As per the case facts, the appellant-claimant suffered grievous injuries and permanent disability in a motor accident. The Motor Accidents Claims Tribunal awarded compensation, which the High Court further enhanced. ...
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8510 OF 2022
(arising out of S.L.P. (Civil) No. 19277 of 2018)
SIDRAM .…APPELLANT
Versus
THE DIVISIONAL MANAGER, ….RESPONDENTS
UNITED INDIA INSURANCE CO. LTD.
AND ANR.
J U D G M E N T
J.B. PARDIWALA, J.
1. Leave granted.
2.This appeal has been filed against the impugned final judgment
and order dated 25
th
of April, 2018 passed by the High Court of
Karnataka (Dharwad Bench) in “Shri Sidram S/o Raju Bhosale v. Shri
Siddu Mahadev Bhosale & Anr .” urging various legal grounds and
contentions for further enhancement of compensation in the case of a
motor accident involving the appellant-claimant herein whereby the High
Court enhanced the compensation awarded by the Motor Accidents
Claims Tribunal, Belgaum (for short, ‘Tribunal’) by Rs. 3,13,800/- to a
total of Rs. 9,26,800/-. The Tribunal had awarded compensation of Rs.
6,13,000/- under the various heads along with interest at the rate of 6%
1
per annum from the date of filing of the petition till the date of realisation
of payment.
3.The briefs facts of the case are given hereinunder. The appellant-
claimant suffered grievous injuries in a road accident that occurred on
18.07.2012, while he was walking on the left side of the Kulgod-Gokak
road. While the claimant was near the Laxmeshwar crossing, a goods
vehicle bearing registration No. KA-23/9426, being driven in a rash and
negligent manner banged into the appellant- claimant. The appellant-
claimant was shifted to a hospital and was treated as an indoor patient
from 18.07.2012 till 06.08.2012. On account of the accident, the
appellant-claimant suffered permanent disability to the extent of 45%.
The appellant-claimant suffered from paraplegia due to the accident. The
appellant- claimant was in the business of selling utensils in different
villages of the district.
4.The appellant-claimant filed a claim petition before the First
Additional Senior Civil Division Judge & MACT, Belgaum at Belgaum
which was registered as the M.V.C. No. 1786 of 2012. Before the
Tribunal, the appellant- claimant examined himself (PW-1) and also
examined Dr. Anil B. Patil as PW2 in respect of his claim and various
other documents were taken on record as evidence.
5. The Tribunal held that the accident took place due to the rash and
negligent driving of the offending vehicle as a result of which, the
appellant sustained injuries and was awarded pecuniary as well as non-
pecuniary damages. The Tribunal held that the appellant was entitled to
the compensation as under:
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Towards pain and suffering : Rs. 40,000/-
Loss of earning during laid of period: Rs. 4,000/-
Loss of earning due to disability: Rs.3,24,000/
Towards Medical expenses : Rs. 1,50,000/
Conveyance, special diet etc : Rs. 20,000/
Loss of amenities in life : Rs. 30,000/
Towards marriage prospects : Rs. 20,000/
Towards future medical expenses : Rs. 25,000/-
Total : Rs.6,13,000/-
6.Aggrieved by the order of the Tribunal, the appellant filed an
appeal in the High Court praying for enhancement of the compensation
on the ground that the Tribunal ought to have awarded enhanced
compensation on the basis of the evidence adduced. The contentions of
the appellant will be taken up in detail at a later stage.
7. The High Court enhanced the compensation to Rs. 9,26,800/-.
The High Court in its impugned order held:
“9.The Tribunal has taken the income of the claimant at Rs.
5,000/- which is on the lower sipe. The accident is of the year
2012 and the notional income of the claimant could be taken at
Rs.7,000/- per month considering the nature of business carried
on by him.
10.Thus, the claimant would be entitled to compensation
under the head of loss of future earning as follows: Rs.7,000/- x
12 x 18 x 40% = Rs.6,04,800/.
11.The compensation awarded under the head of pain and
suffering, medical expenses, conveyance, special diet, etc., loss
of amenities in life and marriage prospects is just and proper and
same is not disturbed. The claimant who suffered grievous injury
would have suffered loss of earning during the laid up. The
compensation awarded under the head of pain and suffering,
medical expenses, conveyance, special diet, etc., loss of
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amenities in life and marriage prospects is just and proper and
same is not disturbed. The claimant who suffered grievous injury
would have suffered loss of earning during the laid up period for
a minimum period of six months. Therefore, he is entitled for a
sum of Rs.42,000/- (Rs. 7,000 x 6). The claimant would be
further entitled to litigation expenses of Rs.20,000/-.
12.With regard to future medical expenses, the claimant has
not stated as to the nature of future treatment required. Hence,
he would not be entitled for any compensation on the head of
future medical expenses. However, it is made clear that if at all
the claimant incurs any expenses towards any surgery or
treatment on account of the injury suffering in the present motor
accident and if he proves the same before the insurer, the
insurer shall indemnify the same.
13.Accordingly, the claimant is entitled for a total
compensation of Rs.9,26,800/- as against Rs.6,13,000/-
awarded by the Tribunal.
14.Thus, the claimant shall be entitled to a total
compensation under the following heads:
SI. . Particulars Amount
No.
1. Pain and suffering Rs. 40,000/-
2. Loss of earning during laid-up Rs.42,000/-
Period for six months
3. Loss of earning due to disability Rs.6,04,800/-
4. Towards medical expenses Rs.1,50,000/-
5. Conveyance, special diet etc. Rs. 20,000/-
6. Loss of amenities in life Rs. 30,000/-
7. Marriage prospects Rs. 20,000/-
8. Litigation expenses Rs. 20,000/-
Total Rs. 9,26,800/-
Accordingly, there would be an enhanced compensation of
Rs. 3,13,800/-, which shall carry interest at the rate of 6% per
annum from the date of petition till date of realization.”
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8.Not satisfied with the compensation awarded by the High Court,
the appellant has appealed to this Court urging various contentions in
support of further enhancement of the compensation.
SUBMISSION ON BEHALF OF THE APPELLANT
9.Mr. Anand Sanjay M. Nuli, the learned counsel appearing for the
appellant, filed his submissions in writing. The submissions are as under:
10.The accident had occurred on 18.07.2012 when the appellant-
claimant was walking on the left side of the Kulgod-Gokak Road,
Karnataka when a goods vehicle bearing No. KA-23/9426 dashed
against the appellant-claimant, whilst being driven in a rash and
negligent manner. In lieu of the same, the appellant-claimant sustained
grievous injuries. The appellant-claimant was admitted to Lake View
Hospital from 18.07.2012 to 06.08.2012 and was an indoor patient for 19
days. An amount of Rs.2,00,000/- had been spent towards his medical
expenses. It was observed that there was a permanent physical
disability of 45% of the whole body as certified by the doctor and further
was a functional disability of 100% as the appellant-claimant is unable to
continue with his vocation and unable to find any work in lieu of the
accident.
11.It is submitted that the appellant-claimant was hale, healthy and
aged only 19 years at the time of the accident. The appellant-claimant
being aggrieved, had sought compensation to the tune of Rs.
25,00,000/- by filing MYC No.1786/20 12 before the Tribunal. The
Tribunal had awarded a meagre sum of Rs.6,13,000/- along with interest
at 6%. Being aggrieved, the appellant-claimant had proceeded to file
5
M.F.A. No.100867/2014 (MV) before the High Court of Karnataka
(Dharwad Bench). The High Court vide its impugned order has only
marginally increased the compensation payable to the appellant-
claimant from Rs.6,13,000/- to Rs.9,26,800/-. The High Court had
considered the income of the appellant-claimant to be only Rs. 7,000/-
as against Rs. 9,000/- which the appellant-claimant was earning through
his utensil business. The physical disability had only been taken as 40%
as against 45% as opined by the Doctor. The table showing the heads
awarded as compensation by the High Court and the Tribunal to the
appellant-claimant is as follows:
SL.
NO
PARTICULARS HIGH
COURT (IN
RS.)
MACT (IN
RS.)
AMOUNT
CLAIMED
1. Pain and suffering40,000/- 40,000/- 1,00,000/-
2. Loss of Earning for
6 months
42,000/- 4,000/- 9000 x 6 =
54,000
3. Loss of earning due
to disability
6,04,800/-3,24,000/-9000 x 12 x
18 x 40% =
7,77,600/-
4. Towards medical
expenses
1,50,000/-1,50,000/-2,00,000/-
5. Conveyance 20,000/- 20,000/- 50,000/-
6. Loss of amenities in
life
30,000/- 30,000/- 50,000/-
7. Marriage prospects20,000/- 20,000/- 1,00,000/-
8. Litigation charges20,000/- Not awarded50,000/-
9. Future medical
expenses
Not awarded25,000/- 2,50,000/-
10.Attendant chargesNot awardedNot awarded4500 x 12 x
18 =
9,72,000/-
TOTAL 9,26,800/-6,13,000/-26,03,600/-
12. It is submitted that both the Tribunal as well as the High Court
have failed to correctly provide/grant compensation under the head
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"future prospects" as mandated by this Court by only taking the salary of
the appellant-claimant to be Rs. 7,000/- and not Rs. 9,000/-. It is
submitted that it had been specifically stated by Dr. Anil B. Patil (PW-2)
that the appellant would require future medical expenses to the tune of
Rs. 2,50,000/-. However, the Tribunal awarded only a sum of Rs.
25,000/- towards future medical expenses as against Rs. 2,50,000/- as
stated by PW-2. The High Court has not considered the same at all.
13.It is submitted that with regard to conveyance, it ought to be
appreciated that the accident occurred on the Kulgod-Gokak Highway
and the appellant was subsequently transferred to Belgaum for
treatment. Therefore, compensation under the head of conveyance
ought to be granted on the higher side as the appellant was completely
disabled and must have received help from family members or friends to
get admitted at the hospital and back and forth which has also been
observed in Master Ayush v. Branch Manager, Reliance General
Insurance Company Limited and Another , (2022) 7 SCC 738.
Therefore, it would be reasonable to award conveyance charges of
Rs.50,000/-.
14.It is submitted that this Court in Sanjay Kumar v. Ashok Kumar
and Another, (2014) 5 SCC 330, was pleased to award compensation
to the tune of Rs.75,000/- for loss of marriage prospects wherein the
claimant was earning only a sum of Rs.3,500/- per month. Therefore, it
would be reasonable to award compensation to the tune of
Rs. 1,00,000/- for loss of marriage prospects to the appellant-claimant in
the present matter.
15.The appellant suffers from paraplegia because of the accident and
requires an attendant throughout the day and hence, Attendant charges
7
of Rs.4,500/- per month ought to be awarded to the appellant, which has
not been considered by the Tribunal as well as the High Court. The
appellant is unable to stand, walk or sit and is unable to bend his body or
lift any weights. It is pertinent to point out herein that the appellant as a
consequence of his grievous injuries will not be able to work in the same
manner as he used to prior to the accident and therefore, functional
disability of the appellant ought to be considered as 100%.
16.It is further submitted that the appellant had been operated upon
twice and has undergone a great deal of pain and suffering in lieu of the
accident and has had to give up his vocation as a consequence of the
grievous nature of the injuries sustained. This Court in Ramesh v.
Karan Singh & Anr. in Civil Appeal No. 6365 of 2022 dated September
16, 2022 was pleased to grant compensation to the tune of Rs.
4,00,000/- after taking notice of the grievous nature of the injuries
sustained by the Claimant in the said matter and taking into
consideration that he had been operated upon 5 times. In light of the
same, it would be reasonable to award compensation of Rs. 1,00,000/-
to the appellant under the head of pain and suffering.
