driving of the claimant-petitioner, as the said evidence was not supported by any independent evidence or by any earlier version given to the police. The tribunal did not rely on the evidence of r. w. 1 which was to the effect that accident took place only on account of rash and negligent driving of the claimant-petitioner, as the said evidence was not supported by any independent evidence or by any earlier version given to the police. The learned member of the tribunal, while dealing with issue No. 1, observed however, petitioner also must have contributed some negligence on his part at the time of the accident and he must have also been driving the autorickshaw in some speed perhaps for that reason, could not stop the vehicle to avert the accident and on this basis or on this assumption, the tribunal apportioned the liability for accident between the 1st respondent in the claim petition and the claimant-petitioner in the claim petition, who are respondents 1 and 2, in the appeal as 80% of the 1st respondent in the claim petition is to 2nd respondent in the appeal and 20% of the claimant, that is respondent 1 in the appeal. The tribunal further held that petitioner has not produced any documentary evidence in the form of medical bills etc. , to prove the medical expenses, so he is not entitled to get any medical expenses, though he has claimed that he has spent Rs. 2,000/- to Rs. 3,000/-, for the medical expenses. The tribunal has further held that so far as damages to autorickshaw is concerned or expenditure alleged to have been incurred in the repairs of the autorickshaw is concerned, petitioner had not produced any documentary evidence to prove the said damage and so, he is entitled. The tribunal has taken note of the injuries, while discussing issues 1 to 5 and observed as underthis witness stated in his evidence that on 23-11-1983 at about 9. 30 a. m. , he had given medical treatment to the petitioner and found the following injuries : (1) fracture of the left clavicle in the lower lateral one third. (2) lacerated wound measuring 2" *1/2"1/6 " over the left posterior auxiliary bone with fresh bleeding. (3) an abrasion measuring 1/2" * 1/2" over the middle of the upper lip with fresh bleeding. (4) lacerated wound measuring 1" x 1/2" over the left scapular region with fresh bleeding. he issued a wound certificate as per ex. P-1 in respect of the above said injuries sustained by the petitioner. (3) an abrasion measuring 1/2" * 1/2" over the middle of the upper lip with fresh bleeding. (4) lacerated wound measuring 1" x 1/2" over the left scapular region with fresh bleeding. he issued a wound certificate as per ex. P-1 in respect of the above said injuries sustained by the petitioner. He has given his opinion that injury 1 was grievous in nature, and the other injuries were simple in nature. According to him, there is a slight deformity in the fractured portion, and it would take 6 to 8 weeks for the healing of the fracture. According to him, even after recovery from the fracture, the petitioner might get pain, if he carries any weight on the left shoulder. He also stated that in respect of injury No. 5, there is a permanent scar, and it may exist for about 4 to 5 years. The tribunal held that: it would be just and reasonable to award the compensation of Rs. 25,000/- under the head 'general damages' as well as proper to award another sum of Rs. 5,000/-, towards loss of amenities and future enjoyment of life. The tribunal has thus held that: claimant has been entitled to total compensation of Rs. 30,000/-, out of which the liability of respondents 2 and 3 in the claim petition that is, present appellants in the appeal would be limited to only 80%. It held that the insurance policy covered the occurrence which had taken place on 23-11-1983 and as such, it held that the insurance company that is, respondent 3, i. e. , present appellant 1, to be liable for the same with respondent 2, in the claim petition namely, appellant 2, in the appeal. The tribunal awarded interest at the rate of 60% per annum from the date of petition till the date of realisation. Feeling aggrieved from the order and award of the tribunal, the insurance company and the owner of the vehicle lorry namely, respondents 2 and 3 in the claim petition filed this appeal under Section 110-d of the Motor Vehicles Act, 1939. ( 6 ) I have heard Sri h. g. ramesh, learned counsel for the appellants for good length of time and Sri c. v. guruvegowda, Advocate for respondent-1 and Sri vigneshwara s. Shastri, Advocate for respondent 2, as well. ( 6 ) I have heard Sri h. g. ramesh, learned counsel for the appellants for good length of time and Sri c. v. guruvegowda, Advocate for respondent-1 and Sri vigneshwara s. Shastri, Advocate for respondent 2, as well. On behalf of the appellants, it has been contended by the learned counsel Sri h. g. ramesh that the compensation that has been awarded under 'general head' to the tune of Rs. 25,000/- has been excessive. He also challenged the award of Rs. 5,000/- towards the loss of amenities and future employment