JUDGMENT Mansoor Ahmad Mir, J. CMP (M) No. 622 of 2015 1. This application has been filed by the appellant under Section 5 of the Limitation Act for condoning the delay in filing the application under Order 41 Rule 19, read with Section 151 of the Code of Civil Procedure, (for short, the CPC). 2. Learned counsel for the respondent has no objection in case the application is allowed and the delay in filing the application is condoned. 3. Accordingly, the application is allowed and the delay in filing the application, (CMP no. 5945 of 2015), is condoned. The application is disposed of. CMP No. 5945 of 2015 4. Taken on Board. This application has been filed by the appellant under Order 41 Rule 19, read with Section 151 CPC, for recalling the order, dated 27th February, 2015, passed in the main appeal, whereby the appeal was dismissed for non-prosecution. 5. For the reasons given in the application, the same is allowed, the order dated 27th February, 2015 is recalled and the appeal is readmitted. The application stands disposed of accordingly. FAO No. 89 of 2012 6. The appeal is taken on the Board and heard finally, with the consent of the learned counsel for the parties. 7. This appeal is directed against the award, dated 31st August, 2011, passed by the Motor Accident Claims Tribunal, Hamirpur, in a Claim Petition No.1 of 2009, titled Yashpal Singh vs. Sanjay Kumar, whereby compensation to the tune of Rs.7,00,127/-, with interest at the rate of 7.5% per annum from the date of the claim petition till realization, was awarded in favour of the claimant and the respondent (appellant herein) was saddled with the liability, (for short, ‘the impugned award’). Brief facts: 8. Yashpal Singh, claimant-injured, invoked the jurisdiction of the Motor Accident Claims Tribunal, Hamirpur, (for short, the Tribunal), in terms of Section 166 of the Motor Vehicles Act, 1988, (for short, the Act), for grant of compensation to the tune of Rs.20.00 lacs, as per the breakups given in the Claim Petition. It was averred in the Claim Petition that the claimant was employed by respondent Sanjay Kumar, owner/driver of bus No.HP-67-0346, as Conductor. The said bus was being repaired in a Workshop at Bijhari. It was averred in the Claim Petition that the claimant was employed by respondent Sanjay Kumar, owner/driver of bus No.HP-67-0346, as Conductor. The said bus was being repaired in a Workshop at Bijhari. On asking by the mechanic, the claimant went beneath the bus to bring a nut and in the meantime, the jack applied to the bus slipped and the claimant got crushed, was taken out with the help of a Joseph Cyril Bamford (for short, the JCB), was taken to Zonal Hospital, from where he was referred to PGI, Chandigarh, where the claimant had undergone operation on 9th January, 2007 and remained admitted till 30th January, 2007. Thereafter, again w.e.f. 22nd February, 2007 to 2nd March, 2007, he remained admitted in the PGI. The petitioner was again taken for check up to PGI on 10th March, 2007 and he remained there till 12th March, 2007. It was averred that the petitioner could not be treated and he became 100% disabled permanently. 9. The Petition was resisted by the owner/driver on various grounds. 10. After considering the pleadings of the parties, the Tribunal framed the following issues: “1. Whether the petitioner-claimant is entitled to the compensation, if so, to what amount? OPP 2. Whether the petition is not maintainable, as alleged? OPR 3. Whether this Tribunal has no jurisdiction to try the present claim petition, as alleged? OPR 4. Relief.” 11. Parties led their evidence. The petitioner examined as many as six witnesses, including Dr.Ramesh Chouhan (PW-3) and Dr.Surjit Tripathi (PW-5). The petitioner also stepped into the witness box as PW-4. The petitioner has also placed on record Medicine bills (Exts.P-4 to P-34), taxi bills (Exts.P-1 to P-3), treatment chart (Ext.PW-5/A) and disability certificate (Ext.PW-3/A). On the other hand, the respondent/owner/driver appeared as RW-3 and also examined two other witnesses. 12. The Tribunal, after scanning the entire evidence and the rival contentions, came to the conclusion that the claimant-injured has proved on record that he suffered the injuries during the course of employment of the owner/driver and held the claimant entitled for compensation, as discussed above. 13. Feeling aggrieved and dissatisfied, the original respondent i.e. owner/driver has questioned the impugned award on various grounds taken in paragraphs A to H of the memo of appeal. 13. Feeling aggrieved and dissatisfied, the original respondent i.e. owner/driver has questioned the impugned award on various grounds taken in paragraphs A to H of the memo of appeal. In paragraphs B and D, it has been claimed that the vehicle was insured with the Kangra Cooperative Bank Limited and the insurance policy was issued by the said Bank, being the insurer. Therefore, it was urged that the insurer was liable to be saddled with the liability, meaning thereby that the owner/driver has himself admitted that the claimant was entitled to compensation, but the insurer was to be saddled with the liability. 