Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.5370-5372 OF 2013

(Arising out of SLP (C) Nos. 5649-51 of 2012)

REKHA JAIN ... APPELLANT

VS.

NATIONAL INSURANCE CO. LTD. .. RESPONDENT

J U D G M E N T

V. Gopala Gowda, J.

Leave is granted by this Court vide order dated

02.07.2013 after condoning the delay in filing the

special leave petitions.

2. These appeals are directed against the judgment,

award and orders dated 24.2.2011 passed in MACA No. 580

Page 2 of 2007, MACA No. 846 of 2007 and dated 10/03/2011 in MC

No. 386 of 2011 in MACA No. 580 of 2007 of the High

Court of Orissa at Cuttack allowing the appeal of the

Insurance Company and dismissing the appeal of the

appellant by which she has prayed to set aside the

impugned judgment, award and order and has further prayed

for enhancement of compensation by award of just and

reasonable compensation allowing the appeals urging

various facts and legal contentions.

3. The necessary brief facts for the purpose of

appreciating the rival factual and legal contentions

urged in these appeals are stated as under:

On 17.08.2001 the appellant was driving a Maruti Car

bearing Regn. No. OR 15 D-9005 by which she was going

along with her mother Grace Jain from Sambalpur towards

Cuttack when the accident occurred. A truck bearing Regn.

No. MP 23 D-0096 coming from the opposite direction from

Cuttack towards Sambalpur hit the car which resulted in

the instantaneous death of the mother of the appellant

and the appellant received grievous injuries to her body.

She was admitted to the VSS Medical College Hospital,

Burla, Sambalpur and subsequently, she had undergone

Page 3 treatment at different Nursing Homes both at Cuttack and

in the State of Kerala.

4.On account of the accident, grievous injuries were

sustained by the appellant on the right side of her face

which left permanent scars and caused disfiguration of

her face and other parts of her body including her leg.

She underwent a number of surgeries due to grievous

injuries sustained by her. She underwent treatment from

18.08.2001 to 10.10.2001 at Kalinga Hospital and later

on, in different Nursing Homes/hospitals. The District

Medical Board issued a certificate dated 24.02.2006 to

the appellant certifying that she is suffering from 30%

permanent disability. The appellant has approached the

Motor Accident Claims Tribunal (for short ‘MACT’) at

Sambalpur by filing a claim petition No. 119 of 2002 with

a request to award just and reasonable compensation.

5.The respondents herein, the owner of the vehicle and

the insurer were impleaded and after service of summons

on them they filed their statement of objections

disputing the claim of the appellant. The owner of the

vehicle has admitted the accident and has also stated

that the motor vehicle involved in the accident is

Page 4 covered by the insurance policy which was valid up to

30.11.2001. He has further categorically stated that the

driver who drove that truck had a valid licence. The

respondent Insurance Company in its statement of

objections denied its liability on the ground that the

accident did not take place on account of rash and

negligent driving of the driver who drove the offending

vehicle, but was due to a motor cyclist who came in front

of the truck on account of which the accident took place.

It had further denied the various claims of the

appellant.

6.The case went for trial and on behalf of the

appellant, three witnesses were examined including the

appellant and documents were produced in justification of

her claim. Both the owner and the Insurance Company have

not adduced evidence in justification of their defence

taken in their statement of objections. The Motor

Accidents Claims Tribunal, on proper appraisal of

evidence on record, has answered the contentious issues

in favour of the appellant holding that the accident took

place on account of rash and negligent driving of the

truck by its driver. It is further held by the Tribunal

Page 5 that the appellant is entitled to compensation and

awarded Rs. 23,51,726/- both under the heads of pecuniary

and non-pecuniary damages with interest @ 6% per annum

from the date of filing of the claim application i.e.

30.03.2002 till the date of payment. Aggrieved by the

judgment and award of the Tribunal, both the Insurance

Company and the appellant filed appeals before the High

Court of Orissa in Appeal No. 580 and MACA 846 of 2007

respectively. The appeal of the Insurance Company was

allowed by reducing the compensation from 23,51,726/- to

Rs. 14,00,000/- after finding fault with the Tribunal in

awarding a sum of Rs. 17,51,726/- towards pecuniary

damages by accepting the vouchers, hospital bills,

receipts which have not been marked as exhibits in

evidence on behalf of the appellant. Though, the

compensation awarded towards the pecuniary loss for the

medical expenses, treatment charges and the purchase of

medicines, supported by the documentary evidence, that

is, bills, receipts, cash memos and vouchers, as per

Exhs. 26-28 series worth Rs. 2,07,713/- and other

documents cash memos, hospital bills and receipts etc.

were marked as exhibits in the evidence, some of the

hospital bills and receipts worth Rs. 5,72,000/-, though

Page 6 available on record, have not been marked as evidence to

show that the appellant had also incurred medical

expenses amounting to Rs.5,72,000/-. The Tribunal has

taken into account all those documents on record as

evidence by marking them as exhibits. However, only a sum

of Rs.7,77,000/- in total was awarded by the High Court

towards pecuniary damages and Rs.6,00,000/- towards non

pecuniary damages under different heads which is rounded

off in all at Rs.14,00,000/- by modifying the judgment of

the Tribunal. The Misc case No. 386 of 2011 filed by the

appellant was considered and the High Court modified its

earlier order vide its order dated 10.3.2011 directing

the Insurance Company to deposit the amount with interest

with the Registry of the High Court and out of the said

amount, it has directed the Registry to keep 70% in the

fixed deposit in the name of the appellant in any of the

Nationalized Bank for a period of five years and the

balance amount be disbursed to the appellant on proper

identification. The appeal of the appellant was

dismissed in view of the fact that the appeal filed by

the Insurance Company, MACA No. 580 of 2007 was allowed

and the compensation awarded by the Tribunal was reduced.

The same judgment is questioned by the appellant in these

Page 7 civil appeals seeking for enhancement of compensation

urging various grounds.

7.The grounds urged in these appeals are that the High

court has exceeded its jurisdiction in interfering with

the finding of fact recorded by the Tribunal with regard

to award of pecuniary damages towards medical expenses

without proper appreciation of pleadings and evidence on

record and has considerably reduced the amount under the

heading of pecuniary damages from Rs.17,51,726/- to

Rs.7,77,000/-. The correctness of the said impugned

judgment and order is questioned before this Court

contending that the same is not only erroneous but also

suffers from error in law and therefore, the appellant

prayed for setting aside the same and award just and

reasonable compensation in favour of the appellant both

under the heads of pecuniary and non-pecuniary damages by

applying the law laid down by this Court.

