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Saturday, August 3, 2013

Disfigure of face to an artist in cinemas, adds, T.V is to be considered as 100% disability but not as suggested in medical report as the victim life and profession and assets is the face = we have to record the finding of fact having regard to the nature of grievous injuries and her disfigured face and that she was acting as an actress in the films, T.V. serials, etc. her functional disablement is 100%. This relevant aspect of the matter has been conveniently omitted to be considered both by the Tribunal as well as by the High Court while determining compensation under various heads of non-pecuniary damages. For the foregoing reasons, we are of the view that under the different heads of non-pecuniary damages she is entitled to higher compensation in her appeal. For that purpose, we are required to consider her annual income for the purpose of computation of just and reasonable compensation under the aforesaid different heads of non-pecuniary damages. It is in her evidence that her income depends upon the project. She got 30,000/- for her first film “Maa Pari Kiye Haba” and Rs.75,000/- for Malayalam film ‘Paith Digem Alam’. For her performance in a serial, she used to get within Rs.7000/- to 10,000/-. She had received Rs.50,000/- for winning the “Ponds Women of Tomorrow” Contest. The said evidence remains unchallenged in the cross examination by the counsel for the respondent Insurance Company. Having regard to her age and qualification and that she was acting in various Oriya and Malayalam films, T.V. serials and that she was in the beginning stage of her acting career and having regard to the fact that she has acted in various films, she would have definitely had a very good chance for acting in future if she had not suffered the grievous injuries, facial disfigurement and other injuries on account of the accident. She has also stated in her evidence that she is an assessee for income tax. She has got PAN card and has produced the same. Having regard to the aforesaid legal evidence on record and in the absence of documentary evidence to show her probable annual income, it would be proper for this Court to take her probable annual income as Rs.5,00,000/- for the purpose of computation of her future loss of earning. We have already held that though the disability certificate speaks of her disability at 30% on account of disfigurement of the face and other injuries to her body, her physical fitness is completely changed, she has put on weight 4 to 5 kgs., she is not fit to act and no film producer will offer her roles in their films to act as an actress. Having regard to the nature of the vocation, we have to hold that she is suffering from 100% functional disability. In the light of the facts of this case and keeping in view the aforesaid evidence on record that she is a film actress and also taking into consideration that in the film world of this country the heroine will certainly get the substantial sum for acting in films, T.V. serials, modeling, it would be just and proper for us to take 50% of her annual income for the purpose of computation of her future loss of income keeping in view that throughout her life she may not be in a position to act in the films, albums and modeling. Her annual income is assessed at Rs.5,00,000/-. 50% of which is Rs.2,50,000/- per annum which is multiplied by 17 as the proper multiplier considering her age at the time of accident by applying the legal principle laid down by this Court in Sarla Verma & Ors. v. Delhi Transport Corp. & Anr.[18], which amounts to Rs.42,50,000/-. Hence, we award Rs.42,50,000/- compensation under the aforesaid head. The Tribunal awarded only Rs.2,00,000/- which is enhanced to Rs.42,50,000/- under the said head. 43. The Tribunal awarded compensation of Rs.2,00,000/- for the loss of amenities, pleasure of life and her inability to attend social functions in future, which is inadequate, therefore, it should be enhanced to Rs.10,00,000/-. 44. Towards the pain and suffering, the Tribunal awarded Rs.1,00,000/-. It should be proper to award another Rs.9,00,000/- as she has undergone ordeal for the period of 4 years continuously taking treatment in Odisha and Kerala States and the damages for mental and physical shock, pain and suffering, disfigurement of the face and other bodily injuries she already suffered continuously or likely to suffer. 45. The Tribunal awarded Rs.17,15,726/- towards the medical expenses based on the legal evidence and, therefore we affirm the compensation awarded by Thus, the total compensation amounting to Rs.79,65,726/- which is rounded of to Rs. 79,66,000/-along with interest at the rate of 6% per annum is awarded from the date of application till the date of deposit of the amount. The aforesaid enhancement of compensation under different heads referred to supra, in our considered view would be just and reasonable compensation in this case. 47. Before parting with the judgment, it would be just and necessary for this Court to make observation that the Motor Accidents Claims Tribunals and the Appellate Courts should keep in view the rights of the claimants under the provisions of the M.V. Act to determine the compensation claims of the claimants by considering the facts of each case and the legal position laid down by this Court on relevant aspects. 49. Accordingly, the appeals of the appellant are allowed in the above said terms. We set aside the impugned judgment, award and orders passed by the High Court. The respondent Insurance Company is directed to deposit 70% of the awarded compensation along with proportionate interest with any Nationalized Bank of the choice of the appellant in fixed deposit and the remaining 30% with proportionate interest, after deducting any amount if already paid by the respondent as awarded by the High Court should be disbursed to the appellant within six weeks on proper identification. There will be no order as to costs.

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40621

                                                   REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL NOS.5370-5372 OF 2013
               (Arising  out of SLP (C) Nos. 5649-51 of 2012)


             REKHA JAIN                            ... APPELLANT

                                     VS.

               NATIONAL INSURANCE CO. LTD.      .. RESPONDENT












                               J U D G M E N T


V. Gopala Gowda, J.


      Leave is granted by this  Court  vide  order  dated  02.07.2013  after
condoning the delay in filing the special leave petitions.

2.    These appeals are directed against  the  judgment,  award  and  orders
dated 24.2.2011 passed in MACA No. 580 of 2007, MACA No.  846  of  2007  and
dated 10/03/2011 in MC No. 386 of 2011 in MACA No. 580 of 2007 of  the  High
Court of Orissa at Cuttack allowing the appeal of the Insurance Company  and
dismissing the appeal of the appellant by which she has prayed to set  aside
the  impugned  judgment,  award  and  order  and  has  further  prayed   for
enhancement of compensation by award of  just  and  reasonable  compensation
allowing the appeals urging various facts and legal contentions.

3.    The necessary brief facts for the purpose of  appreciating  the  rival
factual and legal contentions urged in these appeals are stated as under:

      On 17.08.2001 the appellant was driving a Maruti Car bearing Regn. No.
OR 15 D-9005 by which she was going along with her mother  Grace  Jain  from
Sambalpur towards Cuttack when the accident occurred. 
A truck bearing  Regn.No. MP 23 D-0096 coming from the opposite  direction  from  Cuttack  towards Sambalpur hit the car which resulted  in  the  instantaneous  death  of  the
mother of the appellant and the appellant received grievous injuries to  her
body.  
She  was  admitted  to  the  VSS  Medical  College  Hospital,  Burla,
Sambalpur  and  subsequently,  she  had  undergone  treatment  at  different
Nursing Homes both at Cuttack and in the State of Kerala.

4.    On account of the accident, grievous injuries were  sustained  by  the
appellant on the right side of her  face  which  left  permanent  scars  and
caused disfiguration of her face and other parts of her body  including  her leg.  
She  underwent  a  number  of  surgeries  due  to  grievous  injuries
sustained by her.  She underwent treatment from 18.08.2001 to 10.10.2001  at
Kalinga Hospital and later on, in different  Nursing  Homes/hospitals.
  The
District  Medical  Board  issued  a  certificate  dated  24.02.2006  to  the appellant certifying that she is suffering from  30%  permanent  disability.
The appellant has approached the Motor Accident Claims Tribunal  (for  short
‘MACT’) at Sambalpur by filing a claim petition  No.  119  of  2002  with  a
request to award just and reasonable compensation.

5.    The respondents herein, the owner of the vehicle and the insurer  were
impleaded and after service of summons on them they  filed  their  statement
of objections disputing the claim of  the  appellant.  
The  owner  of  the
vehicle has admitted the  accident  and  has  also  stated  that  the  motor
vehicle involved in the accident is covered by the  insurance  policy  which
was valid up to 30.11.2001. He has further  categorically  stated  that  the
driver who drove that truck had a valid licence.
The  respondent  Insurance
Company in its statement of objections denied its liability  on  the  ground
that
the accident did not take  place  on  account  of  rash  and  negligent driving of the driver who drove the offending vehicle,  
but  was  due  to  a
motor cyclist who came in front  of  the  truck  on  account  of which  the accident took place.
It  had  further  denied  the  various  claims  of  the
appellant.