of life. He submitted that the award of compensation under this head is already covered by award of general compensation or general damages in lumpsum and this award of Rs. 5,000/- in cases of amenities and future enjoyment of life is nothing but duplication of award of damages for loss of amenities etc. , is unjustified and illegal. He submitted that in the earlier order which was passed on 6-2-1987, compensation had been awarded to the tune of only Rs. 15,700/ -. He submitted as such, the award of compensation to the tune of Rs. 30,000/- in total was excessive. Sri ramesh, further indicated that the liability of respondents 2 and 3 in claim petition, that is the present appellants has been fixed with reference to the compensation to the extent of only 80% that is to the tune of Rs. 24,000/- the learned counsel submits that he only challenges the award and the quantum of compensation to be awarded and he challenges it on the ground of its excessiveness. In this connection, he submitted that the doctor has stated that the fracture, that had taken place and which is injury No. 1 may become alright after some period and therefore, there was no question of considering the question of future amenities or enjoyment of life or the like loss of amenities of that. Injury No. 1, is fracture of the left clavicle lower lateral one third and apart from that, there are abrasions and lacerated wounds which have been described by the doctor as the simple injuries. Anyway, the general compensation has been awarded to the tune of Rs. 25,000/ -. Sri ramesh also invited my attention to a decision of the Himachal Pradesh high court in order to contend that there the compensation awarded was only to the tune of Rs. 11,000/- only. Anyway, the general compensation has been awarded to the tune of Rs. 25,000/ -. Sri ramesh also invited my attention to a decision of the Himachal Pradesh high court in order to contend that there the compensation awarded was only to the tune of Rs. 11,000/- only. The learned counsel submitted that there was no justification for the tribunal to deviate from the earlier judgment which had been set aside under order 9, Rule 13, Civil Procedure Code. The learned counsels for the respondents hotly contested the contentions made on behalf of the appellants and tried to support the decision in its ultimate conclusions by challenging the finding of the tribunal with reference to bifurcation of liability 80% by 20% between respondent 1 (claimant) and others, i. e. , appellants 1 and 2 (respondents 2 and 3 ). ( 7 ) I have applied my mind to the contentions made by the learned counsel for the appellants and respondent. ( 8 ) THAT in view of Provisions of order 41, Rule 22 of the Code of Civil Procedure, it is open to the respondents 2 and 3 to support the decree or award on the ground that award is against him showing that the findings which have been recorded against respondents 2 and 3, have been erroneously arrived at, and by challenging those findings even without filing a cross-objection management of itakhoolie tea estate v its workmen. The learned counsel very fairly admitted that no issue was pressed on the question of contributory negligence. I also do not find any such issue to have been framed, as to whether there was any contributory negligence on the part of the claimant-driver. The case of the respondents, i. e. , owner of the truck and other respondents was that accident did take place solely on account of the negligence of the driver of the autorickshaw, i. e. , the claimant. While the case of the claimant, the present respondent 1, is that the accident did take place solely on account of the negligence and rash driving of the lorry by the driver of the lorry. It was nobody's case that there was any such thing as contributory negligence. While the case of the claimant, the present respondent 1, is that the accident did take place solely on account of the negligence and rash driving of the lorry by the driver of the lorry. It was nobody's case that there was any such thing as contributory negligence. It may also be mentioned that no such issue was got framed, that accident did take place either solely on account of negligence of the driver of the autorickshaw, i. e. , the claimant, nor was any issue pressed or framed, that the occurrence or the accident, was due to contributory negligence of the autorickshaw driver. I have also found from the judgment that the evidence of r. w. 1 has also been found to be not reliable on this aspect as it was not supported by any documentary evidence. Once this has been found that there was no proof of negligence of the autorickshaw driver, I am surprised to take note of the tribunal's approach in assuming that there must have been some contributory negligence on the part of the driver of the autorickshaw and he must also have been driving autorickshaw in some speed. That such an assumption is not permissible in law. It is trite principle of law that findings have to be based on evidence and not on conjectures or surmises. So, the finding as to contributory