17.It is submitted that this Court in R.D. Hattangadi v. Pest Control
(India) Pvt. Ltd. and Others, (1995) 1 SCC 551, (Para-9) had
categorically stated that in injury cases, compensation ought to be
assessed as Pecuniary Damages i.e the costs incurred by the claimant
for the injury and Special Damages which includes damages for mental
and physical shock, loss of amenities, loss of expectation of life and
inconvenience. It may be observed that cumulatively, only a meagre sum
of Rs. 90,000/- has been awarded to the appellant for the same. It ought
to be appreciated that the appellant would not be able to marry as a
8
consequence of the accident and is forced to live with the pain and
suffering throughout his life as he would require an attendant to care for
him as well. It may be observed that it has been specifically stated that
the appellant is unable to squat or sit cross legged and unable to stand
and walk as well as per the disability certificate. Keeping in mind the
same, it would be reasonable to award compensation of Rs.50,000/-
each to the appellant-claimant under the non-pecuniary heads of loss of
amenities. It is submitted that with regards to litigation expenses, the
appellant has contested the matter right from the point of the Tribunal
upto this Court, in light of the same, it would be reasonable to award
litigation expenses of Rs.50,000/- to the appellant.
18.It is submitted that this Court in Govind Yadav v. New India
Insurance Company Limited, (2011) 10 SCC 683, Arvind Kumar
Mishra v. New India Assurance Company Limited and Another ,
(2010) 10 SCC 254, and Raj Kumar v. Ajay Kumar and Another,
(2011) 1 SCC 343, has categorically held that adequate compensation
ought to be awarded not only for the physical injury and treatment, but
also for the loss of earning and his inability to lead a normal life and
enjoy amenities, which he would have enjoyed but for the disability
caused due to the accident.
19.It is pertinent to point out herein that the appellant would be
entitled to fair and just compensation in order to place the appellant in
such a position as close to how the appellant was living prior to the
accident as held by this Court in National Insurance Company Limited
v. Pranay Sethi and Others, (2017) 16 SCC 680, (Para-55) and in Raj
Kumar v. Ajay Kumar (supra)(Para-5). This Court has also held in
Helen C. Rebello (Mrs.) and Others v. Maharashtra State Road
9
Transport Corporation and Another, (1999) 1 SCC 90 (Para-36), that
the Motor Vehicles Act, 1988 (for short, ‘the Act’) is a beneficial piece of
legislation and hence the object of the Courts ought to be to assist the
injured/deceased person.
20.It is pertinent to point out herein that the claim of the appellant
-claimant before the Tribunal was only Rs. 25,00,000/-. However, it is
submitted that this Court in Nagappa v. Gurudayal Singh and Others,
(2003) 2 SCC 274, and in Laxman alias Laxman Mourya v. Divisional
Manager, Oriental Insurance Company Limited and Another, (2011)
10 SCC 756, had categorically stated that there is no restriction that the
Tribunal/Court cannot award compensation amount exceeding the claim
amount.
21.Thus, in view of the aforesaid, the learned counsel prayed that
there being merit in his appeal, the same may be allowed and the
amount of compensation may be enhanced accordingly.
SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 1-
INSURANCE COMPANY
22.Mr. Maibam Nabaghanashyam Singh, the learned counsel
appearing for the insurance company has also submitted his
submissions in writing. The same are as under:
23.It is submitted that the present petition is filed by the petitioner
challenging the impugned order whereby the High Court had allowed the
appeal filed by the petitioner and enhanced the compensation from
Rs. 6,13,000/- to Rs. 9,26,800/-. The petitioner by filing the present
10
petition is seeking further enhancement of the award. It is submitted that
the High Court after considering the evidence on record and also after
considering the MACT award had rightly enhanced the award as claimed
by the petitioner as such there is no scope for any further enhancement
of the amount in the present petition.
24.It is submitted that the High Court has rightly appreciated the
evidence and has taken 40% disability for whole body after considering
the nature of injury suffered and the evidence of treating doctor, which is
10% more than what has been considered by the Tribunal. The High
Court has rightly assessed the future earning as per the law laid down by
this Court in Anant son of Sidheshwar Dukre v. Pratap son of
Zhamnnappa Lamzane and Another in Civil Appeal No. 8420 of 2018
dated August 21, 2022. The calculation of loss of future earning where
the claimant suffers permanent disability as a result of injuries has been
dealt in the aforementioned judgment in para no. 7.2. Therefore, under
this head there is no scope of enhancement as claimed in the present
petition.
25.It is submitted that the appellant has wrongly claimed
enhancement of the compensation towards the loss of future earnings
during the laid-up period. In fact, the High Court has awarded for loss of
earning during the laid-up period for six months. Whereas as per the law
laid down by this Court in Anant v. Pratap (supra), this Court has held
that the claimant cannot succeed in the claim of actual loss of income. It
was observed by this Court in para No. 7.3 that “The grant of loss of
future income compensates for any further period of time where income
was lost. Actual loss of income can be awarded for the month in which
accident took place.” In fact, the High Court had rather awarded on the
11
higher side under this head i.e. for actual loss income, which ought to be
have been awarded only for the month in which accident took place.
26.It is submitted that the appellant therein without any evidence on
record is allegedly claiming that the claimant had 100% disability. It is
pertinent to submit here that the appellant had miserably failed to
produce any document before the Tribunal, the High Court or even in
this Court to show that the claimant had 100% disability. The only
document relied upon by appellant as regards to the disability of the
claimant is the disability certificate which shows that total permanent
physical disability of 45% to whole body. No document filed by the
appellant is showing that the claimant has 100% disability. Therefore, the
contention made by the appellant for enhancement of the compensation
on the ground of disability of 100% is nothing but a desire of the claimant
to gain sympathy of this Court to grant further amount as enhancement
of the award. The approach of the appellant is unhealthy and will set a
bad precedent if such pleas are accepted by this Court. In view of the
same the present appeal is liable to be dismissed being devoid of merits.
27. Thus, in view of the aforesaid, the learned counsel appearing for
the insurance company prays that there being no merit in the appeal
filed by the original claimant, the same may be dismissed.
ANALYSIS
28.Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that falls
for our consideration is whether the appellant-claimant has made out any
case for further enhancement of the amount of compensation.
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POSITION OF LAW
29.The process of determining the compensation by the court is
essentially a very difficult task and can never be an exact science.
Perfect compensation is hardly possible, more so in claims of injury and
disability. As rightly pointed out in H. West & Son Ltd. v. Shephard,
1958-65 ACJ 504 (HL, England):
“…money cannot renew a physical frame that has been
battered.”
30.The principle consistently followed by this court in assessing
motor vehicle compensation claims, is to place the victim in as near a
position as she or he was in before the accident, with other
compensatory directions for loss of amenities and other payments.
These general principles have been stated and reiterated in several
decisions. [Govind Yadav v. New India Insurance Co. Ltd., (2011) 10
SCC 683.]
31.It is now a well settled position of law that even in cases of
permanent disablement incurred as a result of a motor-accident, the
claimant can seek, apart from compensation for future loss of income,
amounts for future prospects as well. We have come across many
orders of different tribunals and unfortunately affirmed by different High
Courts, taking the view that the claimant is not entitled to compensation
for future prospects in accident cases involving serious injuries resulting
in permanent disablement. That is not a correct position of law. There is
no justification to exclude the possibility of compensation for future
prospects in accident cases involving serious injuries resulting in
permanent disablement. Such a narrow reading is illogical because it
13
denies altogether the possibility of the living victim progressing further in
life in accident cases – and admits such possibility of future prospects, in
case of the victim’s death.
32.This Court has emphasised time and again that “just
compensation” should include all elements that would go to place the
victim in as near a position as she or he was in, before the occurrence of
the accident. Whilst no amount of money or other material compensation
can erase the trauma, pain and suffering that a victim undergoes after a
serious accident, (or replace the loss of a loved one), monetary
compensation is the manner known to law, whereby society assures
some measure of restitution to those who survive, and the victims who
have to face their lives.
33.In Santosh Devi v. National Insurance Company Limited and
Others, (2012) 6 SCC 421, this Court held that:
“14. We find it extremely difficult to fathom any rationale for the
observation made in paragraph 24 of the judgment in Sarla
Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121] that
where the deceased was self-employed or was on a fixed
salary without provision for annual increment, etc., the Courts
will usually take only the actual income at the time of death
and a departure from this rule should be made only in rare and
exceptional cases involving special circumstances. In our
view, it will be nave to say that the wages or total
emoluments/income of a person who is self-employed or who
is employed on a fixed salary without provision for annual
increment, etc., would remain the same throughout his life.
15. The rise in the cost of living affects everyone across the
board. It does not make any distinction between rich and poor.
As a matter of fact, the effect of rise in prices which directly
impacts the cost of living is minimal on the rich and maximum
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on those who are self-employed or who get fixed
income/emoluments. They are the worst affected people.
Therefore, they put in extra efforts to generate additional
income necessary for sustaining their families.
16. The salaries of those employed under the Central and
State Governments and their agencies/instrumentalities have
been revised from time to time to provide a cushion against
the rising prices and provisions have been made for providing
security to the families of the deceased employees. The
salaries of those employed in private sectors have also
increased manifold. Till about two decades ago, nobody could
have imagined that salary of Class IV employee of the
Government would be in five figures and total emoluments of
those in higher echelons of service will cross the figure of
rupees one lakh.
17. Although the wages/income of those employed in
unorganised sectors has not registered a corresponding
increase and has not kept pace with the increase in the
salaries of the government employees and those employed in
private sectors, but it cannot be denied that there has been
incremental enhancement in the income of those who are self-
employed and even those engaged on daily basis, monthly
basis or even seasonal basis. We can take judicial notice of
the fact that with a view to meet the challenges posed by high
cost of living, the persons falling in the latter category
periodically increase the cost of their labour. In this context, it
may be useful to give an example of a tailor who earns his
livelihood by stitching cloths. If the cost of living increases and
the prices of essentials go up, it is but natural for him to
increase the cost of his labour. So will be the cases of ordinary
skilled and unskilled labour, like, barber, blacksmith, cobbler,
mason etc.
18. Therefore, we do not think that while making the
observations in the last three lines of para 24 of Sarla Verma
[Sarla Verma v. DTC, (2009) 6 SCC 121] judgment, the Court
had intended to lay down an absolute rule that there will be no
addition in the income of a person who is self-employed or
who is paid fixed wages. Rather, it would be reasonable to say
15
that a person who is self-employed or is engaged on fixed
wages will also get 30% increase in his total income over a
period of time and if he/she becomes the victim of an accident
then the same formula deserves to be applied for calculating
the amount of compensation.”
34.In Jagdish v. Mohan and Others, (2018) 4 SCC 571, the victim, a
carpenter, suffered permanent disablement, and his claim for
compensation including for loss of future prospects was considered by a
three-Judge Bench which included, incidentally, the judges who had
decided National Insurance Company (supra). This Court held that:
“13. In the judgment of the Constitution Bench in Pranay Sethi
[National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC
680], this Court has held that the benefit of future prospects
should not be confined only to those who have a permanent
job and would extend to self-employed individuals. In the case
of a self-employed person, an addition of 40% of the
established income should be made where the age of the
victim at the time of the accident was below 40 years. Hence,
in the present case, the appellant would be entitled to an
enhancement of Rs. 2400 towards loss of future prospects.
14. In making the computation in the present case, the court
must be mindful of the fact that the appellant has suffered a
serious disability in which he has suffered a loss of the use of
both his hands. For a person engaged in manual activities, it
requires no stretch of imagination to understand that a loss of
hands is a complete deprivation of the ability to earn. Nothing
—at least in the facts of this case—can restore lost hands. But
the measure of compensation must reflect a genuine attempt
of the law to restore the dignity of the being. Our yardsticks of
compensation should not be so abysmal as to lead one to
question whether our law values human life. If it does, as it
must, it must provide a realistic recompense for the pain of
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loss and the trauma of suffering. Awards of compensation are
not law's doles. In a discourse of rights, they constitute
entitlements under law. Our conversations about law must shift
from a paternalistic subordination of the individual to an
assertion of enforceable rights as intrinsic to human dignity.
15. The Tribunal has noted that the appellant is unable to even
eat or to attend to a visit to the toilet without the assistance of
an attendant. In this background, it would be a denial of justice
to compute the disability at 90%. The disability is indeed total.
Having regard to the age of the appellant, the Tribunal applied
a multiplier of 18. In the circumstances, the compensation
payable to the appellant on account of the loss of income,
including future prospects, would be Rs 18,14,400. In addition
to this amount, the appellant should be granted an amount of
Rs 2 lakhs on account of pain, suffering and loss of amenities.