6.    The case went  for  trial  and  on  behalf  of  the  appellant,  three
witnesses were examined including the appellant and documents were  produced
in justification of her claim.  Both the owner  and  the  Insurance  Company
have not adduced evidence in justification of their defence taken  in  their
statement of objections.
  The Motor Accidents Claims  Tribunal,  on  proper
appraisal of evidence on record, has  answered  the  contentious  issues  in favour of the appellant holding that the accident took place on  account  of rash and negligent driving of the truck by its driver.
It  is  further  held
by the Tribunal that the appellant is entitled to compensation  and  awarded Rs. 23,51,726/- both under the heads of pecuniary and non-pecuniary  damages with interest @  6%  per  annum  from  the  date  of  filing  of  the  claim application i.e. 30.03.2002 till the  date  of  payment.  
Aggrieved  by  the
judgment and award of the Tribunal,  both  the  Insurance  Company  and  the
appellant filed appeals before the High Court of Orissa in  Appeal  No.  580
and MACA 846 of 2007 respectively.
The appeal  of  the  Insurance  Company
was allowed by reducing the compensation from 23,51,726/- to Rs. 14,00,000/-
 after finding fault with the Tribunal in awarding a sum of Rs.  17,51,726/- towards  pecuniary  damages  by  accepting  the  vouchers,  hospital  bills, receipts which have not been marked as exhibits in  evidence  on  behalf  of the appellant. 

Though, the compensation awarded towards the  pecuniary  loss
for the medical expenses, treatment charges and the purchase  of  medicines, supported by the documentary evidence, that is, bills, receipts, cash  memos and vouchers, as per Exhs.  26-28 series  worth  Rs.  2,07,713/-  and  
other documents cash memos, hospital  bills  and  receipts  etc.  were  marked  as exhibits in the evidence, some of the  hospital  bills  and  receipts  worth Rs. 5,72,000/-,  
though  available  on  record,  have  not  been  marked  as
evidence to show  that the appellant  had  also  incurred  medical  expenses amounting to Rs.5,72,000/-. 
The Tribunal has taken into  account  all  those
documents on record as evidence by marking them as exhibits. However,  only
a sum of Rs.7,77,000/- in total  was  awarded  by  the  High  Court  towards pecuniary damages and Rs.6,00,000/-  towards  non  pecuniary  damages  under different heads which is rounded off in all at Rs.14,00,000/-  by  modifying the judgment of the Tribunal.
The Misc case No. 386 of 2011  filed  by  the
appellant was considered and the High Court modified its earlier order  vide
its order dated 10.3.2011 directing the Insurance  Company  to  deposit  the
amount with interest with the Registry of the High  Court  and  out  of  the
said amount, it has directed the Registry to keep 70% in the  fixed  deposit
in the name of the appellant in any of the Nationalized Bank  for  a  period
of five years and the balance  amount  be  disbursed  to  the  appellant  on
proper identification.   The appeal of the appellant was dismissed  in  view
of the fact that the appeal filed by the Insurance Company, MACA No. 580  of
2007 was allowed and the compensation awarded by the Tribunal  was  reduced.
The same judgment is questioned by the  appellant  in  these  civil  appeals
seeking for enhancement of compensation urging various grounds.

7.    The grounds urged in  these  appeals  are  that
 the  High  court  has
exceeded its jurisdiction in interfering with the finding of  fact  recorded
by the Tribunal with regard to award of pecuniary  damages  towards  medical
expenses without proper appreciation of pleadings  and  evidence  on  record
and has considerably reduced the  amount  under  the  heading  of  pecuniary
damages from Rs.17,51,726/- to Rs.7,77,000/-. 
The correctness  of  the  said
impugned judgment and order is questioned before this Court contending  that
the same is not only erroneous but  also  suffers  from  error  in  law  and
therefore, the appellant prayed for setting aside the same  and  award  just
and reasonable compensation in favour of the appellant both under the  heads
of pecuniary and non-pecuniary damages by applying  the  law  laid  down  by
this Court.

8.    Further, it is contended by  Mr.  Sukumar  Pattjoshi,  learned  Senior
Counselfor the appellant that the  High  Court  has  erroneously  interfered
with the impugned judgment and award of the Tribunal which  is  contrary  to
legal evidence on record and various judgments of this Court with regard  to
the claim and he also contended that the High Court  has  not  awarded  just
and reasonable  compensation  to  mitigate  the  hardship  and  restore  the
claimant’s position financially as she was in before the accident.

9.    Further, the learned Senior Counsel submitted that the High Court  was
not justified  in  not  enhancing  the  non  pecuniary  compensation  though
sufficient evidence was brought on record by the appellant before  the  MACT
to show that
she was a celebrity in the sphere of modeling  and  acting  who
had a bright future ahead of her which was  doomed  by  the accident  which resulted in number of surgeries conducted on her body. 
The  opportunity  for the appellant to act in the movies and  T.V.  serials  is  lost  by  her  on account of the grievous  injuries  sustained  by  her.    
The  Tribunal  has referred  the  same  in  its  judgment  while  awarding  compensation  under different headings of non- pecuniary damages, namely, suffering  and  future
loss of earnings but it  did  not  take  into  consideration  the  permanent partial disablement suffered by the appellant which was assessed at 30%  and disfigurement of her face due to  accident  and  the  fact  that  she  is  a celebrity acting in  movies  and  TV  serials  and  also  in  the  field  of
modeling. 
Due to disfigurement of her face, she will be  losing  her  future
income as she will not get opportunities  to  act  in  the  films and  T.V. serials.
Therefore, the  learned  Senior  Counsel  submits  that  both  the
Tribunal and the High Court were not justified in not awarding the just  and reasonable compensation under  the  heading  of  future  income.
They  have
awarded only a meager amount of Rs.2,00,000/- towards  the  loss  of  income
during the period of medical treatment though she was unable to earn  nearly
for a period of four years  as  she  was  undergoing  treatment.  
Also,  the
Tribunal did not award any amount for loss of future income but has  awarded
a sum of Rs. 1,00,000/-  towards the pain and suffering without taking  into
consideration the fact that she has undergone treatment in  various  Nursing
Homes/Hospitals for plastic surgery and other surgeries  and  physiotherapy.
A paltry sum of Rs. 1,00,000/- was awarded for loss  of  income  during  the
period of medical treatment of the appellant. A sum of  Rs.  2,00,000/-  was
awarded towards loss of amenities and pleasure of life. Therefore,  she  has
filed the appeals  requesting  this  Court  to  award  just  and  reasonable
compensation by appreciating the legal evidence on record.