negligence arrived at by the tribunal without issue being framed and specially when the evidence of the driver of the truck having been disbelieved, ought not been have recorded holding that there was some contributory negligence of the autorickshaw driver on assumption or on the basis of conjecture and as such in my opinion, the court below erred in law, on the basis of such assumption or finding, in bifurcating or dividing the liability for accident into two as 80% and 20% between the 1st respondent in the claim petition namely, the driver of the lorry (that is, 2nd respondent in the appeal) and the petitioner-claimant, who is 1st respondent in this appeal. Whatever liability as such with respect to compensation as has been bifurcated in as 80% and 20% is illegal, there is no question its being fastened on the claimant-petitioner to the extent of 20% whatever liability for compensation, as the accident has been found to be primarily and solely due to the negligence of the driver of the lorry owned by appellant 2, the entire liability did lay on the respondents 2 and 3 in the claim petition. That is the present appellants in entirety are to bear liability for the compensation and entire 100% liability to pay compensation to claimant is to be borne by present appellants as submitted by learned counsel for the respondent 1-claimant. ( 9 ) LEARNED counsel for the appellant-sri ramesh contended before me that compensation assessed at Rs. 30,000/- is excessive and suffers from legal error. He submitted firstly, when the general compensation to the tune of Rs. 25,000/- has been assessed as 'general damages'. It should not have been more than Rs. 15,000/ -. The sum of Rs. 5,000/- could not separately be awarded for the second time for loss of amenities and future enjoyment of life. In other words, Sri ramesh firstly challenged the quantum of the figure of the compensation which has been awarded as the general damages and secondly, he challenged the awarding of Rs. 5,000/- as loss of ' amenities and future enjoyment of life. Sri ramesh contends that this amounts to dually awarded the compensation for the same or part of the same item. Sri ramesh contended that general damages will includes in itself compensation which is not assessable in terms of money ordinarily, but effort is being made to compensate the person and under the head 'general damages', loss of amenities and future enjoyment of life is included and when it is included it cannot separately be awarded over and above the amount of general damages or compensation awarded. The damages no doubt, can be divided into two categories of damages 'general damages' and 'special damages'. The general damages are sometimes alleged to be non-pecuniary loss such as, shock, mental or physical pains, suffered earlier or are likely to be suffered, it may also include under its head, damages for loss of amenities of life or loss of amenities and prospects of happy life or the like. The general damages are sometimes alleged to be non-pecuniary loss such as, shock, mental or physical pains, suffered earlier or are likely to be suffered, it may also include under its head, damages for loss of amenities of life or loss of amenities and prospects of happy life or the like. Damages under this head are awarded in respect of such a loss in respect of which pecuniary damages cannot be quantified in ordinary sense of term and where, the court has to award damages under the general damages for non-pecuniary loss. The loss which may be said to be pecuniary or pecuniary damage for which special damages may be awarded, may be those which can be quantified such as, expenses incurred by the claimant or by the insured which may include medical expenses, special expenses, costs of nursing, costs of attendant, loss of earning or profit up to the date of trial or loss of earning capacity which can also be quantified or such losses which can be quantified on some basic criteria, but those losses which cannot be quantified in such a way are called non-pecuniary losses such as, shocks etc. , as mentioned above. In this view in my opinion, the general damages include which are awarded on the basis of consideration of mental shock, physical pain, loss of amenities and prospects of life and future enjoyment of life or diminition of even some expectancy of life. ( 10 ) ONCE the general damages are assessed on the above considerations and then, general damages is quantified into one and a sum is awarded for general damages, there did not lie any reason to duplicate the award of damage for that very item viz. , loss of amenity. In this view, I am of the opinion that once tribunal had awarded general damages to the tune of Rs. 25,000/-, it had acted illegally in further providing Rs. 5,000/- under the head loss of amenity and future enjoyment. So to that extent definitely, the award has to be modified. ( 11 ) AS regards the second contention of the learned counsel for the appellants that the amount of Rs. 25,000/- by way of general damages has also been excessive or unreasonable in my