The amount awarded by the Tribunal towards medical
expenses (Rs 98,908); for extra nourishment (Rs 25,000) and
for attendant's expenses (Rs 1 lakh) is maintained. The
Tribunal has declined to award any amount towards future
treatment. The appellant should be allowed an amount of Rs 3
lakhs towards future medical expenses. The appellant is thus
awarded a total sum of Rs 25,38,308 by way of compensation.
The appellant would be entitled to interest at the rate of 9%
p.a. on the compensation from the date of the filing of the
claim petition. The liability to pay compensation has been
fastened by the Tribunal and by the High Court on the insurer,
owner and driver jointly and severally which is affirmed. The
amount shall be deposited before the Tribunal within a period
of 6 weeks from today and shall be paid over to the appellant
upon proper identification.”
35.The case of Parminder Singh v. New India Assurance
Company Limited and Others, (2019) 7 SCC 217, involved an accident
victim, who underwent surgery for hemiplegia (weakness of one half of
the body on the left side; in this case, caused by an accident). According
to the treating medic, the victim could not work as a labourer or perform
17
any agricultural work, or work as a driver (as he was wont to); the
assessment of his disability was at 75%, and of a permanent nature. The
Court held that:
“5.1. The appellant has however, produced an affidavit by his
employer in this Court. As per the said affidavit, the appellant
was earning Rs 10,000 p.m. at the time of the accident.
5.2. On the basis of the affidavit filed by the employer of the
appellant, we accept that the income of the appellant was Rs
10,000 p.m. at the time of the accident, for the purpose of
computing the compensation payable to him.
5.3. Taking the income of the appellant as Rs 10,000 p.m.,
with future prospects @ 50% as awarded by the High Court,
the total income of the appellant would come to Rs 15,000
p.m.
5.4. The appellant was 23 years old at the time when the
accident occurred. Applying the multiplier of 18, the loss of
future earnings suffered by the appellant would work out to Rs
15,000 × 12 × 18 = Rs 32,40,000.
********* ********* *********
5.7. In K. Suresh v. New India Assurance Co. Ltd. (2012) 12
SCC 274, this Court held that: (SCC p. 279, para 10)
“10. It is noteworthy to state that an adjudicating authority,
while determining the quantum of compensation, has to
keep in view the sufferings of the injured person which
would include his inability to lead a full life, his incapacity to
enjoy the normal amenities which he would have enjoyed
but for the injuries and his ability to earn as much as he
used to earn or could have earned. Hence, while computing
compensation the approach of the Tribunal or a court has to
be broad-based. Needless to say, it would involve some
guesswork as there cannot be any mathematical exactitude
or a precise formula to determine the quantum of
compensation. In determination of compensation the
18
fundamental criterion of “just compensation” should be
inhered.”
******** ********* ********
5.9. In the present case, it is an admitted position that it is not
possible for the appellant to get employed as a driver, or do
any kind of manual labour, or engage in any agricultural
operations whatsoever, for his sustenance. In such
circumstances, the High Court has rightly assessed the
appellant's functional disability at 100% insofar as his loss of
earning capacity is concerned. The appellant is, therefore,
awarded Rs 32,40,000 towards loss of earning capacity.”
36.Yet later and in near past, in an accident case, which tragically left
in its wake a young girl in a life-long state of paraplegia, this Court,
in Kajal v. Jagdish Chand and Others, (2020) 4 SCC 413, reiterated
that in addition to loss of earnings, compensation for future prospects
too could be factored in, and observed that:
“14. In Concord of India Insurance Co. Ltd. v. Nirmala Devi
[ (1979) 4 SCC 365 : 1979 SCC (Cri) 996 : 1980 ACJ 55], this
Court held : (SCC p. 366, para 2)
“2. … the determination of the quantum must be liberal,
not niggardly since the law values life and limb in a free
country in generous scales.”
15. In R.D. Hattangadi v. Pest Control (India) (P) Ltd. [(1995) 1
SCC 551 : 1995 SCC (Cri) 250], dealing with the different
heads of compensation in injury cases this Court held thus:
(SCC p. 556, para 9)
“9. Broadly speaking while fixing the 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
19
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 as 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 the
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 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.”
16. In Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343 : (2011) 1
SCC (Civ) 164 : (2011) 1 SCC (Cri) 1161], this Court laid down
the heads under which compensation is to be awarded for
personal injuries: (SCC p. 348, para 6)
“6. 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)
20
(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.”
17.In K. Suresh v. New India Assurance Co. Ltd., (2012) 12
SCC 274 : (2013) 2 SCC (Civ) 279 : (2013) 4 SCC (Cri) 638,
this Court held as follows: (SCC p. 276, para 2)
“2. … There cannot be actual compensation for anguish of
the heart or for mental tribulations. The quintessentiality lies
in the pragmatic computation of the loss sustained which
has to be in the realm of realistic approximation. Therefore,
Section 168 of the Motor Vehicles Act, 1988 (for brevity “the
Act”) stipulates that there should be grant of “just
compensation”. Thus, it becomes a challenge for a court of
law to determine “just compensation” which is neither a
bonanza nor a windfall, and simultaneously, should not be a
pittance.
******** ******** ********
Loss of earnings
20.Both the courts below have held that since the girl was a
young child of 12 years only notional income of Rs 15,000 p.a.
can be taken into consideration. We do not think this is a
proper way of assessing the future loss of income. This young
21
girl after studying could have worked and would have earned
much more than Rs 15,000 p.a. Each case has to be decided
on its own evidence but taking notional income to be Rs
15,000 p.a. is not at all justified. The appellant has placed
before us material to show that the minimum wages payable to
a skilled workman is Rs 4846 per month. In our opinion, this
would be the minimum amount which she would have earned
on becoming a major. Adding 40% for the future prospects, it
works to be Rs 6784.40 per month i.e. 81,412.80 p.a. Applying
the multiplier of 18, it works out to Rs 14,65,430.40, which is
rounded off to Rs 14,66,000.”
37.In Neerupam Mohan Mathur v. New India Assurance Company,
(2013) 14 SCC 15, this Court considered the case of a victim, whose
injury was assessed to 70% as loss of earning capacity for amputation of
the arm; he was a postgraduate diploma holder in mechanical
engineering, 32 years of age and earning about Rs. 3000/- per month.
This Court held, approving the High Court's order (which had adopted
the formula from the Workmen's Compensation Act, 1923 to determine
70% for the purpose of deciding loss of earning capacity) as follows:
“12. In the present case, the percentage of permanent
disability has not been expressed by the doctors with
reference to the full body or with reference to a particular limb.
However, it is not in dispute that the claimant suffered such a
permanent disability as a result of injuries that he is not in a
position of doing the specialised job of designing, refrigeration
and air conditioning. For the said reason, the claimant's
services were terminated by his employer but that does not
mean that the claimant is not capable to do any other job
including the desk job. Having qualification of BSc degree and
postgraduate diploma in Mechanical Engineering, he can
perform any job where application of mind is required than any
physical work.
13. In view of the forgoing discussion we find no grounds
made out to interfere with the finding of the High Court which
22
determined the percentage of loss of earning capacity to 70%
adopting the percentage of loss of earning capacity as per the
Workmen's Compensation Act. The total loss of income was
thus rightly calculated by the High Court at Rs 6,04,800.”
38. However, making a monetary assessment of the injury suffered is
the only process devised to compensate the victim. The process of
making such an assessment, whether in case of death or injury, is
provided in Section 168 of the Act which requires that the tribunals
constituted under the Act determine compensation, which appears to be
‘just’. Thus, the Act vests a wide discretion upon the tribunals. The
decision of this Court in Divisional Controller, KSRTC v. Mahadeva
Shetty and Another, (2003) 7 SCC 197, needs mention here (para 15):
“15. ……It has to be borne in mind that compensation for loss
of limbs or life can hardly be weighed in golden scales. Bodily
injury is nothing but a deprivation which entitles the claimant to
damages. The quantum of damages fixed should be in
accordance with the injury. An injury may bring about many
consequences like loss of earning capacity, loss of mental
pleasure and many such consequential losses. A person
becomes entitled to damages for mental and physical loss, his
or her life may have been shortened or that he or she cannot
enjoy life, which has been curtailed because of physical
handicap. The normal expectation of life is impaired. But at the
same time it has to be borne in mind that the compensation is
not expected to be a windfall for the victim. Statutory
provisions clearly indicate that the compensation must be
“just” and it cannot be a bonanza; not a source of profit but the
same should not be a pittance. The courts and tribunals have
a duty to weigh the various factors and quantify the amount of
compensation, which should be just. What would be “just”
compensation is a vexed question. There can be no golden
rule applicable to all cases for measuring the value of human
life or a limb. Measure of damages cannot be arrived at by
precise mathematical calculations. It would depend upon the
particular facts and circumstances, and attending peculiar or
special features, if any. Every method or mode adopted for
23
assessing compensation has to be considered in the
background of “just” compensation which is the pivotal
consideration. Though by use of the expression “which
appears to it to be just”, a wide discretion is vested in the
Tribunal, the determination has to be rational, to be done by a
judicious approach and not the outcome of whims, wild
guesses and arbitrariness.. …”
39.This Court in R.D. Hattangadi (supra), posited certain principles to
be followed:
“9.……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.”
40. In the case of Raj Kumar (supra) this Court has explained in the
following terms the general principles relating to compensation in injury
cases and assessment of future loss of earnings due to permanent
disability:
“General principles relating to compensation in injury
cases
24
5. The provision of the Motor Vehicles Act, 1988 (“the Act”, for
short) makes it clear that the award must be just, which means
that compensation should, to the extent possible, fully and
adequately restore the claimant to the position prior to the
accident. The object of awarding damages is to make good
the loss suffered as a result of wrong done as far as money
can do so, in a fair, reasonable and equitable manner. The
court or the Tribunal shall have to assess the damages
objectively and exclude from consideration any speculation or
fancy, though some conjecture with reference to the nature of
disability and its consequences, is inevitable. A person is not
only to be compensated for the physical injury, but also for the
loss which he suffered as a result of such injury. This means
that he is to be compensated for his inability to lead a full life,
his inability to enjoy those normal amenities which he would
have enjoyed but for the injuries, and his inability to earn as
much as he used to earn or could have earned. [See C.K.
Subramania Iyer v. T. Kunhikuttan Nair [(1969) 3 SCC 64 : AIR
1970 SC 376] , R.D. Hattangadi v. Pest Control (India) (P)
Ltd. [(1995) 1 SCC 551 : 1995 SCC (Cri) 250]
and Baker v. Willoughby [1970 AC 467 : (1970) 2 WLR 50 :
(1969) 3 All ER 1528 (HL)] .]
6. 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).
25
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.
7. Assessment of pecuniary damages under Item (i) and under
Item (ii)(a) do not pose much difficulty as they involve
reimbursement of actuals and are easily ascertainable from
the evidence. Award under the head of future medical
expenses—Item (iii)—depends upon specific medical
evidence regarding need for further treatment and cost
thereof. Assessment of non-pecuniary damages—Items (iv),
(v) and (vi)—involves determination of lump sum amounts with
reference to circumstances such as age, nature of
injury/deprivation/disability suffered by the claimant and the
effect thereof on the future life of the claimant. Decisions of
this Court and the High Courts contain necessary guidelines
for award under these heads, if necessary. What usually
poses some difficulty is the assessment of the loss of future
earnings on account of permanent disability—Item (ii)(a). We
are concerned with that assessment in this case.
Assessment of future loss of earnings due to permanent
disability
8. Disability refers to any restriction or lack of ability to perform
an activity in the manner considered normal for a human
being. Permanent disability refers to the residuary incapacity
or loss of use of some part of the body, found existing at the
end of the period of treatment and recuperation, after
achieving the maximum bodily improvement or recovery which
is likely to remain for the remainder life of the injured.
Temporary disability refers to the incapacity or loss of use of
some part of the body on account of the injury, which will
cease to exist at the end of the period of treatment and
recuperation. Permanent disability can be either partial or
total. Partial permanent disability refers to a person's inability
26
to perform all the duties and bodily functions that he could
perform before the accident, though he is able to perform
some of them and is still able to engage in some gainful
activity. Total permanent disability refers to a person's inability
to perform any avocation or employment related activities as a
result of the accident. The permanent disabilities that may
arise from motor accident injuries, are of a much wider range
when compared to the physical disabilities which are
enumerated in the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act,
1995 (“the Disabilities Act”, for short). But if any of the
disabilities enumerated in Section 2(i) of the Disabilities Act
are the result of injuries sustained in a motor accident, they
can be permanent disabilities for the purpose of claiming
compensation.