8.Further, it is contended by Mr. Sukumar Pattjoshi,

learned Senior Counselfor the appellant that the High

Court has erroneously interfered with the impugned

judgment and award of the Tribunal which is contrary to

legal evidence on record and various judgments of this

Page 8 Court with regard to the claim and he also contended that

the High Court has not awarded just and reasonable

compensation to mitigate the hardship and restore the

claimant’s position financially as she was in before the

accident.

9.Further, the learned Senior Counsel submitted that

the High Court was not justified in not enhancing the non

pecuniary compensation though sufficient evidence was

brought on record by the appellant before the MACT to

show that she was a celebrity in the sphere of modeling

and acting who had a bright future ahead of her which was

doomed by the accident which resulted in number of

surgeries conducted on her body. The opportunity for the

appellant to act in the movies and T.V. serials is lost

by her on account of the grievous injuries sustained by

her. The Tribunal has referred the same in its judgment

while awarding compensation under different headings of

non- pecuniary damages, namely, suffering and future loss

of earnings but it did not take into consideration the

permanent partial disablement suffered by the appellant

which was assessed at 30% and disfigurement of her face

due to accident and the fact that she is a celebrity

Page 9 acting in movies and TV serials and also in the field of

modeling. Due to disfigurement of her face, she will be

losing her future income as she will not get

opportunities to act in the films and T.V. serials.

Therefore, the learned Senior Counsel submits that both

the Tribunal and the High Court were not justified in not

awarding the just and reasonable compensation under the

heading of future income. They have awarded only a meager

amount of Rs.2,00,000/- towards the loss of income during

the period of medical treatment though she was unable to

earn nearly for a period of four years as she was

undergoing treatment. Also, the Tribunal did not award

any amount for loss of future income but has awarded a

sum of Rs. 1,00,000/- towards the pain and suffering

without taking into consideration the fact that she has

undergone treatment in various Nursing Homes/Hospitals

for plastic surgery and other surgeries and

physiotherapy. A paltry sum of Rs. 1,00,000/- was awarded

for loss of income during the period of medical treatment

of the appellant. A sum of Rs. 2,00,000/- was awarded

towards loss of amenities and pleasure of life.

Therefore, she has filed the appeals requesting this

Court to award just and reasonable compensation by

Page 10 appreciating the legal evidence on record.

10.It is further urged that the High Court has failed to

take into consideration the fact that the injured

appellant is a single lady left in her family who was

compelled to engage an attendant during the period of her

treatment while she was in a state of immobility. It is

further contended by the learned Senior Counsel that the

learned members of the Tribunal and the High Court have

erred in passing impugned judgment and order which are

not in accordance with the cardinal principles laid down

by this Court in various judgments in matters of Motor

Vehicle Accidents Claims and they also did not consider

the various relevant aspects such as the grievous

injuries suffered by the appellant which has resulted in

disfigurement of her face, who has lost her future career

to act in the films and T.V. serials and also through

advertisements as well as modeling. The Tribunal and

High Court have erred in not taking into consideration

the above said relevant aspects of the case to award

pecuniary damages and adequate compensation under the

heading of non-pecuniary damages without proper

appreciation of pleadings and the legal evidence on

Page 11 record particularly when both the owner of the truck and

the Insurance Company have not adduced rebuttal evidence.

The Insurance Company has not obtained the permission as

required under Section 170(b) of the Motor Vehicles Act

to avail the defence of the insured and contest in the

proceeding on the defence of the insured/ owner.

Therefore, the finding of the Tribunal and the High Court

in the impugned judgment and order and not awarding just

and reasonable compensation in favour of the appellant is

not only erroneous but also suffers from error in law.

Therefore, it is contended by Mr. Pattjoshi, the learned

Senior Counsel that the appellant is entitled to just and

reasonable compensation. The learned Senior Counsel

placed strong reliance on the evidence on record and has

contended that the appellant was a good actress and model

and worked in many films, albums, T.V. serials etc. and

she had also won many awards like “Ponds Woman of

Tomorrow” for the year 1999, best actress in feature film

“Maa Pari Kiye Haba” etc. The said legal evidence was

neither challenged nor was any rebuttal evidence adduced

on behalf of either the owner of the truck or the

Insurance Company to show that the appellant is not

entitled to just and reasonable compensation. However,

Page 12 the High Court should have taken into consideration all

the relevant facts and evidence on record as the Tribunal

has failed to exercise its power and discharge its

statutory duty to award just and reasonable compensation

in her favour. The learned Judge of the High Court

should have considered that the appellant is a film

actress and her beauty is an essential requirement for

acting in films, T.V. Serials and modeling. When her

beauty is lost on account of disfigurement of her face,

she has lost everything which means that there is hundred

percent functional disability in her life. But, both the

Tribunal and the High Court did not even consider 30%

permanent partial disablement suffered by the appellant

at the time of passing the award to determine the

compensation under various heads of non-pecuniary

damages. Further, it is contended by the learned Senior

Counsel that the loss of future income of the appellant

is on account of the fact that she had suffered grievous

injuries in the accident and therefore her life has

become miserable. In future as well, she will not be able

to act in films and T.V. serials. The High Court as well

as the Tribunal have failed to consider the evidence

adduced by the injured appellant in her examination-in-

Page 13 chief wherein she has categorically stated about her

income per annum and the loss of future income. Both the

Tribunal and the High Court have not properly evaluated

the evidence on record and have not applied the law on

the point to determine the future loss of income of the

appellant and on other heads to award just and reasonable

compensation. Therefore, the learned Senior Counsel

submitted that the impugned judgments of the Tribunal and

the High Court are erroneous in this regard and are

liable to be set aside and require modification with

award of just and reasonable compensation. She has

stated in her evidence that she earned Rs.50,000/- from

“Ponds beauty” competition, Rs.30,000/- from Oriya

feature film “Maa Pari Kiye Haba”, Rs.60,000/- from

Oriya feature film “Dharma Debata”, Rs. 75,000/- from

Malayalam feature film “Paith Dhigem Alam”, Rs.10,000/-

from each T.V. serial, Rs.5,000 to Rs.7,000/- from each

album. Further, it is urged by the learned Senior

Counsel that both the Tribunal as well as the High Court

erred in not differentiating between pecuniary damages

and non pecuniary damages at the time of determining

compensation and awarding the same. The law is well

settled by this Court that pecuniary damages under

Page 14 various heads such as expenses incurred by the appellant

that is, medical expenses, expenses spent towards

surgeries, loss of earning during the period of medical

treatment and expenses incurred by her to engage an

attendant and other material losses suffered by her,

should have been awarded by the Tribunal and the High

Court under pecuniary damages. The Tribunal did not

consider the above relevant aspects and evidence on

record to award just and reasonable compensation. In

relation to other two aspects, that is, loss of earning

up to the date of trial and other losses suffered by the

appellant, the same were also not considered. The

Tribunal and the High Court have erred in not granting

relief to the appellant considering the aspect of the

loss of expectation of life on account of grievous

injuries and shortened longevity of the appellant’s life.

