R.D. Hattangadi
Vs. Pest Control (India) Pvt. Ltd. [1995] INSC 18 (6 January 1995)
Singh
N.P. (J) Singh N.P. (J) Ahmadi A.M. (Cj)
CITATION:
1995 AIR 755 1995 SCC (1) 551 JT 1995 (1) 304 1995 SCALE (1)79
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by N.P SINGH, J.- The appellant met with an
accident while travelling in an Ambassador car (Registration No. MEQ 4583) on
20-5-1980 at about 8.30 a.m. near Village Sirur on Karwar-Mangalore Road
(National Highway No. 17) within the State of Karnataka. There was a head-on
collision between the car in which the appellant was travelling and the motor
lorry (Registration No. MYS 7218). Because of the said collision, the driver of
the car in which the appellant was travelling was thrown out and died on the
spot, whereas the appellant was trapped between the dashboard and the seat.
Mr Nagarkatti
who was also travelling with the appellant in the car was thrown on the road.
The impact was so severe that the front left side of the door of the car was
jammed and could not be opened. Seeing the accident, the villagers gathered and
broke open the left side of the car with the help of crowbar and the appellant
was taken out. The appellant was removed to the Kasturba Hospital where he was treated as indoor
patient from 20-5-1980 to 27-5-1980. When the relations of the appellant reached the hospital,
a decision was taken to remove the appellant to Bombay and accordingly on 27-5-1980 he was brought to Bombay and was admitted in the Sion Hospital. The
appellant remained in the said hospital as indoor patient from 27-5-1980 to 2-8- 1980. Because of the accident, the appellant
suffered serious injuries resulting into 100% disability and a paraplegia below
the waist.
2. The
car was owned by M/s Pest Control (India) Pvt. Ltd., Respondent 1 and was insured with New India Assurance
Company Limited, Respondent 2. The motor lorry was owned by one Madhav Bolar -
Respondent 3 and was insured by Oriental Fire and General Insurance Company
Limited, Respondent 4. According to the appellant, the driver of the car in
which the appellant was sitting as well as the driver of the lorry which was
coming from the opposite side, both were driving in a rash and negligent manner
554 which resulted in a head-on collision. On 11-10-1980 the appellant gave notice to the Insurance Company and
other parties who were liable to pay compensation and called upon them to pay
compensation of Rs4,00,000. Since there was no response, on 13-11-1980 the appellant filed the claim petition under Section
110 -A of the Motor Vehicles Act, 1939 (hereinafter referred to as the 'Act').
Initially, the appellant made a claim for compensation amounting to Rs4,00,000
but on 16-4-1984 he claimed Rs 35,00,000 as the
compensation from the respondents and claim petition was amended. The age of
the appellant at the time of accident was 52 years.
3.The
appellant was a practising advocate before the accident. He was also a Judge of
the City Civil Court for sometime until he resigned in
the year 1964. The appellant used to appear in the various courts including the
High Court and the Supreme Court of India. Because of tile accident, the
appellant became disabled and he was unable to resume his practice.
4.The
claim made on behalf of the appellant was resisted by the respondents to the
said petition on different grounds. The owner of the lorry resisted his
liability to pay any amount of compensation on the ground that although he was
the owner of the said lorry but since it was insured with Respondent 4, the
insurance company was liable to pay compensation, if any, to the appellant. M/s
Pest Control (India) Pvt. Ltd. who were the owners of
the car resisted the claim made on behalf of the appellant asserting that the
driver of the said car was driving the car very cautiously and carefully and
the accident took place entirely due to the negligence on the part of the
driver of the motor lorry.
In any
case, according to the said respondent, the compensation claimed on behalf of
the appellant was excessive, imaginary and speculative in nature, which
according to the said respondent was an attempt to make "a fortune out of
misfortune". Respondent 2, New India Assurance Co. Ltd,, with whom the car
in question was insured took a plea that their liability was limited to the
requirements as per law and terms and conditions of the insurance policy issued
by them in favour of Respondent 1.
The
Oriental Fire and General Insurance Co. Ltd., who had insured the motor lorry
of Respondent 3, their stand was also the same that they were bound by the
terms and conditions of the insurance policy.
