Accident claim - M.V. Act- Notional monthly income of a brilliant girl 11 th standard victim with permanent disability Apex court fixed the Monthly Notional income as Rs.10,000/- and also enhanced other heads and enhanced compensation from Rs.18 lakhs to Rs.33 lakhs =
even though it has enhanced the compensation from
[pic]6,46,000/- to [pic]18,22,000/- with interest at the rate of
7.5% per annum from the date of filing the claim petition under
various heads urging various facts and grounds in justification
of her claim.=
1) Whether the claimant-appellant is entitled to
enhancement of compensation under the following heads
namely, loss of earning, pain and suffering, loss of
amenities, loss of enjoyment of marriage prospects and
the cost of crutches?
monthly notional income
of [pic]6,000/- in the absence of any
document on record as she was a student. This assumption of the courts
below is on the lower side in view of the observations made by this
Court in R.D. Hattangadi (supra). The said principle is reiterated in
Govind Yadav (supra). The relevant para from R.D. Hattangadi is
extracted below :
“14. In Halsbury's Laws of England, 4th Edition, Vol. 12
regarding non-pecuniary loss at page 446 it has been said:
Non-pecuniary loss; the pattern. Damages awarded for pain and
suffering and loss of amenity constitute a conventional sum
which is taken to be the sum which society deems fair, fairness
being interpreted by the courts in the light of previous
decisions. Thus there has been evolved a set of conventional
principles providing a provisional guide to the comparative
severity of different injuries, and indicating a bracket of
damages into which a particular injury will currently fall. The
particular circumstances of the plaintiff, including his age and
any unusual deprivation he may suffer, is reflected in the
actual amount of the award.
The fall in the value of money leads to a continuing
reassessment of these awards and to periodic reassessments of
damages at certain key points in the pattern where the
disability is readily identifiable and not subject to large
variations in individual cases.”
(Emphasis laid by the Court)
15. In view of the aforesaid judgments of this Court and the fact
that the appellant is a brilliant student as she has secured first
rank in the 10th Standard, she would have had a better future in terms
of educational career to acquire basic or master degrees in the
professional courses and she could have got a suitable either public
or private employment but on account of permanent disablement she
suffered due to injuries sustained by her in the accident, that
opportunity is lost to her and therefore, she is entitled to
compensation as per law laid down by this Court in the cases of Raj
Kumar, R.D. Hattangadi and Govind Yadav (supra).=
Therefore, in the light of the principles laid down in the
aforesaid case, it would be just and proper for this Court, and
keeping in mind her past results we take [pic]10,000/- as her monthly
notional income for computation of just and reasonable compensation
under the head of loss of income.
Therefore, the appellant is justified in seeking for
re-enhancement under this head as well and we hold that the claimant-
appellant is entitled to 50% increase under this head as per the
principle laid down by this Court in the case of Santosh Devi (supra).
Therefore, taking both the aspects into account, the total amount of
compensation under this head is calculated as Rs.22,68,000/-
[([pic]10,000/-x 70/100 + 10,000 x 70/100 x 50/100) x 12 x 18 =
The compensation under the head pain & suffering and mental agony
was awarded by the High Court after recording concurrent finding with
the award passed by the Tribunal.
Therefore, under this head the amount awarded should be enhanced to
[pic]2,00,000/- as the Doctor-PW2 has opined that at the time of
walking with support of crutches, the claimant-appellant will be
suffering pain permanently. Therefore, under this head it has to be
enhanced from [pic]1,00,000/- to [pic]2,00,000/-.=
The amount of compensation awarded under the head of ‘Loss of
enjoyment of life and marriage prospects’ at [pic]2,00,000/- is
totally inadequate since her marriage prospect has substantially
reduced and on account of permanent disablement she will be deprived
of enjoyment of life. Therefore, it would be just and proper to
enhance the compensation from [pic]2,00,000/- to [pic]3,00,000/-. In
so far as, purchase of crutches periodically, it would be just and
proper to award a sum of [pic]50,000/-.=
The Insurance Company is directed to deposit 50% of the awarded
amount with proportionate interest within four weeks from the date
of receipt of a copy of this order, after deducting the amount if
already paid, in any of the Nationalized Bank of the choice of the
appellant, for a period of 3 years.
During the said period, if she
wants to withdraw a portion or entire deposited amount for her
personal or any other expenses, including development of her
asset, then she is at liberty to file application before the
Tribunal for release of the deposited amount, which may be
considered by it and pass appropriate order in this regard.
The rest of 50% amount awarded with proportionate interest shall be
paid to the appellant/claimant by way of a demand draft within four
weeks from the date of receipt of the copy of this judgment. The
Insurance Company is further directed to submit compliance report
before this court within five weeks thereafter.
26. The appeal is allowed accordingly. No costs.
2014 ( April.Part) http://judis.nic.in/supremecourt/filename=41491
GYAN SUDHA MISRA, V. GOPALA GOWDA
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4880 OF 2014
(Arising out of SLP(C) No. 16561 of 2013)
V. Mekala …Appellant
Versus
M. Malathi & Anr. … Respondents
J U D G M E N T
V. Gopala Gowda, J.
Leave granted.
2. This appeal is preferred by the injured-claimant as she was
aggrieved by the impugned judgment and award dated 31.8.2012
passed by the High Court of Judicature at Madras in C.M.A. No.
2131 of 2008 even though it has enhanced the compensation from
[pic]6,46,000/- to [pic]18,22,000/- with interest at the rate of
7.5% per annum from the date of filing the claim petition under
various heads urging various facts and grounds in justification
of her claim.
3. The claimant-appellant is aggrieved by the determination of
monthly notional income of the deceased by the High Court by
taking a meager sum of [pic]6,000/- instead of [pic]18,000/-
per month as she is a student studying in the 11th Standard
holding first rank in her school. She had an excellent career
ahead of her but for the accident in which she has sustained
grievous injuries and has become a permanently disabled. Both
the Motor Accident Claim Tribunal, Poonamallee (for short “the
Tribunal”) as well as the High Court of Judicature at Madras
failed to take into consideration all the relevant legal aspects
of the matter namely, having arrived at the conclusion that on
account of permanent total disablement suffered by the claimant-
appellant on account of injuries sustained in the accident her
future loss of income should have been assessed taking into
consideration, her age at the time of accident which was 16 and
that she is a brilliant student and could have acquired
professional degree and procured a well paid job either in
public or private sector thereby at least she would have earned
a sum of [pic]18,000/- per month. Also, the future prospects of
revision of wages, dearness allowance, increments and
promotional benefits could have been earned by her. However,
because of the accident caused by rash and negligent act of the
driver of the offending vehicle of the owner- respondent she has
been deprived of her potential income to eke out a comfortable
livelihood as she has become permanently disabled, this legal
and factual aspect has not been taken into consideration both by
the Tribunal and the High Court. Therefore, she placed reliance
upon the law laid down by this Court in the case of Santosh Devi
v. National Insurance Company Ltd. & Ors.[1], having regard to
her age, 50% of the future prospects should have been added by
both the Tribunal and Appellate Court to the notional monthly
income that could be fixed for determination of the loss of
earning as she had lost her earning capacity as she has become
permanently disabled. Therefore, the compensation under this
head of loss of earnings is required to be enhanced
considerably.
