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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2006 OF 2015

(Arising out of SLP(C) NO. 981 OF 2014)

JAKIR HUSSEIN … APPELLANT

VERSUS

SABIR & ORS. … RESPONDENTS

J U D G M E N T

V. GOPALA GOWDA, J.

Leave granted.

2. This appeal has been filed by the appellant against

the judgment and order dated 24.01.2013 passed in M.A.

No. 3414 of 2010 by the High Court of Madhya Pradesh at

Indore, wherein the High Court partly allowed the appeal

of the appellant by modifying the award passed by the

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MACT, Mandsor, M.P., in claim case No. 3 of 2009 dated

29.07.2010.

3. The relevant facts of the case are stated as under:

On 12.11.2008 at about 6.30 p.m., Jakir Hussein,

the appellant herein, was driving a Tempo bearing

registration No. MP-14-G-0547 from Krishi Upaj Mandi,

Mandsor to Multanpura village, Madhya Pradesh. A few

others were also riding along with the appellant,

namely, Santosh, Kumari Krishna, Smt. Paipa Bai etc.

While the appellant was on the way, a tractor bearing

registration No. MP 14-K- 4886 which was driven by

Sabir-respondent no.1 herein, in rash and negligent

manner hit the appellant’s tempo which was coming from

the opposite direction with enormous force. Due to the

impact of the accident, the appellant sustained grievous

injuries. The right arm of the appellant had severe

compound fractures preventing him from performing his

regular work as a driver hereafter. At the time of the

said accident, the appellant was earning Rs.4,500/- per

month by working as a driver.

Page 3 3

4. The appellant filed Claim Petition No. 3 of 2009

under Section 166 of the Motor Vehicles Act, 1988 before

the Motor Accidents Claim Tribunal/Additional First

Member, Mandsor, Madhya Pradesh. The Tribunal determined

the permanent disability suffered by the appellant on

account of the motor vehicle accident at 30% and his

monthly income was taken at Rs.3,000/- for the purpose

of assessing annual income of the appellant to compute

his loss of future earnings. On the basis of the annual

income, his future loss of income due to permanent

disability suffered by him was estimated at

Rs.1,72,800/- and loss of income at Rs.51,000/-. Medical

expenses was estimated at Rs.1,80,000/-. The total

compensation of Rs.4,38,000/- with an interest at the

rate of 7% p.a. was awarded to the appellant by the

Tribunal as against a claim of Rs.8,80,000/- made by

him.

5. Aggrieved by the award of the Tribunal regarding

inadequate compensation, the appellant filed M.A. No.

3414 of 2010 before the High Court of Madhya Pradesh at

Indore. The High Court opined that the income of

appellant has been taken on the lower side by the

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Tribunal and determined the same at Rs.4,000/- per

month. The High Court after re-determination of the

compensation held that the appellant is entitled to an

enhancement of Rs.1,77,200/- towards permanent

disability and addition of Rs.5,000/- towards pain and

suffering. In addition to that amount, a sum of

Rs.20,000/- was awarded towards medical expenses. The

High Court has further awarded Rs.40,000/- towards

medical expenses during the pendency of the appeal.

Further, it has awarded interest at the rate of 8% p.a.

on the enhanced compensation. Being unsatisfied with the

enhanced compensation by the High Court, the appellant

filed this appeal.

6.The learned counsel on behalf of the appellant, Mr.

Parameshwara, who is appointed to assist this Court as

amicus curiae has contended that the compensation

awarded by both the Tribunal and the High Court is

wholly inadequate. It is submitted by him that the High

Court has committed a serious error in law in not

awarding just and reasonable compensation in favour of

the appellant by taking various factual aspects such as

permanent disability suffered by him, medical evidence

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and keeping in view the law on the relevant aspects for

quantifying just and reasonable compensation both under

the heads of pecuniary and non-pecuniary damages. It is

further urged by him that on the motor vehicle accident

caused by the respondent-driver on account of rash and

negligent driving of the vehicle, the appellant has

become permanently disabled due to which he will not be

able to get suitable employment and lead a normal life

in future. It is further contended by him that the

future medical treatment and care of the appellant is

very much necessary which will also be on the higher

side. In cases where the claimant suffering from either

total or partial permanent disablement, the term

‘compensation’ used under Section 166 of the Motor

Vehicles Act, 1988, would not only include the expenses

incurred for immediate treatment, but also the amount

likely to be incurred by the appellant for future

medical treatment/care and necessary assistance on

account of permanent disablement caused to him on

account of grievous injury of loss of his right arm in

the said accident. Reliance was placed by the learned

amicus curiae on the decision of this Court in the case

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of R.D. Hattangadi v. Pest Control (India) Private

Limited

1

, wherein it was held as under:-

“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.”