The Tribunal and the High Court have erred in not

granting relief to the appellant by appreciating the

facts of inconvenience, hardship, discomfort,

disappointment, frustration and mental stress, pain and

suffering and agony caused to her. They further failed to

take into consideration the most important fact, that the

face of the injured appellant was fully and hopelessly

Page 15 disfigured due to accident and she got plastic surgery on

her entire face and other parts of her body by the

plastic surgeons outside the State of Odisha. After

plastic surgery, the appellant’s face appearance got

changed and she herself was not able to recognize her

changed face in the mirror. It is further urged by the

learned Senior Counsel on behalf of the appellant that

both the Tribunal as well as the High Court have failed

to take into consideration all the relevant facts deposed

by her before the Tribunal- that she has been undergoing

treatment due to the accident which would continue till

the complications subsist and she requires a lot of money

to be spent for her future treatment and she also

requires an attendant for this purpose. Therefore,

impugned judgments and awards of both the Tribunal and

the High Court are vitiated on both the counts of

erroneous finding and error in law as they have not

awarded just and reasonable compensation in favour of the

appellant.

11.Mr. S.L. Gupta, the learned counsel appearing on

behalf of the Insurance Company has justified the

impugned judgment, award and order passed by the High

Page 16 Court. Respondent nos. 2 and 3 however, were deleted from

the array of parties in these appeals by the order of

this Court at the request of the appellant. The learned

counsel contended that the High Court has exercised its

appellate jurisdiction, on proper appreciation of

pleadings and evidence on record and it is justified in

reducing the compensation awarded under the heading of

pecuniary damages as the injured appellant did not

establish her claim regarding the expenses incurred by

her for the purpose of medical treatment, purchase of

medicine and other incidental expenses by producing the

bills, receipts and vouchers. Therefore, the Tribunal

was not justified in placing reliance on those documents

which were not marked as exhibits to prove her claim

under the heading of ‘Medical Expenses’ and other

incidental expenses and it has awarded exorbitant

compensation under head of pecuniary damages which is

unsustainable in law. Therefore, the High Court has

rightly taken into consideration the entire documentary

evidence on record and is justified in awarding

compensation at Rs.7,77,000/- under the heading towards

expenses, treatment charges and expenses towards

medicines. Therefore, the same does not call for

Page 17 interference by this Court.

12. Further, it was contended by the counsel for the

respondent-Insurance Company that the compensation

awarded under different heads referred to supra towards

non pecuniary damages is not based on proper appreciation

of facts and legal evidence on record particularly in the

absence of evidence to prove the fact that she is an

income tax assessee since no proof is produced in this

regard before the Tribunal to prove her annual income

based on which her future loss of income could be

determined. Therefore, he submits that the appellant is

not entitled for the reliefs as prayed for in these

appeals. Hence, he submits that these are not fit cases

to interfere with the impugned judgments, award or the

order of the High Court and the appellant is not entitled

to enhancement of compensation as claimed by her in her

appeal. Hence, he has prayed for the dismissal of the

appeals filed by the appellant. With reference to the

above rival factual and legal contentions, the following

points would arise for consideration:

(i) Whether the impugned judgment, order and award

passed in MACA 580 and 846/ 2007 and Misc. Case No

Page 18 386/2011 in MACA 580 is legal and valid?

(ii) Whether the Tribunal is justified in awarding

Rs.17 lakhs and odd towards pecuniary damages in favour

of the appellant namely, medical charges, medicine

expenses and other expenses on the basis of the

documentary evidence on record?

(iii) Whether the appellant is entitled to enhanced

compensation under the different heads of non pecuniary

damages?

(iv) If so, to what compensation and for what award

the appellant is entitled to?

13.Point Nos. (i) and (ii) are answered together as they

are interrelated with each other, by assigning the

following reasons:

The High Court has gravely erred both on facts and in

law in interfering with the impugned judgment and award

of the Tribunal in reducing the pecuniary damages awarded

towards medical expenses incurred by the appellant herein

from Rs.17,51,726/- to Rs.7,77,000/- solely on the ground

that there is no documentary evidence in relation to the

amount spent towards medical expenses which is awarded by

Page 19 the Tribunal. This assumption by the learned Judge of

High Court is factually not correct. As could be seen

from the record, there are large number of medical bills

and vouchers produced by the appellant for having spent

the money towards the surgeries conducted upon her and

payment made to the various Hospitals and Nursing Homes

namely, V.S.S. Medical Hospital, Burla, Kalinga Hospital,

Bhubaneshwar, Nursing Home, Cuttack along with purchase

of medicines for the aforesaid period which run to

Rs.17,51,726/-. The above said factual aspects are stated

in unequivocal terms in her statement of evidence, and

she has also referred to the documents such as bills,

receipts and vouchers obtained by her from various

medical stores on the basis of the prescriptions of the

doctors who have treated her. Some of the documents were

marked in the evidence of PW-3 - the appellant herein and

she had spoken about the expenses incurred towards her

treatment and purchase of medicines. In relation to some

other documents, the learned counsel for the Insurance

Company has objected for making them exhibits without

raising tenable objections. The learned member of the

Tribunal neither upheld nor rejected the objection raised

by the counsel on behalf of the respondent Insurance

Page 20 Company at the time of marking documents through the

appellant in her evidence. Nonetheless, the learned

member of the Tribunal has taken those documents into

consideration and has awarded compensation under

pecuniary damages having regard to the clinching evidence

on record that the surgeries were conducted and treatment

was taken by her in various hospitals and Nursing Homes

for a period of four years. The correctness of the said

claim is examined by us with reference to the documents

in Ann. P-7 produced in this case, in which date-wise

particulars with regard to the name of the Institutions

and Medical Stores, the expenses incurred and bill

numbers, payment made for the purpose of conducting blood

tests, purchase of medicines, purchase of blood from the

blood bank and cost of surgeries spent by the appellant

are given. The Tribunal, in the absence of rebuttal

evidence and the nature of cross examination of the

appellant-PW3 made by the learned counsel on behalf of

the Insurance Company and the evidence adduced by the

appellant herein and the claim made by her under the

pecuniary damages towards the medical expenses, tests,

surgeries etc. and other incidental purposes, has

accepted and has rightly awarded a sum of Rs. 17,51,726/-

Page 21 under the heading of medical expenses. The same has been

arbitrarily and unreasonably, without assigning any

cogent and valid reason, interfered with by the High

Court and it has erroneously modified the judgment by

reducing the amount from Rs. 17,51,726/- to Rs.