4. The second ground sought to be pressed into operation by the
learned counsel on behalf of the claimant-appellant is that the
concurrent finding of fact recorded by the High Court on the
basis of evidence of Doctor-PW2, who has examined the appellant,
who has made observations regarding the nature of her injuries
which will be recorded in the later part of this judgment.
5. Upon examination of the claimant-appellant, the Doctor-PW2
opined that she is not able to squat, her disability is
ascertained at 70%, therefore, she is not able to sit with cross
legged comfortably on the floor and the right range of movement
(Gionimeter) – fixed flexim deformity of 850 - ligament
instability present on account of grievous injuries sustained
by her in the unfortunate accident. Therefore, PW2 has assessed
the permanent disability of the claimant-appellant at 70% and
to this effect he has issued Ex. P12-the Disability Certificate
and the same was marked as an exhibit in justification of the
claim for awarding just and reasonable compensation under the
loss of earning, pain and suffering, loss of amenities and
mental agony. The above said substantial piece of evidence in
the form of disability certificate on record has not been taken
into consideration in the proper perspective by the High Court
though it has concurred with the finding of fact recorded by the
Tribunal in re-appreciating the evidence on record. The legal
aspect of the matter regarding the quantum of compensation is
required to be dismissed and awarded to compensate for human
pain and suffering and deprivation of happiness and enjoyment of
personal life of the claimant. The compensation that would be
awarded can not be equated with the human sufferings or personal
deprivation as observed by this Court in the case of R.D.
Hattangadi v. Pest Control (India) Pvt. Ltd. & Ors.[2].
6. Both the Tribunal and Appellate Court were required to consider
the fall in the value of money which requires continuing
reassessment of these awards and periodic reassessments of
damages at certain key points in the pattern where the
disability is readily identifiable and are not subject to large
variations in individual cases as held in the case of R.D.
Hattangadi (supra). Therefore, the learned counsel appearing on
behalf of the claimant-appellant submits that pain and
suffering, loss of amenities having lost both the limbs which
are the relevant important material facts which have been
completely ignored by both the Tribunal and the High Court while
determining the just and reasonable compensation under the
aforesaid heads while awarding compensation in favour of the
claimant. Therefore, learned counsel for the appellant requested
this Court for an award of just & reasonable compensation under
the aforesaid heads by applying the legal principles laid down
by this Court in the cases referred to supra. In support of his
contention, the learned counsel has correctly relied upon the
principle laid down in the case of R.D. Hattangadi (supra) which
was reiterated in the case of Govind Yadav v. New India
Insurance Company Limited[3], it would be appropriate to extract
certain relevant paragraphs of R.D. Hattangadi case, which read
as under:
“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.
11. In the case Ward v. James [1965] 1 All E.R. 563 it was said
:
Although you cannot give a man so gravely injured much for his
"lost years", you can, however, compensate him for his loss
during his shortened span, that is, during his expected "years
of survival". You can compensate him for his loss of earnings
during that time, and for the cost of treatment, nursing and
attendance. But how can you compensate him for being rendered a
helpless invalid? He may owing to brain injury, be rendered
unconscious for the rest of his days, or, owing to back injury,
be unable to rise from his bed. He has lost everything that
makes life worth-while. Money is no good to him. Yet judges and
juries have to do the best they can and give him what they think
is fair. No wonder they find it well nigh insoluble. They are
being asked to calculate the incalculable. The figure is bound
to be for the most part a conventional sum. The judges have
worked out a pattern, and they keep it in line with the change
in the value of money.”
7. The learned counsel for the appellant further submitted that the
claimant-appellant has been deprived of the enjoyment of life as
well as the marital prospects. Further, the concurrent finding
recorded by the High Court in the impugned judgment shows that
the appellant on account of the knee injuries and permanent
disablement and mal-united knee bones, she is unable to walk
without crutches and she is suffering from severe pain while
walking and further the thickness of both the legs are also
reduced due to the injuries sustained by her in accident and
multiple surgeries were conducted on her. This relevant aspect
should have been taken into consideration both by the Tribunal
and the High Court. Further, she has to use crutches throughout
her life for mobility which she is required to periodically
purchase, the cost of which has not been awarded either by the
Tribunal or by the High Court. Therefore, the learned counsel
for the appellant has requested this Court to award suitable
compensation keeping in view the above mentioned facts.
8. On the other hand, Ms. Manjeet Chawla, the learned counsel on
behalf of the respondent No. 2-Insurance Company sought to
justify the impugned judgment and award contending that the High
Court after re-appreciation of the pleadings and evidence on
record has exorbitantly enhanced the compensation under the
various heads mentioned in the impugned judgment such as pain
and suffering, permanent disablement, medical expenses,
transport expenses, extra nourishment, loss of future career and
loss of marriage prospects. Therefore, this is not a fit case
for this Court to enhance the compensation as prayed in this
case by the claimant-appellant.
9. Further, the learned counsel for the respondent No. 2 submits
that the claimant-appellant can continue her studies by
attending to the college and get either the public employment or
alternative private employment on completion of her studies. In
such circumstances, seeking for enhancement of compensation
either under the head of loss of earning or future prospects as
claimed by the claimant-appellant, is not justifiable in law.
Therefore, the learned counsel for the respondent No.2 has
prayed for dismissal of the Civil Appeal.
10. With reference to the above rival factual and legal contentions,
this Court is required to examine:-
1) Whether the claimant-appellant is entitled to
enhancement of compensation under the following heads
namely, loss of earning, pain and suffering, loss of
amenities, loss of enjoyment of marriage prospects and
the cost of crutches?
2) What award?
11. The first question is required to be answered in favour of the
claimant-appellant for the following reasons :-
Having regard to the nature of following injuries sustained by
the appellant in the accident which is an undisputed fact :-
“Right lower limb: Hypertrophic scar extending from distal
thigh to distal 2/3rd of right leg circumferentially.
Decreased sensation over the M/3rd of Right leg.
Left leg: Hypertrophic scar over middle 3rd to distal 3rd
of left leg and with patchy areas decreased sensation over
the scar.
Muscle wasting of both the legs present.
Right Ankle: Equinous deformity of Right ankle of 1st
present. Fixed Flexim deformity of II Joints of toes about
10th present.”
12. The Doctor-PW 2, has stated in his evidence that the appellant
has sustained fracture in both bones in both the legs, the knee
folding is restricted between 25 degree to 85 degree and the
legs could not be stretched fully and the knee bones are mal-
united and the appellant cannot walk without crutches. The
doctor also stated that the appellant is suffering from severe
pain while walking and further the thickness of the appellant’s
both legs were reduced.
13. The aforesaid evidence of the Doctor-PW2 is accepted by the
Tribunal and concurred by the High Court, the High Court came to
the right conclusion that the appellant has sustained permanent
disablement, the same is in conformity with the principle laid
down by this Court in the case of Raj Kumar v. Ajay Kumar and
Anr.[4] at para 12, which reads thus :
“12. Therefore, the Tribunal has to first decide whether
there is any permanent disability and, if so, the extent of
such permanent disability. This means that the Tribunal
should consider and decide with reference to the evidence:
i) whether the disablement is permanent or
temporary;
ii) if the disablement is permanent, whether it is
permanent total disablement or permanent partial
disablement;
iii) if the disablement percentage is expressed with
reference to any specific limb, then the effect
of such disablement of the limb on the
functioning of the entire body, that is, the
permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent
disability then there is no question of proceeding further
and determining the loss of future earning capacity. But if
the Tribunal concludes that there is permanent disability
then it will proceed to ascertain its extent. After the
Tribunal ascertains the actual extent of permanent
disability of the claimant based on the medical evidence, it
has to determine whether such permanent disability has
affected or will affect his earning capacity.”