5.The
Accidents Claim Tribunal on consideration of the materials on record and the
evidence adduced on behalf of the parties passed on Award directing Respondents
1 and 2 to pay jointly and severally to the appellant compensation of Rs
26,25,992 to-ether with interest at the rate of 12% per annum from the rate of
the application i.e. 13-11-1980 till payment and costs of the said application
within three months. The Tribunal was also of the view that Respondent 4 the
insurer of the motor lorry belonging to Respondent 3 was liable to pay the
compensation to the extent of Rs 50,000 and interest there on and proportionate
costs. In the award a direction was given to Respondent 2, the insurer of the
car to pay all the compensation along with interest and costs on behalf of
Respondent 1.
555
6.Against the Award aforesaid, two appeals were filed before the High Court,
one on behalf of the appellant for enhancement of the compensation awarded by
the Tribunal and the other on behalf of M/s Pest Control (India) Pvt. Ltd.,
Respondent 1 and New India Assurance Co. Ltd., Respondent 2 questioning the
validity and correctness of the award in question. The High Court by the
impugned judgment modified the award of the Tribunal and reduced the
compensation from Rs 26,25,992 to Rs 8,57,352. The High Court has also reduced
the rate of interest from 12% per annum to the rate of 6% per annum. The award
against the insurer of the lorry Respondent 4 was affirmed and direction was
given to make payment with interest at the rate of 6% and the proportionate
costs. It was further directed that if the respondents failed and neglected to
pay the amount in full or part, such defaulted amount shall carry 12% interest
per annum from the date of default till its realisation. On the aforesaid
finding the appeal filed on behalf of the appellant was dismissed, whereas the
appeal filed on behalf of Respondents 1 and 2 was allowed by the High Court in
part.
7.During
the last few decades question of payment of compensation for accidents has
assumed great importance, which is correlated with the accidents which have
touched a new height not only in India but in different parts of the world.
Initially, the theory of payment of compensation was primarily linked with tort
compensation- only if the injury or damage was caused by someone's fault. Of
late the injury or damage being caused by someone's fault is being read as
because of someone's negligence or carelessness. That is why any damage caused
by negligent conduct is generally actionable irrespective of the kind of
activity out of which the damage arose. Even in an action based on the tort,
the applicant has to show that the defendant was negligent i.e. there was a
failure on his part to take that degree of care which was reasonable in the
circumstances of the case.
There
has never been any doubt that those using the highways are under a duty to be
careful and the legal position today is quite plain that any person using the
road as a motorist will be liable, if by his action he negligently causes
physical injuries to anybody else.
8.The
Tribunal as well as the High Court has examined the evidence adduced on behalf
of the parties and have recorded clear findings that at the relevant time the
car and the lorry were being driven in a rash and negligent manner.
Reference
has been made to the evidence adduced on that question. The fact that the front
left side of the car was entangled with the front middle of the lorry speaks
about the rashness on the part of the drivers of the two vehicles.
The
Tribunal has also pointed out from the materials on record that the motor car
had gone to the wrong side of the road at the time of the accident. The High
Court after referring to the order of the Tribunal said that after going
through the evidence of the witnesses and the circumstances placed, it was of
the opinion that the Tribunal was right in holding that there was composite
negligence on the part of the drivers of both the vehicles and because of such
negligence the appellant had sustained such serious injuries. The High Court
also said that in view of composite negligence, the appellant 556 was entitled
for damages from the owners of both the vehicles and consequently the insurers
of the two vehicles shall also be liable subject to the terms and conditions of
the insurance policies. The Tribunal as well as the High Court were satisfied
that because of the accident aforesaid, the appellant had become paraplegic and
it was not easy to assess the exact compensation which is payable to him.