9. The percentage of permanent disability is expressed by the
doctors with reference to the whole body, or more often than
not, with reference to a particular limb. When a disability
certificate states that the injured has suffered permanent
disability to an extent of 45% of the left lower limb, it is not the
same as 45% permanent disability with reference to the whole
body. The extent of disability of a limb (or part of the body)
expressed in terms of a percentage of the total functions of
that limb, obviously cannot be assumed to be the extent of
disability of the whole body. If there is 60% permanent
disability of the right hand and 80% permanent disability of left
leg, it does not mean that the extent of permanent disability
with reference to the whole body is 140% (that is 80% plus
60%). If different parts of the body have suffered different
percentages of disabilities, the sum total thereof expressed in
terms of the permanent disability with reference to the whole
body cannot obviously exceed 100%.
10. Where the claimant suffers a permanent disability as a
result of injuries, the assessment of compensation under the
head of loss of future earnings would depend upon the effect
and impact of such permanent disability on his earning
capacity. The Tribunal should not mechanically apply the
percentage of permanent disability as the percentage of
economic loss or loss of earning capacity. In most of the
cases, the percentage of economic loss, that is, the
27
percentage of loss of earning capacity, arising from a
permanent disability will be different from the percentage of
permanent disability. Some Tribunals wrongly assume that in
all cases, a particular extent (percentage) of permanent
disability would result in a corresponding loss of earning
capacity, and consequently, if the evidence produced show
45% as the permanent disability, will hold that there is 45%
loss of future earning capacity. In most of the cases, equating
the extent (percentage) of loss of earning capacity to the
extent (percentage) of permanent disability will result in award
of either too low or too high a compensation.
11. What requires to be assessed by the Tribunal is the effect
of the permanent disability on the earning capacity of the
injured; and after assessing the loss of earning capacity in
terms of a percentage of the income, it has to be quantified in
terms of money, to arrive at the future loss of earnings (by
applying the standard multiplier method used to determine
loss of dependency). We may however note that in some
cases, on appreciation of evidence and assessment, the
Tribunal may find that the percentage of loss of earning
capacity as a result of the permanent disability, is
approximately the same as the percentage of permanent
disability in which case, of course, the Tribunal will adopt the
said percentage for determination of compensation. (See for
example, the decisions of this Court in Arvind Kumar
Mishra v. New India Assurance Co. Ltd. [(2010) 10 SCC 254 :
(2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298] and Yadava
Kumar v. National Insurance Co. Ltd. [(2010) 10 SCC 341 :
(2010) 3 SCC (Cri) 1285 : (2010) 8 Scale 567] )
12. Therefore, the Tribunal has to first decide whether there is
any permanent disability and, if so, the extent of such
permanent disability. This means that the Tribunal should
consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent
total disablement or permanent partial disablement;
(iii) if the disablement percentage is expressed with
reference to any specific limb, then the effect of such
disablement of the limb on the functioning of the entire body,
that is, the permanent disability suffered by the person.
28
If the Tribunal concludes that there is no permanent disability
then there is no question of proceeding further and
determining the loss of future earning capacity. But if the
Tribunal concludes that there is permanent disability then it will
proceed to ascertain its extent. After the Tribunal ascertains
the actual extent of permanent disability of the claimant based
on the medical evidence, it has to determine whether such
permanent disability has affected or will affect his earning
capacity.
13. Ascertainment of the effect of the permanent disability on
the actual earning capacity involves three steps. The Tribunal
has to first ascertain what activities the claimant could carry on
in spite of the permanent disability and what he could not do
as a result of the permanent disability (this is also relevant for
awarding compensation under the head of loss of amenities of
life). The second step is to ascertain his avocation, profession
and nature of work before the accident, as also his age. The
third step is to find out whether (i) the claimant is totally
disabled from earning any kind of livelihood, or (ii) whether in
spite of the permanent disability, the claimant could still
effectively carry on the activities and functions, which he was
earlier carrying on, or (iii) whether he was prevented or
restricted from discharging his previous activities and
functions, but could carry on some other or lesser scale of
activities and functions so that he continues to earn or can
continue to earn his livelihood.
14. For example, if the left hand of a claimant is amputated,
the permanent physical or functional disablement may be
assessed around 60%. If the claimant was a driver or a
carpenter, the actual loss of earning capacity may virtually be
hundred per cent, if he is neither able to drive or do carpentry.
On the other hand, if the claimant was a clerk in government
service, the loss of his left hand may not result in loss of
employment and he may still be continued as a clerk as he
could perform his clerical functions; and in that event the loss
of earning capacity will not be 100% as in the case of a driver
or carpenter, nor 60% which is the actual physical disability,
but far less. In fact, there may not be any need to award any
compensation under the head of “loss of future earnings”, if
the claimant continues in government service, though he may
29
be awarded compensation under the head of loss of amenities
as a consequence of losing his hand. Sometimes the injured
claimant may be continued in service, but may not be found
suitable for discharging the duties attached to the post or job
which he was earlier holding, on account of his disability, and
may therefore be shifted to some other suitable but lesser post
with lesser emoluments, in which case there should be a
limited award under the head of loss of future earning
capacity, taking note of the reduced earning capacity.
15. It may be noted that when compensation is awarded by
treating the loss of future earning capacity as 100% (or even
anything more than 50%), the need to award compensation
separately under the head of loss of amenities or loss of
expectation of life may disappear and as a result, only a token
or nominal amount may have to be awarded under the head of
loss of amenities or loss of expectation of life, as otherwise
there may be a duplication in the award of compensation. Be
that as it may.
16. The Tribunal should not be a silent spectator when medical
evidence is tendered in regard to the injuries and their effect,
in particular, the extent of permanent disability. Sections 168
and 169 of the Act make it evident that the Tribunal does not
function as a neutral umpire as in a civil suit, but as an active
explorer and seeker of truth who is required to “hold an
enquiry into the claim” for determining the “just compensation”.
The Tribunal should therefore take an active role to ascertain
the true and correct position so that it can assess the “just
compensation”. While dealing with personal injury cases, the
Tribunal should preferably equip itself with a medical dictionary
and a handbook for evaluation of permanent physical
impairment (for example, Manual for Evaluation of Permanent
Physical Impairment for Orthopaedic Surgeons, prepared by
American Academy of Orthopaedic Surgeons or its Indian
equivalent or other authorised texts) for understanding the
medical evidence and assessing the physical and functional
disability. The Tribunal may also keep in view the First
Schedule to the Workmen's Compensation Act, 1923 which
gives some indication about the extent of permanent disability
in different types of injuries, in the case of workmen.
30
17. If a doctor giving evidence uses technical medical terms,
the Tribunal should instruct him to state in addition, in simple
non-medical terms, the nature and the effect of the injury. If a
doctor gives evidence about the percentage of permanent
disability, the Tribunal has to seek clarification as to whether
such percentage of disability is the functional disability with
reference to the whole body or whether it is only with
reference to a limb. If the percentage of permanent disability is
stated with reference to a limb, the Tribunal will have to seek
the doctor's opinion as to whether it is possible to deduce the
corresponding functional permanent disability with reference to
the whole body and, if so, the percentage.
18. The Tribunal should also act with caution, if it proposed to
accept the expert evidence of doctors who did not treat the
injured but who give “ready to use” disability certificates,
without proper medical assessment. There are several
instances of unscrupulous doctors who without treating the
injured, readily give liberal disability certificates to help the
claimants. But where the disability certificates are given by
duly constituted Medical Boards, they may be accepted
subject to evidence regarding the genuineness of such
certificates. The Tribunal may invariably make it a point to
require the evidence of the doctor who treated the injured or
who assessed the permanent disability. Mere production of a
disability certificate or discharge certificate will not be proof of
the extent of disability stated therein unless the doctor who
treated the claimant or who medically examined and assessed
the extent of disability of the claimant, is tendered for cross-
examination with reference to the certificate. If the Tribunal is
not satisfied with the medical evidence produced by the
claimant, it can constitute a Medical Board (from a panel
maintained by it in consultation with reputed local
hospitals/medical colleges) and refer the claimant to such
Medical Board for assessment of the disability.
19. We may now summarise the principles discussed
above:
(i) All injuries (or permanent disabilities arising from
injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to
the whole body of a person, cannot be assumed to be the
31
percentage of loss of earning capacity. To put it differently, the
percentage of loss of earning capacity is not the same as the
percentage of permanent disability (except in a few cases,
where the Tribunal on the basis of evidence, concludes that
the percentage of loss of earning capacity is the same as the
percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who
examined him subsequently to assess the extent of his
permanent disability can give evidence only in regard to the
extent of permanent disability. The loss of earning capacity is
something that will have to be assessed by the Tribunal with
reference to the evidence in entirety.
(iv) The same permanent disability may result in different
percentages of loss of earning capacity in different persons,
depending upon the nature of profession, occupation or job,
age, education and other factors.”
41.Later, in another judgment, i.e., Jakir Hussein v. Sabir and
Others, (2015) 7 SCC 252, this Court had to consider the correctness of
a compensation assessment based on the High Court's analysis of the
injury to the victim (a driver who suffered permanent injury to his arm,
impairing movement as well as the wrist, which rendered him incapable
of driving any vehicle). The High Court had assessed permanent
disablement at 30%, even though the doctor had certified it to be 55%.
This Court, reversing the High Court order, observed inter alia that:
“15.…..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 was taken by him. The
doctor further stated in his 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
32
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.
16. In Raj Kumar v. Ajay Kumar [(2011) 1 SCC 343], 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 Sarla Verma v. DTC [(2009) 6 SCC 121 : (2009) 2
SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], the total loss of
future earnings of the appellant will be at Rs 54,000 × 16 = Rs
8,64,000.”
42.In Anthony alias Anthony Swamy v. Managing Director,
Karnataka State Road Transport Corporation , (2020) 7 SCC
161, where the victim was a painter by profession, a three-Judge Bench
had followed Raj Kumar (supra) and Nagarajappa v. Divisional
Manager, Oriental Insurance Company Limited, (2011) 13 SCC 323.
The High Court had assessed the injury to be 25% permanent disability,
although the treating doctor had said that the injury incurred by the bus
33
passenger (who was earning Rs. 9000/- per month) was 75% of the left
leg and 37.5% for the whole body. In Raj Kumar (supra), the physical
disability of the upper limb was determined as 68% in proportion to 22-
23% of the whole-body. The High Court had assessed the injury as 25%
and granted compensation. However, this Court assessed the injury on
the basis that the disability was 75%, stating as follows:
“8. PW 3 had assessed the physical functional disability of the
left leg of the appellant at 75% and total body disability at
37.5%. The High Court has considered it proper to assess the
physical disability at 25% of the whole body only. There is no
discussion for this reduction in percentage, much less any
consideration of the nature of permanent functional disability
suffered by the appellant. The extent of physical functional
disability, in the facts of the case has to be considered in a
manner so as to grant just and proper compensation to the
appellant towards loss of future earning. The earning capacity
of the appellant as on the date of the accident stands
completely negated and not reduced. He has been rendered
permanently incapable of working as a painter or do any
manual work. Compensation for loss of future earning,
therefore has to be proper and just to enable him to live a life
of dignity and not compensation which is elusive. If the 75%
physical disability has rendered the appellant permanently
disabled from pursuing his normal vocation or any similar
work, it is difficult to comprehend the grant of compensation to
him in ratio to the disability to the whole body. The appellant is
therefore held entitled to compensation for loss of future
earning based on his 75% permanent physical functional
disability recalculated with the salary of Rs 5,500 with
multiplier of 14 at Rs 6,93,000.”
