JUDGMENT : Mansoor Ahmad Mir, J. Both these appeals are directed against the judgment and award dated 22.8.2009, passed by the Motor Accident Claims Tribunal, Mandi, H.P. hereinafter referred to as “the Tribunal” in Claim Petition No. 72 of 2006 titled Charan Dass versus Amar Singh and other, whereby compensation to the tune of Rs.82,822/- came to be awarded in favour of the claimant and insurer was directed to satisfy the award with right of recovery from the insured, hereinafter referred to as the “the impugned Award”, for short”. 2. The claimant in FAO No. 481 of 2009, has sought enhancement of compensation and insured Amar Singh and another have questioned the impugned award, by the medium of FAO No. 512 of 2009, on the ground that the Tribunal has fallen in an error granting the right of recovery to the insurer. Brief facts. 3. Claimant Charan Dass was mason by profession, who on 28.11.2005, was coming on foot from village Dhangyara after laying slab at village Dhangyara, was hit at about 8 p.m. by a tractor bearing registration No. HP-32-0491, which was being driven by respondent No.2 Hukam Chand rashly and negligently. The claimant fell down and sustained multiple injuries, including fracture of his left arm, was taken to PHC Gohar from where he was referred to Zonal Hospital, Mandi. He remained admitted in the hospital at Mandi during the period from 28.11.2005 to 29.11.2005 and was referred to IGMC Shimla where he remained admitted during the period 29.11.2005 to 2.1.2006. 4. The claimant had sought compensation to the tune of Rs.8 lacs, as per the break-ups given in the claim petition. 5. The claim petition was resisted and contested by the respondents and following issues came to be framed. (i) Whether respondent No.2 was driving the vehicle No. HP-32-0491, tractor on 28.11.2005 at about 8 P.M. at village Dhangyara, in rash and negligent manner, resulting injuries to the petitioner as alleged? OPP. (ii) If issue No.1 is proved, whether the petitioner is entitled for compensation. If so as to what amount and from whom? OPP. (iii) Whether respondent No. 2 at the time of accident was not holding a effective and valid driving licence and was driving the vehicle in violation of the terms and conditions of the insurance policy, as alleged? OPR-3. (iv) Whether the petition is not legally maintainable? OPR-3. (v) Relief. 6. If so as to what amount and from whom? OPP. (iii) Whether respondent No. 2 at the time of accident was not holding a effective and valid driving licence and was driving the vehicle in violation of the terms and conditions of the insurance policy, as alleged? OPR-3. (iv) Whether the petition is not legally maintainable? OPR-3. (v) Relief. 6. The claimant himself has appeared in the witness-box as PW1 and examined Dr. Desh Raj Chandel as PW2. The insurer has not examined any witness. However, Sh. Hukam Chand stepped in to the witness-box as RW1. 7. The Tribunal, after scanning the evidence and pleadings, held that Hukam Chand driver has driven the offending vehicle rashly and negligently and caused the accident in which the claimant sustained injuries. No dispute has been raised on the findings returned on issue No. 1, thus, the findings returned on issue No. 1 are upheld. 8. Before I deal with issue No.2, I deem it proper to deal with issues No. 3 and 4 at the first instance. The Tribunal has fallen in an error in holding that the driver was not holding a valid and effective driving licence. The copy of driving licence is exhibited as Ext. RB on record, which do disclose that he was having a valid and effective diving licence to drive LMV. Trans and HTV. Thus, he was competent to drive the light motor vehicle and heavy transport vehicle. Thus, how can it be said that he was not competent to drive the tractor. It was for the insurer to plead and prove that the owner has committed willful breach in order to seek exoneration and right of recovery which it has not done. The onus was on the insurer, has failed to discharge the same. The Tribunal has wrongly returned the findings and decided issue No.3. Thus, the findings returned on this issue are set aside and issue No. 3 is decided in favour of the claimant, driver and owner and against the insurer. 9. Issue No. 4. It was for the insurer to discharge the onus, failed to do so. Accordingly, the issue is decided against the insurer and in favour of the claimant. 10. Issue No.2. The amount awarded appears to be meager for the following reasons. 9. Issue No. 4. It was for the insurer to discharge the onus, failed to do so. Accordingly, the issue is decided against the insurer and in favour of the claimant. 10. Issue No.2. The amount awarded appears to be meager for the following reasons. The claimant has pleaded that he was in hospital at Mandi from 28.11.2005 to 29.11.2005 and was referred to IGMC Shimla where he remained admitted during the period 29.11.2005 to 2.1.2006. The medical bills stand exhibited and vouchers of the amount spent have also been exhibited as Marks B to F, Marks H-1 to H-5. The disability certificate Ext. PA is also on record, which stands proved by Dr. Desh Raj. He deposed that the claimant has suffered 30% permanent disability. 