Sri Laxman @ Laxman
Mourya Vs. Divisional Manager, Oritl. Ins. Co. Ltd& ANR
J U D G M E N T
G.S. Singhvi, J.
1.
This
appeal is directed against the judgment of the Division Bench of the Karnataka High
Court whereby the compensation awarded to the appellant by Motor Accident Claims
Tribunal-4 Metropolitan Area, Bangalore (for short, 'the Tribunal') in MVC No. 860/2004
was enhanced by a paltry sum of Rs. 31,000/-
2.
The
appellant became a victim of road accident which occurred on 8.9.2003 when he
was hit from behind by bus bearing No. KA-04-A-3784 belonging to respondent No.
2. As a result of accident, the appellant sustained grievous injuries on
different parts of the body. On the same day, he was admitted in Bowring and Lady
Curzon Hospital, Banglore. He was discharged on 22.9.2003.
3.
In
the petition filed by him under Section 166 of the 2Motor Vehicles Act, 1988 (for
short, 'the Act'), the appellant claimed compensation of Rs.5,00,000/- with
interest by making the following assertions:
i.
that
at the time of accident, his age was 24 years;
ii.
that
the accident was caused due to the rash and negligent driving of the bus;
iii.
that
due to the accident, he had sustained grievous injuries and remained in the
hospital and that his treatment was still continuing;
iv.
that
he had spent Rs.5,000/- by way of medical expenses;
v.
that
he was apprehensive of becoming disabled and that the same would result in loss
of earning and affect his livelihood; and
vi.
that
he would have to suffer constant pain and discomfort throughout his life.
4.
In
their written statements respondent Nos. 1 & 2 denied the allegation of rash
and negligent driving of the bus and pleaded that they were not liable to pay
compensation.
5.
After
considering evidence produced by the parties, the Tribunal held that the accident
was caused due to rash and negligent driving of the bus owned by respondent No.
2. The Tribunal then considered the issue of compensation, referred to
statement made by the appellant in the form of affidavit as also the statement
of Dr. S. Ranjanna, Orthopaedic Surgeon at Bowring and Lady Curzon Hospital,
who was examined as PW-2 and held that the appellant is entitled to compensation
of Rs.45,000/- with interest at the rate of 8% from the date of application
till the date of deposit.
6.
Dissatisfied
with the award of the Tribunal, the 3appellant filed an appeal under Section 173
of the Act. The Division Bench of the High Court did notice that as per PW-2,
the appellant had suffered 26% disability in the right lower limb, 25% urethral
injury and 38% disability to the whole body but granted a meager enhancement of
Rs.31,000/- and declared that appellant is entitled to total compensation of Rs.76,000/-
with interest at the rate of 6% on the enhanced compensation from the date of
petition till the date of realisation.
7.
We
have heard Mr. V.N. Raghupathy, learned counsel for the appellant and perused the
record. No one has appeared on behalf of the respondents to assist the Court.
8.
The
personal sufferings of the survivors of the road accidents and those who are disabled
in such accidents are manifold. Some time they can be measured in terms of money
but most of the times it is not possible to do so. If an individual is
permanently disabled in an accident, the cost of his medical treatment and care
is likely to be very high.
In cases involving
total or partial disablement, the term `compensation' used in Section 166 of the
Motor Vehicles Act, 1988 (for short, `the Act') would include not only the
expenses incurred for immediate treatment, but also the amount likely to be incurred
for future medical treatment/care necessary for a particular injury or
disability caused by an accident.
A very large number
of people involved in motor accidents are pedestrians, children, women and
illiterate persons. Majority of them cannot, due to sheer ignorance, poverty and
other disabilities, engage competent lawyers for proving negligence of the wrongdoer
in adequate measure. The insurance companies with whom the vehicles involved in
the accident are insured usually have battery of lawyers on their panel. They contest
the claim petitions by raising all possible technical objections for ensuring
that their clients are either completely absolved or their liabilities minimized.