7,77,000/-. This has been very lightly interfered with by

the learned Judge of the High Court without application

of mind and consideration of legal evidence on record

particularly in the absence of rebuttal evidence and

further, the Insurance Company was unable to show that

the documents referred to supra produced by the appellant

in her evidence are fabricated documents, which have been

produced with deliberate intention to prefer a false

claim in this regard as contended by the learned counsel

on behalf of the Insurance Company. We have carefully

examined the evidence on record and the findings of the

Tribunal to examine as to whether the findings recorded

by the High Court in the impugned judgment for reduction

of pecuniary damages from Rs.17,51,726/- to Rs.7,77,000/-

is correct. On careful perusal of the evidence and

documents produced by the appellant we have to hold that

the finding and reason recorded by the High Court is

wholly erroneous in law as the same is contrary to the

Page 22 facts pleaded and proved by producing evidence on record.

Therefore, the same requires to be interfered with by

this Court in these appeals. Accordingly, point Nos. (i)

and (ii) are answered in the affirmative in favour of the

appellant. The finding and reason recorded by the High

Court in not awarding just and reasonable compensation

under the various heads of non pecuniary damages for

which she is legally entitled to on the basis of proven

facts, legal evidence on record and law laid down by this

Court, is not only erroneous but also suffers from error

in law. On this aspect, separate reasons are assigned

while answering point Nos. (iii) & (iv).

14.Point No.(iii) is also required to be answered in

favour of the appellant. We are of the view that the

appellant is substantially entitled to enhancement of

compensation under various heads of non-pecuniary damages

having regard to the concurrent findings recorded on this

aspect of the matter by the High Court. Both the Tribunal

and the High Court have accepted the nature of injuries

sustained by her and the percentage of permanent partial

disablement suffered by her due to the Motor Vehicle

Accident as per the Disability Certificate No.943 dated

Page 23 24.2.2006 issued by the Chief Medical Officer of the

District Medical Board of Sambalpur. This aspect of the

matter is very relevant for the purpose of examining the

claim of the appellant and also to find out as to whether

the Tribunal and the High Court were justified in not

awarding just and reasonable compensation in favour of

the appellant under the various heads of non-pecuniary

damages. This Court is required to keep in mind justice,

equity and good conscience which must be the primary,

relevant and important aspects for awarding just and

reasonable compensation to an unfortunate victim, the

appellant herein who has sustained grievous injuries to

her body and whose future prospects are completely

doomed. Further, the Tribunal and courts while awarding

compensation for bodily injuries, must realise that the

possession of one’s own body is the first and most

valuable of all human rights and that all other

possessions and ownership are the extensions of the basic

right. Bodily injuries should be equated with the

deprivation which entitles a claimant to damages and the

amount of damages varies in accordance with the gravity

of injuries. In this regard, it is worthwhile to refer to

certain paragraphs which have been referred to by the

Page 24 Karnataka High Court in the case of K. Narasimha Murthy

vs. The Manager, Oriental Insurance Company Limited and

Anr.

1

, wherein the Division Bench of the Karnataka High

Court has considered the relevant important aspects from

the judgment of this Court and the House of Lords and

different learned scholars and authors of books on

awarding pecuniary and non pecuniary damages. The

abovementioned decision states about the approach of the

Motor Accidents Claim Tribunals and Courts for awarding

just and reasonable compensation in favour of the

claimants in relation to the bodily injuries suffered by

them. It is worthwhile to extract Paragraph 16 from K.

Narasimha Murthy case (supra), which reads as under:

“16. The Courts and Tribunals, in bodily injury

cases, while assessing compensation, should take

into account all relevant circumstances,

evidence, legal principles governing

quantification of compensation. Further, they

have to approach the issue of awarding

compensation on the larger perspectives of

justice, equity and good conscience and eschew

technicalities in the decision-making. There

should be realisation on the part of the

Tribunals and Courts that the possession of one's

own body is the first and most valuable of all

human rights, and that all possessions and

ownership are extensions of this primary right,

while awarding compensation for bodily injuries.

Bodily injury is to be treated as a deprivation

1 ILR 2004 Karnataka 2471

Page 25 which entitles a claimant to damages. The amount

of damages varies according to gravity of

injuries.”

15.In R.D. Hattangadi v. Pest Control (India) Private

Limited and Ors.

2

, speaking about the heads of

compensation, this Court has held thus:

"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

is 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 profit upto 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

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,

2 1995 (1) SCC 551

Page 26 disappointment, frustration and mental stress in

life."

16.Further, on this point, Justice Viscount Dunedin in

Admiralty Comrs v. S.S. Valeria

3

, has observed thus:

"The true method of expression, I think, is that

in calculating damages you are to consider what

is the pecuniary consideration which will make

good to the sufferer, as far as money can do so,

the loss which he has suffered as the natural

result of the wrong done to him".

17.Further, Lord Blackburn in Livingstone v. Rawyards

Coal Company

4

, has held as under:

"Where any injury is to be compensated by

damages, in settling the sum of money to be

given. . . . you should as nearly as possible get

at that sum of money which will put the person

who has been injured. . . . in the same position

as he would have been in if he had not sustained

the wrong."

3 (1922)2 A.C. 242 at p. 248

4 1880 5 App. Cas. 25 at p. 39

Page 27 18.Lord Morris in his memorable speech in H. West and

Sons, pointed out this aspect in the following words:

"Money may be awarded so that something tangible

may be procured to replace of like nature which

has been destroyed or lost. But, the money cannot

renew a physical frame that has been battered and

shattered. All the Judges and Courts can do is to

award sums which must be regarded as giving

reasonable compensation. In the process there

must be the endeavour to secure some uniformity

in the general method of approach. By common

assent awards must be reasonable and must be

assessed with moderation. Further, more it is

eminently desirable that so far as possible

comparative injuries should be compensated by

comparable awards."

19.In Ward v. James

5

, speaking for the Court of Appeal

in England, Lord Denning laid down three basic principles

while dealing with the question of awarding compensation

for personal injury:

"Firstly, assessability: In cases of grave

injury, where the body is wrecked or brain

destroyed, it is very difficult to assess a fair

compensation in money, so difficult that the

award must basically be a conventional figure,

derived from experience or from awards in

comparable cases. Secondly, uniformity: There

5 1966 1 Q.B. 273 at pp. 299-300

Page 28 should be some measure of uniformity in awards so

that similar decisions may be given in similar

cases, otherwise, there will be great

dissatisfaction in the community and much

criticism of the administration of justice.

