NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5945 OF 2012
(Arising out of SLP (C) No. 7396 of 2011)
Kavita … Appellant
versus
Deepak and Others … Respondents
J U D G M E N T
G. S. Singhvi, J.
1. Leave granted.
2. Feeling dissatisfied with the enhancement granted by the High Court
in the amount of compensation awarded by the Motor Accident Claims Tribunal
(for short, ‘the Tribunal’), the appellant has preferred this appeal.
3. In an accident, which occurred on 2.5.2004, the appellant suffered
grievous injuries. She was initially treated at Government hospital, Ratlam
and then at Bhandari Hospital, Indore. On 4.5.2004, she was admitted in CHL
Apollo Hospital. She remained in Intensive Care Unit from 4.5.2004 to
25.5.2004 and in the private ward from 25.5.2004 to 26.6.2004. As per the
medical advice given at Indore she was taken to Mumbai, Chennai and finally
to Delhi for treatment. At the time of accident, the appellant’s age was
about 30 years and she was working partner in Tirupati Enterprises.
4. At Bhandari Hospital, Indore she was treated by Dr. Rajesh Gangwani,
Dr. Srikant Rege, Dr. Parag Aggarwal and Dr. Sunil Athwale. At Bombay, she
was treated by Dr. B. S. Singhal, Dr. Bhagwati, Dr. K. K. Garg, Dr. Anukant
Mittal, Dr. Khandilkar, Dr. Kenny and Dr. Bhatt. The Disability
Certificate issued by Dr. Sunil Athwale, who was Neuro Physician at
Bhandari Hospital, Indore reads as under:
“DISABILITY CERTIFICATE
This is to certify that Smt. Kavita Singhal w/o Mr. Deepak Singhal R/o
100 old agrawal nagar indore aged 31 yrs met with an RTA on 02-05-2004
mid night on Ratlam - Indore State Highway Road.
She was taken to Indore On ICU on wheels & was given artificial 02 on
the way which was 135 KM. We reached Indore nearly at 7.30 AM. and was
admitted in Bhandari hospital. During transit fluid lesusitation was
done & heamodyriameis was maintained. (1.5 Its I/v & I unit blood was
given). CT scan was done nearly after 10 hrs. of injury. Onwards she
is under my treatment and the patient is experienced as below:
First MR Study of the brain (on 1.5 T ) and the report of the same
reveals:
FINDINGS:-
Multiple DWI TI FLAIR & T2 hyperintense signals are noted in left
basal ganglia, right frontal periventricular white matter, left
thalamus & right basi frontal region with areas of magnetic
susceptibility in it suggesting haemorrhage.
T2 FLAIR hyperintense signals are noted diffusely in corpus callosum,
cinglate gyrus and periventricular white matter
(frontoperietal suggestive of diffuse axonal injury).
Second MR of brain has done and the report of the same reveals:
FINDINGS:- O1d MRI Scan of brain dated 22/05/04 compared and following
changes noted:
Follow up scan reveals that complete resolution of the posterior inter
hemispheric sub dural collection noted in left occipito parital
region. Old haemorrhagic products - noted in the left basal ganglia,
left anterior thalamus, right frontal periventricular white matter and
right basi frontal region (mild decrease in size as compared to old
study especially in right basal ganglia). Diffuse axonal injury noted
in corpus callosum, cingulated gyrus 85 periventricular white matter
noted (mild decrease as compared to old study)
She was discharged from CHL on 26/06/2004 in a vegetative stage, with
a RT for feeding. That time she was unable to communicate in, any way.
She was undergoing extensive Physiotheraphy there and was advised the
same to continue.
PRESENT STATUS:
* The patient follows elementary simple commands but with no
other Communication, Verbal or Sign Language.
* Patient has marked Spastic Quadra paresis, despite anti
spastic drugs.
* Patient is incontinent.
* Disability assessed around 90 %.”
5. The appellant filed a petition through her husband - Shri Deepak
Singhal under Section 166 of the Motor Vehicles Act, 1988 (for short, ‘the
Act’) for award of compensation to the tune of Rs.85 lakhs by alleging that
the accident was caused due to rash and negligent driving of the truck
owned by respondent No.1 and driven by respondent No.2. She alleged that
the truck dashed against the Maruti Esteem car in which she was travelling
and as a result of the accident she suffered injuries to her head, mouth,
right ear and other parts of the body and consequentially she has become
disabled from doing her routine work.
