Ibrahim Vs. Raju and
others
J U D G M E N T
G.S. Singhvi, J.
1.
Delay
condoned.
2.
Leave
granted.
3.
Feeling
dissatisfied with the enhancement granted by the High Court in the amount of
compensation awarded by 2nd Additional Motor Accident Claims Tribunal, Karwar (for
short, `the Tribunal'), the appellant has filed this appeal.
4.
The
appellant sustained serious injuries on the head, nose, back and lower region
of abdomen including the pelvic region when the tempo in which he was
travelling met with an accident on 23.4.2000. He was taken to Vijayashree Orthopaedic
Centre for first aid and was then shifted to 2Kasturba Hospital, Manipal. He remained
in the hospital from 23.04.2000 to 05.06.2000.
5.
The
appellant filed a petition under Section 166 of the Motor Vehicles Act, 1988 (for
short, `the Act') and claimed compensation of Rs.3,00,000/- with interest and cost.
He pleaded that the accident was caused due to rash and negligent driving of
the tempo by its driver Shri Raju; that he had suffered serious injuries in the
accident; that he remained in the hospital for almost one month and a half and
had to spend more than Rs.80,000/- towards medical treatment, conveyance and
expenses of the attendants; that at the time of accident he was a student of
Class 8 and on account of the injuries he was not in a position to continue his
studies.
6.
The
owner and the driver of the offending vehicle, who were impleaded as
non-petitioners No.1 and 2 did not contest the claim of the appellant. However,
the National Insurance Company, which was impleaded as non-petitioner No.3
contested the claim by asserting that the accident was not caused due to rash
and negligent driving of the tempo and that the appellant was himself
responsible for the accident.
7.
Two
of the four issues framed by the Tribunal were whether the accident was caused
due to rash and negligent driving of the tempo and 3whether the appellant was
entitled to compensation. After analysing the evidence produced by the parties,
the Tribunal held that the accident was caused due to rash and negligent
driving of the tempo. The Tribunal then referred to the statements of Dr. Anil K.
Bhat, Assistant Professor of Orthopaedics, who issued disability certificate Exhibit
P-140 and Dr. Joseph Thomas, Professor of Urology, who issued treatment certificate
Exhibit P-141 (both the doctors were working in Kasturba Medical College and Hospital,
Manipal) and awarded compensation to the appellant under the following heads:
|
1.
|
Pain
and suffering Rs.25,000/-
|
|
2.
|
Medical
expenses Rs.20,340/-
|
|
3.
|
Transportation
Rs. 1,900/-
|
|
4.
|
Diet
and attendant charges Rs.30,600/-
|
|
5.
|
Loss of
future earning on Rs.21,600/- account of disability
|
|
6.
|
Decline
in the prospects of Rs.50,000/ marriage -
|
|
|
Total
Rs.1,49,440/-
|
8.
The
High Court partly allowed the appeal filed by the appellant under Section 173
of the Act and enhanced the amount of compensation by a sum of Rs.40,000/-.
9.
The
appellant has questioned the impugned judgment mainly on the ground that while
determining the amount of compensation, the Tribunal and the learned Single
Judge of the High Court overlooked the parameters and principles laid down by
this Court and did not take into consideration the expenses likely to be
incurred by him for future treatment and the loss of amenities and enjoyment of
life.
10.
We
have heard learned counsel for the parties and carefully perused the record. The
sufferings of the dependents of those who are killed in motor accidents and the
survivors who are disabled are manifold. Some time these can be measured in
terms of money but most of the times it is not possible to do so. If an individual
is disabled as a result of road accident, the cost of treatment, care and
rehabilitation is likely to be very high. A very large number of people involved
in motor accidents are pedestrians, children and women and, on account of sheer
ignorance, poverty and other disabilities, majority of them are unable to engage
competent lawyers for putting their cause before the Tribunals and the Courts.
The insurance companies,
with whom the vehicles involved in accidents are insured always have the
advantage of assistance of legally trained mind (law officers and panel lawyers).
They contest the claim petitions by raising all possible technical objections
for ensuring that their clients are either completely absolved or their
liability is minimized and in the process, adjudication of the claims filed by
the victims and/or their legal representatives is delayed for years together.