14. The High Court on the basis of medical evidence on record with
reference to the fractures sustained by the appellant to both the
legs, rightly arrived at the conclusion that she has suffered 70% of
permanent disablement and therefore she was awarded the compensation
under the head of loss of earning in the impugned judgment taking into
account monthly notional income of [pic]6,000/- in the absence of any
document on record as she was a student. This assumption of the courts
below is on the lower side in view of the observations made by this
Court in R.D. Hattangadi (supra). The said principle is reiterated in
Govind Yadav (supra). The relevant para from R.D. Hattangadi is
extracted below :
“14. In Halsbury's Laws of England, 4th Edition, Vol. 12
regarding non-pecuniary loss at page 446 it has been said:
Non-pecuniary loss; the pattern. Damages awarded for pain and
suffering and loss of amenity constitute a conventional sum
which is taken to be the sum which society deems fair, fairness
being interpreted by the courts in the light of previous
decisions. Thus there has been evolved a set of conventional
principles providing a provisional guide to the comparative
severity of different injuries, and indicating a bracket of
damages into which a particular injury will currently fall. The
particular circumstances of the plaintiff, including his age and
any unusual deprivation he may suffer, is reflected in the
actual amount of the award.
The fall in the value of money leads to a continuing
reassessment of these awards and to periodic reassessments of
damages at certain key points in the pattern where the
disability is readily identifiable and not subject to large
variations in individual cases.”
(Emphasis laid by the Court)
15. In view of the aforesaid judgments of this Court and the fact
that the appellant is a brilliant student as she has secured first
rank in the 10th Standard, she would have had a better future in terms
of educational career to acquire basic or master degrees in the
professional courses and she could have got a suitable either public
or private employment but on account of permanent disablement she
suffered due to injuries sustained by her in the accident, that
opportunity is lost to her and therefore, she is entitled to
compensation as per law laid down by this Court in the cases of Raj
Kumar, R.D. Hattangadi and Govind Yadav (supra).
16. Further, having regard to the undisputed fact that there has
been inflation of money in the country since the occurrence of the
accident, the same has to be taken into account by the Tribunal and
Appellate Court while awarding compensation to the claimant-appellant
as per the principle laid down by this court in the case of Govind
Yadav which has reiterated the position of Reshma Kumari v. Madan
Mohan[5] case, the relevant paragraph of which reads as under:
“46. In the Indian context several other factors should be taken
into consideration including education of the dependants and the
nature of job. In the wake of changed societal conditions and
global scenario, future prospects may have to be taken into
consideration not only having regard to the status of the
employee, his educational qualification; his past performance
but also other relevant factors, namely, the higher salaries and
perks which are being offered by the private companies these
days. In fact while determining the multiplicand this Court in
Oriental Insurance Co. Ltd. v. Jashuben held that even dearness
allowance and perks with regard thereto from which the family
would have derived monthly benefit, must be taken into
consideration.”
17. The fact that the appellant was a brilliant student at the time
of the accident should also be taken into consideration while awarding
compensation to her. Therefore, taking [pic]6,000/- as monthly
notional income by the Tribunal for the purpose of awarding
compensation under this head is too meager an amount. The learned
counsel appearing for the respondent No.2 contended that the appellant
can still finish her education and find employment and therefore,
there is no necessity to enhance the amount of compensation under the
head of ‘loss of income’ and ‘future prospects’. It is pertinent to
reiterate here that the claimant/ appellant has undergone and
undergoing substantial pain and suffering due to the accident which
has rendered both her legs dysfunctional. This has reduced the scope
of her future prospects including her marriage substantially.
Moreover, a tortfeasor is not entitled to dictate the terms of the
claimants-appellants career as has been held by the Karnataka High
Court in the case of K. Narsimha Murthy v. The Manager, Oriental
Insurance Company Ltd and Anr. ILR 2004 KARNATAKA 2471, the relevant
paragraph of which reads as under:
“41. …. Further, it needs to be emphasized that it is not the
right of the tortfeasor or a person who has taken over the
liability of the tortfeasor in terms of and under the Act to
dictate that the injured person should do some other work,
manual or otherwise, it does not matter, may be with pain and
discomfort, in order to minimize his or its liability. Such
insistence is untenable in law and if such is the case, it would
violate basic human rights of the injured person. In this case,
the appellant is reduced to such a state that he is unable to do
any work, manual or otherwise, without subjecting himself to
pain and suffering, agony and discomfort. In an accident, if a
man is disabled for a work which he was doing before the
accident, that he has no talents, skill, experience or training
for anything else and he is unable to find any work, manual or
clerical, such a man for all practical purposes has lost all
earning capacity he possessed before and he is required to be
compensated on the basis of total loss. In reaching this
conclusion we may derive support from the judgments in Daniels
v. Sir Robert Mc Alpine and Sons Limited and Blair v. FJC Lilley
(Marine) Limited. Secondly, the physical incapacity to earn
income sustained by the appellant is not temporary, but
permanent and complete as per Exhibit P. 43. Thirdly, it cannot
be said that since the appellant has sustained only 54%
permanent physical disability in respect of the whole body as
per P.W. 3, the Court should take into account functional
disability also at 54% only while assessing the loss of earning
capacity. Such hypothesis does not stand to reason nor can it be
accepted as valid in terms of law. An injured person is
compensated for the loss which he incurs as a result of physical
injury and not for physical injury itself. In other words,
compensation is given only for what is lost due to accident in
terms of an equivalent in money insofar as the nature of money
admits for the loss sustained. In an accident, if a person loses
a limb or eye or sustains an injury, the Court while computing
damages for the loss of organs or physical injury, does not
value a limb or eye in isolation, but only values totality of
the harm which the loss has entailed the loss of amenities of
life and infliction of pain and suffering: the loss of the good
things of life, joys of life and the positive infliction of pain
and distress.”
18. Further, it has been held in the case of Reshma Kumari (supra)
that certain relevant factors should be taken into consideration while
awarding compensation under the head of future prospect of income. The
relevant paragraph read as under:
“27. The question as to the methodology required to be applied
for determination of compensation as regards prospective loss of
future earnings, however, as far as possible should be based on
certain principles. A person may have a bright future prospect;
he might have become eligible to promotion immediately; there
might have been chances of an immediate pay revision, whereas in
another the nature of employment was such that he might not have
continued in service; his chance of promotion, having regard to
the nature of employment may be distant or remote. It is,
therefore, difficult for any court to lay down rigid tests which
should be applied in all situations. There are divergent views.
In some cases it has been suggested that some sort of hypotheses
or guess work may be inevitable. That may be so.”