6. In the written statement filed on behalf of the insurance company, it
was pleaded that the accident was not caused due to rash and negligent
driving of the truck and that the driver was not holding a valid and
effective driving licence on the date of accident.
7. The driver of the truck was prosecuted for offences under Sections
279, 337 and 338 IPC. During the trial, he made confession that the
accident was caused due to his rash and negligent driving. The trial Court
convicted the driver and imposed a fine of Rs.2,000/- and in default to
undergo three months imprisonment.
8. After recording evidence of the parties, the Tribunal passed award
dated 5.1.2007 and ordained the respondents to pay total compensation of
Rs.4 lakh with interest at the rate of 6% per annum. The Tribunal relied
upon the statements of the appellant’s husband – Shri Deepak Singhal, Shri
Pushpender Garg, who was driving the Car and two other occupants, namely,
Prashant Agarwal and Renu, the Charge Sheet filed in the criminal case, the
confession of the driver and the judgment of the trial Court and concluded
that the accident took place due to rash and negligent driving of the
truck. The Tribunal then considered the issue relating to quantam of
compensation, referred to oral and documentary evidence and concluded that
it would be just to award Rs.2,50,000/- under the head of treatment,
Rs.1,25,000/- under the head of permanent disability and Rs.25,000/- under
the head of pain and suffering.
9. The appellant challenged the award of the Tribunal in Miscellaneous
Appeal No.870 of 2007. During the pendency of the appeal, she filed IA
No.180/2010 under Order 41 Rule 27 for bringing on record the bills to show
that she had spent Rs.5,94,013/- on treatment and as on the date of filing
the application, Rs.7,76,480/- had been spent on treatment.
10. The learned Single Judge of the Madhya Pradesh High Court partly
allowed the appeal and enhanced the compensation by a sum of Rs.12,76,480/-
with interest at the rate of 7.5% on the enhanced amount payable from the
date of the claim petition till realization. The reasons assigned by the
High Court for enhancement of the compensation are contained in paragraph 6
of the impugned judgment which is extracted below:
“6.After having heard learned counsel for the parties, under the
directions of the Court counsel appearing on behalf of the parties
were directed to verify the bills which are available till decision by
the claims Tribunal. Admittedly, those bill are of Rs.7,76,480/-. I
have also perused the bills, after verification in the opinion of this
Court the Tribunal has refused to grant the Bills of Rs.5,26,480/-,
without any reason. However, in the opinion of this Court such amount
deserves to be allowed in the head of medical expenses in addition to
the amount awarded by the Tribunal. In the opinion of this Court in
the head of pain and suffering Rs.25,000/- as awarded is also
inadequate; I further add Rs.25,000/- in the said head, looking to her
position. In the heads of attendant, future medical expenses in my
opinion Rs.2,00,000/- in each of the heads deserves to be granted,
because the appellant is required an attendant for whole life. Some of
the bills of physiotherapy has been produced along with application
under Order 41 Rule 27 of CPC. After going through those bill I am not
satisfied that such bills should be awarded at this stage, because it
is in sequence. In some of the bills there is overwriting on the
dates. In some of the bills there is signature of Sangita, but in
other bills there is thumb impression. Thus I am not allowing the
bills of under 41 Rule 27 of CPC as filed before this Court, but at
the same time during pendency of this appeal some medical expenses
would have been made, therefore, in the said head Rs.50,000/- is being
awarded. In the head of future loss of earning due to the said
permanent disability in the opinion of this Court a lump sum amount
deserves to be granted, because the Income Tax papers of the firm are
available on record and she was the partner in the said firm. Business
is being carried out by other partners who are family members.
Therefore, lump sum amount deserves to be granted. In my opinion
Rs.2,75,000/- further deserves to be allowed making the total in the
head of permanent disability Rs.4,00,000/-. Thus, the total amount
comes to Rs.16,76,480/-. The Tribunal has already awarded Rs.4,00,000/-
, after deducting the same the net amount comes to Rs. 12,76,480/-
which is liable to be enhanced.”
