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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4340 OF 2013
(Arising out SLP (C) No.8164 of 2012)
Smt. V. Sudha … Appellant
Versus
P. Ganapathi Bhat & Anr. … Respondents
J U D G E M E N T
H.L. Gokhale J.
Delay condoned. Leave granted.
2. This appeal by special leave seeks to challenge the
judgment and order dated 1.2.2011 rendered by a Single
Judge of the Karnataka High Court in MFA No.3356 of 2009
(MV), whereby the learned Single Judge modified the award
rendered by the Motor Accident Claims Tribunal (“MACT” for
short) Bangalore dated 7.2.2009 in M.V.C. No.7724 of 2007.
The High Court by the impugned judgment and order has
enhanced the compensation payable to the appellant for thePage 2
accidental injury suffered by her, though not fully meeting her
requirement, and hence this appeal by Special Leave.
Facts leading to this appeal are as follows:-
3. The appellant then aged about 36 years sustained
grievous injuries on 11.9.2007 in a road accident which
occurred at Mill Road Junction, Cottonpete Main Road,
Bangalore. The appellant claims to be doing the business of
selling saaris and on that date when she was proceeding on
that road at about 3.30 pm, a motorcycle driven by the
respondent no.1 bearing registration no.KA-02-ET-8786 came
in a rash and negligent manner at a high speed and dashed
against her. The appellant sustained grievous injuries and
was admitted in Srinivasa Hospital, Bangalore where she was
treated by Dr. Avinash s/o B. Parthosarthi, Orthopaedic
Surgeon.
4. The appellant was treated for the following injuries:-
(i) Fracture of distal end of left radius (forearm bone)
(ii) Fracture of left neck of femur – (hip bone)
(iii) Abrasions over left elbow
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The wound certificate issued by the doctor stated that injury
no.1 and 2 above were grievous in nature.
5. As per the medical record the appellant had to be
operated for ‘close reduction and annulated screw fixation of
fractured neck of femur’. ‘Close reduction and B/E POP cast
was applied for fractured lower end of left radius’. After the
discharge from the hospital she continued to suffer pain in left
forearm and left hip, and found difficulty in walking. She
suffered for inability to stand with full weight in left lower
limb, and needed crutches to walk. She could not squat and
sit cross legged, had great difficulty in climbing stairs, and
could not stand for longer duration.
6. The appellant filed the above referred motor
accident claim petition bearing MVC No.7724 of 2007 and
claimed the compensation of Rs.3,50,000/-. The respondent
no.2-National Insurance Company with which the motorcycle
was insured, filed its written statement and produced the
insurance policy which showed that the motorcycle was
insured with it on the date of the accident. Respondent no.1
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did not file any written statement. The MACT framed two
issues, firstly whether the appellant proved that she has
sustained grievous injuries in the road accident on that date
due to the rash and negligent act of the rider of the concerned
motorcycle. The second issue framed was whether the
appellant was entitled for compensation, and if so what
amount and from whom. The appellant filed her evidence by
affidavit and supported her claim with the affidavit of above
referred Dr. Avinash dated 3.12.2008.
7. While deciding the first issue, the MACT
considered the statement of the appellant in her affidavit
about the occurrence of the accident. The Court noted the
contents of the FIR, and the chargesheet filed in the
Magistrate’s Court. The rider of the motorcycle did not file the
written statement, nor did he step into the witness box. The
Tribunal was therefore, constrained to draw the adverse
inference that the respondent No. 1 was responsible for the
accident, and that the accident was caused by his rash and
negligent driving.
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8. Turning to the issue no.2, the MACT considered the
evidence produced by the appellant by way of her affidavit, as
well as the evidence through the affidavit of Dr. Avinash
(PW2) dated 3.12.2008. Dr. Avinash placed on record as to
how the appellant was admitted to Srinivasa Hospital, and the
treatment given to her. He pointed out that after her
discharge from the hospital she continued to come to the
hospital with complaints of pain in left forearm and left hip,
difficulty in walking, inability to stand with full weight,
restriction of the movement, needing the crutches to walk and
not being able to sit down with cross legs or to squat. He
opined that there was serious physical impairment in her left
leg. Its mobility component as well as the stability component
had been seriously eroded. Its mobility component was
eroded by 16.3% and stability component was eroded by
30%. The doctor assessed the permanent disability to the left
lower limb at 52%, and in relation to the whole body at 17.3%.
In his affidavit, the doctor referred to the future treatment
which was expected for the appellant. He stated that to
minimize the persistent disablement, she needed to undergo
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femoral head excision and Bipolar Hemi-arthoplasty which
would cost more than Rs.90,000/-.