19. Therefore, in the light of the principles laid down in the
aforesaid case, it would be just and proper for this Court, and
keeping in mind her past results we take [pic]10,000/- as her monthly
notional income for computation of just and reasonable compensation
under the head of loss of income. Further, the High Court has failed
to take into consideration the future prospects of income based on the
principles laid down by this Court in catena of cases referred to
supra. Therefore, the appellant is justified in seeking for
re-enhancement under this head as well and we hold that the claimant-
appellant is entitled to 50% increase under this head as per the
principle laid down by this Court in the case of Santosh Devi (supra).
The relevant paragraph reads as under:
“13. In Sarla Verma's case (supra), another two Judge Bench
considered various factors relevant for determining the
compensation payable in cases involving motor accidents,
noticed apparent divergence in the views expressed by this
Court in different cases, referred to large number of
precedents including the judgments in U.P. SRTC v. Trilok
Chandra (1996) 4 SCC 362, Nance v. British Columbia Electric
Railway Company Ltd. 1951 AC 601, Davies v. Powell Duffryn
Associated Collieries Ltd. 1942 AC 601 and made an attempt to
limit the exercise of discretion by the Tribunals and the High
Courts in the matter of award of compensation by laying down
straightjacket formula under different headings, some of which
are enumerated below:
(i) Addition to income for future prospects
In Susamma Thomas this Court increased the income by nearly
100%, in Sarla Dixit the income was increased only by 50% and
in Abati Bezbaruah the income was increased by a mere 7%. In
view of the imponderables and uncertainties, we are in favour
of adopting as a rule of thumb, an addition of 50% of actual
salary to the actual salary income of the deceased towards
future prospects, where the deceased had a permanent job and
was below 40 years. (Where the annual income is in the taxable
range, the words "actual salary" should be read as "actual
salary less tax"). The addition should be only 30% if the age
of the deceased was 40 to 50 years. There should be no
addition, where the age of the deceased is more than 50 years.
Though the evidence may indicate a different percentage of
increase, it is necessary to standardise the addition to avoid
different yardsticks being applied or different methods of
calculation being adopted. Where the deceased was self-employed
or was on a fixed salary (without provision for annual
increments, etc.), the courts will usually take only the actual
income at the time of death. A departure therefrom should be
made only in rare and exceptional cases involving special
circumstances.
Therefore, taking both the aspects into account, the total amount of
compensation under this head is calculated as Rs.22,68,000/-
[([pic]10,000/-x 70/100 + 10,000 x 70/100 x 50/100) x 12 x 18]
20. The compensation under the head pain & suffering and mental agony
was awarded by the High Court after recording concurrent finding with
the award passed by the Tribunal. However, the courts below have not
recorded the nature of the permanent disablement sustained by the
appellant, while awarding [pic]1,00,000/- under this head which is too
meager an amount and is contrary to the judgment of R.D. Hattangadi
and Govind Yadav cases (supra). The relevant paragraphs of Govind
Yadav case read as under:
“25. The compensation awarded by the Tribunal for pain,
suffering and trauma caused due to the amputation of leg was
meager. It is not in dispute that the appellant had remained in
the hospital for a period of over three months. It is not
possible for the tribunals and the courts to make a precise
assessment of the pain and trauma suffered by a person whose
limb is amputated as a result of accident. Even if the victim of
accident gets artificial limb, he will suffer from different
kinds of handicaps and social stigma throughout his life.
Therefore, in all such cases, the tribunals and the courts
should make a broad guess for the purpose of fixing the amount
of compensation.
26. Admittedly, at the time of accident, the appellant was a
young man of 24 years. For the remaining life, he will suffer
the trauma of not being able to do his normal work. Therefore,
we feel that ends of justice will be met by awarding him a sum
of Rs 1,50,000 in lieu of pain, suffering and trauma caused due
to the amputation of leg.”
Therefore, under this head the amount awarded should be enhanced to
[pic]2,00,000/- as the Doctor-PW2 has opined that at the time of
walking with support of crutches, the claimant-appellant will be
suffering pain permanently. Therefore, under this head it has to be
enhanced from [pic]1,00,000/- to [pic]2,00,000/-.
21. The loss of amenity and attendant charges awarded by the courts
below at [pic]1,00,000/- is also too meager an amount as the appellant
has permanently lost her amenity of both the legs. For the purpose of
walking, squatting, running and also studying throughout her life and
particularly, at the advanced age, she will be requiring the attendant
for giving assistance to attend the nature’s call and also at the time
of sitting or moving around. Therefore, the compensation at this head
is required to be enhanced from [pic]1,00,000/- to [pic]2,00,000/-
based upon the principle laid down by this court in Govind Yadav case
(supra), the relevant paragraph of which reads as under:
“27. The compensation awarded by the Tribunal for the loss of
amenities was also meagre. It can only be a matter of imagination
as to how the appellant will have to live for the rest of his life
with one artificial leg. The appellant can be expected to live for
at least 50 years. During this period he will not be able to live
like a normal human being and will not be able to enjoy life. The
prospects of his marriage have considerably reduced. Therefore, it
would be just and reasonable to award him a sum of Rs 1,50,000 for
the loss of amenities and enjoyment of life.”
22. The amount of compensation awarded under the head of ‘Loss of
enjoyment of life and marriage prospects’ at [pic]2,00,000/- is
totally inadequate since her marriage prospect has substantially
reduced and on account of permanent disablement she will be deprived
of enjoyment of life. Therefore, it would be just and proper to
enhance the compensation from [pic]2,00,000/- to [pic]3,00,000/-. In
so far as, purchase of crutches periodically, it would be just and
proper to award a sum of [pic]50,000/-.
23. Further, the accident had taken place on 11.4.2005 and the
claimant- appellant, since then has been fighting for justice, first,
in the Motor Accident Claim Tribunal, then the High Court and finally
before us. Therefore, we consider that she is rightfully entitled to
the cost of litigation as per the principle laid down by this Court in
the case of Balram Prasad v. Kunal Saha & Ors.[6] Therefore, we award
a sum of [pic]25000/- under the head of ‘cost of litigation’.
24. Thus, the claimant-appellant in this appeal is entitled to a
total amount of [pic]30,93,000/- as compensation with an interest @ 9%
per annum based on the principle laid down by this Court in Municipal
Corporation of Delhi, Delhi v. Uphaar Tragedy Victims Association &
Ors.[7] from the date of filing of the application till the date of
payment.
25. The Insurance Company is directed to deposit 50% of the awarded
amount with proportionate interest within four weeks from the date
of receipt of a copy of this order, after deducting the amount if
already paid, in any of the Nationalized Bank of the choice of the
appellant, for a period of 3 years. During the said period, if she
wants to withdraw a portion or entire deposited amount for her
personal or any other expenses, including development of her
asset, then she is at liberty to file application before the
Tribunal for release of the deposited amount, which may be
considered by it and pass appropriate order in this regard.
The rest of 50% amount awarded with proportionate interest shall be
paid to the appellant/claimant by way of a demand draft within four
weeks from the date of receipt of the copy of this judgment. The
Insurance Company is further directed to submit compliance report
before this court within five weeks thereafter.
26. The appeal is allowed accordingly. No costs.
………………………………………………………………………J.
[GYAN SUDHA MISRA]
………………………………………………………………………J.