11. Learned counsel for the appellant argued that even though the High
Court has enhanced the compensation, the same cannot be treated as just
because as a result of the accident the appellant suffered permanent
disability and has virtually become a vegetable and would require treatment
throughout her life. He submitted that due to neurological deformity the
appellant is not in a position to do any work and had to give up her
partnership in Triupati Enterprises where she was earning Rs.12,000/- per
month. Not only this, she lost her memory and capacity of hearing and has
spent about Rs.10.5 lakhs for treatment. Learned counsel relied upon the
statement of Dr. Rajesh Gangwani and Dr. Sunil Athwale, who treated her and
who were examined before the Tribunal to show that present mental state of
the appellant is of a six year old and she would require constant
physiotherapy and support of one attendant at all times. Learned counsel
submitted that the compensation awarded under the head of pain and
suffering is wholly inadequate and the amount of compensation should be
adequately enhanced keeping in view the fact that due to escalation in the
cost of medical treatment, the appellant will have to incur substantial
expenses in future medical treatment, physiotherapy and nursing. In support
of his arguments, the learned counsel relied upon the judgments of this
Court in Nizam’s Institute of Medical Sciences v. Prasanth S. Dhananka
(2009) 6 SCC 1, Oriental Insurance Company Limited v. Mohd. Nasir (2009) 6
SCC 280 and Raj Kumar v. Ajay Kumar (2011) 1 SCC 343.
12. Learned counsel for the insurance company argued that the enhancement
granted by the High Court is just fair and reasonable and does not require
to be further enhanced.
13. We have considered the respective submission. In R.D. Hattangadi v.
Pest Control (India) Private Limited (1995) 1 SCC 551, this Court observed
that the exercise for determination of compensation in accident cases
involve some guess work, some hypothetical consideration, some amount of
sympathy linked with the nature of disability. But these elements are
required to be considered in an objective manner. In that case, the
claimant was a retired judge and practicing when he met with an accident
that caused 100% disability and paraplegia below the waist. While
determining compensation payable to him in a claim filed under Section
110A, Motor Vehicles Act, 1939, this Court referred to the judgment of the
Court of Appeal in Ward v. James (1965) 1 All ER 563, Halsbury's Laws of
England, 4th Edition, Volume 12 (page 446) and observed:
“When compensation is to be awarded for pain and suffering and loss of
amenity of life, the special circumstances of the claimant have to be
taken into account including his age, the unusual deprivation he has
suffered, the effect thereof on his future life. The amount of
compensation for non-pecuniary loss is not easy to determine but the
award must reflect that different circumstances have been taken into
consideration.”
9. Broadly speaking while fixing an amount of compensation payable to
a victim of an accident, the damages have to be assessed separately as
pecuniary damages and special damages. Pecuniary damages are those
which the victim has actually incurred and which is capable of being
calculated in terms of money; whereas non-pecuniary damages are those
which are incapable of being assessed by arithmetical calculations. In
order to appreciate two concepts pecuniary damages may include
expenses incurred by the claimant: (i) medical attendance; (ii) loss
of earning of profit 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.
10. In cannot be disputed that because of the accident the appellant
who was an active practising lawyer has become paraplegic on account
of the injuries sustained by him. It is really difficult in this
background to assess the exact amount of compensation for the pain and
agony suffered by the appellant and for having become a life long
handicapped. No amount of compensation can restore the physical frame
of the appellant. That is why it has been said by courts that whenever
any amount is determined as the compensation payable for any injury
suffered during an accident, the object is to compensate such injury
"so far as money can compensate" because it is impossible to equate
the money with the human sufferings or personal deprivations. Money
cannot renew a broken and shattered physical frame.”
14. In Arvind Kumar Mishra v. New India Assurance Co. Ltd. and another
(2010) 10 SCC 254, the Court sought to assess future earnings of a final
year engineering student who received injuries to the brain among others
which resulted in 70% permanent disability and he needed a helper
throughout his life. The Court observed:
“We do not intend to review in detail state of authorities in relation
to assessment of all damages for personal injury. Suffice it to say
that the basis of assessment of all damages for personal injury is
compensation. The whole idea is to put the claimant in the same
position as he was in so far as money can. Perfect compensation is
hardly possible but one has to keep in mind that the victim has done
no wrong; he has suffered at the hands of the wrongdoer and the court
must take care to give him full and fair compensation for that he had
suffered. In some cases for personal injury, the claim could be in
respect of life time's earnings lost because, though he will live, he
cannot earn his living. In others, the claim may be made for partial
loss of earnings. Each case has to be considered in the light of its
own facts and at the end, one must ask whether the sum awarded is a
fair and reasonable sum.”