Thirdly, predictability: Parties should be able

to predict with some measure of accuracy the sum

which is likely to be awarded in a particular

case, for by this means cases can be settled

peaceably and not brought to Court, a thing very

much to the public good.

In deciding on the quantum of damages to be paid

to a person for the personal injury suffered by

him, the Court is bound to ascertain all

considerations which will make good to the

sufferer of the injuries, as far as money can do,

the loss which he has suffered as. a natural

consequence of the wrong done to him.”

20.Further, a Division Bench of Karnataka High Court in

Basavaraj v. Shekar

6

, has held as under:

"If the original position cannot be restored - as

indeed in personal injury or fatal accident cases

it cannot obviously be - the law must endeavour

to give a fair equivalent in money, so far as

money can be an equivalent and so 'make good' the

damage.

Therefore, the general principle which should

govern the assessment of damages in personal

6 ILR 1987 Kar. 1399

Page 29 injury cases is that the Court should award to

injured person such a sum of money as will put

him in the same position as he would have been in

if he had not sustained the injuries. But, it is

manifest that no award of money can possibly

compensate an injured man and renew a shattered

human frame.”

(Emphasis laid by the Court)

21.Lord Morris of Borth-y-Gest in Parry v. Cleaver

7

, has

said:

"To compensate in money for pain and for physical

consequences is invariably difficult but. . . no

other process can be devised than that of making

a monetary assessment ".

(Emphasis laid by the Court)

22.The necessity that the damages should be full and

adequate was stressed by the Court of Queen's Bench in

Fair v. London and North Western Railway Company

8

. In

Rushton v. National Coal Board

9

, Singleton L.J. has said

that:

“When damages have to be assessed in a case of

7 [1970] 1 AC 1 at p. 22

8 21 L.T. (N.S.) 326 (1869)

9 1953 1 QB 495 at p. 499

Page 30 this kind there are many elements for

consideration: the pain and suffering undergone

and that which may occur in the future; the loss

of some of the amenities of life; the fact that

a man with an injury of this kind will always

require some measure of help, even though he may

be able to earn considerable money. These are

some of the matters which have to be taken into

consideration, and another is the fact that his

earnings will probably be less than they were

before.”

(Emphasis laid by the Court)

23.In Fowler v. Grace

10

, Edmund Davies, L.J., has said

that :

“It is the manifest duty of the Tribunal to give

as perfect a sum as was within its power'. There

are many losses which cannot easily be expressed

in terms of money. If a person, in an accident,

loses his sight, hearing or smelling faculty or a

limb, value of such deprivation cannot be

assessed in terms of market value because there

is no market value for the personal asset which

has been lost in the accident, and there is no

easy way of expressing its equivalent in terms of

money. Nevertheless a valuation in terms of money

must be made, because, otherwise, the law would

be sterile and not able to give any remedy at

all. Although accuracy and certainty were

frequently unobtainable, a fair assessment must

10 (1970) 114 Sol. Jo.193

Page 31 be made. Although undoubtedly there are

difficulties and uncertainties in assessing

damages in personal injury cases, that fact

should not preclude an assessment as best as can,

in the circumstances be made.”

(Emphasis laid by the Court)

24.In re the Mediana

11

, the plaintiffs were deprived of

the use of their own lightship, but sustained no

pecuniary loss as another lightship was kept in reserve.

Yet, it was held that the plaintiffs were entitled to

substantial damages for the loss of the use of their ship

for a period, and Lord Halsbury L.C. answered the

objection that assessment was too uncertain by observing

that:

"Of course the whole region of inquiry into

damages is one of extreme difficulty. You very

often cannot even lay down any principle upon

which you can give damages; nevertheless, it is

remitted to the jury, or those who stand in place

of the jury, to consider what compensation in

money shall be given for what is a wrongful act.

Take the most familiar and ordinary case: how is

anybody to measure pain and suffering in moneys

counted? Nobody can suggest that you can by any

arithmetical calculation establish what is the

11 [1900] AC 113 at p. 116

Page 32 exact amount of money which would represent such

a thing as the pain and suffering which a person

has undergone by reason of an accident ... But,

nevertheless, the law recognises that as a topic

upon which damages may be given.

In personal injury cases, the Court is

constantly required to form an estimate of

chances and risks which cannot be determined with

precision. It is because, the law will disregard

possibilities which are slight or chances which

are nebulous; otherwise, all the circumstances of

the situation must be taken into account, whether

they relate to the future which the plaintiff

would have enjoyed if the accident had not

happened, or to the future of his injuries and

his earning power after the accident. Damages are

compensation for an injury or loss, that is to

say, the full equivalent of money so far as the

nature of money admits; and difficulty or

uncertainty does not prevent an assessment. ”

(Emphasis laid by the Court)

25.It is well-settled principle that in granting

compensation for personal injury, the injured has to be

compensated (1) for pain and suffering; (2) for loss of

amenities; (3) shortened expectation of life, if any; (4)

loss of earnings or loss of earning capacity or in some

cases for both; and (5) medical treatment and other

special damages. In personal injury cases the two main

Page 33 elements are the personal loss and pecuniary loss. Chief

Justice Cockburn in Fair's case, supra, distinguished the

above two aspects thus:

"In assessing the compensation the jury should

take into account two things, first, the

pecuniary loss the plaintiff sustains by the

accident : secondly, the injury he sustains in

his person, or his physical capacity of enjoying

life. When they come to the consideration of the

pecuniary loss they have to take into account not

only his present loss, but his incapacity to earn

a future improved income".

26.McGregor on Damages (14th Edition) at paragraph no.

1157, referring to the heads of damages in personal

injury actions, states as under:

"The person physically injured may recover

both for his pecuniary losses and his non-

pecuniary losses. Of these the pecuniary losses

themselves comprise two separate items, viz., the

loss of earnings and other gains which the

plaintiff would have made had he not been injured

and the medical and other expenses to which he is

put as a result of the injury, and the Courts

have sub-divided the non-pecuniary losses into

three categories, viz., pain and suffering, loss

of amenities of life and loss of expectation of

life".

Page 34 Besides, the Court is well-advised to

remember that the measures of damages in all

these cases 'should be such as to enable even a

tort feasor to say that he had amply atoned for

his misadventure'. The observation of Lord Devlin

that the proper approach to the problem or to

adopt a test as to what contemporary society

would deem to be a fair sum, such as would allow

the wrongdoer to 'hold up his head among his

neighbours and say with their approval that he

has done the fair thing', is quite apposite to be

kept in mind by the Court in assessing

compensation in personal injury cases.”

(Emphasis laid by the Court)

27.In R. Venkatesh v. P. Saravanan & Ors.