[V. GOPALA GOWDA]
New Delhi,
April 25, 2014
-----------------------
[1] (2012) 6 SCC 421
[2] (1995) 1 SCC 551
[3] (2011) 10 SCC 683
[4] (2011) 1 SCC 343
[5] (2009) 13 SCC 422
[6] (2014) 1 SCC 384
[7] (2011) 14 SCC 481
-----------------------
31
even though it has enhanced the compensation from
[pic]6,46,000/- to [pic]18,22,000/- with interest at the rate of
7.5% per annum from the date of filing the claim petition under
various heads urging various facts and grounds in justification
of her claim.=
1) Whether the claimant-appellant is entitled to
enhancement of compensation under the following heads
namely, loss of earning, pain and suffering, loss of
amenities, loss of enjoyment of marriage prospects and
the cost of crutches?
monthly notional income
of [pic]6,000/- in the absence of any
document on record as she was a student. This assumption of the courts
below is on the lower side in view of the observations made by this
Court in R.D. Hattangadi (supra). The said principle is reiterated in
Govind Yadav (supra). The relevant para from R.D. Hattangadi is
extracted below :
“14. In Halsbury's Laws of England, 4th Edition, Vol. 12
regarding non-pecuniary loss at page 446 it has been said:
Non-pecuniary loss; the pattern. Damages awarded for pain and
suffering and loss of amenity constitute a conventional sum
which is taken to be the sum which society deems fair, fairness
being interpreted by the courts in the light of previous
decisions. Thus there has been evolved a set of conventional
principles providing a provisional guide to the comparative
severity of different injuries, and indicating a bracket of
damages into which a particular injury will currently fall. The
particular circumstances of the plaintiff, including his age and
any unusual deprivation he may suffer, is reflected in the
actual amount of the award.
The fall in the value of money leads to a continuing
reassessment of these awards and to periodic reassessments of
damages at certain key points in the pattern where the
disability is readily identifiable and not subject to large
variations in individual cases.”
(Emphasis laid by the Court)
15. In view of the aforesaid judgments of this Court and the fact
that the appellant is a brilliant student as she has secured first
rank in the 10th Standard, she would have had a better future in terms
of educational career to acquire basic or master degrees in the
professional courses and she could have got a suitable either public
or private employment but on account of permanent disablement she
suffered due to injuries sustained by her in the accident, that
opportunity is lost to her and therefore, she is entitled to
compensation as per law laid down by this Court in the cases of Raj
Kumar, R.D. Hattangadi and Govind Yadav (supra).=
Therefore, in the light of the principles laid down in the
aforesaid case, it would be just and proper for this Court, and
keeping in mind her past results we take [pic]10,000/- as her monthly
notional income for computation of just and reasonable compensation
under the head of loss of income.
Therefore, the appellant is justified in seeking for
re-enhancement under this head as well and we hold that the claimant-
appellant is entitled to 50% increase under this head as per the
principle laid down by this Court in the case of Santosh Devi (supra).
Therefore, taking both the aspects into account, the total amount of
compensation under this head is calculated as Rs.22,68,000/-
[([pic]10,000/-x 70/100 + 10,000 x 70/100 x 50/100) x 12 x 18 =
The compensation under the head pain & suffering and mental agony
was awarded by the High Court after recording concurrent finding with
the award passed by the Tribunal.
Therefore, under this head the amount awarded should be enhanced to
[pic]2,00,000/- as the Doctor-PW2 has opined that at the time of
walking with support of crutches, the claimant-appellant will be
suffering pain permanently. Therefore, under this head it has to be
enhanced from [pic]1,00,000/- to [pic]2,00,000/-.=
The amount of compensation awarded under the head of ‘Loss of
enjoyment of life and marriage prospects’ at [pic]2,00,000/- is
totally inadequate since her marriage prospect has substantially
reduced and on account of permanent disablement she will be deprived
of enjoyment of life. Therefore, it would be just and proper to
enhance the compensation from [pic]2,00,000/- to [pic]3,00,000/-. In
so far as, purchase of crutches periodically, it would be just and
proper to award a sum of [pic]50,000/-.=
amount with proportionate interest within four weeks from the date
of receipt of a copy of this order, after deducting the amount if
already paid, in any of the Nationalized Bank of the choice of the
appellant, for a period of 3 years.
During the said period, if she
wants to withdraw a portion or entire deposited amount for her
personal or any other expenses, including development of her
asset, then she is at liberty to file application before the
Tribunal for release of the deposited amount, which may be
considered by it and pass appropriate order in this regard.
The rest of 50% amount awarded with proportionate interest shall be
paid to the appellant/claimant by way of a demand draft within four
weeks from the date of receipt of the copy of this judgment. The
Insurance Company is further directed to submit compliance report
before this court within five weeks thereafter.
26. The appeal is allowed accordingly. No costs.
2014 ( April.Part) http://judis.nic.in/supremecourt/filename=41491
GYAN SUDHA MISRA, V. GOPALA GOWDA
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4880 OF 2014
(Arising out of SLP(C) No. 16561 of 2013)
V. Mekala …Appellant
Versus
M. Malathi & Anr. … Respondents
J U D G M E N T
V. Gopala Gowda, J.
Leave granted.
2. This appeal is preferred by the injured-claimant as she was
aggrieved by the impugned judgment and award dated 31.8.2012
passed by the High Court of Judicature at Madras in C.M.A. No.
2131 of 2008 even though it has enhanced the compensation from
[pic]6,46,000/- to [pic]18,22,000/- with interest at the rate of
7.5% per annum from the date of filing the claim petition under
various heads urging various facts and grounds in justification
of her claim.
3. The claimant-appellant is aggrieved by the determination of
monthly notional income of the deceased by the High Court by
taking a meager sum of [pic]6,000/- instead of [pic]18,000/-
per month as she is a student studying in the 11th Standard
holding first rank in her school. She had an excellent career
ahead of her but for the accident in which she has sustained
grievous injuries and has become a permanently disabled. Both
the Motor Accident Claim Tribunal, Poonamallee (for short “the
Tribunal”) as well as the High Court of Judicature at Madras
failed to take into consideration all the relevant legal aspects
of the matter namely, having arrived at the conclusion that on
account of permanent total disablement suffered by the claimant-
appellant on account of injuries sustained in the accident her
future loss of income should have been assessed taking into
consideration, her age at the time of accident which was 16 and
that she is a brilliant student and could have acquired
professional degree and procured a well paid job either in
public or private sector thereby at least she would have earned
a sum of [pic]18,000/- per month. Also, the future prospects of
revision of wages, dearness allowance, increments and
promotional benefits could have been earned by her. However,
because of the accident caused by rash and negligent act of the
driver of the offending vehicle of the owner- respondent she has
been deprived of her potential income to eke out a comfortable
livelihood as she has become permanently disabled, this legal
and factual aspect has not been taken into consideration both by
the Tribunal and the High Court. Therefore, she placed reliance
upon the law laid down by this Court in the case of Santosh Devi
v. National Insurance Company Ltd. & Ors.[1], having regard to
her age, 50% of the future prospects should have been added by
both the Tribunal and Appellate Court to the notional monthly
income that could be fixed for determination of the loss of
earning as she had lost her earning capacity as she has become
permanently disabled. Therefore, the compensation under this
head of loss of earnings is required to be enhanced
considerably.
4. The second ground sought to be pressed into operation by the
learned counsel on behalf of the claimant-appellant is that the
concurrent finding of fact recorded by the High Court on the
basis of evidence of Doctor-PW2, who has examined the appellant,
who has made observations regarding the nature of her injuries
which will be recorded in the later part of this judgment.