11. The Tribunal had to assess the compensation by making a guess work. 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 made 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 non-pecuniary 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 non-pecuniary 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. 10. 10. 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. 11. 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 well-nigh 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." 12. 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. 13. 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. 13. 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 :- "Non-pecuniary 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." 12. 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 para-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. 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 - is taking an appropriate multiplier of an appropriate multiplicand.” 13. 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. 9. 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. The Tribunals are expected to make an award determining the amount of compensation which should appear to be just, fair and proper. 9. 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.” 14. 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. 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. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) (Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded 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.” 17. …………………………. 18. 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.” 15. 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.” 15. Applying the test, the Tribunal has fallen in an error in awarding only Rs.40,000/- under the head “loss of future income” for the following reasons. 16. The claimant has pleaded and proved that he was earning Rs.8000/- per month. The injuries have affected his earning capacity by 30%. He was doing manual work. Thus, at least he has lost source of dependency to the tune of Rs.2500/- per month. Admittedly, the age of the claimant was 54 years at the time of accident and multiplier of “9” was applicable in view of the 2nd Schedule of the Motor Vehicles Act, for short “the Act, read with Sarla Verma and others versus Delhi Transport Corporation and another reported in AIR 2009 SC 3104 and upheld in Reshma Kumari and others versus Madan Mohan and another, reported in 2013 AIR SCW 3120. Thus, the claimant has lost source of income to the tune of Rs.2500x9x12= Total Rs.2,70,000/-. 17. The claimant was attended upon by an attendant during the period he remained admitted in the hospitals and at least he was entitled to Rs.10,000/- under the said head. The amount of Rs.10,000/- is awarded, which is upheld. The clamant was taken to PHC Gohar, Zonal Hospital, Mandi and thereafter referred to IGMC Shimla and incurred money for transportation also. Thus, under the head “Transportation charges” the claimant is held entitled to Rs.10,000/-. The claimant has been deprived of his enjoyment of life, has undergone pain and suffering and has to undergo pain and suffering for ever and being a labourer/mason it has made his life very painful. Thus at least Rs.50,000/- has to be awarded under this head. Accordingly, Rs.50,000/- is awarded under the head “pain and sufferings for future” and Rs.50,000/- under the head “loss of amenities of life.” 17. Having glance of the above discussion, the claimant is held entitled to Rs.2,70,000+ Rs.10,000/-+ Rs.10,000/- + Rs.50,000+ Rs.50,000/-. Total Rs.3,90,000/- with 7.5% interest per annum from the date of the impugned award till its realization. 18. Accordingly, Rs.50,000/- is awarded under the head “pain and sufferings for future” and Rs.50,000/- under the head “loss of amenities of life.” 17. Having glance of the above discussion, the claimant is held entitled to Rs.2,70,000+ Rs.10,000/-+ Rs.10,000/- + Rs.50,000+ Rs.50,000/-. Total Rs.3,90,000/- with 7.5% interest per annum from the date of the impugned award till its realization. 18. The insurer is directed to deposit the entire amount along with enhanced amount, with interest from the date of the impugned award till its realization, within six weeks from today in the Registry. On deposit, the Registry is directed to release the entire amount in favour of the claimant, strictly in terms of the conditions contained in the impugned award, through payees’ cheque account. 19. Both the appeals are accordingly disposed of, as indicated hereinabove. 20. Send down the record forthwith, after placing a copy of this judgment.