12

, the High

Court of Karnataka while dealing with a personal injury

case wherein the claimant sustained certain crushing

injuries due to which his left lower limb was amputated,

held that in terms of functional disability, the

disability sustained by the claimant is total and 100%

though only the claimant's left lower limb was amputated.

In paragraph 9 of the judgment, the Court held as under:

"9. As a result of the amputation, the claimant

had been rendered a cripple. He requires the help

of crutches even for walking. He has become unfit

12 2001(1) Kar. L.J. 411

Page 35 for any kind of manual work. As he was earlier a

loader doing manual work, the amputation of his

left leg below knee, has rendered him unfit for

any kind of manual work. He has no education. In

such cases, it is well-settled that the economic

and functional disability will have to be treated

as total, even though the physical disability is

not 100 per cent".

28.Lord Reid in Baker v. Willoughby

13

, has said:

"A man is not compensated for the physical

injury; he is compensated for the loss which he

suffers as a result of that injury. His loss is not

in having a stiff leg; it is in his inability to lead

a full life, his inability to enjoy those amenities

which depend on freedom of movement and his inability

to earn as much as he used to earn or could have

earned…. ."

29.The aforesaid principles laid down by this Court,

Appeal Cases, House of Lords and leading authors and

experts referred to supra, whose opinions have been

extracted above, with all fours, are applicable to the

fact situation for awarding just and reasonable

compensation in favour of the appellant as she had

sustained grievous injuries on her face and other parts

13 (1969) 3 All ER 1528 at p. 1532

Page 36 of the body which is assessed at 30% permanent

disablement by competent doctors.

30. The finding of fact is recorded by the Tribunal on

the question of the accident caused on account of rash

and negligent driving on the part of offending truck

driver on 17.8.2001, the date of the accident on account

of which the appellant herein has sustained grievous

injuries and has undergone trauma and mental agony for

over a period of four years. She had also gone through a

number of surgeries on account of this accident in which

her face has been disfigured. With regard to the nature

of injuries sustained by her, the District Medical Board

of Sambalpur, represented by the Chief Medical Officer

has issued disability certificate certifying that the

appellant has suffered disability to the extent of 30%.

The finding recorded by the Tribunal on this important

aspect of the case on the basis of legal evidence is not

challenged either by the owner of the truck or by the

Insurance Company and it could not have challenged the

finding without obtaining the permission as required

under Section 170(b) of the Motor Vehicles Act to avail

the defence of the insured to contest the case as has

Page 37 been held by a three judge bench of this Court in the

case of National Insurance Co. Ltd . vs. Nicolletta

Rohtagi & Ors.

14

The relevant paragraphs read as under:

“15. It is relevant to note that Parliament, while

enacting sub-section (2) of Section 149 only

specified some of the defences which are based on

conditions of the policy and, therefore, any other

breach of conditions of the policy by the insured

which does not find place in sub-section (2) of

Section 149 cannot be taken as a defence by the

insurer. If Parliament had intended to include the

breach of other conditions of the policy as a

defence, it could have easily provided any breach

of conditions of insurance policy in sub-section

(2) of Section 149. If we permit the insurer to

take any other defence other than those specified

in sub-section (2) of Section 149, it would mean

we are adding more defences to the insurer in the

statute which is neither found in the Act nor was

intended to be included.

16. For the aforesaid reasons, we are of the view

that the statutory defences which are available to

the insurer to contest a claim are confined to

what are provided in sub-section (2) of Section

149 of the 1988 Act and not more and for that

reason if an insurer is to file an appeal, the

challenge in the appeal would confine to only

those grounds.”

The said finding of fact has attained the finality and

the compensation has been awarded by the Tribunal and

affirmed by the High Court. The only aspect which was

required to be examined by the High Court in the appeals

14 (2002) 7 SCC 456

Page 38 filed both by the respondent Insurance Company as well as

by the appellant was that the quantum of compensation

required to be awarded in her favour under the different

heads of non-pecuniary damages as per the principles laid

down by this Court, House of Lords, Queens Bench and

Authors in various judgments and extracts from various

texts and books respectively, referred to supra.

31.Both the Tribunal as well as the High Court have

gravely erred both on facts and in law in not evaluating

the legal evidence on record to award just and reasonable

compensation in favour of the appellant keeping in view

the fact that the appellant was a good actress, model and

has acted in many films, albums, T.V. serials etc. This

evidence is not challenged though the appellant was cross

examined by the counsel for the respondent Insurance

Company extensively without obtaining the permission from

the Tribunal as required under Section 170(b) to contest

in the proceeding. In the absence of such permission, the

Insurance Company has got limited defence as provided

under section 149(2) of the Motor Vehicles Act, which

provides for the conditions which determines breach of

the terms and conditions of the insurance policy. The

Page 39 Tribunal did not apply the legal principles laid down by

this Court to award just and reasonable compensation by

following various guiding factors and legal principles

under the heading of future loss of earnings. It has also

not awarded compensation under the following heads namely

(1)damages for mental and physical shock, pain and

suffering already undergone by the appellant or she is

likely to undergo in future, (2) damages for loss of

amenities of life on account of injury due to which the

appellant is unable to act in the films and (3) damages

for the loss of expectations of life, inconvenience,

hardship, discomfort, disappointment, frustration and

mental stress in life. The said principles have been

recognized by this Court time and again in catena of

cases reference to which are not required to be mentioned

again as we have referred to the same in the preceeding

paragraphs of this judgment.

32.Since under the head of non pecuniary damages the

Tribunal did not award reasonable compensation, the

appellant has rightly approached the High Court by filing

MACA No.846 of 2007. The said appeal was heard along with

MACA No. 580 of 2007 filed by the respondent Insurance

Page 40 Company which has affirmed the compensation awarded under

the non-pecuniary damages by the Tribunal in the impugned

judgment passed in the said appeal for enhancement of

compensation under the aforesaid heads. Without

considering the legal grounds urged in the appeal filed

by the appellant, it has simply dismissed the appeal of

the appellant for the reasons recorded in the judgment

passed in the appeal of the Insurance Company. The

dismissal of the appeal of the appellant in view of the

order passed in MACA No.580 of 2007 without assigning any

reason whatsoever for enhancement of compensation is

arbitrary and unreasonable. Therefore, the appellant is

justified in challenging the said order in these appeals.

It is in the evidence of the appellant that at the time

of accident her age was 24 years, which is not disputed

by the respondents.

33.It is also in her evidence that she was an actress

who acted in T.V. serial titled ‘Swara Sudha’, which was

an album directed by Harish Mohanty. She also acted in

the motion picture in Oriya titled ‘Ma Pari Kiye Haba’.