(emphasis supplied)
15. In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka
(2009) 6 SCC 1, this Court was called upon to assess the compensation
payable under the Consumer Protection Act, 1986 to the victim of medical
negligence who was left completely paralyzed at the age of 20. After
detailed examination of the issue, the Court observed as under:
“39. We must emphasize 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 the
thumb measure, and as a balance has to be struck, it would be
difficult to satisfy all the parties concerned. It must also be borne
in mind that life has its pitfalls and is not smooth sailing all along
the way (as a claimant would have us believe) as the hiccups that
invariably come about cannot be visualized. Life it is said is akin to
a ride on a roller coaster where a meteoric rise is often followed by
an equally spectacular fall, and the distance between the two (as in
this very case) is a minute or a yard. At the same time we often find
that a person injured in an accident leaves his family in greater
distress, vis-`a-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. We can also visualize
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.”
16. In Raj Kumar v. Ajay Kumar (2011) 1 SCC 343, this Court considered
large number of precedents and laid down the following propositions:
“The provision of the motor Vehicles Act, 1988 ('the Act', for short)
makes it clear that the award must be just, which means that
compensation should, to the extent possible, fully and adequately
restore the claimant to the position prior to the accident. The object
of awarding damages is to make good the loss suffered as a result of
wrong done as far as money can do so, in a fair, reasonable and
equitable manner. The court or the Tribunal shall have to assess the
damages objectively and exclude from consideration any speculation or
fancy, though some conjecture with reference to the nature of
disability and its consequences, is inevitable. A person is not only
to be compensated for the physical injury, but also for the loss which
he suffered as a result of such injury. This means that he is to be
compensated for his inability to lead a full life, his inability to
enjoy those normal amenities which he would have enjoyed but for the
injuries, and his inability to earn as much as he used to earn or
could have earned.
The heads under which compensation is awarded in personal injury cases
are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines,
transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have
made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the
injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only
under heads (i), (ii)(a) and (iv). It is only in serious cases of
injury, where there is specific medical evidence corroborating the
evidence of the claimant, that compensation will be granted under any
of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future
earnings on account of permanent disability, future medical expenses,
loss of amenities (and/or loss of prospects of marriage) and loss of
expectation of life.”
17. In Sri Ramachandrappa v. The Manager, Royal Sundaram Alliance
Insurance Company Limited (2011) 13 SCC 236, the Court observed:
“8. The compensation is usually based upon the loss of the claimant's
earnings or earning capacity, or upon the loss of particular faculties
or members or use of such members, ordinarily in accordance with a
definite schedule. The Courts have time and again observed that the
compensation to be awarded is not measured by the nature, location or
degree of the injury, but rather by the extent or degree of the
incapacity resulting from the injury. The Tribunals are expected to
make an award determining the amount of compensation which should
appear to be just, fair and proper.
9. The term "disability", as so used, ordinarily means loss or
impairment of earning power and has been held not to mean loss of a
member of the body. If the physical efficiency because of the injury
has substantially impaired or if he is unable to perform the same work
with the same ease as before he was injured or is unable to do heavy
work which he was able to do previous to his injury, he will be
entitled to suitable compensation. Disability benefits are ordinarily
graded on the basis of the character of the disability as partial or
total, and as temporary or permanent. No definite rule can be
established as to what constitutes partial incapacity in cases not
covered by a schedule or fixed liabilities, since facts will differ in
practically every case.”
18. In light of the principles laid down in the aforementioned cases, it
is suffice to say that in determining the quantum of compensation payable
to the victims of accident, who are disabled either permanently or
temporarily, efforts should always be made to award adequate compensation
not only for the physical injury and treatment, but also for the loss of
earning and inability to lead a normal life and enjoy amenities, which
would have been enjoyed but for the disability caused due to the accident.
The amount awarded under the head of loss of earning capacity are distinct
and do not overlap with the amount awarded for pain, suffering and loss of
enjoyment of life or the amount awarded for medical expenses.
