JUDGMENT (Sanjay Karol, J.) - The claimant in the present appeal has assailed the award dated 28th June, 2004 passed by Motor Accident Claims Tribunal (II), Mandi in Claim Petition No. 72 of 2001 titled as Smt. Rajo Devi v. M/s. Kailash Giri Bus Service Society and others seeking enhancement of the awarded amount of compensation. 2.A petition under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act) was filed by the claimant alleging that on 30.8.2000 bus bearing No. HP-37-3287 being driven by respondent No. 2, in which the claimant was travelling, met with an accident due to rash and negligent driving on the part of the said driver. FIR No. 52 of 2000 was registered against the driver. In the said accident, she sustained multiple grievous injuries and had to be admitted and given treatment in Government Hospital, Sujanpur, District Hamirpur, H.P., Indira Gandhi Medical College, Shimla, and Post Graduate Institute, Chandigarh. Inspite of treatment she could not recover and became 100% disabled. 3.Based on the pleadings of the parties, the Tribunal framed the following issues :- 1. Whether the petitioner suffered injuries on account of accident which took place on 30.8.2000 at 8 a.m. at Balurian while she was travelling in vehicle bearing No. HP-37-3287 which met with an accident due to rash and negligent driving by respondent No. 2 as alleged ? OPP 2. If issue no. 1 is proved in affirmative, whether the petitioner is entitled for compensation and if so, then from when and to what extent ? OPP 3. Whether the petition is hopelessly time barred ? OPR 1 &2 4. Whether the respondent No. 2 was holding a valid and effective driving licence at the relevant time and the vehicle was driven on contravention to terms and conditions of the Insurance Policy ? OPR-3 5. Relief. 4.Appreciating the material on record, the Tribunal allowed the petition by holding the claimant, who was travelling in the bus in question sustained injuries in an accident which was as a result of rash and negligent driving by respondent No. 2 and since the driver was not holding a valid and effective driving licence at the time of the accident, the Insurance Company, namely, the National Insurance Company was not liable to indemnify the owner-respondent No. 1. Compensation of Rs. Compensation of Rs. 48650/- only was awarded, break-up of which is as under :- Loss of enjoyment of life, pain and sufferingRs. 40,000.00 Conveyance and transport charges for taking treatment at various placesRs. 8,650.00 5.Assailing the impugned award, the claimant has filed the present appeal. 6.I have heard the learned Counsel for the parties and also perused the record. 7.It is pertinent to point out that against the findings of fact returned by the Court below on Issues No. 1 and 4, no appeal has been field by any of the respondents i.e. owner, driver or the Insurance Company. Even in these proceedings no cross-objections have been filed. During the course of hearing also no intention of filing of the appeal was expressed by any of the respondents. Therefore, the appeal is being adjudicated only on the issue of enhancement of compensation. 8.From the perusal of the deposition of the claimant’s witnesses, namely, Dr. Paras Ram Chauhan (PW-5), Claimant Smt. Rajo Devi (PW-2), Head Constable Purshotam Dass (PW-3), Shri Rajesh Kumar (PW-4), Shri Jagat Ram (PW-5), Shri Anant Ram (PW-6) and Dr. Dharamvir Rana (PW-7), it is evident that the claimant sustained injury of thoracic spine with paraplegia and was admitted in different hospitals on various occasions over a period of time. 9.From the disability certificate (Ext.PW-1/A) dated 7.2.2001 as also the statement of PW-1 it is evident that due to the injury the claimant sustained 100% disability of permanent nature. She sustained post-traumatic paraplegia. The claimant, PW-2 has categorically deposited that she had been taking treatment from IGMC, Shimla, and PGI, Chandigarh. She remained admitted in Post Graduate Institute, Chandigarh for about 1-1/4 months were she was operated and undertook medical treatment. Below the stomach she is totally paralysed and a person at the monthly salary of Rs. 1000/- has been engaged to attend to her needs. Her husband PW-6 has corroborated her statement and further deposited that he retired from the army and has no income whatsoever and has to look after his wife for ever. Conveyance was hired for travelling and expenditure of Rs. 1 lac (approximately) was incurred for treatment. 10.She has explained that her medical record had been lost but from the documents Ext. Conveyance was hired for travelling and expenditure of Rs. 1 lac (approximately) was incurred for treatment. 