She was the lead actress in this picture. By Cane Critics

Award Organisation, she was adjudged as the ‘Best

Page 41 Actress’ and the ‘Best New Comer Artist’ in that film and

she also performed in the lead role in the Oriya Feature

Film ‘Dharma Debata’ directed by Bijaya Bhaskar Reddy.

She also acted in Malayalam Feature film named ‘Paith

Thingel Kalam’ as heroine, which was directed by Jaya

Krishna. She has further stated in her evidence that she

has signed for the feature film in Oriya ‘Pua Bada Jagata

Jita’ and another feature film in Oriya ‘Pua Bhangidela

Suna Sanbar’. But she could not act in those films due

to the accident. Further she has stated that she was in

the lead role in the two completed T.V. serials ‘Atrupta

Atma’ and ‘Akhabuluthile Chakabuluthaa’. She was an

artist in the Oriya Albums ‘Jhankar’ and ‘Mahake Rajni

Gandha’. She had also signed Hindi T.V. Serial ‘Silla

Padma’ by Dr. Pravita Roy as heroine but could not

perform in the serial due to the accident. She has acted

in advertisement films for products like Coca Cola, Saree

and Saree house etc. She had also performed in Oriya

Cassette namely ‘Mu Kendrapada Jhia’ which was an

audiocassette.

34.Further, she has stated in her evidence that at the

time of accident she had completed her graduation in

Page 42 Commerce from G.M. College, Sambalpur and she was

pursuing her studies for her post graduate degree in that

College. Prior to her admission to P.G. Class, she had

done P.G. Diploma course in Hotel Management from the

Institute of Hotel Management and Catering Technology,

Bhubaneswar. She has further stated that while pursuing

her studies she was performing in the films referred to

supra. She has further stated that after the accident,

her physical fitness, physical appearance and her zeal to

perform in films have been reduced to zero. The vital

statistics required of her for modeling has also become

disproportionate after the accident. She has

categorically stated that she became permanently

handicapped and disabled. She has also stated that prior

to the accident she was lean and thin. But due to

continued treatment after accident, she gained 4 to 5

k.gs. The aforesaid positive and substantive legal

evidence remained unshaken in the cross examination of

the appellant – PW-3 by the counsel of the respondent

Insurance Company, though he was not entitled to cross

examine all these aspects since the Company did not

obtain the permission from the Tribunal. Nonetheless,

permission was granted by the Tribunal to cross examine

Page 43 the appellant-PW3. Despite her cross examination by the

counsel, the aforesaid important facts could not be

shaken and the same remained unchallenged and

undisturbed.

35.The registered owner of the car in which she was

traveling belonged to her mother. The truck dashed

against her car at the driver’s seat which was occupied

by the appellant. The Tribunal has not accepted the case

of the Insurance Company that the appellant was driving

the car negligently.

36.In the cross examination of the appellant – PW-3

except eliciting answer that there is no written contract

for playing the role of modeling for the Ponds Products

for 3 years so also for acting in Albums, T.V. serials or

films, the fact remained that even in the absence of

written contracts, the fact that she has been acting as

an actress in the aforesaid films is proved since the

said portion of the evidence remained unchallenged. The

case pleaded by the appellant that she has been acting in

films, T.V. serials, modeling and participating in the

award competition is established by pleadings and

Page 44 evidence on record. There is no rebuttal evidence

adduced in this regard by either the insured or by the

Insurance Company.

37.The finding of fact recorded by the Tribunal stating

that she has been acting as an actress has been re-

affirmed by the High Court by affirming the award of

compensation under the various heads of non-pecuniary

damages. Despite the cogent and substantive evidence

adduced on record by the appellant before the Tribunal,

neither has it awarded just and reasonable compensation

nor the High Court has enhanced the same in exercise of

its appellate jurisdiction by re-appreciating the

pleadings and evidence on record.

38.For a film actress, the physical appearance

particularly the facial features are very important to

act in the films and in T.V. serials. It is in her

evidence that on account of the accident her face was

disfigured, she has put on weight and has become fat and

therefore she is unable to perform the role as an actress

in films in future. Having regard to the nature of

vocation she has been carrying on and wishes to carry on

Page 45 with in future, the opportunity is lost on account of the

disfigurement of her face, to act in the films as an

actress either as a heroine or actress in supporting role

or any other role to be played in T.V. serials, albums

and also as a model. It is in the evidence of the

appellant that as per the District Medical Board of

Sambalpur, her permanent disability is 30%. Having regard

to the nature of injuries and observations made by this

Court and Karnataka High Court in the cases referred to

supra, we have to record a finding of fact that the

appellant’s permanent disability should be treated as

100% functional disablement as she cannot act in the

films and in T.V. serials in future at all. Therefore, on

account of the aforesaid reasons, she has suffered

functional disability. In this regard, it is relevant to

refer to the judgment of this Court in the case of

National Insurance Company Ltd. V. Mubasir Ahmed

15

. This

Court has held that loss of earning capacity is not a

substitute for percentage of physical disablement. It is

simply one of the factors taken into account to award

just and reasonable compensation. Even though the

claimant does not suffer from 100% physical permanent

15 2007 (2) SCC 349

Page 46 disability, he suffers from 100% functional disability if

he loses the capacity to pursue his work as a result of

the accident. It is worthwhile to extract paragraph no. 8

from the aforesaid judgment which reads as under:

“8. Loss of earning capacity is, therefore, not a

substitute for percentage of the physical

disablement. It is one of the factors taken into

account. In the instant case the doctor who

examined the claimant also noted about the

functional disablement. In other words, the

doctor had taken note of the relevant factors

relating to loss of earning capacity. Without

indicating any reason or basis the High Court

held that there was 100% loss of earning

capacity.”

39. In Palraj v. North East Karnataka Road Transport

Corpn.

16

, where the appellant was a driver, this Court

held that although the appellant has lost the use of his

legs, the same amounts to total disablement as far as

driving a vehicle is concerned.

40. In Nizam’s Institute of Medical Sciences v. Prasanath

S. Dhananka

17

, this Court has observed as under:

“88. We must emphasise that the court has to

strike a balance between the inflated and

unreasonable demands of a victim and the equally

16 2010 (10) SCC 347

17 2009 (6) SCC 1

Page 47 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.

……. …. …..

90. At the same time we often find that a person

injured in an accident leaves his family in

greater distress vis-à-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)

91. We can also visualise the anxiety of the

complainant and his parents for the future after

the latter, as must all of us, inevitably fade

away. We, have, therefore computed the

compensation keeping in mind that his brilliant

career has been cut short and there is, as of

now, no possibility of improvement in his

condition, the compensation will ensure a steady

and reasonable income to him for a time when he

is unable to earn for himself.”