This results in prolonging
the proceedings before the Tribunal. Sometimes the delay and litigation expenses'
make the award passed by the Tribunal and even by the High Court (in appeal)
meaningless. It is, therefore, imperative that the officers, who preside over
the Motor Accident Claims Tribunal adopt a proactive approach and ensure that
the claims filed under Sections 166 of the Act are disposed of with required
urgency and compensation is awarded to the victims of the accident and/or their
legal representatives in adequate measure.
The amount of compensation
in such cases should invariably include pecuniary and non-pecuniary damages. In
R.D. Hattangadi v. Pest Control (India) Private Limited (1995) 1 SCC 551, this
Court while dealing with a case involving claim of compensation under the Motor
Vehicles Act, 1939, referred to the judgment of the Court of Appeal in Ward v. James
(1965) 1 All ER 563, Halsbury's Laws of England, 4th Edition, Volume 12 (page
446) and observed:
"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."
In the same case, the
Court further observed:
"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."
9.
In
Reshma Kumari v. Madan Mohan (2009) 13 SCC 422, this Court reiterated that the compensation
awarded under the Act should be just and also identified the factors which should
be kept in mind while determining the amount of compensation. The relevant
portions of the judgment are extracted below: "The compensation which is required
to be determined must be just.
While the claimants
are required to be compensated for the loss of their dependency, the same
should not be considered to be a windfall. Unjust enrichment should be discouraged.
This Court cannot also lose sight of the fact that in given cases, as for example
death of the only son to a mother, she can never be compensated in monetary
terms. 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 (sic situation)
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. In the Indian context several other factors
6 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. One
of the incidental issues which has also to be taken into consideration is inflation.
Is the practice of taking inflation into consideration wholly incorrect? Unfortunately,
unlike other developed countries in India there has been no scientific study.
It is expected that with
the rising inflation the rate of interest would go up. In India it does not happen.
It, therefore, may be a relevant factor which may be taken into consideration for
determining the actual ground reality. No hard-and-fast rule, however, can be laid
down therefor." (emphasis supplied)
10.
In
Arvind Kumar Mishra v. New India Assurance Company Limited (2010) 10 SCC 254, the
Court considered the plea for enhancement of compensation made by the appellant,
who was a student of final year of engineering and had suffered 70% disablement
in a motor accident. After noticing factual matrix of the case, the Court
observed:
"We do not intend
to review in detail state of authorities in relation to assessment of all damages
for personal injury. Suffice it to say that the basis of assessment of all damages
for personal injury is compensation.
The whole idea is to
put the claimant in the same position as he was insofar as money can. Perfect
compensation is hardly possible but one has to keep in mind that the victim has
done no wrong; he has suffered at the hands of the wrongdoer and the court must
take care to give him full and fair compensation for that he had
suffered." (emphasis supplied)
11.
In
Raj Kumar v. Ajay Kumar (2011) 1 SCC 343, the Court considered some of the
precedents and held: "The provision of the Motor Vehicles Act, 1988 ("the
Act", for short) makes it clear that the award must be just, which means
that compensation should, to the extent possible, fully and adequately restore the
claimant to the position prior to the accident.
The object of awarding
damages is to make good the loss suffered as a result of wrong done as far as
money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal
shall have to assess the damages objectively and exclude from consideration any
speculation or fancy, though some conjecture with reference to the nature of disability
and its consequences, is inevitable.
A person is not only to
be compensated for the physical injury, but also for the loss which he suffered
as a result of such injury. This means that he is to be compensated for his
inability to lead a full life, his inability to enjoy those normal amenities
which he would have enjoyed but for the injuries, and his inability to earn as much
as he used to earn or could have earned.
The heads under which
compensation is awarded in personal injury cases are the following: Pecuniary
damages (Special damages)
i.
