JUDGMENT : The appeal is taken up for hearing by consent of parties, when it is brought to my notice that the Claimant has moved an application for withdrawal of the amount deposited by the Insurance Company in MACT, Thane, in furtherance of the judgment and award passed by MACT, Thane on 12/05/2017 in MACP No. 703 of 2011. The respective counsel submit that they are ready to proceed with the appeal finally, since the relevant papers are already placed on record in the form of compilation. 2. In filing the appeal, there is a delay of 123 days, which is sought to be condoned by taking out Civil Application No. 1559 of 2018. 3. Heard learned counsel for the applicant and the respondent. The delay being sought to be sufficiently justified in the application, I deem it appropriate to condone the same. Civil Application is made absolute in terms of its prayer. 4. Appeal is admitted. By consent of parties, taken up for final hearing. 5. “The future belongs to those who believe in beauty of their dreams.” The aforesaid quote may not hold good for a little girl Kum. Rizwana Khatoon Mehoob Khan, aged 5 years, who met with a ghastly accident on the fateful day being, 9-4-2011. On the said day, the little girl was returning home along with her uncle and when they reached near Avchitpada Police Chowky, a truck, literally chased them in high speed and since it was being driven in rash and negligent manner, it ran on the Claimant resulting into multiple grievous injuries. The negligence on part of the driver of the truck resulted in registration of C.R. No. I-113 of 2011 in Shantinagar Police Station. From this day onwards, agony of the little girl never stopped. She was admitted in a private hospital in Thane and was shifted to several hospitals, which offered no solace and she suffered a permanent disability. On account of the said accident, her educational career was doomed and so also her future prospects. 6. The claim came to be lodged on behalf of Kum. Rizwana Khan through her natural guardian Mehboob Alam Khan against the driver of the offending truck and since the vehicle was insured with the Reliance General Insurance Company Limited, it was impleaded as opponent No. 2. The claim was set up before the MACT, Thane. 6. The claim came to be lodged on behalf of Kum. Rizwana Khan through her natural guardian Mehboob Alam Khan against the driver of the offending truck and since the vehicle was insured with the Reliance General Insurance Company Limited, it was impleaded as opponent No. 2. The claim was set up before the MACT, Thane. In spite of service, the owner of the offending truck did not put appearance and the claim proceeded against him ex-parte. The Insurance Company opposed the claim by filing written statement (Ex-16) and attributed negligence to the Claimant and also disputed the expenses incurred for her medical treatment. A statutory defence is raised to the effect that the driver was not holding a valid and effective driving licence and the vehicle was plied without valid permit and fitness certificate, amounting to breach of terms and conditions of the policy. It is pleaded that the accident took place because of the fault and negligence of the applicant herself as she was careless in walking on the wrong side of the road and, therefore, the Insurance Company claimed that it is entitled to be absolved of the liability. 7. The claim petition proceeded before the Tribunal, which framed the following issues : “1] Whether applicant proves that on 9-4-2011 at about 10.10 hours, on Avchitpaa road, near Avchit pada Police Chowky, Bhiwandi, impugned accident occurred due to rash and negligent driving of truck bearing No. MH-04-EL-9753 by its driver? 2] Whether applicant proves that in the impugned accident she has sustained the injuries? 3] Whether there is breach of terms and conditions of the policy? 4] Whether applicant is entitled for compensation? If yes, what amount and from whom? 5] What order and award?” 8. In support of the claim, the guardian of the injured stepped into the witness box, on filing his evidence on affidavit. The evidence of Dr. Narresh Madanlal Khanna was also recorded as CW-2 and the two other witnesses examined are Mahesh Ragho Patil (CW-3) and Eunice Joel Dive (CW-4), CW-3 being the Assistant Manager in Billing Department of Jupiter Hospital and CW-4, working as Billing In-Charge in the Billing Department of Bethany Hospital, where the minor girl was offered treatment. Pertinent to note that the Insurance Company did not adduce any oral evidence. 9. Pertinent to note that the Insurance Company did not adduce any oral evidence. 9. The Tribunal, on appreciation of evidence brought before it in the light of the issues framed, recorded a finding on Issue No. 1 and after referring to the FIR (Ex-26), which had recorded the happenings of events, held that in the FIR, it is specifically stated that at the relevant time of incident, the truck bearing No. MH-04-EL-9753 came from backside in high speed and in rash and negligent manner, gave a dash to the girl and dragged her upto some distance. Learned Judge, therefore, recorded that the accident occurred due to sole negligence on the part of the driver of the truck and this is corroborated by the police papers on record. In absence of the rebuttal evidence, the corroboration in police papers, the version of the accident was accepted and the Tribunal rendered a finding to Issue No. 1 to the following effect : “I have no hesitation to come to conclusion that impugned accident occurred due to rash and negligent driving on the part of the drive of truck bearing No. MH-04-EL-9753.” 10. While deliberating on the second issue about the injuries sustained, the Tribunal relied upon the discharge summary issued by the Jupiter Hospital, which clearly indicated that the Claimant was admitted on 9-4-2011 and she suffered a polytrauma with compound fracture left pubic with crush injury to left foot with perinial injury. 