41.In this regard, in Baker’s case supra, it has been

Page 48 stated by Lord Reid that a man is not compensated for the

physical injury; he is compensated for the loss which he

suffers as a result of that injury. Therefore, the

functional disability is a forceful alteration of career

option of the appellant who has already undergone

physical and mental injuries because of the accident. It

would amount to adding distress to injury if one is

forced to work with difficulty to earn his/her livelihood

so as to reduce the burden of the wrongdoer in terms of

compensation.

42.In view of the aforesaid decisions of this Court and

various courts and High Court of Karnataka and authors

referred to supra, we have to record the finding of fact

having regard to the nature of grievous injuries and her

disfigured face and that she was acting as an actress in

the films, T.V. serials, etc. her functional disablement

is 100%. This relevant aspect of the matter has been

conveniently omitted to be considered both by the

Tribunal as well as by the High Court while determining

compensation under various heads of non-pecuniary

damages. For the foregoing reasons, we are of the view

that under the different heads of non-pecuniary damages

Page 49 she is entitled to higher compensation in her appeal. For

that purpose, we are required to consider her annual

income for the purpose of computation of just and

reasonable compensation under the aforesaid different

heads of non-pecuniary damages. It is in her evidence

that her income depends upon the project. She got

30,000/- for her first film “Maa Pari Kiye Haba” and

Rs.75,000/- for Malayalam film ‘Paith Digem Alam’. For

her performance in a serial, she used to get within

Rs.7000/- to 10,000/-. She had received Rs.50,000/- for

winning the “Ponds Women of Tomorrow” Contest. The said

evidence remains unchallenged in the cross examination by

the counsel for the respondent Insurance Company. Having

regard to her age and qualification and that she was

acting in various Oriya and Malayalam films, T.V. serials

and that she was in the beginning stage of her acting

career and having regard to the fact that she has acted

in various films, she would have definitely had a very

good chance for acting in future if she had not suffered

the grievous injuries, facial disfigurement and other

injuries on account of the accident. She has also stated

in her evidence that she is an assessee for income tax.

She has got PAN card and has produced the same. Having

Page 50 regard to the aforesaid legal evidence on record and in

the absence of documentary evidence to show her probable

annual income, it would be proper for this Court to take

her probable annual income as Rs.5,00,000/- for the

purpose of computation of her future loss of earning. We

have already held that though the disability certificate

speaks of her disability at 30% on account of

disfigurement of the face and other injuries to her body,

her physical fitness is completely changed, she has put

on weight 4 to 5 kgs., she is not fit to act and no film

producer will offer her roles in their films to act as an

actress. Having regard to the nature of the vocation, we

have to hold that she is suffering from 100% functional

disability. In the light of the facts of this case and

keeping in view the aforesaid evidence on record that she

is a film actress and also taking into consideration that

in the film world of this country the heroine will

certainly get the substantial sum for acting in films,

T.V. serials, modeling, it would be just and proper for

us to take 50% of her annual income for the purpose of

computation of her future loss of income keeping in view

that throughout her life she may not be in a position to

act in the films, albums and modeling. Her annual income

Page 51 is assessed at Rs.5,00,000/-. 50% of which is

Rs.2,50,000/- per annum which is multiplied by 17 as the

proper multiplier considering her age at the time of

accident by applying the legal principle laid down by

this Court in Sarla Verma & Ors. v. Delhi Transport Corp.

& Anr.

18

, which amounts to Rs.42,50,000/-. Hence, we

award Rs.42,50,000/- compensation under the aforesaid

head. The Tribunal awarded only Rs.2,00,000/- which is

enhanced to Rs.42,50,000/- under the said head.

43.The Tribunal awarded compensation of Rs.2,00,000/-

for the loss of amenities, pleasure of life and her

inability to attend social functions in future, which is

inadequate, therefore, it should be enhanced to

Rs.10,00,000/-.

44. Towards the pain and suffering, the Tribunal awarded

Rs.1,00,000/-. It should be proper to award another

Rs.9,00,000/- as she has undergone ordeal for the period

of 4 years continuously taking treatment in Odisha and

Kerala States and the damages for mental and physical

shock, pain and suffering, disfigurement of the face and

other bodily injuries she already suffered continuously

18 2009 (6) SCC 121

Page 52 or likely to suffer.

45. The Tribunal awarded Rs.17,15,726/- towards the

medical expenses based on the legal evidence and,

therefore we affirm the compensation awarded by the

Tribunal.

46. Thus, the total compensation amounting to

Rs.79,65,726/- which is rounded of to Rs. 79,66,000/-

along with interest at the rate of 6% per annum is

awarded from the date of application till the date of

deposit of the amount. The aforesaid enhancement of

compensation under different heads referred to supra, in

our considered view would be just and reasonable

compensation in this case.

47. Before parting with the judgment, it would be just

and necessary for this Court to make observation that the

Motor Accidents Claims Tribunals and the Appellate Courts

should keep in view the rights of the claimants under the

provisions of the M.V. Act to determine the compensation

claims of the claimants by considering the facts of each

case and the legal position laid down by this Court on

relevant aspects.

Page 53 49.Accordingly, the appeals of the appellant are allowed

in the above said terms. We set aside the impugned

judgment, award and orders passed by the High Court. The

respondent Insurance Company is directed to deposit 70%

of the awarded compensation along with proportionate

interest with any Nationalized Bank of the choice of the

appellant in fixed deposit and the remaining 30% with

proportionate interest, after deducting any amount if

already paid by the respondent as awarded by the High

Court should be disbursed to the appellant within six

weeks on proper identification. There will be no order as

to costs.

………………………………………………………… J.

[G.S. SINGHVI]

…………………………………………………………J.

[V. GOPALA GOWDA]

New Delhi,

August 1, 2013.

Page 54 ITEM NO.1B COURT NO.2 SECTION XIA

(For Judgment)

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

CIVIL APPEAL NO(s). 5370-5372 OF 2013

REKHA JAIN Appellant (s)

VERSUS

NATIOANL INSURANCE CO.LTD. & ORS. Respondent(s)

Date: 01/08/2013 These Appeals were called on for Judgment today.

For Appellant(s) Mr. Sibo Sankar Mishra, Adv.

For Respondent(s) Ms. Shalu Sharma, Adv.

Hon’ble Mr.Justice V.Gopala Gowda pronounced the judgment

of the Bench comprising Hon’ble Mr.Justice G.S.Singhvi and His

Lordship.

The appeals are allowed in terms of the signed judgment.

(Satish K.Yadav) (Phoolan Wati Arora)

Court Master Court Master

(Signed reportable judgment is placed on the file)