7. It is further contended by him that the monthly

income of the appellant has been erroneously taken as

Rs.3,000/- by the Tribunal and Rs.4,000/- by the High

Court when he was actually earning Rs.4,500/- per month

while working as the driver. The learned amicus curiae

1

(1995) 1 SCC 551

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placed reliance upon the case of Nizam’s Institute of

Medical Sciences v. Prasanth S. Dhananka

2

, wherein, the

three-Judge Bench of this Court while dealing with a

case arising out of the complaint filed under the

Consumer Protection Act, 1986, enhanced the compensation

awarded by the National Consumer Disputes Redressal

Commission from Rs.1.5 lacs to Rs.1 crore. The

observations made by the Bench at para 39 can

appropriately be applied to the case on hand, wherein it

is stated as under:-

“88. We must emphasize 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 the

thumb measure, and as a balance has to be struck,

it would be difficult to satisfy all the parties

concerned.

89.It must also be borne in mind that life has

its pitfalls and is not smooth sailing all along

the way (as a claimant would have us believe) as

the hiccups that invariably come about cannot be

visualized. Life it is said is akin to a ride on

a roller coaster where a meteoric rise is often

followed by an equally spectacular fall, and the

distance between the two (as in this very case)

is a minute or a yard.

2

(2009) 6 SCC 1

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90.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 laid by this Court)

8.Further, with regard to award just and reasonable

compensation both under pecuniary and non-pecuniary

damages to the victims of motor-vehicle accidents, the

learned counsel has placed reliance upon the decision of

this Court in the case of Raj Kumar v. Ajay Kumar & Anr .

3

, wherein it was held as under:-

“5. The provision of the Motor Vehicles Act, 1988

(`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 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

3

(2011)1 SCC 343

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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.”

(emphasis laid by this Court)

9.It is further contended by the learned Amicus Curiae

that the appellant was working as a driver and getting

salary of Rs.4,500/- per month. However, the Tribunal

proceeded to determine his income at Rs.36,000/- per

annum solely on the basis that there was no evidence on

record to prove the claim of the appellant that he was

earning Rs. 4,500/- per month as a driver of the motor

vehicle. Therefore, in the absence of any cogent

evidence, the Tribunal and the High Court ought to have

taken the appellant’s annual income at Rs.54,000/- as he

was working as a driver of the motor vehicle till the

accident occurred for the purpose of determination of

compensation towards the loss of future earnings of the

appellant, as he had 100% permanent disablement having

regard to the nature of work he was doing at the time of

the accident. Accordingly, it should be at Rs.54,000/-

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per annum for proper quantification of future loss of

earnings as he had suffered 100% functional disability.

10.It is further contended by him that the award passed

by the Tribunal for future medical expenses was wholly

inadequate. Reliance was placed on the decision of this

Court in the case of Nagappa v. Gurudayal Singh

4

,

wherein this Court held that in a case where injury to a

victim requires periodical medical expenses, it is not

possible for a fresh award to be passed or to review a

previous award when the medical expenses are incurred

after finalisation of the compensation proceedings. It

was further held that the only alternative is that at

the time of passing of the final award, the

Tribunal/Court should consider such eventuality and fix

the compensation under the above said head accordingly.

Therefore, it is submitted by him that it will be just

and reasonable for this Court to award a further sum of

Rs.2,00,000/- to the appellant for his future treatment.

If the said amount is deposited in fixed deposit, the

interest accruing on it will take care of future medical

treatment and other ancillary expenses.

4

(2003) 2 SCC 274

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11.With regard to the pain, suffering and trauma which

have been caused to the appellant due to his crushed

hand, it is contended that the compensation awarded by

the Tribunal was meagre and insufficient. It is not in

dispute that the appellant had remained in the hospital

for a period of over three months. It is not possible

for the courts to make a precise assessment of the pain

and trauma suffered by a person whose arm got crushed

and has suffered permanent disability due to the

accident that occurred. The appellant will have to

struggle and face different challenges as being

handicapped permanently. Therefore, in all such cases,

the Tribunals and the courts should make a broad

estimate for the purpose of determining the amount of

just and reasonable compensation under pecuniary loss.

Admittedly, at the time of accident, the appellant was a

young man of 33 years. For the rest of his life, the

appellant will suffer from the trauma of not being able

to do his normal work of his job as a driver. Therefore,

it is submitted that to meet the ends of justice it

would be just and proper to award him a sum of

Rs.1,50,000/- towards pain, suffering and trauma caused

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to him and a further amount of Rs.1,50,000/- for the

loss of amenities and enjoyment of life.

