Sapna Vs. United Insurance Co. Ltd.& ANR [2008] INSC 926 (14 May 2008)
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE
JURISDICTION CIVIL APPEAL NO. 3575 OF 2008 (Arising out of SLP (C) No.21080 of
2006) Sapna ... Appellant Versus United India Insurance Co. Ltd. & Anr. ...
Respondents
S.B. Sinha, J.
1. Leave granted.
2. What should be the fair and
adequate compensation for permanent disability suffered by a 12 years' girl in
an accident involving a motor vehicle is the question involved herein. On
3.9.1999, at about 10.00 am, Sapna, while going to a temple, was hit by a `jeep', used
as a taxi. She 2 was dragged along with the jeep to a distance of about 15-20
feet. She suffered compound fracture of left knee and dislocation of
Patellae/bone of left knee and skin and muscles above and below came out and
veins got cut and knee got completely damaged and bones of left leg became bare
due to tearing of skin and flesh and left leg bent at 90 degree at knee as a
result whereof she has become crippled and completely disabled to walk. The
skin of right leg from thigh to ankle was also peeled off resulting in serious
wounds.
3. She was taken to a hospital and
admitted as an inpatient therein for about 25 days. A sum of Rs.45,000/- were
expended for her treatment till that day. It is stated that she is still
required to undergo treatment from the aforementioned hospital.
4. A claim petition was filed
praying for grant of compensation for a sum of Rs.6,45,000/. The learned
Tribunal passed an award of Rs.82,569/- together with 8% simple interest
thereupon.
5. Aggrieved thereby, the
appellant preferred an appeal. By reason of the impugned judgment, the High
Court has enhanced the amount of compensation to Rs.2,00,000/- but reduced the
rate of interest to 6% from 8% p.a.
3
6. Mr. Garg, learned counsel
appearing on behalf of the appellant, submits that the Tribunal as also the
High Court committed a serious error in passing the impugned awards insofar as
they failed to take into consideration that having regard to the nature of
injuries suffered by the appellant in the said accident, not only her education
has come to an end but also her future matrimonial prospect are also adversely
affected and, thus, she was entitled to a higher amount of compensation. She
being completely dependent upon her parents, the Tribunal as also the High
Court should have, while determining the amount of compensation, considered
that even for the purpose of future treatment, a sum of Rs.1,50,000/- would be
required. It was urged that considering the provisions contained in the Second
Schedule to the Motor Vehicles Act and furthermore having regard to the mental
agony suffered by the appellant, this Court should enhance the amount of
compensation.
7. Mr. Nanda, learned counsel
appearing on behalf of the respondent, on the other hand, would submit that the
loss has to be determined as on the date of the accident; even the amount of
future treatment should be determined as on the date of the award. Appellant,
admittedly, did not have any income and in that view of the matter the award of
the Tribunal and the High Court should not be interfered with.
4
8. The principles governing a
claim petition for assessing the damages in case of bodily injury suffered is
that while awarding the compensation, the Tribunal should consider all relevant
factors so as to enable the insured to be put in the same position as if he had
not sustained any injury. The principle of Restitutio-in-integrum may be
applied in a case of nature. Pecuniary loss and non-pecuniary loss are required
to be pressed under certain heads. So far as the pecuniary loss is concerned,
the same can be ascertained. What is required to be done is a balancing act by
awarding such sum which, on the one hand, shall take care of the loss suffered
by the claimant for the present time and future pecuniary benefits and, on the
other, pecuniary advantages which from whatever source comes to them by reason
of such injuries. So far as non- pecuniary loss is concerned, the same has to
be assessed broadly under certain heads, namely, damages for physical pain,
mental suffering etc.
besides the amount spent on
medical treatment, if any.
9. Expenditure for medical
treatment has been granted. The High Court, in its judgment, noticed that
although the Tribunal had referred to the likely effect on the matrimonial
prospects of the appellant on account of permanent disability, due regard in
that behalf had not been given.
The High Court opined :
5 "Considering the age of the
claimant Km.
Sapna at the time of the accident;
the nature of the injuries and the fractures suffered by her in the accident;
the extent of permanent disability suffered by her in left leg on account of
the injuries sustained in the accident; the amount of physical pain and mental
suffering she must have suffered during the period she remained hospitalised
and her left leg was under plaster;
the fact that the permanent
disability to the extent of 90% in her left leg is bound to affect adversely
her matrimonial prospects and that for rest of her life she would remain
crippled and in view of the guidelines laid down by the Apex Court in the above
quoted dicta, we are of the opinion that a lump sum of Rs.2,00,000/- (Rupees
Two Lakhs only) would be just and proper compensation to the claimant for the
injuries suffered by her in the accident, the amount spent on treatment,
physical pain and mental suffering, loss of future earning capacity and other
permissible heads."