10.   It is further urged that the  High  Court  has  failed  to  take  into
consideration the fact that the injured appellant is a single lady  left  in
her family who was compelled to engage an attendant  during  the  period  of
her treatment while she was in  a  state  of  immobility.    It  is  further
contended by the learned Senior Counsel that  the  learned  members  of  the
Tribunal and the High Court have erred  in  passing  impugned  judgment  and
order which are not in accordance with the cardinal principles laid down  by
this Court in various  judgments  in  matters  of  Motor  Vehicle  Accidents
Claims and they also did not consider the various relevant aspects  such  as
the grievous injuries suffered  by  the  appellant  which  has  resulted  in
disfigurement of her face, who has lost her future  career  to  act  in  the
films  and  T.V.  serials   and  also  through  advertisements  as  well  as
modeling.  The Tribunal and  High  Court  have  erred  in  not  taking  into
consideration  the  above  said  relevant  aspects  of  the  case  to  award
pecuniary damages and  adequate  compensation  under  the  heading  of  non-
pecuniary damages without proper appreciation of  pleadings  and  the  legal
evidence on record particularly when both the owner of  the  truck  and  the
Insurance Company have not adduced rebuttal evidence. The Insurance  Company
has not obtained the permission as required  under  Section  170(b)  of  the
Motor Vehicles Act to avail the defence of the insured and  contest  in  the
proceeding on the defence of the insured/ owner.  Therefore, the finding  of
the Tribunal and the High Court in the impugned judgment and order  and  not
awarding just and reasonable compensation in favour of the appellant is  not
only erroneous but  also  suffers  from  error  in  law.  Therefore,  it  is
contended by Mr. Pattjoshi, the learned Senior Counsel  that  the  appellant
is entitled  to  just  and  reasonable  compensation.   The  learned  Senior
Counsel placed strong reliance on the evidence on record and  has  contended
that the appellant was a good actress and model and worked  in  many  films,
albums, T.V. serials etc. and she had  also  won  many  awards  like  “Ponds
Woman of Tomorrow” for the year 1999, best  actress  in  feature  film  “Maa
Pari Kiye Haba” etc. The said legal evidence was neither challenged nor  was
any rebuttal evidence adduced on behalf of either the owner of the truck  or
the Insurance Company to show that the appellant is  not  entitled  to  just
and reasonable compensation.  However, the  High  Court  should  have  taken
into consideration all the relevant facts and  evidence  on  record  as  the
Tribunal has failed to exercise its power and discharge its  statutory  duty
to award just and reasonable compensation in her favour.  The learned  Judge
of the High Court should have  considered  that  the  appellant  is  a  film
actress and her beauty is an essential  requirement  for  acting  in  films,
T.V.  Serials  and  modeling.  When  her  beauty  is  lost  on  account   of
disfigurement of her face, she has lost everything which  means  that  there
is hundred  percent  functional  disability  in  her  life.  But,  both  the
Tribunal and the High Court did not  even  consider  30%  permanent  partial
disablement suffered by the appellant at the time of passing  the  award  to
determine the compensation under various  heads  of  non-pecuniary  damages.
Further, it is contended by the learned Senior  Counsel  that  the  loss  of
future income of the appellant is on  account  of  the  fact  that  she  had
suffered grievous injuries in  the  accident  and  therefore  her  life  has
become miserable. In future as well, she will not be able to  act  in  films
and T.V. serials. The High Court as well as  the  Tribunal  have  failed  to
consider the evidence adduced by the injured appellant in  her  examination-
in-chief wherein she has categorically stated about  her  income  per  annum
and the loss of future income.
Both the Tribunal and  the  High  Court  have
not properly evaluated the evidence on record and have not applied  the  law on the point to determine the future loss of income of the appellant and  on other heads to award  just  and  reasonable  compensation.   
Therefore,  the
learned  Senior  Counsel  submitted  that  the  impugned  judgments  of  the
Tribunal and the High Court are erroneous in this regard and are  liable  to
be set aside and require modification with  award  of  just  and  reasonable
compensation.
She has stated in her evidence that  
she  earned  
Rs.50,000/- from “Ponds beauty” competition, 
Rs.30,000/- from Oriya  feature  film  “Maa Pari Kiye  Haba”, 
Rs.60,000/- from Oriya feature film “Dharma Debata”,   Rs. 75,000/- from Malayalam feature film “Paith Dhigem Alam”, Rs.10,000/-  from each T.V. serial, 
Rs.5,000 to Rs.7,000/- from each album.  
Further,  it  is
urged by the learned Senior Counsel that both the Tribunal as  well  as  the
High Court erred in not differentiating between pecuniary  damages  and  non
pecuniary damages at the time of determining compensation and  awarding  the
same.
The law is well settled by this Court that  
pecuniary  damages  
under various heads such as 
expenses incurred by the appellant  that  is,  
medical expenses, 
expenses spent towards  surgeries,  
loss  of  earning  during  the period of medical treatment and expenses  incurred  by  her  to  engage  an attendant and 
other material  losses  suffered  by  her,  
should  have  been awarded by the Tribunal and the High Court under  pecuniary  damages.   
The
Tribunal did not consider the above relevant aspects and evidence on  record
to award  just  and  reasonable  compensation.  In  relation  to  other  two
aspects, that is, loss of earning up to the date of trial and  other  losses
suffered by  the  appellant,  the  same  were  also  not  considered.    The
Tribunal and the High Court  have  erred  in  not  granting  relief  to  the
appellant considering the aspect of the  loss  of  expectation  of  life  on
account of grievous injuries and  shortened  longevity  of  the  appellant’s
life. The Tribunal and the High Court have erred in not granting  relief  to
the  appellant  by  appreciating  the  facts  of  inconvenience,   hardship,
discomfort,  disappointment,  frustration  and  mental  stress,   pain   and
suffering and agony  caused  to  her.
 They  further  failed  to  take  into
consideration the  most  important  fact,  that  the  face  of  the  injured appellant was fully and hopelessly disfigured due to accident  and  she  got plastic surgery on her entire face and  other  parts  of  her  body  by  the plastic surgeons outside the State of Odisha.  After  plastic  surgery,  the appellant’s face appearance got changed and she  herself  was  not  able  to recognize her changed face in the  mirror.  
It  is  further  urged  by  the
learned Senior Counsel on behalf of the appellant that both the Tribunal  as
well as the High Court have  failed  to  take  into  consideration  all  the
relevant facts deposed by  her  before  the  Tribunal-  that  she  has  been
undergoing treatment due to the  accident  which  would  continue  till  the
complications subsist and she requires a lot of money to be  spent  for  her
future treatment and she  also  requires  an  attendant  for  this  purpose.
Therefore, impugned judgments and awards of both the Tribunal and  the  High
Court are vitiated on both the counts of erroneous finding and error in  law
as they have not awarded just and reasonable compensation in favour  of  the
appellant.

11.   Mr. S.L. Gupta,  the  learned  counsel  appearing  on  behalf  of  the
Insurance Company has justified  the  impugned  judgment,  award  and  order
passed by the High Court. Respondent nos. 2  and  3  however,  were  deleted
from the array of parties in these appeals by the order  of  this  Court  at
the request of the appellant. The learned counsel contended  that  the  High
Court has exercised its appellate jurisdiction, on  proper  appreciation  of
pleadings and evidence on  record  and  it  is  justified  in  reducing  the
compensation awarded under the heading of pecuniary damages as  the  injured
appellant did not establish her claim regarding  the  expenses  incurred  by
her for the purpose of   medical treatment, purchase of medicine  and  other
incidental  expenses  by  producing  the  bills,  receipts   and   vouchers.
Therefore, the Tribunal was not  justified  in  placing  reliance  on  those
documents which were not marked as exhibits to prove  her  claim  under  the
heading of ‘Medical Expenses’ and  other  incidental  expenses  and  it  has
awarded exorbitant compensation under head of  pecuniary  damages  which  is
unsustainable in law.  Therefore, the High  Court  has  rightly  taken  into
consideration the entire documentary evidence on record and is justified  in
awarding compensation at Rs.7,77,000/- under the heading  towards  expenses,
 treatment charges and expenses towards  medicines.    Therefore,  the  same
does not call for interference by this Court.

12.   Further, it was contended by the counsel for the  respondent-Insurance
Company that the compensation awarded  under  different  heads  referred  to
supra towards non pecuniary damages is not based on proper  appreciation  of
facts and legal evidence on record particularly in the absence  of  evidence
to prove the fact that she is an income  tax  assessee  since  no  proof  is
produced in this regard before the  Tribunal  to  prove  her  annual  income
based on which her future loss of income could be determined. Therefore,  he
submits that the appellant is not entitled for the reliefs as prayed for  in
these appeals. Hence, he submits that these are not fit cases  to  interfere
with the impugned judgments, award or the order of the High  Court  and  the
appellant is not entitled to enhancement of compensation as claimed  by  her
in her appeal. Hence, he has prayed for the dismissal of the  appeals  filed
by the appellant.   With reference to the  above  rival  factual  and  legal
contentions, the following points would arise for consideration:

      (i) Whether the impugned judgment, order and award passed in MACA  580
and 846/ 2007 and Misc. Case No 386/2011 in MACA 580 is legal and valid?

      (ii) Whether the Tribunal is justified in awarding Rs.17 lakhs and odd
towards pecuniary  damages  in  favour  of  the  appellant  namely,  medical
charges,  medicine  expenses  and  other  expenses  on  the  basis  of   the
documentary evidence on record?

      (iii) Whether the appellant is entitled to enhanced compensation under
the different heads of non pecuniary damages?

      (iv)  If so, to what compensation and for what award the appellant  is
entitled to?