43.The question of amount of compensation payable to one suffering
injury as a result of motor vehicle accident was considered in Syed
Sadiq and Others v. Divisional Manager, United India Insurance
34
Company Limited, (2014) 2 SCC 735, when this Court had to apply the
correct standard for awarding compensation for loss of future prospects
for a vegetable vendor, whose right leg had to be amputated, as a result
of a motor accident. The High Court had considered the disability to be
65%. This Court held as follows:
“7. Further, the appellant claims that he was working as a
vegetable vendor. It is true that a vegetable vendor might not
require mobility to the extent that he sells vegetables at one
place. However, the occupation of vegetable vending is not
confined to selling vegetables from a particular location. It
rather involves procuring vegetables from the wholesale
market or the farmers and then selling it off in the retail
market. This often involves selling vegetables in the cart which
requires 100% mobility. But even by conservative approach, if
we presume that the vegetable vending by the appellant
claimant involved selling vegetables from one place, the
claimant would require assistance with his mobility in bringing
vegetables to the market place which otherwise would be
extremely difficult for him with an amputated leg. We are
required to be sensitive while dealing with manual labour
cases where loss of limb is often equivalent to loss of
livelihood. Yet, considering that the appellant claimant is still
capable to fend for his livelihood once he is brought in the
market place, we determine the disability at 85% to determine
the loss of income.
8. The appellant claimant in his appeal further claimed that he
had been earning Rs 10,000 p.m. by doing vegetable vending
work. The High Court however, considered the loss of income
at Rs 3500 p.m. considering that the claimant did not produce
any document to establish his loss of income. It is difficult for
us to convince ourselves as to how a labour involved in an
unorganised sector doing his own business is expected to
produce documents to prove his monthly income…..”
35
44.In Arvind Kumar Mishra (supra), the appellant at the time of
accident was a final year engineering (Mechanical) degree student in a
reputed college. He was a brilliant student and had passed all his
semester examinations with distinction. He suffered grievous injuries and
remained in a coma for about two months; his studies were disrupted as
he was moved to different hospitals for surgeries. For many months, his
condition remained serious; his right hand was amputated and vision
seriously affected. This Court accepted his claim and held that he was
permanently disabled to the extent of 70%. In Mohan Soni v. Ram
Avtar Tomar and Others, (2012) 2 SCC 267 (page 272), in a case of
injury entailing loss of a leg, this Court held that medical evidence of the
extent of disability should not be mechanically scaled down:
“8. On hearing the counsel for the parties and on going
through the materials on record, we are of the view that both
the Tribunal and the High Court were in error in pegging down
the disability of the appellant to 50% with reference to
Schedule I of the Workmen's Compensation Act, 1923. In the
context of loss of future earning, any physical disability
resulting from an accident has to be judged with reference to
the nature of work being performed by the person suffering the
disability. This is the basic premise and once that is grasped, it
clearly follows that the same injury or loss may affect two
different persons in different ways. Take the case of a
marginal farmer who does his cultivation work himself and
ploughs his land with his own two hands; or the puller of a
cycle-rickshaw, one of the main means of transport in
hundreds of small towns all over the country. The loss of one
of the legs either to the marginal farmer or the cycle-rickshaw-
puller would be the end of the road insofar as their earning
capacity is concerned. But in case of a person engaged in
some kind of desk work in an office, the loss of a leg may not
have the same effect. The loss of a leg (or for that matter the
loss of any limb) to anyone is bound to have very traumatic
effects on one's personal, family or social life but the loss of
36
one of the legs to a person working in the office would not
interfere with his work/earning capacity in the same degree as
in the case of a marginal farmer or a cycle-rickshaw-puller.
******** ********* **********
10. This Court in K. Janardhan case [(2008) 8 SCC
518 : (2008) 2 SCC (L&S) 733], set aside the High Court
judgment and held that the tanker driver had suffered 100%
disability and incapacity in earning his keep as a tanker driver
as his right leg was amputated from the knee and, accordingly,
restored the order passed by the Commissioner of Workmen's
Compensation. In K. Janardhan [(2008) 8 SCC 518 : (2008) 2
SCC (L&S) 733] this Court also referred to and relied upon an
earlier decision of the Court in Pratap Narain
Singh Deo v. Srinivas Sabata [(1976) 1 SCC 289 : 1976 SCC
(L&S) 52] in which a carpenter who suffered an amputation of
his left arm from the elbow was held to have suffered complete
loss of his earning capacity.
******** ********* **********
13. Any scaling down of the compensation should require
something more tangible than a hypothetical conjecture that
notwithstanding the disability, the victim could make up for the
loss of income by changing his vocation or by adopting
another means of livelihood. The party advocating for a lower
amount of compensation for that reason must plead and show
before the Tribunal that the victim enjoyed some legal
protection (as in the case of persons covered by the Persons
with Disabilities (Equal Opportunities, Protection of Rights and
Full Participation) Act, 1995) or in case of the vast multitude
who earn their livelihood in the unorganised sector by leading
cogent evidence that the victim had in fact changed his
vocation or the means of his livelihood and by virtue of such
change he was deriving a certain income.
14. The loss of earning capacity of the appellant, according to
us, may be as high as 100% but in no case it would be less
than 90%. We, accordingly, find and hold that the
compensation for the loss of the appellant's future earnings
must be computed on that basis. On calculation on that basis,
37
the amount of compensation would come to Rs 3,56,400 and
after addition of a sum of Rs 30,000 and Rs 15,000 the total
amount would be Rs 4,01,400. The additional compensation
amount would carry interest at the rate of 9% per annum from
the date of filing of the claim petition till the date of payment.
The additional amount of compensation along with interest
should be paid to the appellant without delay and not later
than three months from today.”
45.One more decision, Sandeep Khanuja v. Atul Dande and
Another, (2017) 3 SCC 351, too had dealt with the precise aspect of
assessing the quantum of permanent disablement. The victim was aged
about 30 years, working as a chartered accountant for various
institutions for which he was paid professional fees. The injuries suffered
by him resulted in severe impairment of movement; as he had problems
in climbing stairs, back trouble while sleeping, etc. A rod was implanted in
his leg. He suffered 70% permanent disability, and mental and physical
agony. This Court enhanced the compensation, observing the proper
manner to calculate the extent of disability. This Court held as under:
“13. In the last few years, law in this aspect has been
straightened by this Court by removing certain cobwebs that
had been created because of some divergent views on certain
aspects. It is not even necessary to refer to all these cases.
We find that the principle of determination of compensation in
the case of permanent/partial disablement has been
exhaustively dealt with after referring to the relevant case law
on the subject in Raj Kumar v. Ajay Kumar [(2011) 1 SCC
343 : (2011) 1 SCC (Civ) 164 : (2011) 1 SCC (Cri) 1161] in the
following words: (SCC pp. 348-50, paras 8-11)
“Assessment of future loss of earnings due to
permanent disability
8.xx xx xx
38
9. The percentage of permanent disability is expressed
by the doctors with reference to the whole body, or more
often than not, with reference to a particular limb. When a
disability certificate states that the injured has suffered
permanent disability to an extent of 45% of the left lower
limb, it is not the same as 45% permanent disability with
reference to the whole body. The extent of disability of a
limb (or part of the body) expressed in terms of a
percentage of the total functions of that limb, obviously
cannot be assumed to be the extent of disability of the
whole body. If there is 60% permanent disability of the right
hand and 80% permanent disability of left leg, it does not
mean that the extent of permanent disability with reference
to the whole body is 140% (that is 80% plus 60%). If
different parts of the body have suffered different
percentages of disabilities, the sum total thereof expressed
in terms of the permanent disability with reference to the
whole body cannot obviously exceed 100%.
10. Where the claimant suffers a permanent
disability as a result of injuries, the assessment of
compensation under the head of loss of future earnings
would depend upon the effect and impact of such
permanent disability on his earning capacity. The Tribunal
should not mechanically apply the percentage of
permanent disability as the percentage of economic loss
or loss of earning capacity. In most of the cases, the
percentage of economic loss, that is, the percentage of
loss of earning capacity, arising from a permanent
disability will be different from the percentage of
permanent disability. Some Tribunals wrongly assume
that in all cases, a particular extent (percentage) of
permanent disability would result in a corresponding loss
of earning capacity, and consequently, if the evidence
produced show 45% as the permanent disability, will hold
that there is 45% loss of future earning capacity. In most
of the cases, equating the extent (percentage) of loss of
earning capacity to the extent (percentage) of permanent
disability will result in award of either too low or too high a
compensation.
39
11. What requires to be assessed by the Tribunal is
the effect of the permanent disability on the earning
capacity of the injured; and after assessing the loss of
earning capacity in terms of a percentage of the income,
it has to be quantified in terms of money, to arrive at the
future loss of earnings (by applying the standard
multiplier method used to determine loss of dependency).
We may however note that in some cases, on
appreciation of evidence and assessment, the Tribunal
may find that the percentage of loss of earning capacity
as a result of the permanent disability, is approximately
the same as the percentage of permanent disability in
which case, of course, the Tribunal will adopt the said
percentage for determination of compensation.”
14. The crucial factor which has to be taken into
consideration, thus, is to assess as to whether the
permanent disability has any adverse effect on the earning
capacity of the injured. In this sense, MACT approached the
issue in the right direction by taking into consideration the
aforesaid test. However, we feel that the conclusion of
MACT, on the application of the aforesaid test, is erroneous.
A very myopic view is taken by MACT in taking the view
that 70% permanent disability suffered by the appellant
would not impact the earning capacity of the appellant.
MACT thought that since the appellant is a Chartered
Accountant, he is supposed to do sitting work and,
therefore, his working capacity is not impaired. Such a
conclusion was justified if the appellant was in the
employment where job requirement could be to do
sitting/table work and receive monthly salary for the said
work. An important feature and aspect which is ignored by
MACT is that the appellant is a professional Chartered
Accountant. To do this work efficiently and in order to
augment his income, a Chartered Accountant is supposed
to move around as well. If a Chartered Accountant is doing
taxation work, he has to appear before the assessing
authorities and appellate authorities under the Income Tax
Act, as a Chartered Accountant is allowed to practice up to
Income Tax Appellate Tribunal. Many times Chartered
40
Accountants are supposed to visit their clients as well. In
case a Chartered Accountant is primarily doing audit work,
he is not only required to visit his clients but various
authorities as well. There are many statutory functions
under various statutes which the Chartered Accountants
perform. Free movement is involved for performance of
such functions. A person who is engaged and cannot freely
move to attend to his duties may not be able to match the
earning in comparison with the one who is healthy and
bodily abled. Movements of the appellant have been
restricted to a large extent and that too at a young age.
Though the High Court recognised this, it did not go forward
to apply the principle of multiplier. We are of the opinion that
in a case like this and having regard to the injuries suffered
by the appellant, there is a definite loss of earning capacity
and it calls for grant of compensation with the adoption of
multiplier method…….
15. In Arvind Kumar Mishra case [Arvind Kumar
Mishra v. New India Assurance Co. Ltd., (2010) 10 SCC
254 : (2010) 4 SCC (Civ) 153 : (2010) 3 SCC (Cri) 1258],
after following the judgment in Kerala SRTC v. Susamma
Thomas [(1994) 2 SCC 176 : 1994 SCC (Cri) 335], the
Court chose to apply multiplier of 18 keeping in view the
age of the victim, who was 25 years at the time of the
accident.
16. In the instant case, MACT had quantified the income of
the appellant at Rs 10,000 i.e. Rs 1,20,000 per annum.
Going by the age of the appellant at the time of the
accident, multiplier of 17 would be admissible. Keeping in
view that the permanent disability is 70%, the compensation
under this head would be worked out at Rs 14,28,000.
MACT had awarded compensation of Rs 70,000 for
permanent disability, which stands enhanced to Rs
14,28,000. For mental and physical agony and frustration
and disappointment towards life, MACT has awarded a sum
of Rs 30,000, which we enhance to Rs 1,30,000……..”
41
46.In the case of Arvind Kumar Mishra (supra), this Court observed
as under:
“9. 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.
10. In some cases for personal injury, the claim could be in
respect of lifetime's earnings lost because, though he will live,
he cannot earn his living. In others, the claim may be made for
partial loss of earnings. Each case has to be considered in the
light of its own facts and at the end, one must ask whether the
sum awarded is a fair and reasonable sum. The conventional
basis of assessing compensation in personal injury cases—
and that is now recognised mode as to the proper measure of
compensation—is taking an appropriate multiplier of an
appropriate multiplicand.”