At times, the delay
in disposal of the claim cases and litigation expenses make the award of
compensation meaningless for survivors of the accidents and/or families of the victims.
This Court has time and again emphasized that the officers, who preside over
the Tribunals adopt a proactive approach and ensure that the claims filed under
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
keeping in view the relevant factors.
Unfortunately,
despite repeated pronouncements of this Court in which guiding principles have
been laid down for determination of the compensation payable to the victims of
road accidents and/or their families, the Tribunals and even the High Courts do
not pay serious attention to the imperative of awarding just compensation to the
claimants.
11.
In
Ward v. James (1965) 1 All ER 563, the Court of Appeal, while dealing with a case
under Section 6 of the Administration of Justice (Miscellaneous Provisions)
Act, 1933 made some important observations, which are extracted
below:"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 6compensate
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 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
R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. and others (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 in Ward v. James (supra),
Halsbury's Laws of England, 4th edn., vol. 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.
13.
"13.
In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka (2009) 6 SCC
1, the three-Judge Bench was dealing with a case arising out of the complaint filed
under the Consumer Protection Act, 1986. While enhancing the compensation awarded
by the National Consumer Disputes Redressal Commission from Rs.15 lakhs to Rs.1
crore, the Bench made the following observations which can appropriately be
applied for deciding the petitions filed under Section 166 of the Act:
"We must emphasise
that the court has to strike a balance between the inflated and unreasonable
demands of a victim and the equally untenable claim of the opposite party
saying that nothing is payable. Sympathy for the victim does not, and should
not, come in the way of making a correct assessment, but if a case is made out,
the court must not be chary of awarding adequate compensation. The
"adequate compensation" that we speak of, must to some extent, be a rule
of thumb measure, and as a balance has to be struck, it would be difficult to satisfy
all the parties concerned.
At the same time we
often find that a person injured in an accident leaves his family in greater
distress vis-`-vis a family in a case of death. In the latter case, the initial
shock gives way to a feeling of resignation and acceptance, and in time,
compels the family to move on. The case of an injured and disabled person is,
however, more pitiable and the feeling of hurt, helplessness, despair and often
destitution enures every day.
The support that is needed
by a severely handicapped person comes at an enormous price, physical,
financial and emotional, not only on the victim but even more so on his family and
attendants and the stress saps their energy and destroys their equanimity."
(emphasis supplied)
14.
In
Reshma Kumari and others vs. Madan Mohan and another (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 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 f act while
determining the multiplicand this Court in Oriental Insurance C o. Ltd. v. Jas huben
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)
15.
In
Arvind Kumar Mishra v. New India Assurance Company Limited and another (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 the 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)
16.
In
Raj Kumar vs. Ajay Kumar and another (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 10damages 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 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)
17.
In
the light of the above, we shall now consider whether the compensation awarded to
the appellant is just and reasonable or the 11Tribunal and the High Court committed
an error by not awarding compensation for the future treatment, deprivation of opportunity
to undertake further studies and consequential loss of earning/income which he would
have derived by taking up appropriate job or doing some business as also
diminution of the marriage prospects.
18.
A
perusal of the record shows that the appellant had produced substantive
evidence to prove that as a result of accident he had suffered 8 grievous
injuries including fracture of pelvis and he had to remain in the hospital for
one month and a half; that he was treated by Dr. Anil K. Bhat, Assistant Professor,
Orthopaedics and Dr. Joseph Thomas, Professor of Urology and that on account of
grievous injuries he was unable to continue his studies. In his deposition, Dr.
Joseph Thomas categorically stated that the appellant will have to undertake lifelong
treatment for recurrence of urethral strictures and consequential dysfunction due
to fracture of pelvis.