10. No reason has been assigned in
support thereof. In arriving at the said figure, only loss of matrimonial
prospect has been taken into consideration. The fact that she would remain
crippled throughout her life was also noticed but it does not appear that any
serious consideration was bestowed thereupon.
11. The principle that is to be
applied in a case of this nature that the amount of compensation should be just
and fair is not in dispute. What would, however, be just and fair amount of
compensation is required to 6 be determined having regard to the facts and
circumstances of the case involved. In given cases, the courts may deviate from
the structured formula. In terms of the Second Schedule, where the deceased or
injured were not having any income, the statute presumes an income of or about
15,000/- per month. If having regard to the age of the appellant, the
multiplier of 15 is applied, a sum of Rs.2,25,000/- would be payable.
Besides the said sum, not only
some amount of compensation should be awarded under the heading of mental agony
but also some provision should be made for future treatment.
12. In Abati Bezbaruah v. Dy.
Director General, Geological Survey of India & Anr. [(2003) 3 SCC 148], it
was held :
"11. It is now a well-settled
principle of law that the payment of compensation on the basis of structured
formula as provided for under the Second Schedule should not ordinarily be
deviated from. Section 168 of the Motor Vehicles Act lays down the guidelines
for determination of the amount of compensation in terms of Section 166
thereof. Deviation from the structured formula, however, as has been held by
this Court, may be resorted to in exceptional cases. Furthermore, the amount of
compensation should be just and fair in the facts and circumstances of each
case."
7 We may also notice a decision in
Nagappa v. Gurudayal Singh &
Ors. [(2003) 2 SCC 274] wherein a
Three Judge Bench of this Court opined that the law does not permit passing of
any further award after the final award was passed, stating :
"Therefore, in a case where
injury to a victim requires periodical medical expenses, fresh award cannot be
passed or previous award cannot be reviewed when the medical expenses are
incurred after finalization of the compensation proceedings. Hence, the only
alternative is that at the time of passing of final award, the Tribunal/court
should consider such eventuality and fix compensation accordingly.
No one can suggest that it is
improper to take into account expenditure genuinely and reasonably required to
be incurred for future medical expenses. Future medical expenses required to be
incurred can be determined only on the basis of fair guesswork after taking
into account increase in the cost of medical treatment."
13. What would be the genuine and
reasonable expenditure likely to be incurred by the appellant towards her
future treatment is not borne out from the records. It would require serious
consideration for the purpose of award of damages. When a person becomes
completely incapable to do any work and virtually has no enjoyment for life,
the same form 8 relevant factors and, thus, requires consideration for the
purpose of determining a fair and reasonable amount of compensation.
14. It has not been disputed that
future treatment for the appellant would be necessary. If future treatment is
necessary, some provision should be made therefor. In absence of any clear cut
estimate, we are inclined to award a further sum of Rs.75,000/- under the said
head. She may require another operation. She may require to be provided with an
artificial limb. We, direct accordingly.
15. Similar question came up for
consideration in Madhya Pradesh State Road Transport Corporation Bairagarh,
Bhopal v. Sudhakar & Ors.
[AIR 1977 SC 1189] wherein this
Court held :
"The other appeal (C.A.
No.2255 of 1968) relates to the injury sustained by a boy aged about four
years. He suffered compound fracture of his right tibia and fibula lower third
near the ankle joint with infection of the wound, skin-grafting had to be done
and the boy had to remain in hospital from June 25 to August 4, 1961. According
to the doctor who examined him, the child was likely to develop a permanent
limp which might require another operation at the age of 16 years or so. In any
case, in the opinion of the doctor the deformity was certain to persist till
the boy was 16 years when another operation might remove it. The tribunal
awarded Rs.10,000/- as general damages and Rs.890/- as special damages. The 9
High Court increased the general damages to Rs.20,000/-. It appears from the
evidence that the boy comes from a well-to-do family.
Though the possibility was there
of the deformity being removed by surgical operation when he grew up to be 16
years, the other possibility cannot be altogether ruled out. That being the
position, we are not inclined to interfere with the sum awarded by the High
Court."
16. Out of the aforementioned
amount, if not already distributed, the Tribunal shall invest a sum of
Rs.2,00,000/- in a fixed deposit till she attains majority. As and when any
amount is required for her treatment or for other expenditure, the sum may be
released. The learned Tribunal, however, shall be at liberty to pass such other
order or orders if and when found necessary therefor.
17. The appeal is allowed to the
aforementioned extent with no order as to costs.
.............................J.
[S.B. Sinha]
.............................J.
[Lokeshwar Singh Panta] New Delhi May 14, 2008.
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