47.In Pappu Deo Yadav v. Naresh Kumar and Others , AIR 2020
SCC 4424, it was held that courts should not adopt a stereotypical or
myopic approach, but instead, view the matter taking into account the
realities of life, both in the assessment of the extent of disabilities, and
compensation under various heads. In this case, the loss of an arm, in
the opinion of the court, resulted in severe income earning impairment
upon the appellant. As a typist/data entry operator, full functioning of his
hands was essential to his livelihood. The extent of his permanent
disablement was assessed at 89%; however, the High Court halved it to
45% on an entirely wrong application of some ‘proportionate’ principle,
42
which was illogical and is unsupportable in law. What is to be seen, as
emphasized by decision after decision, is the impact of the injury upon
the income generating capacity of the victim. The loss of a limb (a leg or
arm) and its severity on that account is to be judged in relation to the
profession, vocation or business of the victim; there cannot be a blind
arithmetic formula for ready application.
48.With the aforesaid broad principles in mind, we proceed to
examine the appellant’s claim for enhancement of the compensation
awarded to him by the High Court.
MEDICAL EVIDENCE ON RECORD
49. Dr. Anil B. Patil (PW-2) who treated the appellant has issued a
Disability Certificate (Ex. P-8) wherein the following has been stated:
“This to certify that I have examined, Shri Sidram Raju Bhosle.
Age-19 yrs/M of Kulgod. OPD No-19441 Dated-18/07/2012 at
Lakeview Hospital. He has come to me for assessment of
permanent physical disability certificate as per the record
shown by the patient, the injuries were noted. The patient had
met with a road Traffic accident on 18/7/2012 time around 1:30
pm at near Laxmeshwar cross Gokak Dist-Belgaum. He was
admitted in my Lakeview Hospital, Belgaum, for the treatment
on 4/5/09
MLC NO - outward no-BHSLVH/MRD MLC
No. 229 Dated 18/07/12
Date of admission -18/7/2012
Date of discharged - 6/8/2012
Diagnosis
Burst Fracture D 12 vertebra with paraplegia.
Fracture 1 to 6 Ribs with Hydropneumothorax, surgical
emphysema.
X-Ray Report:
43
-Burst fracture D 12 vertebra. X-ray no.-9832 Dated on 23/07 /
2012
-Fracture 1 to 6 ribs with Hydropneumothorax, surgical
emphysema. X-ray no.- 753 dated 18/07/2012.
CT CHEST(PLAIN): on 18/07/2012
-Fracture of right 1st to 6th ribs along posterior/lateral aspect.
-Gross hydropneumothorax/hemothorax on the right side with
pneumomediastinum causing gross shift of mediastinum
towards left side and partial collapse of right lung.
-Cystic lesions(two) in right upper lobe? post traumatic with
fluid levels A/W patchy opacities in right lung S/o contusions.
-burst anterior wedge compression fracture of D12 vertebral
body involving both pedicles with retropulsion.
Case Examination
1.History
2-On Clinical Examination
1-History At Present Patient Con1plaints
-Pain and weakness in both legs and back.
-lnability in squatting & sitting crossed leg.
-Inability to stand and \Valle
2-0n. Clinical Examination . .
Inspection:-Linear Scar extending fron1 DS to L5 present over
spine.
-scar over anterior lateral aspect of right side of chest
-Unable to squat and sit cross leg.
-Movements of Left knee Right knee grade 3-4
Flexion grade 2
Extension grade 3
Muscle wasting
Calf and thigh muscles ++
X-ray Shows- x-ray no. 2852 dated 29.07.2013
Old fracture D12 with implants in situ.
Observed function disability
-Pain in the left knee & left leg and weakness in both the legs
and inability to stand and walk.
-Unable to squat and sit cross leg.
44
Conclusion
I am of the opinion that considering the clinical signs &
radiological findings the patient has got the total permanent
physical disability of 45% to whole body in respect to D12
fracture and neurological weakness with inability to stand, sit &
walk.
Place-Belgaum”
50. Dr. Patil (PW-2) in his oral evidence has deposed as under:-
“I state that at present petitioner complains of pain and
weakness in both legs and back. Inability in squatting and
sitting cross leg. Inability to stand and walk. And on clinical
examination of the petitioner it reveals that inspection linear
scar extending from D5 to L5 present over spine, there is scar
over anterior lateral aspect of right side of chest, unable to
squat and sit cross leg.
I state that movements of left knee flexion grade-2,
extension grade-3, right knee grade 3-4 and movements of left
foot, plantar-grade -1 dorsiflexion-grade-3 and left foot grade
3-4 and muscle wasting calf and thigh muscle++
Further I state that X-ray taken on 29-07-2013 reveals old
fracture D12 with implants in situ, functional disability
observed to the petitioner are:- pain in the left knee and left leg
and weakness in both legs and inability to stand and walk,
unable to squat and sit cross leg.
Further I state that petitioner needs future medical expenses
would be Rs. 2,50,000/-.
After considering the clinical signs and radiological finding, the
petitioner has got the total permanent physical disability of
45% to whole body in respect of D-12 fracture and
neurological weakness with inability to stand, sit and walk.
I have issued the disability certificate to the petitioner and it
bears my signature and said disability certificate is already
marked as Ex.P-8 and now my signature is marked as EX.P-8
(a), (b), (c) respectively.”
51. In his cross-examination at the instance of the owner of the
vehicle, he has deposed: -
45
“It is true that the age of the petitioner is 19 years at the time
of assessment. It is not true to suggest that heel process of
the injuries is better than old age person. It is not true to
suggest that rib fractures 1 to 6 are not simple in nature. It is
false to say that the petitioner is of young age and the heeling
process is better improvement. It is false to say that disability
given by me is on the higher side. It is false to say that after
removing implant the petitioner will be able to walk and stand
properly. It is false to say that future medical treatment
expenses will Rs. 2,50,000/-. It is false to say that the
petitioner is able to walk, stand as earlier. It is false to say
that to help the petitioner I am deposing falsely.”
52.In the cross-examination at the instance of the insurance company,
he has deposed:
“It is true that I am orthopedic surgeon and I am not neuro
surgeon. It is false to suggest that I am authorized to give
disability certificate of paraplegia. It is true that I have not
received any court summons for this case. I don’t know the
avocation of the petitioner. It is true that the petitioner had
met with a road traffic accident. It is false that by birth this
petitioner is having this type of injury. It is true that the
petitioner has taken proper treatment from our hospital. It is
true that after well cured he was discharged from our
hospital. It is true that I have advised him to take follow-up
treatment. It is true that the petitioner has taken follow-up
treatment. It is false to say that for not taking follow-up
treatment by the petitioner this injury has worsened. It is false
to say that from falling from the tree this type of injury may
happen. It is false that due to rib fracture paraplegia cannot
be caused. Burst fracture D-12 vertebra has caused
paraplegia. It is false to say that this injury is not accidental
injury. It is not true that to help the petitioner to get the
compensation, I am deposing falsely. It is false that I have
seen X-ray before discharge and after discharge. It is true
that after seeing discharge X-ray there was improvement of
the petitioner. It is false to say that the petitioner has acted as
stated in your chief examination. It is true that basis of
assessment I have referred ALIMCO.
46
It is false to say that petitioner is unable to walk, stand
properly. It is false to say that I have given higher side
medical bills to help the petitioner. It is false that injuries are
simple in nature. It is true that I have given disability to the
whole body and this is higher side. It is false that whole body
disability comes between 10% to 15% to help the petitioner. I
am deposing false to get the compensation.”
THE PECUNIARY EXPENSES
(1) Loss of earning due to disability
53.The courts must apply the multiplier method, while ascertaining the
compensation to be awarded to the victim. This was so held by this
Court in Sarla Verma (Smt) and Others v. Delhi Transport
Corporation and Another, (2009) 6 SCC 121. In Sarla Verma (supra),
this Court quoted the following observations from Kerala SRTC v.
Susamma Thomas, (1994) 2 SCC 176:
“The multiplier method involves the ascertainment of the loss
of dependency or the multiplicand having regard to the
circumstances of the case and capitalising the multiplicand
by an appropriate multiplier. The choice of the multiplier is
determined by the age of the deceased (or that of the
claimants whichever is higher) and by the calculation as to
what capital sum, if invested at a rate of interest appropriate
to a stable economy, would yield the multiplicand by way of
annual interest. In ascertaining this, regard should also be
had to the fact that ultimately the capital sum should also be
consumed-up over the period for which the dependency is
expected to last.
It is necessary to reiterate that the multiplier method is
logically sound and legally well established. There are some
cases which have proceeded to determine the compensation
on the basis of aggregating the entire future earnings for over
the period the life expectancy was lost, deducted a
47
percentage therefrom towards uncertainties of future life and
award the resulting sum as compensation. This is clearly
unscientific. For instance, if the deceased was, say 25 years
of age at the time of death and the life expectancy is 70
years, this method would multiply the loss of dependency for
45 years─virtually adopting a multiplier of 45─and even if
one-third or one-fourth is deducted therefrom towards the
uncertainties of future life and for immediate lump sum
payment, the effective multiplier would be between 30 and
34. This is wholly impermissible.”
54. The Tribunal held that although the appellant herein had claimed
that he was earning Rs. 9,000/- per month from his business of selling of
utensils, yet the appellant was not in a position to adduce any
documentary evidence in that regard. Although Dr. Anil B. Patil (PW-2) in
his oral evidence has deposed that the appellant suffered a permanent
disability to the tune of 45%, yet the Tribunal held that the appellant had
suffered a permanent disability of only 30%. The Tribunal applied the
multiplier as explained in the case of Sarla Verma (supra). Accordingly,
the compensation awarded for the loss of earning capacity was
determined as follows:
5000 x 12 x 18 x 30% = INR 3,24,000/-
55. The High Court enhanced the income to Rs. 7,000/- stating that
the same was determined by the Tribunal on a lower side. Further, the
High Court held that having regard to the evidence of the treating doctor,
the permanent disability of the appellant should be determined at 40%.
In such circumstances, the High Court while applying the multiplier,
enhanced the compensation to be awarded under the head of loss of
earning capacity to Rs. 7,000/-, as under:
7,000 x 12 x 18 x 40% = INR 6,04,800/-
48
56.The evidence on record indicates that the appellant suffered
paraplegia due to the accident. Paraplegia is a form of paralysis of lower
body. It restricts everyday routine more particularly the physical activity
and leads to (i) deprivation of simple pleasures and amenities of life, (ii)
100% loss of earning capacity, (iii) long term secondary complications
requiring continuous care, medical treatment and hospitalization, (iv)
feeling of helplessness, depression, anger, stress, anxiety, etc. In short,
paraplegia impairs physical, mental and psychological health and has
devastating impact on the social and financial well being of the victim.
57. In the case on hand, the appellant was in the business of selling
utensils and used to travel to various villages to sell the same. With this
disability in the form of paraplegia being suffered by the appellant, it is
not possible for him now to walk a long distance or stand for a long
period. His business could be said to have been gravely impacted.
Further, the appellant at the time of accident was just 19 years old. The
High Court enhanced his notional income from Rs. 5,000/- to Rs. 7,000/-
per month. The appellant claimed that his notional income be
determined at Rs. 9,000/-.
58. This Court in the case of Kirti and Another v. Oriental Insurance
Company Limited, (2021) 2 SCC 166, while discussing the issue of
proving the income of the victim, held as under:
“39. Taking the above rationale into account, the situation is
quite clear with respect to notional income determined by a
court in the first category of cases outlined earlier, those where
the victim is proved to be employed but claimants are unable
to prove the income before the court. Once the victim has
been proved to be employed at some venture, the necessary
corollary is that they would be earning an income……”
49
59. Thus, we are of the view, more particularly keeping in mind the
dictum of this Court in the case of Kirti (supra) that it is not necessary to
adduce any documentary evidence to prove the notional income of the
victim and the Court can award the same even in the absence of any
documentary evidence. In the case of Kirti (supra) it was stated that the
Court should ensure while choosing the method and fixing the notional
income that the same is just in the facts and circumstances of the
particular case, neither assessing the compensation too conservatively,
nor too liberally.