13.    Point  Nos.  (i)  and  (ii)  are  answered  together  as   they   are
interrelated with each other, by assigning the following reasons:

      The High Court  has  gravely  erred  both  on  facts  and  in  law  in
interfering with  the  impugned  judgment  and  award  of  the  Tribunal  in
reducing the pecuniary damages awarded towards medical expenses incurred  by
the appellant herein from Rs.17,51,726/-  to  Rs.7,77,000/-  solely  on  the
ground that there is no documentary  evidence  in  relation  to  the  amount
spent towards medical expenses  which  is  awarded  by  the  Tribunal.  This
assumption by the learned Judge of High Court is factually not  correct.  As
could be seen from the record, there are large number of medical  bills  and
vouchers produced by the appellant for having spent the  money  towards  the
surgeries conducted upon her and payment made to the various  Hospitals  and
Nursing Homes namely, V.S.S.  Medical  Hospital,  Burla,  Kalinga  Hospital,
Bhubaneshwar, Nursing Home, Cuttack along with  purchase  of  medicines  for
the aforesaid period which run to Rs.17,51,726/-.  The  above  said  factual
aspects are stated in unequivocal terms in her statement  of  evidence,  and
she has also referred to the documents such as bills, receipts and  vouchers
obtained  by  her  from  various  medical  stores  on  the  basis   of   the
prescriptions of the doctors who have treated her.  Some  of  the  documents
were marked in the evidence of PW-3 -  the  appellant  herein  and  she  had
spoken about the expenses incurred towards her  treatment  and  purchase  of
medicines. In relation to some other documents, the learned counsel for  the
Insurance Company has objected for  making  them  exhibits  without  raising
tenable objections.   The learned member of the Tribunal neither upheld  nor
rejected the objection raised by the counsel on  behalf  of  the  respondent
Insurance Company at the time of marking documents through the appellant  in
her evidence. Nonetheless, the learned member  of  the  Tribunal  has  taken
those documents  into  consideration  and  has  awarded  compensation  under
pecuniary damages having regard to the clinching  evidence  on  record  that
the surgeries were conducted and treatment  was  taken  by  her  in  various
hospitals and Nursing Homes for a period of four  years.    The  correctness
of the said claim is examined by us with reference to the documents in  Ann.
P-7 produced in this case, in which date-wise  particulars  with  regard  to
the name of the Institutions and Medical Stores, the expenses  incurred  and
bill numbers, payment made  for  the  purpose  of  conducting  blood  tests,
purchase of medicines, purchase of blood from the blood  bank  and  cost  of
surgeries spent by the appellant are given.  The Tribunal,  in  the  absence
of rebuttal evidence and the nature of cross examination of  the  appellant-
PW3 made by the learned counsel on behalf of the Insurance Company  and  the
evidence adduced by the appellant herein and the claim  made  by  her  under
the pecuniary damages towards the medical expenses,  tests,  surgeries  etc.
and other incidental purposes, has accepted and has rightly  awarded  a  sum
of Rs. 17,51,726/- under the heading of medical expenses. The same has  been
arbitrarily  and  unreasonably,  without  assigning  any  cogent  and  valid
reason, interfered with by the High Court and it  has  erroneously  modified
the judgment by reducing the amount from Rs. 17,51,726/- to Rs.  7,77,000/-.
This has been very lightly interfered with by the learned Judge of the  High
Court without application of mind and consideration  of  legal  evidence  on
record particularly in the absence of rebuttal  evidence  and  further,  the
Insurance Company was unable to show that the documents  referred  to  supra
produced by the appellant in her evidence are  fabricated  documents,  which
have been produced with deliberate intention to  prefer  a  false  claim  in
this regard as contended by the learned counsel on behalf of  the  Insurance
Company.  We  have  carefully  examined  the  evidence  on  record  and  the
findings of the Tribunal to examine as to whether the findings  recorded  by
the High Court in the impugned judgment for reduction of  pecuniary  damages
from Rs.17,51,726/- to Rs.7,77,000/- is correct.  On careful perusal of  the
evidence and documents produced by the appellant we have to  hold  that  the
finding and reason recorded by the High Court is wholly erroneous in law  as
the same is contrary to the facts pleaded and proved by  producing  evidence
on record. Therefore, the same requires to be interfered with by this  Court
in these appeals.  Accordingly, point Nos. (i) and (ii) are answered in  the
affirmative in favour of the appellant. The finding and reason  recorded  by
the High Court in not awarding just and reasonable  compensation  under  the
various heads of non pecuniary damages for which she is legally entitled  to
on the basis of proven facts, legal evidence on record and law laid down  by
this Court, is not only erroneous but also suffers from error  in  law.   On
this aspect, separate reasons are assigned while answering point Nos.  (iii)
& (iv).

14.   Point No.(iii) is also required  to  be  answered  in  favour  of  the
appellant. We are of the view that the appellant is  substantially  entitled
to enhancement of compensation under various heads of non-pecuniary  damages
having regard to the concurrent findings recorded  on  this  aspect  of  the
matter by the High  Court.  Both  the  Tribunal  and  the  High  Court  have
accepted the nature of injuries sustained  by  her  and  the  percentage  of
permanent partial disablement suffered by  her  due  to  the  Motor  Vehicle
Accident as per the Disability Certificate No.943 dated 24.2.2006 issued  by
the Chief Medical Officer of the District Medical Board of  Sambalpur.  This
aspect of the matter is very relevant  for  the  purpose  of  examining  the
claim of the appellant and also to find out as to whether the  Tribunal  and
the  High  Court  were  justified  in  not  awarding  just  and   reasonable
compensation in favour of the appellant under  the  various  heads  of  non-
pecuniary damages.  This Court is required to keep in mind  justice,  equity
and good conscience which  must  be  the  primary,  relevant  and  important
aspects for awarding just and  reasonable  compensation  to  an  unfortunate
victim, the appellant herein who has  sustained  grievous  injuries  to  her
body and whose  future  prospects  are  completely  doomed.    Further,  the
Tribunal and courts while awarding compensation for  bodily  injuries,  must
realise that the possession  of  one’s  own  body  is  the  first  and  most
valuable of all human rights and that all other  possessions  and  ownership
are the extensions of the basic right. Bodily  injuries  should  be  equated
with the deprivation which entitles a claimant to damages and the amount  of
damages varies in accordance with the gravity of injuries. In  this  regard,
it is worthwhile to refer to certain paragraphs which have been referred  to
by the Karnataka High Court in the case  of  K.  Narasimha  Murthy  vs.  The
Manager,  Oriental  Insurance  Company  Limited  and  Anr.[1],  wherein  the
Division Bench of the Karnataka  High  Court  has  considered  the  relevant
important aspects from the judgment of this Court and  the  House  of  Lords
and different learned scholars and authors of books  on  awarding  pecuniary
and non pecuniary damages. The  abovementioned  decision  states  about  the
approach of the Motor Accidents Claim  Tribunals  and  Courts  for  awarding
just and reasonable compensation in favour of the claimants in  relation  to
the bodily injuries suffered by them. It is worthwhile to extract  Paragraph
16 from K. Narasimha Murthy case (supra), which reads as under:


      “16. The Courts and Tribunals, in bodily injury cases, while assessing
      compensation, should take into  account  all  relevant  circumstances,
      evidence, legal principles governing quantification  of  compensation.
      Further, they have to approach the issue of awarding  compensation  on
      the larger perspectives of justice, equity  and  good  conscience  and
      eschew  technicalities  in  the  decision-making.  There   should   be
      realisation  on  the  part  of  the  Tribunals  and  Courts  that  the
      possession of one's own body is the first and  most  valuable  of  all
      human rights, and that all possessions and ownership are extensions of
      this primary right, while awarding compensation for  bodily  injuries.
      Bodily injury is to be treated  as  a  deprivation  which  entitles  a
      claimant to damages. The amount of damages varies according to gravity
      of injuries.”






15.   In R.D.  Hattangadi  v.  Pest  Control  (India)  Private  Limited  and
Ors.[2], speaking about the heads  of  compensation,  this  Court  has  held
thus:


            "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 profit  upto  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."






16.   Further, on this point, Justice Viscount Dunedin  in  Admiralty  Comrs
v. S.S. Valeria[3], has observed thus:


      "The true method of  expression,  I  think,  is  that  in  calculating
      damages you are to consider what is the pecuniary consideration  which
      will make good to the sufferer, as far as money can do  so,  the  loss
      which he has suffered as the natural result of the wrong done to him".