9. The appellant had claimed her monthly income in
the range of Rs.6000 to Rs.7000 but the MACT took it as
Rs.3000/- and arrived at annual income of Rs.36,000/-. The
Tribunal awarded an amount of Rs.1,94,350/- with interest @
8% per annum from the date of petition till the date of
depositing the amount in Court with advocate fee fixed at
Rs.500/-. The amount of compensation was arrived at in the
following manner:-
1) Pain and suffering Rs.30,000/-
2) Loss of future income & disability
Rs.81,000/-
3) Loss of amenities
Rs.20,000/-
4) Loss of expectation of life
Rs.15,000/-
5) Medical Expenses Rs.38,346/-
6) Travelling expenses Rs.10,000/-
---------------------
Total Rs.1,94,350/-
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10. When the appeal filed by the appellant under
Section 173 (1) of the Motor Vehicles Act, 1988 (M.V. Act for
short) was heard by the High Court, it came to the conclusion
that the compensation awarded by the Tribunal under the loss
of earning capacity and future loss of earning was on the
lower side. The Court noted that the Tribunal had not
awarded compensation towards loss of earning, attendants,
nourishment and food charges as well as for future medical
expenses. The High Court, therefore, modified the award
rendered by the MACT and awarded the compensation of
Rs.2,65,000/- in the following manner:-
“1) Pain and suffering Rs.30,000/-
2) Medical Expenses Rs.39,000/-
3) Loss of earning during laid up
Period (Rs.3000 x 6) Rs.18,000/-
4) Loss of amenities
Rs.40,000/-
5) Travelling expenses Rs.10,000/-
6) Attendant & nourishing food Rs.5,000/-
7) Loss of earning capacity &
Future loss of earning
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(Rs.3000 x 12 x 15 x 0.20)
Rs.1,08,000/-
8) Future medical expenditure
Rs.15,000/-
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Total Rs.2,65,000/-“
11. The learned counsel for the appellant criticised the
judgment of the High Court principally for accepting the
permanent physical disability of the appellant at 17.3% only,
and for not considering the supporting medical evidence for
future expenses. It was contended that the permanent
physical disability was 52%. However, when we see the
evidence of the doctor, it is seen that the disability to left
lower limb is 52% but the disability to the whole body is
17.3%. However, as far as the award of Rs.15000/- for future
medical expenses is concerned, as can be seen the High Court
has lost sight of the statement of the doctor that to minimize
the persistent disablement the appellant needed to undergo
femoral head excision and Bipolar Hemi-arthoplasty which
would cost more than Rs.90,000/-.
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12. When this special leave petition came for
consideration a notice was issued on the prayer of
condonation of delay as also on merits of the appeal. The
notice has been served on the respondents. Ms. Kiran Suri has
appeared for appellant and Mr. Parmanand Gaur has
appeared for the insurance company. Ms. Suri appearing for
the appellant has submitted that the future medical expenses
and necessary treatment have not been considered
adequately by the High Court. In fact now the appellant
claims that she needs to undergo hip replacement surgery
which could cost Rs.2 lakhs. She has produced a certificate of
a consulting orthopedic surgeon of a health centre dated
14.7.2011. (We may however note that the certificate is
issued on a date which is even subsequent to the decision of
the High Court, and it does not contain the address of the
concerned health centre). The counsel for the insurance
company has submitted that the compensation has to be in
proportion to the injury suffered and not in excess.
13. We have considered the submissions of both the
counsel. Section 168 of the Motor Vehicle Act under which
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the Tribunal passes its award requires the Tribunal to
determine the amount of compensation ‘which appears to it
to be just’. While considering the claim of a injured retired
Judge we may note that in R.D Hattangadi Vs. Pest
Control (India) Pvt. Ltd. reported in 1995 (1) SCC 551 this
Court has observed that the determination of compensation
involves some hypothetical consideration linked with the
nature of the disability, but these factors are required to be
considered in an objective manner. In Arvind Kumar Vs.
New India Insurance reported in 2010 (10) SCC 254, this
Court was concerned with the 70% permanent disability
suffered by a final year engineering student, and the Court
observed that the whole idea in granting the compensation is
to put the claimant in the same position as he was in so far as
money can. In Raj Kumar Vs. Ajay Kumar reported in
2011 (1) SCC 343, this Court observed that the provision of
M.V. Act makes it clear that the award must be just, which
means that the compensation should, to the extent possible
fully and adequately restore the claimant to the position prior
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to the accident. With respect to the heads of compensation,
the court observed:-
“The heads under which compensation is
awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalization,
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
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amenities (and/or loss of prospects of marriage) and loss of
expectation of life.”
14. In the present case, the claim petition filed by the
appellant claimed an amount of Rs.3,50,000/-,
the Tribunal
awarded Rs.1,94,350/- which was enhanced by the High Court
to Rs.2,65,000/-.
The evidence of the doctor tendered in the
Tribunal on 3.12.2008 stated that the future treatment would
cost more than Rs.90,000/-.
This corroborating evidence has
not been contravented.
The High Court however awarded only
an amount of Rs.15,000/- towards future medical expenses.
In
view of the dicta in Raj Kumar Vs. Ajay Kumar (supra) we
accept the corroborative evidence given by the doctor, and
add the amount as reflected in the doctor’s evidence.
A
similar view has been taken by a Bench of this Court recently
in Civil Appeal No. 5945 of 2012 Kavita Vs. Deepak,
decided on 22.8.2012 to which one of us (G.S. Singhvi J) was
party.
This would add the remaining amount of Rs.75,000/- to
the compensation awarded by the High Court which takes it to
a figure of Rs.3,40,000/.
Since, the doctor has said that the
expenses could be more than Rs.90,000/- but has not
specified how much would be that amount, we add the
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remaining amount of Rs.10,000/- to make it Rs.3,50,000/- and
thus fully allow the claim of the appellant.
The amount of
Rs.85,000/- thus added, with interest at 8% from the date of
the petition (as originally awarded) will give her an added
amount in the range of Rs. 1,25,000/.
That will meet her
requirement as placed before the MACT in her claim petition
in its entirety.
15. The appeal is accordingly allowed. The claim
petition filed by the appellant will stand decreed at
Rs.3,50,000/- with interest @ 8% per annum from the date of
the petition as awarded by the MACT. The respondent No.2
insurance company is directed to pay the amount as now
added with interest at 8% as above within 8 weeks from
today.
.…………..………………………..J.
[ G.S. Singhvi ]
.…………..
………………………..J.
[ H.L. Gokhale ]
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New Delhi
Dated : May 6, 2013
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