12.On the other hand, Dr. Meera Agarwal, the learned

counsel for the respondent no.3 - The New India

Assurance Company Ltd herein contended that this Court

has held in a catena of cases that the percentage of

loss of earning capacity should correspond to the

percentage of loss of functional/physical disability, if

the loss of functional disability is 55%, the loss of

earning capacity should also be 55% of the income of the

injured/claimant. In support of the above contentions,

reliance was placed by her on the decision of this Court

in the case of National Insurance Company Ltd. v.

Mubasir Ahmed

5

.

13.It is further contended on behalf of the Insurance

Company that the amount of compensation awarded by the

Tribunal was just and reasonable, still the High Court

in exercise of its appellate jurisdiction has

erroneously taken a generous view and enhanced the

amount of compensation and therefore, does not warrant

interference for enhancement of compensation as claimed

5

(2007) 2 SCC 349

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by the appellant.

14.We have carefully examined the facts of the case and

material evidence on record in the light of the rival

legal contentions urged before us by both the learned

counsel on behalf of the parties to find out as to

whether the appellant is entitled for further

enhancement of compensation? We have perused the

impugned judgment and order of the High Court and the

award of the Tribunal. After careful examination of the

facts and legal evidence on record, it is not in dispute

that the appellant was working as a driver at the time

of the accident and no doubt, he could be earning

Rs.4,500/- per month. As per the notification issued by

the State Government of Madhya Pradesh under Section 3

of the Minimum Wages Act, 1948, a person employed as a

driver earns Rs.128/- per day, however the wage rate as

per the minimum wage notification is only a yardstick

and not an absolute factor to be taken to determine the

compensation under the future loss of income. Minimum

wage, as per State Government Notification alone may at

times fail to meet the requirements that are needed to

maintain the basic quality of life since it is not

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inclusive of factors of cost of living index. Therefore,

we are of the view that it would be just and reasonable

to consider the appellant’s daily wage at Rs.150/- per

day (Rs.4,500/- per month i.e. Rs.54,000/- per annum) as

he was a driver of the motor vehicle which is a skilled

job. Further, the Tribunal has wrongly determined the

loss of income during the course of his treatment at

Rs.51,000/- for a period of one year and five months. We

have to enhance the same to Rs.76,500/- (Rs.4,500 X 17

months).

15.Further, with respect to the permanent disablement

suffered by the appellant, Mr. K. Parameshwar, the

learned amicus curiae, has rightly submitted that the

appellant was examined by Dr. P.K. Upadhyay in order to

prove his medical condition and the percentage of

permanent disability. The doctor who has treated him

stated that the appellant has one long injury from his

arm up to the wrist. Due to this injury, the doctor has

stated that the appellant had great difficulty to move

his shoulder, wrist and elbow and pus was coming out of

the injury even two years after the accident and the

treatment taken by him. The doctor further stated in his

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evidence that the appellant got delayed joined fracture

in the humerus bone of his right hand with wiring and

nailing and that he had suffered 55% disability and

cannot drive any motor vehicle in future due to the

same. He was once again operated upon during the

pendency of the appeal before the High Court and he was

hospitalised for 10 days. The appellant was present in

person in the High Court and it was observed and noticed

by the High Court that the right hand of the appellant

was completely crushed and deformed. In view of the

doctor’s evidence in this case, the Tribunal and the

High Court have erroneously taken the extent of

permanent disability at 30% and 55% respectively for the

calculation of amount towards the loss of future earning

capacity. No doubt, the doctor has assessed the

permanent disability of the appellant at 55%. However,

it is important to consider the relevant fact namely

that the appellant is a driver and driving the motor

vehicle is the only means of livelihood for himself as

well as the members of his family. Further, it is very

crucial to note that the High Court has clearly observed

that his right hand was completely crushed and deformed.

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In the case of Raj Kumar v. Ajay Kumar (supra), this

Court specifically gave the illustration of a driver who

has permanent disablement of hand and stated that the

loss of future earnings capacity would be virtually

100%. Therefore, clearly when it comes to loss of

earning due to permanent disability, the same may be

treated as 100% loss caused to the appellant since he

will never be able to work as a driver again. The

contention of the respondent Insurance Company that the

appellant could take up any other alternative employment

is no justification to avoid their vicarious liability.

Hence, the loss of earning is determined by us at

Rs.54,000/- per annum. Thus, by applying the appropriate

multiplier as per the principles laid down by this Court

in the case of Sarla Verma & Ors. v. Delhi Transport

Corporation & Anr.

6

, the total loss of future earnings

of the appellant will be at Rs.54,000 X 16 =

Rs.8,64,000/-.