14. It is apt to reproduce ground D taken in the grounds of appeal hereunder: “D. That the ld. Tribunal below has wrongly held that the vehicle in question was not insured. As submitted supra, the vehicle was being insured by the Kangra Cooperative Bank, therefore, the liability should have been fastened on the Insurance Company and not upon the appellant, therefore, the impugned award is liable to be quashed and set-aside.” 15. Even otherwise, since the claimant-injured suffered injuries during the course of employment, therefore, he was entitled for compensation under the Workmen’s Compensation Act, 1923. However, Section 167 of the Act provides for an option to the victims of a vehicular accident to seek compensation in terms of the Act, which option has been exercised by the claimant-injured by filing the Claim Petition under Section 166 of the Act. Thus, the Claim Petition is maintainable. 16. During the course of hearing, the learned counsel for the appellant also submitted that the amount awarded by the Tribunal is excessive and needs to be reduced considerably. 17. To meet the above argument of the learned counsel for the appellant, I may place on record that the claimant-injured has proved on record the disability certificate as Ext.PW-3/A, which shows that he had suffered 100% disability, which is permanent in nature. Thus, owing to the nature of injury suffered by the claimant-injured, he has not only lost his earning capacity, but his whole life has also become a burden for himself and his family. The claimant injured has to lead a miserable life full of disappointment and frustration. Thus, owing to the nature of injury suffered by the claimant-injured, he has not only lost his earning capacity, but his whole life has also become a burden for himself and his family. The claimant injured has to lead a miserable life full of disappointment and frustration. Therefore, in such cases, the courts are expected to pass an award which appears to be fair, just and proper, and keeping in mind the hardships, discomfort, loss of amenities of life, pain and sufferings undergone and has to undergo by the claimant-injured throughout his life. 18. The Apex Court in series of cases has laid certain guidelines as to how compensation has to be granted in injury cases. 19. The Apex Court in case titled as R.D. Hattangadi vs. M/s. Pest Control (India) Pvt. Ltd. & others, 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 in the cases where permanent disability is suffered by the victim of a vehicular accident. It is apt to reproduce paras 9 to 14 of the judgment herein-below: “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 vs. 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 vs. 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." 20. The said judgment was also discussed by the Apex Court in case titled as Arvind Kumar Mishra vs. New India Assurance Co. Ltd. & another, 2010 AIR SCW 6085, while granting compensation in such a case. It is apt to reproduce paragraph 7 of the judgment herein-below: “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.” 21. The Apex Court in case titled as Ramchandrappa vs. The Manager, Royal Sundaram Aliance Insurance Company Limited, 2011 AIR SCW 4787, also laid down guidelines for granting compensation. It is apt to reproduce paras 8 & 9 of the judgment herein-below: “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.” 22. The Apex Court in case titled as Kavita vs. Deepak and others, 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 herein-below: “16. In Raj Kumar vs. 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.” 23. 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.” 23. Applying the above tests, the compensation awarded by the Tribunal, by no stretch of imagination, can be said to be excessive, rather it is on the lower side. However, the claimant-injured has not questioned the impugned award on the ground of adequacy of compensation. Therefore, the impugned award is reluctantly upheld. 24. Before parting with this judgment, it is worthwhile to record herein that the owner/appellant has not taken any steps to array the insurer as party either before the Tribunal or before this Court. However, he is at liberty to seek appropriate remedy, in any available, in accordance with law, to recover the compensation amount from the insurer, if at all the vehicle was insured, for the reason that the insurer has to indemnify, provided that the insured is not caught by his own conduct. 25. Having said so, the appeal merits to be dismissed and the same is dismissed accordingly. The Registry is directed to release the award amount strictly in terms of the conditions contained in the impugned award. 26. Send down the records alongwith a copy of this judgment.