opinion, it does not appear to be just. So to that extent definitely, the award has to be modified. ( 11 ) AS regards the second contention of the learned counsel for the appellants that the amount of Rs. 25,000/- by way of general damages has also been excessive or unreasonable in my opinion, it does not appear to be just. The person had suffered firstly the grievous injury which is injury No. 1, that is, fracture of left clavicle lower lateral one third in addition to other simple injuries. While injury no. 5 is a lacerated wound measuring 1"*1/2"*1/2" over the right sub-mandibular region. This has left permanent scar on the face definitely, affecting the facial appearance. The learned counsel submitted that it may go for 4 or 5 years, after medical evidence doctor says it may last for 4 or 5 years. In that respect, the due and proper assessment of damages cannot be made by way of loss by way of arithmetical calculation. That apart, he had other pains or suffering and he had been hospitalised and he might have incurred expenditures which he may not be able to prove by documentary evidence. The tribunal has also indicated that he cannot carry on weight on his left shoulder, that he could not carry on weight as he might get pain and therefore, cannot carry on the work of driving the motor vehicle. So, it means that, but for disability caused to accident, or his livelihood as a driver of whatever vehicle, with the passage of time, his income could have increased with (sic) the rate of charges of autorickshaw increasing. So, these damage or loss of future prospects had also to be taken thus together from all these circumstances, that the general damages which had been awarded to the tune of Rs. 25,000/- do not appear to be excessive. The result of my finding would be that the petitioner-respondent 1, may be entitled to a sum of Rs. 25,000/- as damages, but as the injured person, i. e. claimant himself has not filed any appeal and even none has put appearance on his behalf to argue the matter, it appears that order of the motor accidents claims tribunal, may be maintained in this manner. Even if the order of the tribunal had been maintained in toto the petitioner would have been entitled to Rs. Even if the order of the tribunal had been maintained in toto the petitioner would have been entitled to Rs. 24,000/- only if the principle of 80% by 20% would have been adopted, but that principle is wrong. So, in this case this court thinks it is proper that award given by tribunal in favour of claimant-respondent 1 for Rs. 24,000/- be maintained, and that claimant-respondent 1, is held to be entitled to be awarded Rs. 24,000/- as compensation under the general head to which he would have been entitled under the order without any increase being made in that account, even though it has been held by tribunal that under 'general head' Rs. 25,000/- to be reasonable compensation, because which actually had to get under award of tribunal and that amount (sic) should not be reduced in any manner. Thus considered in my opinion, instead of entire compensation being assessed at Rs. 30,000/-, it is being assessed at Rs. 24,000/- only and the claimant-1st respondent will get only Rs. 24,000/-, which amount he would have been entitled to under the award passed by the tribunal, as he has not filed any appeal or cross-objection. ( 12 ) THUS, the order of tribunal is maintained with above modification and it is directed that the petitioner will be entitled to entire compensation amount which compensation will be only Rs. 24,000/ -. When I so assess it, I find support from the decision of the Allahabad High Court in the case of suresh chandra sexena v union of India and another, material observations are contained in paragraphs 6, 7 and 13 of the decision and another decision of the Allahabad High Court in the case of U. P. state road transport corporation and another v usha rani chopra and others. The appeal is thus, finally disposed of. I would have considered the question of interest, i. e. , enhancing the interest, but claimant himself has not challenged it. Therefore, I do not think it proper to go into that question. The claimant will be entitled to the interest on the amount of above mentioned compensation from the date of application till its payment at the rate at which it had been awarded by the tribunal. Therefore, I do not think it proper to go into that question. The claimant will be entitled to the interest on the amount of above mentioned compensation from the date of application till its payment at the rate at which it had been awarded by the tribunal. The appeal is as such, hereby finally disposed off as above and (sic) partly modify the award by providing that the claimant will not be entitled to sum of Rs. 5000/- awarded separately for loss of amenities over and above the general damages. The claimant-respondent 1, shall be entitled to get sum of Rs. 24,000/- as damages with interest from appellants as indicated above. The cost of this appeal as made easy, i. e. to be borne by parties themselves. --- *** --- .