5. Upon examination of the claimant-appellant, the Doctor-PW2
opined that she is not able to squat, her disability is
ascertained at 70%, therefore, she is not able to sit with cross
legged comfortably on the floor and the right range of movement
(Gionimeter) – fixed flexim deformity of 850 - ligament
instability present on account of grievous injuries sustained
by her in the unfortunate accident. Therefore, PW2 has assessed
the permanent disability of the claimant-appellant at 70% and
to this effect he has issued Ex. P12-the Disability Certificate
and the same was marked as an exhibit in justification of the
claim for awarding just and reasonable compensation under the
loss of earning, pain and suffering, loss of amenities and
mental agony. The above said substantial piece of evidence in
the form of disability certificate on record has not been taken
into consideration in the proper perspective by the High Court
though it has concurred with the finding of fact recorded by the
Tribunal in re-appreciating the evidence on record. The legal
aspect of the matter regarding the quantum of compensation is
required to be dismissed and awarded to compensate for human
pain and suffering and deprivation of happiness and enjoyment of
personal life of the claimant. The compensation that would be
awarded can not be equated with the human sufferings or personal
deprivation as observed by this Court in the case of R.D.
Hattangadi v. Pest Control (India) Pvt. Ltd. & Ors.[2].
6. Both the Tribunal and Appellate Court were required to consider
the fall in the value of money which requires continuing
reassessment of these awards and periodic reassessments of
damages at certain key points in the pattern where the
disability is readily identifiable and are not subject to large
variations in individual cases as held in the case of R.D.
Hattangadi (supra). Therefore, the learned counsel appearing on
behalf of the claimant-appellant submits that pain and
suffering, loss of amenities having lost both the limbs which
are the relevant important material facts which have been
completely ignored by both the Tribunal and the High Court while
determining the just and reasonable compensation under the
aforesaid heads while awarding compensation in favour of the
claimant. Therefore, learned counsel for the appellant requested
this Court for an award of just & reasonable compensation under
the aforesaid heads by applying the legal principles laid down
by this Court in the cases referred to supra. In support of his
contention, the learned counsel has correctly relied upon the
principle laid down in the case of R.D. Hattangadi (supra) which
was reiterated in the case of Govind Yadav v. New India
Insurance Company Limited[3], it would be appropriate to extract
certain relevant paragraphs of R.D. Hattangadi case, which read
as under:
“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.
11. In the case Ward v. James [1965] 1 All E.R. 563 it was said
:
Although you cannot give a man so gravely injured much for his
"lost years", you can, however, compensate him for his loss
during his shortened span, that is, during his expected "years
of survival". You can compensate him for his loss of earnings
during that time, and for the cost of treatment, nursing and
attendance. But how can you compensate him for being rendered a
helpless invalid? He may owing to brain injury, be rendered
unconscious for the rest of his days, or, owing to back injury,
be unable to rise from his bed. He has lost everything that
makes life worth-while. Money is no good to him. Yet judges and
juries have to do the best they can and give him what they think
is fair. No wonder they find it well nigh insoluble. They are
being asked to calculate the incalculable. The figure is bound
to be for the most part a conventional sum. The judges have
worked out a pattern, and they keep it in line with the change
in the value of money.”
7. The learned counsel for the appellant further submitted that the
claimant-appellant has been deprived of the enjoyment of life as
well as the marital prospects. Further, the concurrent finding
recorded by the High Court in the impugned judgment shows that
the appellant on account of the knee injuries and permanent
disablement and mal-united knee bones, she is unable to walk
without crutches and she is suffering from severe pain while
walking and further the thickness of both the legs are also
reduced due to the injuries sustained by her in accident and
multiple surgeries were conducted on her. This relevant aspect
should have been taken into consideration both by the Tribunal
and the High Court. Further, she has to use crutches throughout
her life for mobility which she is required to periodically
purchase, the cost of which has not been awarded either by the
Tribunal or by the High Court. Therefore, the learned counsel
for the appellant has requested this Court to award suitable
compensation keeping in view the above mentioned facts.
8. On the other hand, Ms. Manjeet Chawla, the learned counsel on
behalf of the respondent No. 2-Insurance Company sought to
justify the impugned judgment and award contending that the High
Court after re-appreciation of the pleadings and evidence on
record has exorbitantly enhanced the compensation under the
various heads mentioned in the impugned judgment such as pain
and suffering, permanent disablement, medical expenses,
transport expenses, extra nourishment, loss of future career and
loss of marriage prospects. Therefore, this is not a fit case
for this Court to enhance the compensation as prayed in this
case by the claimant-appellant.
9. Further, the learned counsel for the respondent No. 2 submits
that the claimant-appellant can continue her studies by
attending to the college and get either the public employment or
alternative private employment on completion of her studies. In
such circumstances, seeking for enhancement of compensation
either under the head of loss of earning or future prospects as
claimed by the claimant-appellant, is not justifiable in law.
Therefore, the learned counsel for the respondent No.2 has
prayed for dismissal of the Civil Appeal.
10. With reference to the above rival factual and legal contentions,
this Court is required to examine:-
1) Whether the claimant-appellant is entitled to
enhancement of compensation under the following heads
namely, loss of earning, pain and suffering, loss of
amenities, loss of enjoyment of marriage prospects and
the cost of crutches?
2) What award?
11. The first question is required to be answered in favour of the
claimant-appellant for the following reasons :-
Having regard to the nature of following injuries sustained by
the appellant in the accident which is an undisputed fact :-
“Right lower limb: Hypertrophic scar extending from distal
thigh to distal 2/3rd of right leg circumferentially.
Decreased sensation over the M/3rd of Right leg.
Left leg: Hypertrophic scar over middle 3rd to distal 3rd
of left leg and with patchy areas decreased sensation over
the scar.
Muscle wasting of both the legs present.
Right Ankle: Equinous deformity of Right ankle of 1st
present. Fixed Flexim deformity of II Joints of toes about
10th present.”
12. The Doctor-PW 2, has stated in his evidence that the appellant
has sustained fracture in both bones in both the legs, the knee
folding is restricted between 25 degree to 85 degree and the
legs could not be stretched fully and the knee bones are mal-
united and the appellant cannot walk without crutches. The
doctor also stated that the appellant is suffering from severe
pain while walking and further the thickness of the appellant’s
both legs were reduced.
13. The aforesaid evidence of the Doctor-PW2 is accepted by the
Tribunal and concurred by the High Court, the High Court came to
the right conclusion that the appellant has sustained permanent
disablement, the same is in conformity with the principle laid
down by this Court in the case of Raj Kumar v. Ajay Kumar and
Anr.[4] at para 12, which reads thus :
“12. Therefore, the Tribunal has to first decide whether
there is any permanent disability and, if so, the extent of
such permanent disability. This means that the Tribunal
should consider and decide with reference to the evidence:
i) whether the disablement is permanent or
temporary;
ii) if the disablement is permanent, whether it is
permanent total disablement or permanent partial
disablement;
iii) if the disablement percentage is expressed with
reference to any specific limb, then the effect
of such disablement of the limb on the
functioning of the entire body, that is, the
permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent
disability then there is no question of proceeding further
and determining the loss of future earning capacity. But if
the Tribunal concludes that there is permanent disability
then it will proceed to ascertain its extent. After the
Tribunal ascertains the actual extent of permanent
disability of the claimant based on the medical evidence, it
has to determine whether such permanent disability has
affected or will affect his earning capacity.”