17.   Further, Lord Blackburn in Livingstone v.  Rawyards  Coal  Company[4],
has held as under:


      "Where any injury is to be compensated by damages, in settling the sum
      of money to be given. . . . you should as nearly as  possible  get  at
      that sum of money which will put the person who has been injured. .  .
      . in the same position as  he  would  have  been  in  if  he  had  not
      sustained the wrong."






18.   Lord Morris in his memorable speech in H. West and Sons,  pointed  out
this aspect in the following words:


      "Money may be awarded so that something tangible may  be  procured  to
      replace of like nature which has been  destroyed  or  lost.  But,  the
      money cannot renew  a  physical  frame  that  has  been  battered  and
      shattered. All the Judges and Courts can do is  to  award  sums  which
      must be regarded as giving reasonable  compensation.  In  the  process
      there must be the endeavour to secure some uniformity in  the  general
      method of approach. By common assent awards  must  be  reasonable  and
      must be assessed  with  moderation.  Further,  more  it  is  eminently
      desirable that so far  as  possible  comparative  injuries  should  be
      compensated by comparable awards."






19.   In Ward v. James[5], speaking for the  Court  of  Appeal  in  England,
Lord Denning laid  down  three  basic  principles  while  dealing  with  the
question of awarding compensation for personal injury:


      "Firstly, assessability: In cases of grave injury, where the  body  is
      wrecked or brain destroyed, it is very  difficult  to  assess  a  fair
      compensation in money, so difficult that the award must basically be a
      conventional  figure,  derived  from  experience  or  from  awards  in
      comparable cases. Secondly, uniformity: There should be  some  measure
      of uniformity in awards so that similar  decisions  may  be  given  in
      similar cases, otherwise, there will be great dissatisfaction  in  the
      community  and  much  criticism  of  the  administration  of  justice.
      Thirdly, predictability: Parties should be able to predict  with  some
      measure of accuracy the sum  which  is  likely  to  be  awarded  in  a
      particular case, for by this means cases can be settled peaceably  and
      not brought to Court, a thing very much to the public good.


       In deciding on the quantum of damages to be paid to a person for  the
      personal injury suffered by him, the Court is bound to  ascertain  all
      considerations which will make good to the sufferer of  the  injuries,
      as far as money can do, the loss which he has suffered as.  a  natural
      consequence of the wrong done to him.”






20.   Further, a Division Bench of Karnataka  High  Court  in  Basavaraj  v.
Shekar[6], has held as under:


      "If the original position cannot be restored - as indeed  in  personal
      injury or fatal accident cases it cannot obviously be - the  law  must
      endeavour to give a fair equivalent in money, so far as money  can  be
      an equivalent and so 'make good' the damage.


      Therefore, the general principle which should govern the assessment of
      damages in personal injury cases is that the  Court  should  award  to
      injured person such a sum of  money  as  will  put  him  in  the  same
      position as he would  have  been  in  if  he  had  not  sustained  the
      injuries. But, it is manifest that no  award  of  money  can  possibly
      compensate an injured man and renew a shattered human frame.”


                                   (Emphasis laid by the Court)


21.   Lord Morris of Borth-y-Gest in Parry v. Cleaver[7], has said:


      "To compensate in money for pain  and  for  physical  consequences  is
      invariably difficult but. . . no other process  can  be  devised  than
      that of making a monetary assessment".


                                   (Emphasis laid by the Court)






22.   The necessity that  the  damages  should  be  full  and  adequate  was
stressed by the Court of Queen's Bench in Fair v. London and  North  Western
Railway Company[8]. In Rushton v. National  Coal  Board[9],  Singleton  L.J.
has said that:


      “When damages have to be assessed in a case of  this  kind  there  are
      many elements for consideration: the pain and suffering undergone  and
      that which may occur in the future; the loss of  some of the amenities
      of life; the fact that a man with an injury of this kind  will  always
      require some measure of help, even though  he  may  be  able  to  earn
      considerable money. These are some of the matters  which  have  to  be
      taken into consideration, and another is the fact  that  his  earnings
      will probably be less than they were before.”


                                                (Emphasis laid by the Court)






23.   In Fowler v. Grace[10], Edmund Davies, L.J., has said that :


      “It is the manifest duty of the Tribunal to give as perfect a  sum  as
      was within its power'. There are many losses which  cannot  easily  be
      expressed in terms of money. If a person, in an  accident,  loses  his
      sight,  hearing  or  smelling  faculty  or  a  limb,  value  of   such
      deprivation cannot be assessed in terms of market value because  there
      is no market value for the personal asset which has been lost  in  the
      accident, and there is no easy way of  expressing  its  equivalent  in
      terms of money. Nevertheless a valuation in terms  of  money  must  be
      made, because, otherwise, the law would be sterile  and  not  able  to
      give  any  remedy  at  all.  Although  accuracy  and  certainty   were
      frequently unobtainable, a fair  assessment  must  be  made.  Although
      undoubtedly there are  difficulties  and  uncertainties  in  assessing
      damages in personal injury cases, that fact  should  not  preclude  an
      assessment as best as can, in the circumstances be made.”


                                  (Emphasis laid by the Court)






24.   In re the Mediana[11], the plaintiffs were  deprived  of  the  use  of
their own lightship, but sustained no pecuniary loss  as  another  lightship
was kept in reserve. Yet, it was held that the plaintiffs were  entitled  to
substantial damages for the loss of the use of their ship for a period,  and
Lord Halsbury L.C. answered the objection that assessment was too  uncertain
by observing that:


           "Of course the whole region of inquiry into damages  is  one  of
      extreme difficulty. You very often cannot even lay down any  principle
      upon which you can give damages; nevertheless, it is remitted  to  the
      jury, or those who stand in  place  of  the  jury,  to  consider  what
      compensation in money shall be given for what is a wrongful act.  Take
      the most familiar and ordinary case: how is anybody  to  measure  pain
      and suffering in moneys counted? Nobody can suggest that  you  can  by
      any arithmetical calculation establish what is  the  exact  amount  of
      money which would represent such a thing as  the  pain  and  suffering
      which a person has  undergone  by  reason  of  an  accident  ...  But,
      nevertheless, the law recognises that as a topic  upon  which  damages
      may be given.


           In personal injury cases, the Court is  constantly  required  to
      form an estimate of chances and risks which cannot be determined  with
      precision. It is because, the law will disregard  possibilities  which
      are  slight  or  chances  which  are  nebulous;  otherwise,  all   the
      circumstances of the situation must be  taken  into  account,  whether
      they relate to the future which the plaintiff would  have  enjoyed  if
      the accident had not happened, or to the future of  his  injuries  and
      his earning power after the accident. Damages are compensation for  an
      injury or loss, that is to say, the full equivalent of money so far as
      the nature of money admits; and difficulty  or  uncertainty  does  not
      prevent an assessment.”


                                  (Emphasis laid by the Court)






25.   It  is  well-settled  principle  that  in  granting  compensation  for
personal injury, the  injured  has  to  be  compensated  (1)  for  pain  and
suffering; (2) for loss of amenities; (3) shortened expectation of life,  if
any; (4) loss of earnings or loss of earning capacity or in some  cases  for
both; and (5) medical treatment  and  other  special  damages.  In  personal
injury cases the two main elements  are  the  personal  loss  and  pecuniary
loss. Chief Justice Cockburn in Fair's case, supra, distinguished the  above
two aspects thus:


      "In assessing the compensation the jury should take into  account  two
      things, first, the  pecuniary  loss  the  plaintiff  sustains  by  the
      accident : secondly, the injury he sustains  in  his  person,  or  his
      physical  capacity  of  enjoying  life.  When   they   come   to   the
      consideration of the pecuniary loss they have to take into account not
      only his present loss, but his incapacity to earn  a  future  improved
      income".






26.   McGregor on Damages (14th Edition) at paragraph no.   1157,  referring
to the heads of damages in personal injury actions, states as under:


           "The  person  physically  injured  may  recover  both  for   his
      pecuniary losses and his non-pecuniary losses. Of these the  pecuniary
      losses themselves comprise two  separate  items,  viz.,  the  loss  of
      earnings and other gains which the plaintiff would have  made  had  he
      not been injured and the medical and other expenses to which he is put
      as a result of the injury, and the Courts have  sub-divided  the  non-
      pecuniary losses into three categories, viz., pain and suffering, loss
      of amenities of life and loss of expectation of life".