Unfortunately,
neither the Tribunal nor the High Court adverted to this part of the evidence
and omitted to award compensation for the expenses likely to be incurred by the
appellant for future treatment. One can reasonably expect that the appellant
who was only 18 years old at the time of accident would live for at least next
50 years. The Tribunal awarded Rs.20,340/- for expenses incurred by the
appellant for treatment taken by him in the hospital. Although,
Dr. Thomas did not 12indicate
the approximate expenditure likely to be incurred by the appellant and his
family for future treatment, keeping in view the nature of injuries and the fact
that he will have to take treatment for the remaining life, it will be reasonable
to infer that he will be required to spend a minimum of Rs.1,000/- per month for
future treatment, which would necessarily include fees of the doctors,
medicines, transportation, etc. In the absence of concrete evidence about the anticipated
expenditure, we think that ends of justice will be met if the appellant is
awarded a sum of Rs.2 lacs which, if deposited in a fixed deposit, would earn
an interest of Rs.14,000/- to 16,000/- per annum.
19.
On
account of the injuries suffered by him, the prospects of the appellant's marriage
have considerably reduced. Rather, they are extremely bleak. In any case, on
account of the fracture of pelvis, he will not be able to enjoy the matrimonial
life. Therefore, the award of Rs.50,000/- under this head must be treated as
wholly inadequate. In the facts and circumstances of the case, we feel that a
sum of Rs.2 lacs should be awarded to the appellant for loss of marriage
prospects and enjoyment of life.
20.
The
compensation awarded for loss of future earning on account of permanent partial
disablement is ex facie unreasonable. Respondent No.3 13did not produce any
evidence to controvert the appellant's assertion that on account of the
injuries suffered in the accident, he had to abandon his studies. The consequences
which followed were extremely grave inasmuch as he lost all opportunities for
making a career in future. The prospects of the appellant's marriage are
extremely bleak. Therefore, a sum of Rs.2 lacs deserves to be awarded under
these heads.
21.
We
are conscious of the fact that in the petition filed by him, the appellant had
claimed compensation of Rs.3 lacs only with interest and cost. It will be
reasonable to presume that due to financial incapacity the appellant and his family
could not avail the services of a competent lawyer and make a claim for adequate
compensation. However, as the Tribunal and the High Court and for that reason
this Court are duty bound to award just compensation, we deem it proper to enhance
the compensation from Rs.1,89,440/- to Rs.6 lacs.
This approach is in
tune with the judgment in Nagappa v. Gurudayal Singh (2003) 2 SCC 274. In that
case, the Court considered a similar issue, referred to the judgments of the
Bombay High Court in Municipal Corporation of Greater Bombay v. Kisan Gangaram
Hire 1987 ACJ 311 (Bombay), Orissa High Court in Mulla Mod. Abdul Wahid v. Abdul
Rahim 1994 ACJ 348 (Orissa) and Punjab and Haryana High Court in Devki Nandan Bangur
v. State of Haryana 1995 ACJ 1288 (P&H) and observed: 14"For the
reasons discussed above, in our view, under the MV Act, there is no restriction
that the Tribunal/court cannot award compensation amount exceeding the claimed amount.
The function of the Tribunal/court
is to award "just" compensation which is reasonable on the basis of
evidence produced on record. Further, in such cases there is no question of
claim becoming time-barred or it cannot be contended that by enhancing the
claim there would be change of cause of action. It is also to be stated that as
provided under sub-section (4) to Section 166, even the report submitted to the
Claims Tribunal under sub-section (6) of Section 158 can be treated as an application
for compensation under the MV Act. If required, in appropriate cases, the court
may permit amendment to the claim petition."
22.
In
the result, the appeal is allowed. The impugned judgment is modified and it is declared
that the appellant shall be entitled to total compensation of Rs.6 lacs with
interest at the rate of 6% per annum from the date of filing the claim
petition. If respondent No.3 has already paid the compensation in terms of the
award of the Tribunal and the impugned judgment, then it shall pay the balance
amount with interest at the rate of 6% per annum on the enhanced amount of
compensation within a period of 3 months. If the amount awarded by the Tribunal
and the High Court has not been paid so far, then respondent No.3 shall pay the
total amount of Rs.6 lacs to the appellant with interest at the rate of 6% per annum
within the said period of 3 months.
....................................J.
(G.S. Singhvi)
....................................J.
(Asok Kumar Ganguly)
New
Delhi,
October
31, 2011.
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