Expenses
relating to treatment, hospitalisation, medicines, transportation, nourishing
food, and miscellaneous expenditure.
ii.
Loss
of earnings (and other gains) which the injured would have made had he not been
injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss
of future earnings on account of permanent disability.
iii.
Future
medical expenses. Non-pecuniary damages (General damages)
iv.
Damages
for pain, suffering and trauma as a consequence of the injuries.
v.
Loss
of amenities (and/or loss of prospects of marriage).
vi.
Loss
of expectation of life (shortening of 8 normal longevity).
In routine personal injury
cases, compensation will be awarded only under heads (i), (ii)(a) and
(iv). It is only in serious
cases of injury, where there is specific medical evidence corroborating the evidence
of the claimant, that compensation will be granted under any of the heads (ii)(b),
(iii), (v) and (vi) relating to loss of future earnings on account of permanent
disability, future medical expenses, loss of amenities (and/or loss of prospects
of marriage) and loss of expectation of life." (emphasis supplied)
12.
The
ratio of the above noted judgments is that if the victim of an accident suffers
permanent or temporary disability, then efforts should always be made to award
adequate compensation not only for the physical injury and treatment, but also
for the pain, suffering and trauma caused due to accident, loss of earning and victim's
inability to lead a normal life and enjoy amenities, which he would have enjoyed
but for the disability caused due to the accident.
13.
In
the light of the above, we shall now consider whether the compensation awarded
to the appellant is just or he is entitled to enhanced compensation under any
of the following heads: (i) Loss of earning and other gains due to the
accident. (ii) Loss of future earning on account of the disability. (iii)Expenses
for future treatment. (iv) Compensation for pain, suffering and trauma caused due
to the accident. (v) Loss of amenities including loss of the prospects of
marriage. (vi) Loss of expectation of life.
14.
In
the affidavit filed by him before the Tribunal, the appellant categorically stated
that due to accident he had suffered injuries on the abdomen and other parts of
the body; 9that he was shifted to Bowring Hospital, where he remained for 15
days; that thereafter, he went to his native place at Gorakhpur and remained admitted
in Royal Hospital from 29.9.2003 to 10.10.2003; that he had also taken treatment
at Sri Krishna Hospital and Urology Centre as indoor patient from 12.10.2003 to
13.10.2003 and that he had spent Rs. 40,000/- towards medicines, conveyance and
other charges. He further stated that due to accident, he was finding it difficult
to pass urine and was having severe pain in the lower part of the abdomen; that
the Doctors had advised him to undergo an operation to set right the problem
but due to financial constraint he was not in a position to undergo the surgery.
As regards his earning, the appellant gave out that at the time of accident, he
was working as Carpenter and was earning Rs. 5,000/- per month and that after
the accident he was not in a position to work as carpenter.
15.
In
his affidavit, PW-2 Dr. S.Ranjanna confirmed that the appellant was admitted in
Bowring and Lady Curzon Hospital on 8.9.2003 and was discharged on 22.9.2003; that
he had examined the patient on 2.5.2005 and found that he was having altered
gait, frequency of inculcation and was finding difficult to sit with cross-legs
or squat. In cross-examination, Dr. Ranjanna made the following statement:
i.
"Patient
walks with a riding gait.
ii.
Tenderness
present over pubic region.
iii.
His
movements on right side are restricted by 30%.
iv.
Wasting
of right pelive surrender by 6 cms.
v.
Wasting
of right leg muscles by 3 cms.
vi.
Difficulty
to pass urine.
As per urologist opinion
he need surgery for STRUCTURE URETHRA. Check X-ray shows 698/10.1.2003 evidence
of old fracture of both rams of both pelive bones noted with altered shape of
selive inset. 10 Due to above disabilities he cannot pass the urine smoothly he
will have disturbed sleep due to frequency of ...