16.From the facts, circumstances and evidence on record

it is clear that a cost of Rs.2,00,000/- was incurred

during medical treatment of the appellant. Keeping in

6

(2009) 6 SCC 121

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mind his medical condition and future medical needs and

requirements, we further award Rs.2,00,000/- towards

future medical treatment & incidental expenses in favour

of the appellant by applying the legal principles laid

down by this Court in the case of Nagappa v. Gurudayal

Singh (supra).

17.Further, we refer to the case of Rekha Jain & Anr.

v. National Insurance Co. Ltd.

7

, wherein this Court

examined catena of cases and principles to be borne in

mind while granting compensation under the heads of (i)

pain, suffering and (ii) loss of amenities and so on.

Therefore, as per the principles laid down in the case

of Rekha Jain & Anr. (supra) and considering the

suffering undergone by the appellant herein, and it will

persist in future also and therefore, we are of the view

to grant Rs.1,50,000/- towards the pain, suffering and

trauma which will be undergone by the appellant

throughout his life. Further, as he is not in a position

to move freely, we additionally award Rs.1,50,000/-

towards loss of amenities & enjoyment of life and

happiness.

7

(2013) 8 SCC 389

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18.We further award an amount of Rs.20,000/- towards

special diet, Rs.40,000/- towards attendant expenses

during the period of treatment and Rs.20,000/- towards

transportation.

19.Since, the claim of the appellant has been pending

for several years before the courts, we are of the view

to award a sum of Rs.40,000/- towards costs incurred

during pendency of the appeal.

20.As regards the rate of interest to be awarded on the

compensation awarded in this appeal, we are of the view

that the Tribunal and the High Court have erred in

granting interest rate at only 7% p.a. and 8% p.a.

respectively on the total compensation amount instead of

9% p.a. by applying the decision of this Court in

Municipal Corporation of Delhi v. Association of Victims

of Uphaar Tragedy

8

. Accordingly, we award the interest

@9% p.a. on the compensation determined in the present

appeal.

21.In the result, the appellant shall be entitled to

the compensation figured out in the following table

8

(2011)14 SCC 481

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under different heads:

SL.No

Particulars

Amount of

compensation

1.

Loss of future income

due to disability

Rs.8,64,000/-

2.

Loss of income during

period of treatment

Rs.76,500/-

3. Pain and suffering Rs.1,50,000/-

4. Medical Expenses Rs.2,00,000/-

5.

Attendant charges

during the period of

treatment for 17

months

Rs.40,000/-

6.

Transportation charges

during the period of

treatment

Rs.20,000/-

7.

Special diet and

nutrition as advised

by the doctor during

the period of

treatment

Rs.20,000/-

8.

Permanent Disability/

loss of amenities,

happiness and

enjoyment of life

Rs.1,50,000/-

9.

Future medical

expenses

Rs.2,00,000/-

10.

Expenses during

pendency of appeal

Rs.40,000/-

TOTAL Rs.17,60,500/-

Thus, the total compensation payable to the appellant by

the respondent Insurance Company will be Rs.17,60,500/-

as per amount awarded against different heads mentioned

above in the table with interest @ 9% p.a. on the

compensation awarded by this Court from the date of

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filing of the claim petition till the date of payment.

22. Since the claim petition has been pending in the

courts for the last 6 years, we direct the Insurance

Company to either pay the compensation awarded in this

appeal by way of demand draft or deposit the same before

the concerned MACT within four weeks from the date of

receipt of the copy of this Judgment and submit the

compliance report for the perusal of this Court.

23. When this matter was listed, neither the counsel on

record nor the arguing counsel on behalf of the

appellant was present on a number of dates of hearing

despite granting several opportunities to him.

Therefore, keeping in view Article 39A of the

Constitution of India, this Court vide order dated

19.01.2015 appointed Mr. K. Parameshwara, as amicus

curiae on behalf of the appellant to assist us to

determine just and reasonable compensation. In pursuant

to the same, the learned amicus curiae has given his

valuable assistance to this Court by addressing the

arguments and submitting the written submissions.

Therefore, it is just and proper for this Court to

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direct the Legal Services Authority, State of Madhya

Pradesh to pay a nominal fee of Rs.10,000/- to him by

sending a demand draft in the name of ‘K. Parameshwar’

within four weeks from the date of receipt of the copy

of this Judgment. The Registry is directed to send a

copy of this judgment to the Legal Services Authority,

State of Madhya Pradesh to comply with our order.

The appeal is allowed in the above said terms.

……………………………………………………… J.

[V.GOPALA GOWDA]

……………………………………………………… J.

[R. BANUMATHI]

New Delhi,

February 18, 2015