11. As far as issue No. 3 is concerned, the Tribunal recorded that to establish breach of terms and conditions of the policy, the burden must be discharged by the Insurance Company, but since it has failed to adduce any evidence to that effect, it has failed to prove that there is any breach of the terms and conditions of the policy. 12. On the issue of compensation to be paid by respondent No. 2, the Tribunal accorded due weightage to the manner in which the accident took place and awarded the compensation taking into consideration the nature of injuries and disability sustained by the Claimant. The same has been computed in paragraph 25 of the judgment, which reads thus : 1 Amount incurred for medical treatment & medicines Rs. 6,38,301/- 2 Amount spent for special diet Rs. 10,000/- 3 Amount spent for attendance Rs. 10,000/- 4 Amount spent for conveyance Rs. The same has been computed in paragraph 25 of the judgment, which reads thus : 1 Amount incurred for medical treatment & medicines Rs. 6,38,301/- 2 Amount spent for special diet Rs. 10,000/- 3 Amount spent for attendance Rs. 10,000/- 4 Amount spent for conveyance Rs. 10,000/- 5 Injuries and disability caused to the applicant. Rs. 3,00,000/- 6 Loss of marriage prospects Rs. 1,00,000/- Total Rs. 10,68,301/- 13. The claim petition filed by the Claimant was partly allowed and the appellant Nos.1 and 2 were jointly and severally held liable to pay to the Claimant an amount of Rs. 10,68,301/- including ‘No Fault Liability Compensation’ with interest at the rate of 8% per annum to be paid from the date of petition till its realization. The manner in which the amount would be invested is also set out in the judgment dated 12/05/2017 by the Tribunal. Being aggrieved by the said judgment, the Insurance Company has presented the present Appeal. 14. Learned counsel for the appellant Mr. Mehta would submit that the Tribunal has determined the compensation in an exorbitant manner. The learned counsel though conceded on the aspect of the statutory defence, would vehemently challenge the impugned judgment on the quantum of compensation by advancing submission to the effect that a sum of Rs. 1 lakh has been awarded towards loss of marriage prospects and this is not the head of entitlement, under which, a 5 year old girl, who had suffered disability would be entitled to be compensated. Apart from this, learned counsel is also extremely critical on the aspect of percentage of disability, which according to him, is merely considered on the basis of approximation and though the Tribunal has recorded that CW-2 is not the doctor, who treated the Applicant nor did he prepare the clinical notes of examination of the applicant and the disability assigned by him is doubtful. The submission is that the Tribunal has proceeded on assumption that the disability may be 25%. Learned counsel for the appellant has raised a serious objection to the amount of Rs. 1 lakh awarded for loss of marriage prospects. 15. It is very well settled that in a motor accident claim, finding of recording negligence is to be arrived at by the Tribunal on principles of preponderance of probabilities and strict proof of evidence is not required. 1 lakh awarded for loss of marriage prospects. 15. It is very well settled that in a motor accident claim, finding of recording negligence is to be arrived at by the Tribunal on principles of preponderance of probabilities and strict proof of evidence is not required. The Tribunal has placed reliance on the FIR, which has reported about the rash and negligent driving of the truck, which hit the Claimant and since no evidence to the contrary was brought on record, taking into consideration, the injuries sustained by the Claimant, a finding is rendered to the effect that the accident has occurred on account of rash and negligent driving of the vehicle which was insured with the Insurance Company i.e. respondent No. 2. No perversity can be noticed in the said finding and I have no hesitation in confirming the finding that the Claimant met with the accident and sustained the injury on account of negligence of the driver. 16. The disability compensation, which is normally awarded under the accident claim, would be ranked under various heads like loss of amenities, loss of employment and loss of pride and pleasure. Loss of amenities, would cover the deprivation of the ordinary experiences and enjoyment of life and includes loss of the ability to walk or see, loss of a limb or its use, loss of congenial employment, loss of pride and pleasure in one's work, loss of marriage prospects and loss of sexual function, etc. Damages for the aforesaid can be awarded whether the Claimant is aware or not of the said loss. The award of compensation is for the fact of deprivation. The Hon’ble Apex Court in the case of Govind Yadav vs. New India Insurance Co. Ltd. reported in (2011) 10 SCC 683 has observed as under : 10. The personal sufferings of the survivors and disabled persons are manifold. Some time they can be measured in terms of money but most of the times it is not possible to do so. If an individual is permanently disabled in an accident, the cost of his medical treatment and care is likely to be very high. The personal sufferings of the survivors and disabled persons are manifold. Some time they can be measured in terms of money but most of the times it is not possible to do so. If an individual is permanently disabled in an accident, the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term ‘compensation' used in Section 166 of the Motor Vehicles Act, 1988 (for short, ‘the Act') would include not only the expenses incurred for immediate treatment, but also the amount likely to be incurred for future medical treatment/care necessary for a particular injury or disability caused by an accident. A very large number of people involved in motor accidents are pedestrians, children, women and illiterate persons. Majority of them cannot, due to sheer ignorance, poverty and other disabilities, engage competent lawyers for proving negligence of the wrongdoer in adequate measure. “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 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 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 nonpecuniary 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.” In the same case, the Court further observed : “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 guesswork, 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.” 