10.She has explained that her medical record had been lost but from the documents Ext. PW-7/A, Mark A to C and Mark E to G proved on record, the receipts issued by the Post Graduate Institute at Chandigarh and also Cash Memo Mark D, it is evident that the claimant had been receiving treatment at least from 30.8.2000 till 8.10.2000 and from the receipt Ext.PW-4/B issued by the Chauhan Taxi Service, it is also evident that the claimant travelled to Chandigarh on 14.1.2000. She had orally deposed that she had been visiting Chandigarh for her treatment as an outdoor patient. 11.With regard to her income, claimant has categorically stated that by selling milk and stitching clothes she was earning Rs. 5000/- to Rs. 6000/- per month. After the accident not only did she loose the same but in fact had to engage a person at a salary of Rs. 1000/- to attend to her needs. Importantly, there is no cross-examination, by the respondents on this point. Her statement with regard to her income stands corroborated by her landlord PW-6, who has further clarified that 15 to 16 Bighas of land owned by him used to be maintained by his wife and after the accident there is no one to look after the same. 12.It is true that there is no documentary evidence on record to show the exact income of the injured, but, however, it is equally true that the respondents have not disputed the fact that the injured was not a house wife and was in fact self-employed. 13.In the present case only Rs. 8650/- has been awarded towards conveyance charges for availing medical treatment. PW-2 and PW-6 have both deposed that they have incurred an expenses of Rs. 1 lac for the treatment. The receipts for the entire payments could not be placed on record for the reason that the same had been lost during the treatment. It is clear from the record that the claimant had been continuously taking treatment for long time at different places. The disability of the claimant is permanent and 100%. She cannot attend to any affairs and is bed ridden and requires a permanent attendant for all practical purposes. It is clear from the record that the claimant had been continuously taking treatment for long time at different places. The disability of the claimant is permanent and 100%. She cannot attend to any affairs and is bed ridden and requires a permanent attendant for all practical purposes. As on the date of the accident, claimant was about 44 years of age and has sought compensation of Rs. 10 lacs. 14.In the case of injury the principles to be relied upon for determining compensation have been laid down by the Apex Court in R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. and others, 1995 ACJ 366 : 1995(1) SCC 551, Ashwani Kumar Mishra v. P. Muniam Babu and others, 1999(4) SCC 22 and Divisional Controller, KSRTC v. Mahadeva Shetty and another, 2003(7) SCC 197. 15.Damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money, whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include openses incurred by the claimant; (i) medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far non-pecunairy damages are concerned, they may include (i) damages for mental and physical shock, pain and 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. 16.The compensation has to be just and fair and taking into account the various factors including the extent of injury, disability, earning capacity, loss of shortening of life and enjoyment thereof and impairment of normal expectation of life a balance has to be struck and the compensation cannot be a bonanza. Each case has to be considered on its own merit as there cannot be any precise mathematical calculation with regard to determination of compensation. Each case has to be considered on its own merit as there cannot be any precise mathematical calculation with regard to determination of compensation. 17.In R.D. Hattangadi (supra), while dealing with similar case of injury where the age of injured was 52 years, the Apex Court awarded compensation for the actual expenses incurred for treatment; Rs. 1,62,000/- for loss of future earning apart from loss of earning for the period for which the injured underwent treatment and; a lump sum payment of Rs. 3 lacs each for pain and sufferings and for loss of amenities of life. 18.Applying the said principles to the facts of the present case, it is evident that the claimant who was self-employed sustained 100% disability at a fairly young age and due to the negligence of the driver sustained injury to the extent that she is now cripple and bed ridden and for all practical purposes is dependent on someone else. She has been deprived of all the advantages, enjoyments, and benefits of leading a normal life. 19.The Tribunal below has awarded the amount of Rs. 8650/- in so far as pecuniary damages are concerned. The claimant has proved that she was being medically treated (as indoor and outdoor patient) at various Hospitals from 30.8.2000 upto atleast 8.10.2000. She admittedly is a resident of District Kangra in Himachal Pradesh and had to travel outside the State. Both she and her husband have sufficiently explained that the medical record was misplaced. I see no reason to disbelieve their statements. They have also stated that a sum of Rs. 1 lac was incurred by them. She has also proved that an attendant has to be engaged. In my view, the claimant is entitled to a sum of Rs. 1 lac. 20.In Lata Wadhwa and others v. State of Bihar and others, 2001 ACJ 1735, the Apex Court has held that the services rendered by the house wife to the house, even though they may be having any independent income can be valued to be Rs. 3000/- per month or Rs. 36,000/- per annum. 