19. Dr. Rajesh Gangwani, who was examined before the Tribunal deposed
that the appellant is kept alive by feeding through a pipe and nursing care
is required for daily routine work also. He stated that she had suffered
75% permanent disability and there seems to be no probability of recovery
as she has lost her capacity for hearing, understanding, speaking and
establishing interaction. However, he also stated that since appellant is
still under treatment, final conclusion about permanent disability cannot
be established. Dr Sunil Athwale, deposed that appellant was gaining
consciousness slowly but the status of sense was at the lowest level and no
improvement has come in the last 2 and half years. He stated that
probability of further improvement is negligible and food and liquid are
given through pipes. He stated that disability should be treated as 100%
but he had not shown 90% as permanent disability in the certificate as
while treatment continues, hope of improvement always prevails. On the
basis of the same, the Tribunal held that the appellant had suffered
permanent disability however the presumption cannot be drawn that she
suffered 75% permanent disability because she is still undergoing treatment
and the doctor himself had deposed that final conclusion regarding
permanent disability cannot be established till the time treatment
continues. The High Court did not record any finding on this issue but
increased the amount awarded towards permanent disability and future loss
of earning. Since the discharge certificate was issued on 26.6.2004, the
claimant had made little progress up till the time the disability
certificate was issued on 23.8.2006 and even till date she continues to be
in a vegetative state and requires an attendant at all times and continued
physiotherapy, we are not inclined to approve the approach of the Tribunal
and High Court granting a lump sum compensation because both failed to take
into consideration the loss of income during the period of treatment when
the appellant was totally incapacitated. Even if the income of the
appellant is taken to be Rs.2,000/- , the loss of income during the period
of treatment, which continued till the judgment of the High Court i.e. from
2.5.2004 to 18.5.2010 would be Rs.1,47,000/- approximately.
20.
As per the disability certificate issued on 23.8.2006, the appellant
had virtually become vegetable and, therefore, she is not in a position to
look after herself what to say of discharging her functions as partner of
Tirupati Enterprises. Therefore, by applying the multiplier of 17, the
future loss of earning would come to Rs.3,67,200/-.
21. In light of the decision in Raj Kumar v. Ajay Kumar (supra), the
Tribunal and High Court erred in failing to award compensation under the
heads of loss of amenities and loss of expectation of life.
Relying on the
decision in Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka
(supra) and assuming the claimant’s life expectancy to be 55 years, we deem
it appropriate to award attendant charges at the rate of Rs.2000/- per
month and physiotherapy expenses at the rate of Rs.3000/- per month. With
regard to the head of physical and mental pains the amount is enhanced to
Rs.3,00,000/- and another Rs.3,00,000/- is awarded under the heads of loss
of amenities and loss of life expectancy.
22. In the result, the appeal is partly allowed, the impugned judgment is
modified and it is held that the appellant shall be entitled to
compensation under different heads of which the details are given below:
|Head |Values |Calculation |Total |
|Medical treatment |as awarded by the High Court |Rs. 7,76,480/-|
|Medical expenses |as awarded by the High Court |Rs. 50,000/- |
|during the pendency | | |
|of the appeal | | |
|Attendant charges |Rs.2,000/- per month|Rs.2000 x 12 x 25|Rs.6,00,000/- |
| |for 25 years | | |
|Future medical |Rs.3,000/- per month|Rs.3000 x 12 x 25|Rs.9,00,000/- |
|expenses |for 25 years | | |
|(physiotherapy) | | | |
|Loss of earning |Rs.2,000/- monthly |Rs.2000 x 12 x 6 |Rs.1,45,067/- |
|during the period of|income for the |+ Rs.2000 x 16/30| |
|treatment |period between date | | |
| |of accident 2.5.2004| | |
| |and High Court order| | |
| |18.5.2010 | | |
|Loss of future |taking multiplier of|Rs.24,000 x 17 x |Rs.3,67,200/- |
|earnings on account |17 for age of 30 |90/100 | |
|of permanent |years, disability as| | |
|disability |90%, annual income | | |
| |as Rs.24,000/- | | |
|Physical and mental | |Rs. 3,00,000/-|
|pains | | |
|Loss of amenities | |Rs.3,00,000/- |
|and loss of | | |
|expectation of life | | |
|Total | |Rs.34,38,747/-|
23.
Respondent No.3 is directed to pay to the appellant total
compensation of Rs.34,38,747/- within a period of 3 months by getting
prepared a demand draft in her name which shall be delivered at her
residence. While doing so, respondent No.3 shall be free to deduct the
amount already paid to the appellant pursuant to the award passed by the
Tribunal and/or the impugned judgment. If law permits it to do so,
respondent No.3 shall be free to recover the amount of compensation from
respondent Nos.1 and 2.
…...……..….………………….…J.
[G.S. Singhvi]
…………..….………………….…J.
[Sudhansu Jyoti Mukhopadhaya]
New Delhi,
August 22, 2012.