17. The Hon’ble Apex Court in the case of R. D. Hattangadi vs. Pest Control of India (Pvt.) Ltd. and ors. reported in (1995) 1 SCC 551 observed as under, which in my considered opinion, is the guiding factor, which should be adverted to when the claim for compensation on behalf of the Claimants is entertained. “10. It cannot be disputed that because of the accident the appellant who was an active practicing lawyer has become parapledgic 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 lifelong 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 compenate 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 a 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. 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 guesswork, 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.” 18. When confronted with the argument of learned counsel for the appellant about the claim for loss of marriage prospects being granted to the tune of Rs. 1 lakh, learned counsel for the respondent makes a statement to the effect that he is ready to forego the said amount, but the entitlement of the claim on other counts shall not be disturbed. 19. It is trite position of law that the compensation to be awarded to a victim, who had suffered an accident on account of negligence of a party would expect the compensation to be just and fair, though unjust enrichment is to be avoided. On perusal of the impugned judgment, I do not find any legal infirmity in awarding the compensation on the given heads as set out in paragraph 25 of the judgment. As far as the amount involved for medical treatment and medicines is concerned, the Tribunal has awarded Rs. 6,38,301/- and this is granted on the basis of the actual medical bills, which have been placed on record reflecting the aforesaid amount. Item Nos.2, 3 and 4 are the heads under which Rs. 10,000/- each has been awarded which appear to be just and reasonable. For the injuries and disability caused to the Claimant, the Tribunal has awarded an amount of Rs. 3 lakhs. It is necessary to reiterate that the compensation must be fair and enough to restore the Claimant to the same position which the Claimant stood, prior to the accident or the disability suffered. For the injuries and disability caused to the Claimant, the Tribunal has awarded an amount of Rs. 3 lakhs. It is necessary to reiterate that the compensation must be fair and enough to restore the Claimant to the same position which the Claimant stood, prior to the accident or the disability suffered. It may be perfectly justified to say that the compensation is not only to be awarded for physical injury and treatment, but also it must be awarded for the mental agony, which the Claimant and his family has suffered and here it is not only a 5 year old child, who had undergone the trauma of accident, but it can be very well assumed that her entire family must have suffered lot of distress on account of the child’s disability and the accident which caused the injuries, deprived her of leading a life of innocence and enjoyment, which a child in the same age would have otherwise enjoyed. It definitely takes courage to keep such a child, to drive on path of her dreams and this is not possible without the support of the parents and the amount of Rs. 3 lakh awarded under the head of ‘Injuries and Disability’, in my considered opinion, is adequate and fair compensation under the said head, which definitely does not warrant any interference. 20. In the light of the above, since the amount of Rs. 1 lakh under the heading ‘loss of marriage prospects’ is foregone by the Claimant, the Claimant is entitled for the remaining amount of compensation awarded under the impugned judgment dated 12/05/2017 with the aforesaid concession at the say of the claimant. The Appeal is, therefore, dismissed as the Insurance Company has failed to make out any case for interference. In view of the concession of the Claimant, the amount of compensation shall be maintained by subtracting an amount of Rs. 1 lakh granted under the head ‘loss of marriage prospects’. Consequently, the amount, which has been deposited in the MACT, Thane by the appellant, is permitted to be withdrawn by the Claimant although by deducting the amount of Rs. 1 lakh. The interest calculated from the date of deposit of the decretal amount in the Tribunal shall be calculated to the exclusion of Rs. Consequently, the amount, which has been deposited in the MACT, Thane by the appellant, is permitted to be withdrawn by the Claimant although by deducting the amount of Rs. 1 lakh. The interest calculated from the date of deposit of the decretal amount in the Tribunal shall be calculated to the exclusion of Rs. 1 lakh, which shall be refunded to the Appellant along with the interest accrued on the said amount from the date of its deposit till the date of its withdrawal. Needless to state that in terms of the direction contained in clause (3) of the order of the MACT, Thane, the Claimant is held entitled to an amount of Rs. 5 lakh on complying with the necessary formalities. The remaining amount shall continue to remain deposited in the fixed deposit in the name of the minor Claimant in a nationalized bank till she attains the age of majority. 21. The appeal is dismissed. In view of the dismissal of the first appeal, all pending applications shall stand disposed of.