21.It has been proved on record that the claimant was self-employed, however, in the absence of any documentary evidence, applying the ratio of law laid down by the Apex Court in Lata Wadhwa (supra) and Mahadeva Shetty (supra), the loss of earning capacity of the claimant is fixed at Rs. 3000/- per month or Rs. 36,000/- per annum. 21.It has been proved on record that the claimant was self-employed, however, in the absence of any documentary evidence, applying the ratio of law laid down by the Apex Court in Lata Wadhwa (supra) and Mahadeva Shetty (supra), the loss of earning capacity of the claimant is fixed at Rs. 3000/- per month or Rs. 36,000/- per annum. At the time of accident, the claimant was about 44 years of age. Applying the multiplier of ‘8’, the loss of future income of the claimant is fixed at Rs. 36,000x8=Rs.2,88,000/-. Thus the claimant is entitled to a total sum of Rs. 3,88,000/- as against a sum of Rs. 48650/- awarded by the Tribunal. I have no hesitation in recording that the Tribunal has not correctly appreciated the evidence and applied the correct principles of law while awarding the compensation. 22.Mr. Dushyant Dadhwal, learned Counsel appearing on behalf of the owner has contended that the liability should be fastened on the Insurance Company. In terms of CMP No. 119/2008, filed under Order 41 Rule 27 read with Section 151, CPC, he has sought to be place on record judgment dated 28.11.2003 passed by a coordinate Bench of this Court in FAO No. 577 of 2003, titled as National Insurance Company Ltd. v. Smt. Mena Kumari and also copy of driving licence of the driver Shri Munish Kumar-respondent No. 2. This judgment deals with the decision in another claim petition arising out of the same accident. 23.The application is vehemently opposed by Ms. Devyani Sharma, learned Counsel for the Insurance Company-respondent No. 3. She has contended that keeping in view the decision rendered by this Court in Shri Waheguru Singh v. Jatinder Kaur and others, FAO No. 138 of 1995 decided on 24.3.2005 and also the decision of the Apex Court in Samundra Devi and others v. Narendra Kaur and others, 2008(2) S.L.J. (S.C.) 1370, this Court cannot exercise the power under Order 41 Rule 33, CPC and in the absence of any specific applicability of the provisions of Order 41 Rule 27, CPC to the proceedings under the Act, the application cannot be considered. 24.The ambit and scope of the Order 41 Rule 33, CPC has been considered by the Apex Court in Banarsi and others v. Ram Phal, 2003(9) SCC 606, Nirmala Bala Ghose and another v. Balai Chand, AIR 1965 SC 1874, Giani Ram and others v. Ramji Lal and others, AIR 1969 SC 1144, Koksingh v. Smt. Deokabai, AIR 1976 SC 634, Panna Lal v. State of Bombay and others, AIR 1963 SC 1516 and various High Courts in Ram Deo and another v. Geeta Devi and others, 1993 ACJ 643, Abhilasha Bai v. Arvind Kumar and others, 2003 ACJ 49, Lata v. United India Insurance Company Ltd. and others, 2005 ACJ 857 and Charan Singh v. Joginder Singh and another, 2002(1) Shim.L.C. 409 : 2002(2) Cur.L.J. (H.P.) D.B. 48 and Samundra Devi and others v. Narendra Kaur and others, 2008(2) S.L.J. (S.C.) 1370. 25.It is undisputed that vide Notification dated 15.1.2005, during the pendency of the present appeal, the State of Himachal Pradesh amended the Rules and specifically made the provisions of Order 41 Rule 33, CPC, applicable to the proceedings under the Act. This was especially done so after the decision of a Full Bench of this court in Lata v. United India Insurance Co. (supra). Admittedly, the decision rendered by this Court in Shri Waheguru Singh (supra) is prior to the said amendment and would be of no relevance. 26.In the absence of any appeal or cross-objections the Court can exercise the discretionary power under Order 41 Rule 33, CPC. The Apex Court has laid down certain principles on the basis of which such discretionary power can be exercised by the appellate Court and this Court cannot be precluded from doing so. But, however, where the liability to pay is fastened on the owner alone, whether in the absence of non-compliance of proviso to Section 173 of the Act such power can be exercised is a question which requires consideration. The Apex Court in Samundra Devi (supra) has not gone into this question. In the peculiar facts and circumstances of this case, I am not inclined to go into this question for the reason that the driving licence sought to be placed on record by the owner of the vehicle, prima facie, is defective and invalid for the reason substantiated hereinafter. The question is therefore, left open. 27.Ms. In the peculiar facts and circumstances of this case, I am not inclined to go into this question for the reason that the driving licence sought to be placed on record by the owner of the vehicle, prima facie, is defective and invalid for the reason substantiated hereinafter. The question is therefore, left open. 27.Ms. Devyani Sharma, has argued that since the provisions of Order 41 RUle 27, CPC have not been made applicable to the proceedings under the Act, the application cannot be allowed. 