           Besides, the Court is well-advised to remember that the measures
      of damages in all these cases 'should be such as to enable even a tort
      feasor to say that he had amply  atoned  for  his  misadventure'.  The
      observation of Lord Devlin that the proper approach to the problem  or
      to adopt a test as to what contemporary society would  deem  to  be  a
      fair sum, such as would allow the wrongdoer to 'hold up his head among
      his neighbours and say with their approval that he has done  the  fair
      thing', is quite apposite to be kept in mind by the Court in assessing
      compensation in personal injury cases.”


                                                (Emphasis laid by the Court)






27.   In R. Venkatesh  v.  P.  Saravanan  &  Ors.[12],  the  High  Court  of
Karnataka while dealing with a personal injury  case  wherein  the  claimant
sustained certain crushing injuries due to which his  left  lower  limb  was
amputated, held that in  terms  of  functional  disability,  the  disability
sustained by the claimant is total and 100% though only the claimant's  left
lower limb was amputated. In paragraph 9 of the judgment, the Court held  as
under:


      "9. As a result of the amputation, the claimant had  been  rendered  a
      cripple. He requires the help of crutches even  for  walking.  He  has
      become unfit for any kind of manual work. As he was earlier  a  loader
      doing manual work, the amputation of his  left  leg  below  knee,  has
      rendered him unfit for any kind of manual work. He has  no  education.
      In such cases, it is well-settled that  the  economic  and  functional
      disability will have to be treated as total, even though the  physical
      disability is not 100 per cent".






28.   Lord Reid in Baker v. Willoughby[13], has said:


           "A man is  not  compensated  for  the  physical  injury;  he  is
      compensated for the loss which he suffers as a result of that  injury.
      His loss is not in having a stiff leg; it is in his inability to  lead
      a full life, his inability to enjoy those amenities  which  depend  on
      freedom of movement and his inability to earn as much as  he  used  to
      earn or could have earned…. ."






29.   The aforesaid principles laid down by this Court, Appeal Cases,  House
of Lords and leading authors and experts referred to supra,  whose  opinions
have been extracted above, with  all  fours,  are  applicable  to  the  fact
situation for awarding just and reasonable compensation  in  favour  of  the
appellant as she had sustained grievous  injuries  on  her  face  and  other
parts of the  body  which  is  assessed  at  30%  permanent  disablement  by
competent doctors.


30.   The finding of fact is recorded by the Tribunal  on  the  question  of
the accident caused on account of rash and negligent driving on the part  of
offending truck driver on 17.8.2001, the date of the accident on account  of
which  the  appellant  herein  has  sustained  grievous  injuries  and   has
undergone trauma and mental agony for over a period of four years.  She  had
also gone through a number of surgeries  on  account  of  this  accident  in
which her face has been disfigured.  With regard to the nature  of  injuries
sustained by her, the District Medical Board of  Sambalpur,  represented  by
the Chief Medical Officer has issued disability certificate certifying  that
the appellant has suffered disability to the  extent  of  30%.  The  finding
recorded by the Tribunal on this important aspect of the case on  the  basis
of legal evidence is not challenged either by the owner of the truck  or  by
the Insurance Company and it could not have challenged the  finding  without
obtaining the permission as required  under  Section  170(b)  of  the  Motor
Vehicles Act to avail the defence of the insured to contest the case as  has
been held by a three judge bench of this  Court  in  the  case  of  National
Insurance  Co.  Ltd.  vs.  Nicolletta  Rohtagi  &  Ors.[14]   The   relevant
paragraphs read as under:

    “15. It is relevant to note that Parliament, while enacting sub-section
    (2) of Section 149 only specified some of the defences which are  based
    on conditions of  the  policy  and,  therefore,  any  other  breach  of
    conditions of the policy by the insured which does not  find  place  in
    sub-section (2) of Section 149 cannot be taken  as  a  defence  by  the
    insurer. If Parliament had intended to  include  the  breach  of  other
    conditions of the policy as a defence, it could  have  easily  provided
    any breach of conditions of insurance  policy  in  sub-section  (2)  of
    Section 149. If we permit the insurer to take any other  defence  other
    than those specified in sub-section (2) of Section 149, it  would  mean
    we are adding more defences to the insurer  in  the  statute  which  is
    neither found in the Act nor was intended to be included.
    16. For the aforesaid reasons, we are of the view  that  the  statutory
    defences which are available to the insurer  to  contest  a  claim  are
    confined to what are provided in sub-section (2) of Section 149 of  the
    1988 Act and not more and for that reason if an insurer is to  file  an
    appeal, the challenge  in  the  appeal  would  confine  to  only  those
    grounds.”





The said finding of fact has attained the finality and the compensation  has
been awarded by the Tribunal and  affirmed  by  the  High  Court.  The  only
aspect which was required to be examined by the High Court  in  the  appeals
filed both by the respondent Insurance Company as well as by  the  appellant
was that the quantum of compensation required to be awarded  in  her  favour
under the different heads of non-pecuniary damages  as  per  the  principles
laid down by this Court,  House  of  Lords,  Queens  Bench  and  Authors  in
various judgments and extracts from various texts  and  books  respectively,
referred to supra.


31.   Both the Tribunal as well as the High Court have  gravely  erred  both
on facts and in law in not evaluating the legal evidence on record to  award
just and reasonable compensation in favour of the appellant keeping in  view
the fact that the appellant was a good actress, model and has acted in  many
films, albums, T.V. serials etc. This evidence is not challenged though  the
appellant was cross examined by the counsel  for  the  respondent  Insurance
Company extensively without obtaining the permission from  the  Tribunal  as
required under Section 170(b) to contest in the proceeding. In  the  absence
of such permission,  the  Insurance  Company  has  got  limited  defence  as
provided under section 149(2) of the Motor Vehicles Act, which provides  for
the conditions which determines breach of the terms and  conditions  of  the
insurance policy.  The Tribunal did not  apply  the  legal  principles  laid
down by this Court to award just and reasonable  compensation  by  following
various guiding factors and legal principles under  the  heading  of  future
loss of earnings. It has also not awarded compensation under  the  following
heads namely (1)damages for mental and physical shock,  pain  and  suffering
already undergone by the appellant or she is likely to  undergo  in  future,
(2) damages for loss of amenities of life on account of injury due to  which
the appellant is unable to act in the films and (3) damages for the loss  of
expectations of life, inconvenience, hardship,  discomfort,  disappointment,
frustration and mental  stress  in  life.  The  said  principles  have  been
recognized by this Court time and again in  catena  of  cases  reference  to
which are not required to be mentioned again as  we  have  referred  to  the
same in the preceeding paragraphs of this judgment.


32.   Since under the head of non pecuniary damages  the  Tribunal  did  not
award reasonable compensation, the  appellant  has  rightly  approached  the
High Court by filing MACA No.846 of 2007. The said appeal  was  heard  along
with MACA No. 580 of 2007 filed by the respondent  Insurance  Company  which
has affirmed the compensation awarded under  the  non-pecuniary  damages  by
the Tribunal in  the  impugned  judgment  passed  in  the  said  appeal  for
enhancement of compensation under the aforesaid heads.  Without  considering
the legal grounds urged in the appeal filed by the appellant, it has  simply
dismissed the appeal of the  appellant  for  the  reasons  recorded  in  the
judgment passed in the appeal of the Insurance  Company.  The  dismissal  of
the appeal of the appellant in view of the order passed in  MACA  No.580  of
2007  without  assigning  any   reason   whatsoever   for   enhancement   of
compensation is arbitrary and  unreasonable.  Therefore,  the  appellant  is
justified in challenging the said order in these  appeals.   It  is  in  the
evidence of the appellant that at the  time  of  accident  her  age  was  24
years, which is not disputed by the respondents.