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 are capable of being calculated in terms of money; whereas
non-pecuniary damages are those which are incapable of being assessed by
arithmetical calculations. In order to appreciate two concepts pecuniary
damages may include expenses incurred by the claimant: (i) medical attendance;
(ii) loss of earning of profit up to the date of trial; (iii) other material
loss. So far non- pecuniary damages are concerned, they may include
(i) damages
for mental and physical shock, pain and suffering, already suffered or likely
to be suffered in future;
(ii)
damages to compensate for the loss of amenities of life which may include a
variety of matters i.e. on account of injury the claimant may not be able to
walk, run or sit;
(iii) damages
for the loss of expectation of life, i.e., on account of injury the normal
longevity of the person concerned is shortened;
(iv) inconvenience,
hardship, discomfort, disappointment, frustration and mental stress in life.
10.It
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 lifelong handicapped.
No
amount of compensation can restore the physical frame of the appellant. That is
why it has been said by courts that whenever any amount is determined as the
compensation payable for any injury suffered during an accident, the object is
to compensate such injury "so far as money can compensate" because it
is impossible to equate the money with the human sufferings or personal
deprivations. Money cannot renew a broken and shattered physical frame.
11. In
the case Ward v. James1 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 a back
injury, be unable to rise from his bed. He has lost everything that makes life
worthwhile. Money is no good to him. Yet judges and juries have to do 1 (1965)
1 All ER 563 557 the best they can and give him what they think is fair. No
wonder they find it well nigh insoluble. They are being asked to calculate the
incalculable. The figure is bound to be for the most part a conventional sum.
The judges have worked out a pattern, and they keep it in line with the changes
in the value of money."
12. In
its very nature whenever a tribunal or a court is required to fix the amount of
compensation in cases of accident, it involves some guesswork, some
hypothetical consideration, some amount of sympathy linked with the nature of
the disability caused. But all the aforesaid elements have to be viewed with
objective standards.
13.This
Court in the case of C.K. Subramonia Iyer v. T Kunhikuttan Nair2 inconnection
with the Fatal Accidents Act has observed:
"In
assessing damages, the Court must exclude all considerations of matter which
rest in speculation or fancy though conjecture to some extent is
inevitable."
14. In
Halsbury's Laws of England, 4th Edn., Vol. 12 regarding nonpecuniary 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."
15. We
are informed that during the pendency of the appeal before the High Court on
basis of interim directions- Rs 3 lakhs and Rs 9 lakhs, in total Rs 12 lakhs
have been directed to be deposited. However, in the final decision, the High
Court was of the opinion that the appellant was entitled to Rs 8,57,352 only as
the compensation.
16.During
the hearing of the appeal a chart was circulated showing the amountsclaimed on
behalf of the appellant under different heads and the amountsallowed or
rejected by the High Court under those heads. So far, the amount mentioned
against SI. No. 1 is concerned, the High Court has allowed the whole claim of Rs
47,652 and there is no dispute on that account. Against SI. Nos. 2 to 6 the
appellant had claimed Rs 37,688 for Ayurvedic treatment against which an amount
of Rs 4000 has been allowed by the High Court. According to us, this part of
the judgment of the High Court does not require any interference. Against SI.
No. 7 the appellant has 2 AIR 1970 SC 376: (1970) 2 SCR 688 558 claimed for
Fowler's Bed, Rs 21,000 for the present and Rs 21,000 for the future which has
not been allowed. Same is the position in respect of electric wheelchair
against SI. No. 8 which has been claimed at the rate of Rs 50,000 for the
present and Rs 50,000 for the future which has been rejected by the High Court.
According to us, when admittedly because of the injuries suffered during the accident,
the appellant has become paraplegic, the aforesaid amounts should have been
allowed by the High Court.