28.The Apex Court in Salem Advocate Bar Association, T.N. v. Union of India, 2005(6) SCC 344, has held that even after the deletion of provisions of Order 18 Rule 17-A, CPC, the Court still would have the power to exercise discretion and taken on record the evidence at a later stage. 29.The Apex Court in R.N. Jadi and Brothers and others v. Subhashchandra, 2007(6) SCC 420, has held as under :- “10. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of the CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. 11. The mortality of justice at the hands of law troubles a Judge’s conscience and points an angry interrogation at the law reformer. 12. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence-processual, as much as substantive. (See Sushil Kumar Sen v. State of Bihar, 1975(1) SCC 774). 13. No person has a vested right in any course of procedure. Justice is the goal of jurisprudence-processual, as much as substantive. (See Sushil Kumar Sen v. State of Bihar, 1975(1) SCC 774). 13. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. (See Blyth v. Blyth, 1966(1) All E.R. 524 (HL). A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. (See Shreenath and another v. Rajesh and others, AIR 1998 SC 1827). 14. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.” 30.In Rajasthan State Road Transport Corporation v. Ponam Pahwa (Smt.) and others, 1997(6) SCC 100, the Apex Court has specifically held that even in the absence of any express provision with regard thereto the provisions of Order 21 Rule 1, CPC would be applicable to the proceedings under the Act. 31.Further in United of India v. T.R. Verma, AIR 1957 SC 822, Shrimati Raj Lakshmi Dasi and others v. Banamali Sen and others, AIR 1953 S.C. 33, Pondicherry Khadi and Village Industries Board v. P. Kulothangan and another, 2004(1) SCC 68, Smt. Ujjam Bai v. State of U.P. and another, AIR 1962 SC 1621, the Apex Court has held that where there is no specific applicability of provisions of Section 11, CPC pertaining to res judicata, the plea of res judicata on general principles can be successfully taken in respect of judgments of Court of exclusive jurisdiction, like revenue Courts, Land Acquisition Courts, Administrative Courts etc. 32.This Court in Smt. Shakuntla and others v. Tilak Raj Mankotia and others, Latest HLJ 2006 (HP) 1064 : 2006(2) Cur.L.J. (H.P.) 96, has allowed the application under Order 41 Rule 27, CPC filed by the claimants to place on record and prove the income-tax returns of the deceased. 32.This Court in Smt. Shakuntla and others v. Tilak Raj Mankotia and others, Latest HLJ 2006 (HP) 1064 : 2006(2) Cur.L.J. (H.P.) 96, has allowed the application under Order 41 Rule 27, CPC filed by the claimants to place on record and prove the income-tax returns of the deceased. In United Insurance Company Ltd. v. Smt. Rama Kumari and others, FAO (MVA) No. 138 of 1992 decided on 16.11.2004 and Ashwani Kumar v. H.R.T.C. through its Managing Director, Shimla and others, FAO (MVA) No. 622 of 2003, decided on 24.12.2007 : 2008(1) Cur.L.J. (H.P.) 378, the Constitution Bench had also allowed the parties to place additional material at the appellate stage. 33.It is true that Order 41 Rule 27, CPC has not been notified and made applicable to the proceedings under the Act. The procedure to be adopted for adjudicating the claim petitions has to be fair, just and to advance the cause of justice. If the party satisfies the Court that after exercise of due diligence the evidence was not within is knowledge or for one reason or the other could no produce the same at the time the party was leading evidence, I see no reason why at the stage of appeal such person could be precluded from bringing on record such material which not only is germane to the issue but also goes to the root of the matter, but would be absolutely necessary for adjudicating the controversy is issue. 34.In the present case a judgment of this Court and the copy of the driving licence is sought to be placed on record. The licence was not with the owner and the driver was ex parte. In view of the above, the application being CMP No. 119 of 2008 is allowed and the documents are taken on record. 35.Ms. Devyani Sharma, learned Counsel for the Insurance Company has been able to substantiate that the licence is invalid and ineffective and, therefore, in view of the breach of the conditions of policy the liability could not be fastened on the Insurance Company. 