60.In the overall view of the matter, we are convinced that we should
determine the notional income of the appellant herein at Rs. 8,000/- per
month. The same would result in the compensation being enhanced as
under:
8000x 12 x 18 x 45% = INR 7,77,600/-
(2) Loss of earning for 6 months
61. Compensation under the aforesaid head was awarded by the
Tribunal and the High Court. The Tribunal awarded only Rs. 40,000/-
under this head. The High Court enhanced it to Rs. 42,000/-.
62. We uphold the payment towards loss of earning for six months as
awarded by the High Court and applying the revised income, enhance
the same as under:
8000 x 6 = INR 48,000/-
50
(3) Medical Expenses
63. The appellant claims Rs. 2,00,000/- towards medical expenses. In
this regard, the appellant adduced documentary evidence in the form of
medical bills/receipts to the tune of Rs.1,54,931/-, as stated in the order
of the Tribunal.
64. The Tribunal in its order dated 21.01.2014 held:
“Medical Expenses: The claimant submitted that he has taken
treatment a Lake view hospital, Belgaum and was indoor
patient. He has produced the hospital bill and medical bills to1
the tune of Rs.1,54,931/-. The same has been rounded to
Rs.1,50,000/- and the petitioner is entitled to Rs.1,50,000/-
under this head .” [Emphasis supplied]
65.The High Court in Para 11 of its impugned judgment, held:
“The compensation awarded under the head of pain and
suffering, medical expenses, conveyance, special diet, etc.,
loss of amenities in life and marriage prospects is just and
proper and same is not disturbed.”
66. In view of the aforesaid, we grant compensation of Rs. 1,55,000/-
towards medical expenses.
(4)Future Medical Expenses
67.At the outset, we may state that the “Future Medical Expenses”
and “Attendant Charges” would fall within the ambit of Pecuniary
Expenses. In Abhimanyu Partap Singh v. Namita Sekhon and
Another, (2022) 8 SCC 489, this Court held:
51
“19. In view of the said legal position, the compensation can
be assessed in pecuniary heads i.e. the loss of future earning,
medical expenses including future medical expenses,
attendant charges and also in the head of transportation
including future transportation. In the non-pecuniary heads,
the compensation can be computed for the mental and
physical pain and sufferings in the present and in future, loss
of amenities of life including loss of marital bliss, loss of
expectancy in life, inconvenience, hardship, discomfort,
disappointment, frustration, mental agony in life, etc.”
68. The Tribunal has observed that the doctor has deposed that the
appellant is likely to incur expenses of Rs. 2,50,000/- towards future
medical expenses. However, according to the Tribunal, there was no
sufficient and cogent evidence in that regard under this head.
Accordingly, the Tribunal awarded Rs. 25,000/-. The High Court thought
fit not to award any amount for future medical expenses as there was no
evidence adduced by the appellant in regard to future treatment that
may be required. The High Court however, thought fit to clarify that in
the event if the appellant incurs any expenses towards any surgery or
treatment in future on account of the injury suffered and if he proves the
same, then the insurer shall indemnify the same.
69. Dr. Anil B. Patil (PW-2) has deposed categorically that the
appellant would require future medical expenses to the tune of
Rs. 2,50,000/-. We are of the view that having regard to the evidence on
record that the appellant would be incurring costs towards medical
expenses in future along with physiotherapy and nursing and
considering that the appellant at the time of accident was 19 years old,
today his age would be around 29 years, even if a bare minimum of Rs.
1000/- is spent per month, then it comes to:
52
1000 x 12 x 18 = Rs. 2,16,000/-
70. In Vijaykumar Babulal Modi v. State of Gujarat (Deleted) &
Gujarat State Road Transport Corporation, 2011 SCC OnLine Guj
7349, the High Court of Gujarat had the occasion to consider this
aspect. The High Court held:
“So far as future medical expenses are concerned, the amount
claimed in the petition was to the tune of Rs. 2 lac, whereas
the Tribunal has thought fit to award Rs. 25,000=00.
We have noticed that the injured as on today is 100% disabled
due to paraplegia. He has no control over his bowels or
bladder. In such type of cases, treatment like physiotherapy,
etc. needs to be given for a very very long period of time. The
importance of physiotherapy for persons injured in road
accidents has been elaborately stressed upon by the Supreme
Court in the case of R.D. Hattangadi (supra). It is hence
important to account for all expenses incurred and likely to be
incurred and award reasonable sum for each head. It is also
important to remember the decreasing money value. The life
expectancy of the injured is also to be kept in mind. We feel
that life expectancy of the victim in such a case can
reasonably be assumed to be atleast 55 years, given the
advancement in medical science, etc. The claimant's age on
the date of the accident was 17 years, which means that the
remaining period of life expectancy from that date of accident
would be 38 years i.e. 1991 to 2029. We, therefore, propose to
assess future medical expenses at about Rs. 1,000=00 per
month. In that case, the adequate amount which can be
awarded for future medical expenses would be Rs. 1 lac. We,
therefore, enhance the amount of Rs. 25,000=00 awarded
towards future medical expenses to Rs. 1 lac.”
53
71.In Sanjay Verma v. Haryana Roadways, (2014) 3 SCC 210, the
claimant was 25-years-old and suffered from total disability. This Court
accordingly held:
“20. Insofar as “future treatment” is concerned we have no
doubt that the claimant will be required to take treatment from
time to time even to maintain the present condition of his
health. In fact, the claimant in his deposition has stated that he
is undergoing treatment at Apollo Hospital at Delhi. Though it
is not beyond our powers to award compensation beyond what
has been claimed (Nagappa v. Gurudayal Singh [(2003) 2
SCC 274 : 2003 SCC (Cri) 523]), in the facts of the present
case we are of the view that the grant of full compensation, as
claimed in the claim petition i.e. Rs 3,00,000 under the head
“future treatment”, would meet the ends of justice. We,
therefore, order accordingly.”
72. In view of the aforesaid, we award Rs. 2,16,000/- towards future
medical expenses.
(5)Attendant Charges
73.So far as this head is concerned, neither the Tribunal nor the High
Court thought fit to award anything. The evidence on record indicates
that the appellant is unable to stand, walk, sit or bend his body or lift
anything heavy. It is not in dispute that the appellant will not be able to
work in the same manner as he used to prior to the accident.
Indisputably, the appellant has suffered from paraplegia on account of
the accident and requires an attendant throughout the day. According to
the claimant, the cost of keeping the attendant would be Rs. 4,500/- per
month. We fix it at Rs. 2,000/- per month. As a result, we award the
attendant charges as under:
54
2,000 x 12 x 18 = Rs. 4,32,000/-
74. In Abhimanyu Partap Singh (supra), the Claimant was suffering
from 100% disability and this Court held:
“16. The High Court in the impugned order [Abhimanyu Partap
Singh v. Namita Sekhon, 2019 SCC OnLine P&H 6271]
observed that the claimant has now started practice as an
advocate, therefore, future loss of earning has been calculated
only for 10 years, applying the multiplier of 16, without looking
to the facts that the claimant cannot perform the work of
advocacy similar to the other advocates by attending the
cases in different courts. The attendant charges have been
allowed only for 20 years with one attendant. In fact, not only
for determination of future loss of earning but for attendant
charges also the multiplier method should be followed.
17. The multiplier method has been recognised as most
realistic and reasonable because it has been decided looking
to the age, inflation rate, uncertainty of life and other realistic
needs. Thus, for determination of just compensation to ensure
justice with the family of the deceased or the injured as the
case may be the compensation can be determined applying
the said method. Therefore, in our view the Tribunal while
granting the compensation of future loss as well as earning
only for 10 years and attendant charges only for 20 years was
not justified. In fact, the said amount should be determined
applying the multiplier method.
********* ********* *********
23. In the head of medical expenses, the MACT or the High
Court has not awarded any compensation presumably
because the mother of the claimant, who was minor at the
time of accident, may have claimed the amount of medical
expenses being an IAS officer. But now the claimant has
become major, and looking to the nature of injuries, future
medical expenses that includes the attendant charges, use of
55
diapers due to loss of urination senses is required to be
calculated including future medical expenses. The Tribunal
awarded Rs 1,92,000 in the head of attendant charges @ Rs
1000 p.m. While the High Court proceeded on the premises
that the rate of the attendant charges is variable after every
five years, however, the Court calculated the amount @ Rs
2000 thereafter @ Rs 4000 p.m. for a period of 20 years and
accordingly determined Rs 9,00,000 making enhancement of
Rs 7,08,000 in the said head. As discussed, if we apply the
multiplier method and in view of the judgment
of Kajal [Kajal v. Jagdish Chand, (2020) 4 SCC 413 : (2020) 3
SCC (Civ) 27 : (2020) 2 SCC (Cri) 577] , we accept the rate of
attendant charges at Rs 5000 p.m. for 12 hours, looking to the
nature of injuries and disability the claimant is required two
attendants at least within 24 hours then the expenses in the
head of attendant charges comes to Rs 10,000 p.m. If we
apply the multiplier of 18, the amount comes to Rs 21,60,000.”
75. In Vijaykumar Babulal Modi (supra), the Gujarat High Court had
held:
“It is clear that the appellant will require an attendant to assist
him in his daily activities. However, we cannot accept the
submission of the learned counsel for the appellant who stated
that this will require an expenditure of Rs. 3,000=00 per
month. The Tribunal has awarded a sum of Rs. 15,000=00,
whereas the claim of the claimant is Rs. 4 lac.
As held in the case of R.D. Hattangadi (supra), the Court need
not be mathematical in calculating expenses on home
attendant but ought to look upon the circumstances prevailing
in the society to decide the amount. The Supreme Court
in R.D. Hattangadi's case (supra) held as under:-
“9.xxx xxx
10.xxx xxx
11. In the case Ward v. James, 1965 (1) All ER 563, it was
said:
“Although you cannot give a man so gravely injured much for
his “lost years”, you can, however, compensate him for his
56
loss during his shortened span, that is, during his expected
“years of survival”. You can compensate 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 back injury, be unable to rise from his bed. He has
lost everything that makes life worthwhile. Money is no good
for 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.”
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 guess work, 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.”
12. The Supreme Court in the case of C.K. Subramonia
Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376, in connection
with the Fatal Accidents Act has observed:
“In assessing damages, the Court must exclude all
considerations of matter which rest in speculation or fancy
though conjecture to some extent is inevitable.”
13. In Halsbury's Laws of England, 4
th
Edition, Vol. 12
regarding non-pecuniary loss at page 446 it has been said:-
“Non-pecuniary loss: the pattern: Damages awarded for pain
and suffering and loss of amenity constitute a conventional
sum which is taken to be the sum which society deems fair,
fairness being interpreted by the courts in the light of previous
decisions. Thus there has been evolved a set of conventional
principles providing a provisional guide to the comparative
severity of different injuries, and indicating a bracket of
damages into which a particular injury will currently fall. The
particular circumstances of the plaintiff, including his age and
57
any unusual deprivation he may suffer, is reflected in the
actual amount of the award.
The fall in the value of money leads to a continuing
reassessment of these awards and to periodic reassessments
of damages at certain key points in the pattern where the
disability is readily identifiable and not subject to large
variations in individual cases.”
We feel that the average cost of keeping a home attendant
would be around Rs. 1,000=00 per month for the period of life
expectancy. Accordingly, the annual expenses on an attendant
works out to Rs. 12,000=00. We, therefore, propose to
enhance the sum awarded for attendant to Rs. 1 lac.”
76.Thus, we award an amount of Rs. 4,32,000/- towards the attendant
charges.
(6)Litigation Expenses
77. The Tribunal thought fit not to award anything towards the litigation
expenses. The High Court took the view that the appellant is entitled to
the amount of Rs. 20,000/- towards the litigation expenses. The
appellant claims Rs. 50,000/- towards the litigation expenses.
78. We take notice of the fact that the accident took place on
18.07.2012. The appellant is pursuing this litigation for the past almost
10 years. The SLP before this Court was filed in 2018. It has been four
years since then.
79. In Govind Yadav (supra), this Court held:
58
“12. ……Sometimes the delay and litigation expenses make
the award passed by the Tribunal and even by the High
Court (in appeal) meaningless…..”