He cannot sit crossed,
difficulty to squat difficulty to lift any weight. He cannot do any hard manual
work. After referring to various guidelines and including Alimco manual I am the
opinion that the petitioner is having disability 26% of right lower limb & 25%
due to urethral injury and 38% disabilities to the whole body. In view of this disabilities,
the petitioner cannot work as a Carpenter and cannot do any other manual work
also. I am herewith producing the following documents. Such as,
1) Case Sheet.
2) Recent examination
O . P . Book
3) Recent check
X-ray."
16.
Unfortunately,
neither the Tribunal nor the High Court adverted to the criteria laid down by this
Court for award of compensation under the two broad heads, i.e., pecuniary and
non-pecuniary damages and awarded compensation, which cannot but be described
as wholly unjust.
17.
The
respondents have not controverted the appellant's assertion that at the time of
accident his age was 24 years; that he was earning Rs.5,000/- per month as a
Carpenter and that as a result of accident he had to remain in hospitals for different
durations. Therefore, under the first head i.e, loss of earning and other gains
during the period of hospitalisation (one month), the appellant is entitled to
compensation of Rs.5,000/-
18.
It
is also not in dispute that as a result of accident, the appellant suffered 26%
disability of the right lower limb, 25% disability due to urethral injury and
38% disability to the whole body. Although, the percentage of the disability of
whole body is 38, the evidence produced by the appellant in the form of his own
affidavit and the affidavit of PW-2 shows that he will not be able to work as
carpenter or do any manual work throughout his life.
In other words, even
though the disability suffered by the appellant is not 100 per cent, his
working capacity has been reduced to zero. However, keeping in view the degree of
disability, i.e. 38%, we hold that he shall be entitled to compensation of
Rs.3,32,640/- (38% of Rs.5,000.00 = Rs.1,540/- x 12 x 18) for loss of future
earning.
19.
The
issue regarding expenses for future treatment is required to be decided in the
light of the evidence produced by the parties. Although, in his evidence, PW-2
Dr. S Ranjanna has stated that the appellant would require future treatment but
no concrete evidence was produced by him, i.e. appellant, about the possible expenses
which he may incur for treatment in future.
This phenomenon is not
unusual in such cases particularly when the claimant belongs to financially
weaker strata of the society. He cannot engage a competent lawyer to
effectively prosecute his case before the Tribunal and the High Court.
However, as held in
R. D. Hattangadi v. Pest Control (India) Private Ltd. (supra) the Tribunal and the
Court can fix the amount of compensation by making some guess work. Keeping in
view the nature of injuries suffered by the appellant and the fact that he will
have to take treatment throughout life, we feel that ends of justice will be
met by awarding him a sum of Rs.1,50,000/- under that head.
20.
For
pain, suffering and trauma caused due to the accident, a sum of Rs.1,50,000/- deserves
to be awarded to the appellant. Likewise, for the loss of amenities including the
loss of prospects of marriage which has become an illusion for the appellant,
it will be just and proper to award a sum of Rs.2 lacs.
21.
It
is true that in the petition filed by him under Section 166 of the Act, the
appellant had claimed compensation of Rs.5,00,000/- only, but as held in Nagappa
vs. Gurudayal Singh (2003) 2 SCC 274, in the absence of any bar in the Act, the
12Tribunal and for that reason any competent Court is entitled to award higher
compensation to the victim of an accident.
22.
In
the result, the appeal is allowed. The impugned judgment is set aside and it is
declared that the appellant shall be entitled to total compensation of
Rs.8,37,640/- with interest at the rate of 8% from the date of filing the
petition till the date of realisation. Respondent No. 1 is directed to pay the
balance amount of compensation to the appellant with interest within a period of
three months from the date of receipt/production of the copy of judgment by
preparing a draft in his name.
..............................J.
( G.S.SINGHVI )
..............................J.
( SUDHANSU JYOTI MUKHOPADHAYA )
NEW
DELHI;
NOVEMBER
8, 2011.
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