14. The High Court on the basis of medical evidence on record with
reference to the fractures sustained by the appellant to both the
legs, rightly arrived at the conclusion that she has suffered 70% of
permanent disablement and therefore she was awarded the compensation
under the head of loss of earning in the impugned judgment taking into
account monthly notional income of [pic]6,000/- in the absence of any
document on record as she was a student. This assumption of the courts
below is on the lower side in view of the observations made by this
Court in R.D. Hattangadi (supra). The said principle is reiterated in
Govind Yadav (supra). The relevant para from R.D. Hattangadi is
extracted below :
“14. In Halsbury's Laws of England, 4th Edition, Vol. 12
regarding non-pecuniary loss at page 446 it has been said:
Non-pecuniary loss; the pattern. Damages awarded for pain and
suffering and loss of amenity constitute a conventional sum
which is taken to be the sum which society deems fair, fairness
being interpreted by the courts in the light of previous
decisions. Thus there has been evolved a set of conventional
principles providing a provisional guide to the comparative
severity of different injuries, and indicating a bracket of
damages into which a particular injury will currently fall. The
particular circumstances of the plaintiff, including his age and
any unusual deprivation he may suffer, is reflected in the
actual amount of the award.
The fall in the value of money leads to a continuing
reassessment of these awards and to periodic reassessments of
damages at certain key points in the pattern where the
disability is readily identifiable and not subject to large
variations in individual cases.”
(Emphasis laid by the Court)
15. In view of the aforesaid judgments of this Court and the fact
that the appellant is a brilliant student as she has secured first
rank in the 10th Standard, she would have had a better future in terms
of educational career to acquire basic or master degrees in the
professional courses and she could have got a suitable either public
or private employment but on account of permanent disablement she
suffered due to injuries sustained by her in the accident, that
opportunity is lost to her and therefore, she is entitled to
compensation as per law laid down by this Court in the cases of Raj
Kumar, R.D. Hattangadi and Govind Yadav (supra).
16. Further, having regard to the undisputed fact that there has
been inflation of money in the country since the occurrence of the
accident, the same has to be taken into account by the Tribunal and
Appellate Court while awarding compensation to the claimant-appellant
as per the principle laid down by this court in the case of Govind
Yadav which has reiterated the position of Reshma Kumari v. Madan
Mohan[5] case, the relevant paragraph of which reads as under:
“46. In the Indian context several other factors should be taken
into consideration including education of the dependants and the
nature of job. In the wake of changed societal conditions and
global scenario, future prospects may have to be taken into
consideration not only having regard to the status of the
employee, his educational qualification; his past performance
but also other relevant factors, namely, the higher salaries and
perks which are being offered by the private companies these
days. In fact while determining the multiplicand this Court in
Oriental Insurance Co. Ltd. v. Jashuben held that even dearness
allowance and perks with regard thereto from which the family
would have derived monthly benefit, must be taken into
consideration.”
17. The fact that the appellant was a brilliant student at the time
of the accident should also be taken into consideration while awarding
compensation to her. Therefore, taking [pic]6,000/- as monthly
notional income by the Tribunal for the purpose of awarding
compensation under this head is too meager an amount. The learned
counsel appearing for the respondent No.2 contended that the appellant
can still finish her education and find employment and therefore,
there is no necessity to enhance the amount of compensation under the
head of ‘loss of income’ and ‘future prospects’. It is pertinent to
reiterate here that the claimant/ appellant has undergone and
undergoing substantial pain and suffering due to the accident which
has rendered both her legs dysfunctional. This has reduced the scope
of her future prospects including her marriage substantially.
Moreover, a tortfeasor is not entitled to dictate the terms of the
claimants-appellants career as has been held by the Karnataka High
Court in the case of K. Narsimha Murthy v. The Manager, Oriental
Insurance Company Ltd and Anr. ILR 2004 KARNATAKA 2471, the relevant
paragraph of which reads as under:
“41. …. Further, it needs to be emphasized that it is not the
right of the tortfeasor or a person who has taken over the
liability of the tortfeasor in terms of and under the Act to
dictate that the injured person should do some other work,
manual or otherwise, it does not matter, may be with pain and
discomfort, in order to minimize his or its liability. Such
insistence is untenable in law and if such is the case, it would
violate basic human rights of the injured person. In this case,
the appellant is reduced to such a state that he is unable to do
any work, manual or otherwise, without subjecting himself to
pain and suffering, agony and discomfort. In an accident, if a
man is disabled for a work which he was doing before the
accident, that he has no talents, skill, experience or training
for anything else and he is unable to find any work, manual or
clerical, such a man for all practical purposes has lost all
earning capacity he possessed before and he is required to be
compensated on the basis of total loss. In reaching this
conclusion we may derive support from the judgments in Daniels
v. Sir Robert Mc Alpine and Sons Limited and Blair v. FJC Lilley
(Marine) Limited. Secondly, the physical incapacity to earn
income sustained by the appellant is not temporary, but
permanent and complete as per Exhibit P. 43. Thirdly, it cannot
be said that since the appellant has sustained only 54%
permanent physical disability in respect of the whole body as
per P.W. 3, the Court should take into account functional
disability also at 54% only while assessing the loss of earning
capacity. Such hypothesis does not stand to reason nor can it be
accepted as valid in terms of law. An injured person is
compensated for the loss which he incurs as a result of physical
injury and not for physical injury itself. In other words,
compensation is given only for what is lost due to accident in
terms of an equivalent in money insofar as the nature of money
admits for the loss sustained. In an accident, if a person loses
a limb or eye or sustains an injury, the Court while computing
damages for the loss of organs or physical injury, does not
value a limb or eye in isolation, but only values totality of
the harm which the loss has entailed the loss of amenities of
life and infliction of pain and suffering: the loss of the good
things of life, joys of life and the positive infliction of pain
and distress.”
18. Further, it has been held in the case of Reshma Kumari (supra)
that certain relevant factors should be taken into consideration while
awarding compensation under the head of future prospect of income. The
relevant paragraph read as under:
“27. The question as to the methodology required to be applied
for determination of compensation as regards prospective loss of
future earnings, however, as far as possible should be based on
certain principles. A person may have a bright future prospect;
he might have become eligible to promotion immediately; there
might have been chances of an immediate pay revision, whereas in
another the nature of employment was such that he might not have
continued in service; his chance of promotion, having regard to
the nature of employment may be distant or remote. It is,
therefore, difficult for any court to lay down rigid tests which
should be applied in all situations. There are divergent views.
In some cases it has been suggested that some sort of hypotheses
or guess work may be inevitable. That may be so.”
19. Therefore, in the light of the principles laid down in the
aforesaid case, it would be just and proper for this Court, and
keeping in mind her past results we take [pic]10,000/- as her monthly
notional income for computation of just and reasonable compensation
under the head of loss of income. Further, the High Court has failed
to take into consideration the future prospects of income based on the
principles laid down by this Court in catena of cases referred to
supra. Therefore, the appellant is justified in seeking for
re-enhancement under this head as well and we hold that the claimant-
appellant is entitled to 50% increase under this head as per the
principle laid down by this Court in the case of Santosh Devi (supra).