Accordingly,
we allow the said claim for Rs 1,42,000 under SI. Nos. 7 and 8. So far claim
for Air-Inflated Bed at SI. No. 9 is concerned, the appellant has claimed Rs
5000 for the present and Rs 5000 for the future. The High Court has allowed
only Rs 5000 for the present. According to us, the remaining amount of Rs 5000
also should have been allowed by the High Court. Coming to the claim for home
attendants against SI. No. 9A, the appellant has claimed Rs 55,450 for the
present and Rs 1,87,200 for the future. The High Court has allowed Rs 36,000
and Rs 72,000 respectively. We feel that there was no occasion for the High
Court to be so mathematical on this question. Under the circumstances
prevailing in the society in respect of home attendants, the High Court should
have allowed the amount as claimed by the appellant. We accordingly allow the
same. For Drugs and Tablets (Allopathic), claim has been made for Rs 9000 for
the present and Rs 18,000 for the future. The High Court has allowed Rs 5400
and Rs 10,800 respectively under that head as detailed against SI. No. 10. The
claim under this head appears to be reasonable and should have been allowed, we
allow the same. Against SI. No. 11 the appellant has claimed for Ayurvedic
treatment Rs 7800 for the present and Rs 37,440 for the future. The High Court
has allowed Rs 7200 and Rs 12,000 respectively. According to us this part does
not require any interference. Under SI. No. 12 (i) bedsore dressing charges for
the present and future have been claimed respectively at Rs 72,900 and Rs 1,29,600
against which the High Court has allowed Rs 20,000 and Rs 10,000 respectively.
In normal course for bedsore the claim for Rs 72,900 for the present and Rs 1,29,600
for the future appears to be exorbitant. The High Court has rightly directed
payment of Rs 20,000 and Rs 10,000. As such this part of the finding of the
High Court does not require interference. Under SI. No. 12 (ii) claim has been
made for catheterization charges at Rs 1,29,600 for the present and Rs 2,59,200
for the future. The High Court has allowed Rs 10,000 and Rs 5000 respectively.
We are of the opinion that the amount awarded by the High Court under this head
does not require any interference. So far the order of the High Court in
respect of bladder-wash charges and enema charges is concerned, it also does
not require any interference. Under SI. No. 13 Rs 20,100 has been claimed as
charges for consulting surgeons for the present and Rs 14,400 has been claimed
for the future. The High Court has allowed Rs 5000 for the present and the same
amount for future. We feel that this part of the finding of the High Court does
not require any interference. For physiotherapy under SI. No. 14, Rs 34,200 has
been claimed for the present and Rs 1,87,200 for the future. The High Court has
allowed Rs 12,000 for the present and Rs 12,000 for the future. It is well
known that for victims of road accidents, 559 physiotherapy is one of the
acknowledged mode of treatment which requires to be pursued for a long
duration. The High Court should have allowed Rs 34,200 as claimed by the
appellant for the present and at least Rs 50,000 for the future. However we
allow the same. In respect of loss of earnings under Si. No. 15 claim has been
made for Rs 1,80,000, the High Court has allowed Rs 1,44,000. The High Court
should have allowed the whole claim. We allow the same. For loss of future
earnings, claim has been made at Rs 3,60,000. The High Court has allowed Rs 1,62,000
in respect of loss of future earnings. This part of the award does not require
any interference because an amount of Rs 1,62,000 can be held to be a
reasonable amount to be awarded taking all facts and circumstances in respect
of the future earnings of the appellant.
17.
The claim under SI. No. 16 for pain and suffering and for loss of amenities of
life under SI. No. 17, are claims for non-pecuniary loss. The appellant has
claimed lump sum amount of Rs 3,00,000 each under the two heads. The High Court
has allowed Rs 1,00,000 against the claims of Rs 6,00,000. 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 nonpecuniary loss is not easy to determine but
the award must reflect that different circumstances have been taken into
consideration. According to us, as the appellant was an advocate having good
practice in different courts and as because of the accident he has been
crippled and can move only on wheelchair, the High Court should have allowed an
amount of Rs 1,50,000 in respect of claim for pain and suffering and Rs
1,50,000 in respect of loss of amenities of life. We direct payment of Rs 3,00,000
(Rupees three lakhs only) against the claim of Rs 6,00,000 under the heads
"Pain and Suffering" and "Loss of amenities of life".
18. So
far the direction of the High Court regarding payment of interest at the rate
of 6% over the total amount held to be payable to the appellant is concerned,
it has to be modified. The High Court should have clarified that the interest
shall not be payable over the amount directed to be paid to the appellant in
respect of future expenditures under different heads. It need not be pointed
out that interest is to be paid over the amount which has become payable on the
date of award and not which is to be paid for expenditures to be incurred in
future. As such we direct that appellant shall not be entitled to interest over
such amount.
19.
The appeals of the appellant are allowed to the extent indicated above. No
costs.
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