33.   It is also in her evidence that she was an actress who acted  in  T.V.
serial titled ‘Swara Sudha’, which was an album directed by Harish  Mohanty.
 She also acted in the motion picture in Oriya titled ‘Ma Pari  Kiye  Haba’.
She  was  the  lead  actress  in  this  picture.  By  Cane   Critics   Award
Organisation, she was adjudged as the  ‘Best  Actress’  and  the  ‘Best  New
Comer Artist’ in that film and she also performed in the lead  role  in  the
Oriya Feature Film ‘Dharma Debata’ directed by Bijaya  Bhaskar  Reddy.   She
also acted  in  Malayalam  Feature  film  named  ‘Paith  Thingel  Kalam’  as
heroine, which was directed by Jaya Krishna.  She has further stated in  her
evidence that she has signed for the feature film in Oriya ‘Pua Bada  Jagata
Jita’ and another feature film in Oriya ‘Pua Bhangidela Suna  Sanbar’.   But
she could not act in those films due  to  the  accident.   Further  she  has
stated that she was in the lead role  in  the  two  completed  T.V.  serials
‘Atrupta Atma’ and ‘Akhabuluthile Chakabuluthaa’.  She was an artist in  the
Oriya Albums ‘Jhankar’ and ‘Mahake Rajni  Gandha’.    She  had  also  signed
Hindi T.V. Serial ‘Silla Padma’ by Dr. Pravita Roy as heroine but could  not
perform in the serial due to the accident.  She has acted  in  advertisement
films for products like Coca Cola, Saree and Saree house etc.  She had  also
performed in Oriya  Cassette  namely  ‘Mu  Kendrapada  Jhia’  which  was  an
audiocassette.


34.   Further, she has stated in her evidence that at the time  of  accident
she had completed her graduation in Commerce from  G.M.  College,  Sambalpur
and she was pursuing her studies  for  her  post  graduate  degree  in  that
College.  Prior to her admission to P.G. Class, she had  done  P.G.  Diploma
course in Hotel Management  from  the  Institute  of  Hotel  Management  and
Catering  Technology,  Bhubaneswar.  She  has  further  stated  that   while
pursuing her studies she was performing in  the  films  referred  to  supra.
She has further stated  that  after  the  accident,  her  physical  fitness,
physical appearance and her zeal to perform in films have  been  reduced  to
zero. The vital statistics required of her  for  modeling  has  also  become
disproportionate after the accident. She has categorically stated  that  she
became permanently handicapped and disabled. She has also stated that  prior
to the accident she was lean and thin. But due to continued treatment  after
accident, she gained 4 to 5 k.gs. The  aforesaid  positive  and  substantive
legal evidence remained unshaken in the cross examination of  the  appellant
– PW-3 by the counsel of the respondent Insurance  Company,  though  he  was
not entitled to cross examine all these aspects since the  Company  did  not
obtain  the  permission  from  the  Tribunal.  Nonetheless,  permission  was
granted by the Tribunal to cross  examine  the  appellant-PW3.  Despite  her
cross examination by the counsel, the aforesaid important  facts  could  not
be shaken and the same remained unchallenged and undisturbed.


35.   The registered owner of the car in which she  was  traveling  belonged
to her mother. The truck dashed against her car at the driver’s  seat  which
was occupied by the appellant.  The Tribunal has not accepted  the  case  of
the Insurance Company that the appellant was driving the car negligently.


36.   In the cross examination of the  appellant  –  PW-3  except  eliciting
answer that there is no written contract for playing the  role  of  modeling
for the Ponds Products for 3 years  so  also  for  acting  in  Albums,  T.V.
serials or films, the fact remained that even  in  the  absence  of  written
contracts, the fact that she has been acting as an actress in the  aforesaid
films  is  proved  since  the  said  portion  of   the   evidence   remained
unchallenged.  The case pleaded by the appellant that she  has  been  acting
in films, T.V. serials, modeling and participating in the award  competition
is established by pleadings and evidence on record.  There  is  no  rebuttal
evidence adduced in this regard by either the insured or  by  the  Insurance
Company.


37.   The finding of fact recorded by the  Tribunal  stating  that  she  has
been acting as an  actress  has  been  re-affirmed  by  the  High  Court  by
affirming the  award  of  compensation  under  the  various  heads  of  non-
pecuniary damages.  Despite the cogent and substantive evidence  adduced  on
record by the appellant before the Tribunal, neither  has  it  awarded  just
and reasonable compensation nor the High Court  has  enhanced  the  same  in
exercise of its appellate jurisdiction by re-appreciating the pleadings  and
evidence on record.


38.   For a film actress, the physical appearance  particularly  the  facial
features are very important to act in the films and in  T.V.  serials.    It
is in her evidence that on account of the accident her face was  disfigured,
she has put on weight and has become fat and  therefore  she  is  unable  to
perform the role as an actress in films in  future.  Having  regard  to  the
nature of vocation she has been carrying on and wishes to carry on  with  in
future, the opportunity is lost on  account  of  the  disfigurement  of  her
face, to act in the films as an actress either as a heroine  or  actress  in
supporting role or any other role to be played in T.V. serials,  albums  and
also as a model.  It is in the evidence of the appellant  that  as  per  the
District Medical Board  of  Sambalpur,  her  permanent  disability  is  30%.
Having regard to the nature of injuries and observations made by this  Court
and Karnataka High Court in the cases referred to supra, we have  to  record
a finding of fact  that  the  appellant’s  permanent  disability  should  be
treated as 100% functional disablement as she cannot act in  the  films  and
in T.V. serials in future at all. Therefore, on  account  of  the  aforesaid
reasons, she has suffered functional  disability.  In  this  regard,  it  is
relevant to refer to the judgment of this Court  in  the  case  of  National
Insurance Company Ltd. V. Mubasir Ahmed[15]. This Court has held  that  loss
of  earning  capacity  is  not  a  substitute  for  percentage  of  physical
disablement.  It is simply one of the factors taken into  account  to  award
just and reasonable compensation.  Even though the claimant does not  suffer
from 100% physical permanent disability, he  suffers  from  100%  functional
disability if he loses the capacity to pursue his work as a  result  of  the
accident. It is worthwhile to extract paragraph no.  8  from  the  aforesaid
judgment which reads as under:



      “8. Loss of earning capacity  is,  therefore,  not  a  substitute  for
      percentage of the physical disablement. It is one of the factors taken
      into account. In the instant case the doctor who examined the claimant
      also noted about the  functional  disablement.  In  other  words,  the
      doctor had taken note of the relevant  factors  relating  to  loss  of
      earning capacity. Without indicating any  reason  or  basis  the  High
      Court held that there was 100% loss of earning capacity.”




39.  In Palraj v. North East Karnataka Road Transport Corpn.[16], where  the
appellant was a driver, this Court held  that  although  the  appellant  has
lost the use of his legs, the same amounts to total disablement  as  far  as
driving a vehicle is concerned.

40. In Nizam’s Institute of Medical Sciences v. Prasanath  S.  Dhananka[17],
this Court has observed as under:


      “88. We must emphasise that the court has to strike a balance  between
      the inflated and unreasonable demands of  a  victim  and  the  equally
      untenable claim of the opposite party saying that nothing is  payable.
      Sympathy for the victim does not, and should not, come in the  way  of
      making a correct assessment, but if a case is made out, the court must
      not  be  chary  of  awarding  adequate  compensation.  The   “adequate
      compensation” that we speak of, must to some  extent,  be  a  rule  of
      thumb measure, and as  a  balance  has  to  be  struck,  it  would  be
      difficult to satisfy all the parties concerned.


      …….       ….                 …..


      90. At the same time we  often  find  that  a  person  injured  in  an
      accident leaves his family in greater distress vis-à-vis a family in a
      case of death. In the latter case, the initial shock gives  way  to  a
      feeling of resignation and acceptance, and in time, compels the family
      to move on. The case of an injured and disabled  person  is,  however,
      more pitiable and the feeling of hurt, helplessness, despair and often
      destitution enures every day. The support that is needed by a severely
      handicapped person comes at an enormous price, physical, financial and
      emotional, not only on the victim but even more so on his  family  and
      attendants and  the  stress  saps  their  energy  and  destroys  their
      equanimity.
                                                         (emphasis supplied)


      91. We can also visualise the  anxiety  of  the  complainant  and  his
      parents for the future after the latter, as must all of us, inevitably
      fade away. We, have, therefore computed the  compensation  keeping  in
      mind that his brilliant career has been cut short and there is, as  of
      now, no possibility of improvement in his condition, the  compensation
      will ensure a steady and reasonable income to him for a time  when  he
      is unable to earn for himself.”