The relevant paragraph reads as under:
“13. In Sarla Verma's case (supra), another two Judge Bench
considered various factors relevant for determining the
compensation payable in cases involving motor accidents,
noticed apparent divergence in the views expressed by this
Court in different cases, referred to large number of
precedents including the judgments in U.P. SRTC v. Trilok
Chandra (1996) 4 SCC 362, Nance v. British Columbia Electric
Railway Company Ltd. 1951 AC 601, Davies v. Powell Duffryn
Associated Collieries Ltd. 1942 AC 601 and made an attempt to
limit the exercise of discretion by the Tribunals and the High
Courts in the matter of award of compensation by laying down
straightjacket formula under different headings, some of which
are enumerated below:
(i) Addition to income for future prospects
In Susamma Thomas this Court increased the income by nearly
100%, in Sarla Dixit the income was increased only by 50% and
in Abati Bezbaruah the income was increased by a mere 7%. In
view of the imponderables and uncertainties, we are in favour
of adopting as a rule of thumb, an addition of 50% of actual
salary to the actual salary income of the deceased towards
future prospects, where the deceased had a permanent job and
was below 40 years. (Where the annual income is in the taxable
range, the words "actual salary" should be read as "actual
salary less tax"). The addition should be only 30% if the age
of the deceased was 40 to 50 years. There should be no
addition, where the age of the deceased is more than 50 years.
Though the evidence may indicate a different percentage of
increase, it is necessary to standardise the addition to avoid
different yardsticks being applied or different methods of
calculation being adopted. Where the deceased was self-employed
or was on a fixed salary (without provision for annual
increments, etc.), the courts will usually take only the actual
income at the time of death. A departure therefrom should be
made only in rare and exceptional cases involving special
circumstances.
Therefore, taking both the aspects into account, the total amount of
compensation under this head is calculated as Rs.22,68,000/-
[([pic]10,000/-x 70/100 + 10,000 x 70/100 x 50/100) x 12 x 18]
20. The compensation under the head pain & suffering and mental agony
was awarded by the High Court after recording concurrent finding with
the award passed by the Tribunal. However, the courts below have not
recorded the nature of the permanent disablement sustained by the
appellant, while awarding [pic]1,00,000/- under this head which is too
meager an amount and is contrary to the judgment of R.D. Hattangadi
and Govind Yadav cases (supra). The relevant paragraphs of Govind
Yadav case read as under:
“25. The compensation awarded by the Tribunal for pain,
suffering and trauma caused due to the amputation of leg was
meager. It is not in dispute that the appellant had remained in
the hospital for a period of over three months. It is not
possible for the tribunals and the courts to make a precise
assessment of the pain and trauma suffered by a person whose
limb is amputated as a result of accident. Even if the victim of
accident gets artificial limb, he will suffer from different
kinds of handicaps and social stigma throughout his life.
Therefore, in all such cases, the tribunals and the courts
should make a broad guess for the purpose of fixing the amount
of compensation.
26. Admittedly, at the time of accident, the appellant was a
young man of 24 years. For the remaining life, he will suffer
the trauma of not being able to do his normal work. Therefore,
we feel that ends of justice will be met by awarding him a sum
of Rs 1,50,000 in lieu of pain, suffering and trauma caused due
to the amputation of leg.”
Therefore, under this head the amount awarded should be enhanced to
[pic]2,00,000/- as the Doctor-PW2 has opined that at the time of
walking with support of crutches, the claimant-appellant will be
suffering pain permanently. Therefore, under this head it has to be
enhanced from [pic]1,00,000/- to [pic]2,00,000/-.
21. The loss of amenity and attendant charges awarded by the courts
below at [pic]1,00,000/- is also too meager an amount as the appellant
has permanently lost her amenity of both the legs. For the purpose of
walking, squatting, running and also studying throughout her life and
particularly, at the advanced age, she will be requiring the attendant
for giving assistance to attend the nature’s call and also at the time
of sitting or moving around. Therefore, the compensation at this head
is required to be enhanced from [pic]1,00,000/- to [pic]2,00,000/-
based upon the principle laid down by this court in Govind Yadav case
(supra), the relevant paragraph of which reads as under:
“27. The compensation awarded by the Tribunal for the loss of
amenities was also meagre. It can only be a matter of imagination
as to how the appellant will have to live for the rest of his life
with one artificial leg. The appellant can be expected to live for
at least 50 years. During this period he will not be able to live
like a normal human being and will not be able to enjoy life. The
prospects of his marriage have considerably reduced. Therefore, it
would be just and reasonable to award him a sum of Rs 1,50,000 for
the loss of amenities and enjoyment of life.”
22. The amount of compensation awarded under the head of ‘Loss of
enjoyment of life and marriage prospects’ at [pic]2,00,000/- is
totally inadequate since her marriage prospect has substantially
reduced and on account of permanent disablement she will be deprived
of enjoyment of life. Therefore, it would be just and proper to
enhance the compensation from [pic]2,00,000/- to [pic]3,00,000/-. In
so far as, purchase of crutches periodically, it would be just and
proper to award a sum of [pic]50,000/-.
23. Further, the accident had taken place on 11.4.2005 and the
claimant- appellant, since then has been fighting for justice, first,
in the Motor Accident Claim Tribunal, then the High Court and finally
before us. Therefore, we consider that she is rightfully entitled to
the cost of litigation as per the principle laid down by this Court in
the case of Balram Prasad v. Kunal Saha & Ors.[6] Therefore, we award
a sum of [pic]25000/- under the head of ‘cost of litigation’.
24. Thus, the claimant-appellant in this appeal is entitled to a
total amount of [pic]30,93,000/- as compensation with an interest @ 9%
per annum based on the principle laid down by this Court in Municipal
Corporation of Delhi, Delhi v. Uphaar Tragedy Victims Association &
Ors.[7] from the date of filing of the application till the date of
payment.
25. The Insurance Company is directed to deposit 50% of the awarded
amount with proportionate interest within four weeks from the date
of receipt of a copy of this order, after deducting the amount if
already paid, in any of the Nationalized Bank of the choice of the
appellant, for a period of 3 years. During the said period, if she
wants to withdraw a portion or entire deposited amount for her
personal or any other expenses, including development of her
asset, then she is at liberty to file application before the
Tribunal for release of the deposited amount, which may be
considered by it and pass appropriate order in this regard.
The rest of 50% amount awarded with proportionate interest shall be
paid to the appellant/claimant by way of a demand draft within four
weeks from the date of receipt of the copy of this judgment. The
Insurance Company is further directed to submit compliance report
before this court within five weeks thereafter.
26. The appeal is allowed accordingly. No costs.
………………………………………………………………………J.
[GYAN SUDHA MISRA]
………………………………………………………………………J.
[V. GOPALA GOWDA]
New Delhi,
April 25, 2014
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[1] (2012) 6 SCC 421
[2] (1995) 1 SCC 551
[3] (2011) 10 SCC 683
[4] (2011) 1 SCC 343
[5] (2009) 13 SCC 422
[6] (2014) 1 SCC 384
[7] (2011) 14 SCC 481
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