35.Ms. Devyani Sharma, learned Counsel for the Insurance Company has been able to substantiate that the licence is invalid and ineffective and, therefore, in view of the breach of the conditions of policy the liability could not be fastened on the Insurance Company. 36.It is true that while dealing with the claim petition arising out of the very same accident the co-ordinate Bench of this Court in Smt. Meena Kumari (supra) (FAO No. 577 of 2003), held that “On the other hand, there is Ext.RW1/A, Photostat copy of the licence of the driver Manish Kumar son of Shri Gorakh Chand produced by the owner of the vehicle. How this was not the copy of the valid driving licence could not be shown by the learned Counsel. That being the position, submission of Mr. Sharma, counsel for the appellant that the driver was not holding a valid driving licence is without any legal evidence having been produced during the course of trial before the Tribunal below. Accordingly, it is rejected”, but it is apparent that the counsel appearing on behalf of the Insurance Company could not point out as to how the driver was not holding a valid driving licence. The Court presumed the validity and the effectiveness of the licence and proceeded on the said basis. This is not the position in the present case. 37.The licence shows the date of birth of the respondent-driver to be 2.9.1965 and licence is issued on 2.9.1985 for Heavy Transport Vehicle and is valid upto 27.8.2003. On the date of issuance of the licence the age of the driver was exactly 20 years. Keeping in view the provisions of Sections 3, 4, 7, 8 and 14 of the Act and Rule 14(a) of the Central Motor Vehicles Rules, 1989 (hereinafter referred to as the Rules), licence for the Heavy Transport Vehicle could not have been issued. 38.Section 3 provides that no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle and no person shall drive a transport vehicle unless he has a driving licence which specifically entitles him to do so. 38.Section 3 provides that no person shall drive a motor vehicle in any public place unless he holds an effective driving licence issued to him authorizing him to drive the vehicle and no person shall drive a transport vehicle unless he has a driving licence which specifically entitles him to do so. Similarly, Section 4(2) prohibits any person under the age of 20 years to drive a transport vehicle in a public place and Section 4(3) mandates that no learner’s licence or a driving licence shall be issued to any person to drive a vehicle of the class to which an application is made unless that person is eligible to drive that class of vehicle under this Section 39.It is thus evident that as on 2.9.1985 the driver who had just completed 20 years of age could not have been issued a learner’s licence prior to the said date. 40.Section 7, which is couched as a negative covenant specifically provides that no person shall be granted a learner’s licence to drive a transport vehicle unless he has held a driving licence to drive a LMV for at least one year. 41.Rule 14(a) of the Rules specifically provides that an application for issuance of a driving licence is necessarily required to be filled in the prescribed format contained in Form-4 and the same has to be accompanied with “an effective learner’s licence” to drive the vehicle of the “type” to which the application relates. 42.Thus, it is evident that licence in question could not have been issued till such time the driver had become eligible i.e. attained the age of 20 years, to have firstly obtained a learner’s licence for the “type” of the vehicle i.e. Heavy Transport Vehicle and subsequently applied for the issuance of an effective and proper driving licence for the same type of vehicle. 43.Further as per provision of Section 14 of the Act the licence to drive “a transport vehicle” could have been issued only for a period of three years. 44.I am convinced that the driving licence placed on record is not inconsonance with the provisions of the Act and, is therefore, invalid. No liability can be fastened on the Insurance Company and the prayer of the owner is rejected. 44.I am convinced that the driving licence placed on record is not inconsonance with the provisions of the Act and, is therefore, invalid. No liability can be fastened on the Insurance Company and the prayer of the owner is rejected. 45.The Tribunal below has erred in not appreciating the material in its correct perspective and there is error which goes to the root of the matter and needs to be corrected. 46.For the foregoing reasons, the present appeal is allowed, the award is modified and the appellant is entitled to compensation of Rs. 3,88,000/- as against a sum of Rs. 48650/-, alongwith interest @9% per annum from the date of claim petition till payment. M.R.B. ———————