41.   In this regard, in Baker’s case supra, it  has  been  stated  by  Lord
Reid that  a  man  is  not  compensated  for  the  physical  injury;  he  is
compensated for the loss which he  suffers  as  a  result  of  that  injury.
Therefore, the functional disability is  a  forceful  alteration  of  career
option of the appellant  who  has  already  undergone  physical  and  mental
injuries because of the accident.  It would amount  to  adding  distress  to
injury if one is forced to work with difficulty to earn  his/her  livelihood
so as to reduce the burden of the wrongdoer in terms of compensation.




42.   In view of the aforesaid decisions of this Court  and  various  courts
and High Court of Karnataka and  authors  referred  to  supra,  we  have  to
record the finding of fact having regard to the nature of grievous  injuries
and her disfigured face and that she was acting as an actress in the  films,
T.V. serials, etc.  her  functional  disablement  is  100%.   This  relevant
aspect of the matter has been conveniently omitted to be considered both  by
the Tribunal as well as by the High  Court  while  determining  compensation
under various heads of non-pecuniary damages.  For  the  foregoing  reasons,
we are of the view that under the different heads of  non-pecuniary  damages
she is entitled to higher compensation in her appeal. For that  purpose,  we
are required to consider her annual income for the  purpose  of  computation
of just and reasonable compensation under the aforesaid different  heads  of
non-pecuniary damages. It is in her evidence that her  income  depends  upon
the project. She got 30,000/- for her first film “Maa Pari Kiye   Haba”  and
Rs.75,000/- for Malayalam film ‘Paith Digem Alam’.  For her  performance  in
a serial, she used to get within Rs.7000/- to 10,000/-.   She  had  received
Rs.50,000/- for winning the “Ponds Women of  Tomorrow”  Contest.   The  said
evidence remains unchallenged in the cross examination by  the  counsel  for
the  respondent  Insurance  Company.  Having   regard   to   her   age   and
qualification and that she was acting in various Oriya and Malayalam  films,
T.V. serials and that she was in the beginning stage of  her  acting  career
and having regard to the fact that she  has  acted  in  various  films,  she
would have definitely had a very good chance for acting  in  future  if  she
had not suffered the  grievous  injuries,  facial  disfigurement  and  other
injuries on account of the accident. She has also  stated  in  her  evidence
that she is an assessee for income  tax.  She  has  got  PAN  card  and  has
produced the same.  Having regard to the aforesaid legal evidence on  record
and in the absence of documentary  evidence  to  show  her  probable  annual
income, it would be proper for  this  Court  to  take  her  probable  annual
income as Rs.5,00,000/- for the purpose of computation of  her  future  loss
of earning.  We have already held that  though  the  disability  certificate
speaks of her disability at 30% on account of disfigurement of the face  and
other injuries to her body, her physical fitness is completely changed,  she
has put on weight 4 to 5 kgs., she is not fit to act and  no  film  producer
will offer her roles in their films to act as an actress.  Having regard  to
the nature of the vocation, we have to hold that she is suffering from  100%
functional disability. In the light of the facts of this  case  and  keeping
in view the aforesaid evidence on record that she  is  a  film  actress  and
also taking into consideration that in the film world of  this  country  the
heroine will certainly get the substantial sum for  acting  in  films,  T.V.
serials, modeling, it would be just and proper for us to take   50%  of  her
annual income for the purpose of computation of her future  loss  of  income
keeping in view that throughout her life she may not be  in  a  position  to
act in the films, albums and modeling. Her  annual  income  is  assessed  at
Rs.5,00,000/-. 50% of which is Rs.2,50,000/- per annum which  is  multiplied
by 17 as the proper multiplier considering her age at the time  of  accident
by applying the legal principle laid down by this Court  in  Sarla  Verma  &
Ors. v. Delhi Transport Corp. & Anr.[18],  which amounts to  Rs.42,50,000/-.
Hence, we award Rs.42,50,000/- compensation under the  aforesaid  head.  The
Tribunal awarded only Rs.2,00,000/-  which  is  enhanced  to  Rs.42,50,000/-
under the said head.
43.   The Tribunal awarded compensation of Rs.2,00,000/-  for  the  loss  of
amenities, pleasure of life and her inability to attend social functions  in
future,   which  is  inadequate,  therefore,  it  should  be   enhanced   to
Rs.10,00,000/-.

44. Towards the pain and suffering, the Tribunal awarded  Rs.1,00,000/-.  It
should be proper to  award  another   Rs.9,00,000/-  as  she  has  undergone
ordeal for the period of 4 years continuously  taking  treatment  in  Odisha
and Kerala States and the damages for mental and physical  shock,  pain  and
suffering, disfigurement of the face and other bodily injuries  she  already
suffered continuously or likely to suffer.
45. The Tribunal awarded Rs.17,15,726/- towards the medical  expenses  based
on the legal evidence and, therefore we affirm the compensation  awarded  by
the Tribunal.
46. Thus, the  total  compensation  amounting  to  Rs.79,65,726/-  which  is
rounded of to Rs. 79,66,000/-along with interest  at  the  rate  of  6%  per
annum is awarded from the date of application till the date  of  deposit  of
the amount. The aforesaid enhancement of compensation under different  heads
referred to supra, in our considered  view  would  be  just  and  reasonable
compensation in this case.
47. Before parting with the judgment, it would be  just  and  necessary  for
this Court to make observation that the  Motor  Accidents  Claims  Tribunals
and the Appellate Courts should keep in view the  rights  of  the  claimants
under the provisions of the M.V. Act to determine  the  compensation  claims
of the claimants by considering  the  facts  of  each  case  and  the  legal
position laid down by this Court on relevant aspects.

49.   Accordingly, the appeals of the appellant are  allowed  in  the  above
said terms. We set aside the impugned judgment, award and orders  passed  by
the High Court. The respondent Insurance Company is directed to deposit  70%
of the awarded compensation  along  with  proportionate  interest  with  any
Nationalized Bank of the choice of the appellant in fixed  deposit  and  the
remaining 30% with proportionate interest, after  deducting  any  amount  if
already paid by the respondent as  awarded  by  the  High  Court  should  be
disbursed to the appellant within six weeks on proper identification.  There
will be no order as to costs.








                                       …………………………………………………………J.
                                            [G.S. SINGHVI]





                                   …………………………………………………………J.
                                            [V. GOPALA GOWDA]


New Delhi,
August 1, 2013.






ITEM NO.1B               COURT NO.2             SECTION XIA
(For Judgment)

            S U P R E M E   C O U R T   O F   I N D I A
                         RECORD OF PROCEEDINGS
                 CIVIL APPEAL NO(s). 5370-5372 OF 2013


REKHA JAIN                                        Appellant (s)

                 VERSUS

NATIOANL INSURANCE CO.LTD. & ORS.                 Respondent(s)


Date: 01/08/2013  These Appeals were called on for Judgment today.


For Appellant(s)     Mr. Sibo Sankar Mishra, Adv.


For Respondent(s)    Ms. Shalu Sharma, Adv.



            Hon’ble Mr.Justice V.Gopala Gowda  pronounced  the  judgment  of
the Bench comprising Hon’ble Mr.Justice G.S.Singhvi and His Lordship.
            The appeals are allowed in terms of the signed judgment.


    (Satish K.Yadav)                               (Phoolan Wati Arora)
      Court Master                                      Court Master
                          (Signed reportable judgment is placed on the
file)
-----------------------
[1]     ILR 2004 Karnataka 2471
[2]     1995 (1) SCC 551
[3]    (1922)2 A.C. 242 at p. 248
[4]    1880 5 App. Cas. 25 at p. 39
[5]    1966 1 Q.B. 273 at pp. 299-300
[6]     ILR 1987 Kar. 1399
[7]    [1970] 1 AC 1 at p. 22
[8]    21 L.T. (N.S.) 326 (1869)
[9]    1953 1 QB 495 at p. 499
[10]   (1970) 114 Sol. Jo.193

[11]   [1900] AC  113 at p. 116
[12]    2001(1)  Kar. L.J. 411
[13]   (1969) 3 All ER 1528 at p. 1532
[14]   (2002) 7 SCC 456
[15]   2007 (2) SCC 349
[16]   2010 (10) SCC 347
[17]    2009 (6) SCC 1
[18]   2009 (6) SCC 121

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