80.In New India Assurance Company Limited v. Gopali and
Others, (2012) 12 SCC 198, this Court held:
“1. …India is acclaimed for achieving a flourishing
constitutional order, an inventive and activist judiciary, aided
by a proficient Bar and supported by the State. However, the
courts and tribunals, which the citizens are expected to
approach for redressal of their grievance and protection of
their fundamental, constitutional and legal rights, are beset
with the problems of delays and costs. In a country where
36% of the population lives below the poverty line, these
deficiencies in the justice-delivery system prevent a large
segment of the population from availing legal remedies. The
disadvantaged and the poor are deprived of access to justice
because of the costs of litigation, both in terms of actual
expenses and lost opportunities, and the laudable goal of
securing justice—social, economic and political enshrined in
the Preamble to the Constitution of India remains an illusion
for them.
2. The infrastructure of courts and the processes which
govern them are simply inaccessible to the poor. The State,
which has been mandated by Article 39-A of the Constitution
to ensure that the operation of the legal system promotes
justice by providing free legal aid and that opportunities for
securing justice are not denied to any citizen by reason of
economic or other disabilities, has not been able to create an
effective mechanism for making justice accessible to the
poor, downtrodden and disadvantaged. In the last two-and-a-
half decades the institution of the Legal Services Authorities
has rendered yeoman's service in the field of providing legal
aid to the poor but a lot is required to be done for ensuring
justice to economically deprived section of the society and
those who suffer from other disabilities like illiteracy and
ignorance.
3. We have prefaced the disposal of this petition, filed against
the order dated 22-3-2007 [New India Assurance Co.
59
Ltd. v. Sheo Chand, Special Appeal Civil (SAC) No. 49 of
2005, dated 22-3-2007 (Raj)] passed by the Division Bench
of the Rajasthan High Court whereby the special appeal filed
by the appellant against the judgment of the learned Single
Judge was dismissed as not maintainable, by making the
aforementioned observations because in last almost 20 years
the claimants—the aged parents, wife and five children of
Nanag Ram, who became a victim of road accident in 1992,
must have exhausted all their resources in prosecuting and
contesting the litigation till the stage of the High Court and
they must not have been left with money sufficient for
engaging an advocate in this Court and also because in last
almost five years, during which the special leave petition
remained pending in this Court, they must have lost all hopes
to get justice.
4. The learned Single Judge of the High Court had allowed
the appeal filed by the dependants of Nanag Ram under
Section 173 of the Motor Vehicles Act, 1988 (for short “the
Act”) and enhanced the compensation awarded by the Motor
Accidents Claims Tribunal, Jaipur (for short “the Tribunal”) by
an amount of Rs 4,85,000 and directed the appellant to pay
the enhanced compensation with interest at the rate of 12%
per annum from the date of filing the claim petition till 31-12-
2000 and at the rate of 9% from 1-1-2001 till the payment
thereof, but on account of ex parte interim order passed by
this Court on 23-7-2007 [New India Assurance Co.
Ltd. v. Sheo Chand, SLP (C) No. 11345 of 2007, order dated
23-7-2007 (SC)], the claimants could get only a paltry sum of
Rs 2 lakhs and they perhaps thought that it will not be
worthwhile to spend money for contesting the special leave
petition filed by the appellant. This is perhaps the thinking of
many thousands of poor litigants, who succeed in the courts
below and the High Courts, but cannot afford the cost and
expenses of contesting litigation in the highest court of the
country and suffer silently in the name of the Almighty God by
treating it as their destiny.”
81.In Syed Sadiq v. Divisional Manager, United India Insurance
Company Limited, (2014) 2 SCC 735, this Court held:
60
“14. Further, along with compensation under conventional
heads, the appellant claimant is also entitled to the cost of
litigation as per the legal principle laid down by this Court
in Balram Prasad v. Kunal Saha [(2014) 1 SCC 384 : (2014)
1 SCC (Civ) 327]. Therefore, under this head, we find it just
and proper to allow Rs 25,000.”
82. In view of the aforesaid, we award an amount of Rs. 50,000/-
towards litigation expenses.
(7)Loss of Conveyance
83. Under this head, the Tribunal vide order dated 21.01.2014, held:
“15. Conveyance, special diet etc: The claimant was admitted
to the hospital and thereafter attended the hospital for further
treatment. The claimant is also entitled for special diet and
nutrition. Therefore, I award an amount of Rs.20,000/- under
this head.”
84.The Tribunal awarded Rs. 20,000/- under this head. The High
Court in Para 11 of its impugned judgment dated 25.04.2018, held:
“The compensation awarded under the head of pain and
suffering, medical expenses, conveyance, special diet, etc.,
loss of amenities in life and marriage prospects is just and
proper and same is not disturbed”
85.The High Court thought fit to confirm Rs. 20,000/- as awarded by
the Tribunal.
86. However, the appellant has claimed Rs. 50,000/- towards loss of
conveyance.
87. This Court in Master Ayush (supra) held:
61
“14. The determination of damages in personal injury cases
is not easy. The mental and physical loss cannot be
computed in terms of money but there is no other way to
compensate the victim except by payment of just
compensation. Therefore, we find that in view of the physical
condition, the appellant is entitled to one attendant for the
rest of his life though he may be able to walk with the help of
assistant device. The device also requires to be replaced
every 5 years. Therefore, it is reasonable to award cost of 2
devices i.e. Rs 10 lakhs. The appellant has not only lost his
childhood but also adult life. Therefore, loss of marriage
prospects would also be required to be awarded. The
learned Tribunal has rejected the claim of taxi expenses
for the reason that the taxi driver has not been produced.
It is impossible to produce the numerous taxi drivers.
Still further, the Tribunal should have realised the
condition of the child who had complete sensory loss in
the legs. Therefore, if the parents of the child have taken
him in a taxi, probably that was the only option available
to them. Accordingly, we award a sum of Rs 2 lakhs as
conveyance charges.”
88. The High Court of Judicature at Allahabad in the New India
Assurance Company Ltd. v. Amit Kumar Yadav and Another, F.A.O.
Nos. 1285 & 1489 of 2008 decided on March 23, 2022, held as under:
“22. The question of determination of compensation directly
came up before Supreme Court in Raj Kumar Vs. Ajay Kumar
and another, 2011 (1) SCC 343. Therein, claimant sustained
fracture of both bone of left leg and fracture of left radius in a
motor accident on 01.10.1991. Tribunal awarded
compensation under the heads of loss of future earning, pain
and sufferings, loss of earning during period of treatment,
medical expenses, conveyance and special diet. He was
awarded total compensation of Rs. 94,700/- and 9% interest.
His appeal for enhancement was rejected by Tribunal and
ultimately went in appeal to Supreme Court. It observed that
scheme of Act, 1988 shows that award must be "just", which
means that compensation should, to the extent possible, fully
and adequately restore claimant to the position prior to the
62
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. A
person is not only to be compensated for physical injury,
but also for the loss which he suffered as a result of such
injury. It 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……”
89. Hence, we may grant the appellant loss of conveyance and special
diet up to Rs 50,000/- considering that after the accident at Kulgod-
Gokak Road, the appellant was shifted to Lakeview Hospital Belgaum
wherein he was admitted as an indoor patient from 18.7.2012 to
6.8.2012 for 19 days, and took treatment for the injuries suffered by him,
and continued to take the treatment after getting discharged from the
hospital as well.
90.In view of the aforesaid, we may award Rs. 50,000/- towards loss
of conveyance and special diet.
NON-PECUNIARY EXPENSES
(8)Pain and Suffering
91.The High Court of Judicature at Allahabad in the case of Virendra
Kumar v. Vijay Kumar and Others , (2021) ILR 3 All 272, while
discussing the distinction between pecuniary and non-pecuniary
damages held as under:
“9. The law with respect to the grant of compensation in injury
cases is well-settled. The injured is entitled to pecuniary as
well as non-pecuniary damages. Pecuniary damages also
known as special damages are generally designed to make
63
good the pecuniary loss which is capable of being calculated
in terms of money whereas non-pecuniary damages are
incapable of being assessed by arithmetical calculations. The
pecuniary or special damages, generally include the expenses
incurred by the claimants on his treatment, special diet,
conveyance, cost of nursing/attending, loss of income, loss of
earning capacity and other material loss, which may require
any special treatment or aid to the insured for the rest of his
life. The general damages or the non-pecuniary loss include
the compensation for mental or physical shock, pain, suffering,
loss of amenities of life, disfiguration, loss of marriage
prospects, loss of expected or earning of life, inconvenience,
hardship, disappointment, frustration, mental stress,
dejectment and unhappiness in future life, etc.”
92. The Tribunal awarded a sum of Rs. 40,000/- for the pain and
suffering. The High Court affirmed the amount of Rs. 40,000/-. However,
the appellant is seeking enhancement of Rs. 40,000/- to make it Rs.
1,00,000/- towards compensation for the pain and sufferings.
93. Pain and suffering would be categorized as a non-pecuniary loss
as it is incapable of being arithmetically calculated. Therefore, when
compensation is to be awarded for pain and suffering, special
circumstances of the claimant have to be taken into account including
the victim’s age, the unusual deprivation the victim has suffered, the
effect thereof on his or her future life. This Court in the case of R.D.
Hattangadi (supra), while discussing this aspect held that:
“10. It cannot be disputed that because of the accident the
appellant who was an active practising lawyer has become
paraplegic on account of the injuries sustained by him. It is
really difficult in this background to assess the exact amount of
compensation for the pain and agony suffered by the appellant
and for having become a lifelong handicapped. No amount of
compensation can restore the physical frame of the appellant.
That is why it has been said by courts that whenever any
64
amount is determined as the compensation payable for any
injury suffered during an accident, the object is to compensate
such injury "so far as money can compensate" because it is
impossible to equate the money with the human sufferings or
personal deprivations. Money cannot renew a broken and
shattered physical frame.
********* ********* *********
17. …..When compensation is to be awarded for pain and
suffering and loss of amenity of life, the special circumstances
of the claimant have to be taken into account including his
age, the unusual deprivation he has suffered, the effect
thereof on his future life. The amount of compensation for non-
pecuniary loss is not easy to determine but the award must
reflect that different circumstances have been taken into
consideration…….”
94. This Court in the case of Mahadeva Shetty (supra), while
discussing the factors to be taken into consideration while awarding
compensation for pain and suffering held that:
“18. A person not only suffers injuries on account of accident
but also suffers in mind and body on account of the accident
throughout his life and a feeling is developed that he is no
more a normal man and cannot enjoy the amenities of life as
another normal person can. While fixing compensation for pain
and suffering as also for loss of amenities of life, features like
his age, marital status and unusual deprivation he has
undertaken in his life have to be reckoned.”
95. In another case of this Court in Nizam's Institute of Medical
Sciences v. Prasanth S. Dhananka and Others, (2009) 6 SCC 1, this
Court granted a very high amount of Rs. 10,00,000/- on account of the
pain and suffering of the victim. That was a case of engineering student
aged 20 years, who was a victim of medical negligence. The case before
this Court was of a young student who being the victim of paraplegia
65
was confined to wheelchair, and who pursued career in education and
ultimately got employed as I.T. engineer at a handsome salary.
96. This Court has awarded compensation for pain and suffering by
looking into the circumstances of the case. Therefore, considering that
the appellant was only 19 years at the time of the accident and suffered
a permanent disability of 45%, he ought to be awarded compensation
under this head.
97. Furthermore, the decision of this Court in Nagappa (supra), holds
that there is no embargo in awarding compensation more than that
claimed by the Claimant.
98. In view of the aforesaid, we award an amount of Rs. 1,00,000/-
towards pain and suffering.
(9)Marriage Prospects
99. The Tribunal held that the appellant was young, and due to the
physical disability, his marriage prospects are now almost nil. The
Tribunal awarded to Rs. 20,000/- under this head. The High Court
upheld the amount of Rs. 20,000/-.
100. In Sanjay Kumar (supra), this Court observed as under:
“14… On the point of loss of marriage prospects, we feel that it
is a major loss, keeping in mind the young age of the appellant
and the High Court has gravely erred in not awarding
adequate compensation separately under this head and
instead clubbed it under “loss of future enjoyment of life” and
“pain and suffering”. We thereby award Rs 75,000 towards
loss of marriage prospects…”
66
101. In Ibrahim v. Raju and Others, (2011) 10 SCC 634, this Court
held:
“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 lakhs
should be awarded to the appellant for loss of marriage
prospects and enjoyment of life.”
102. In Master Ayush (supra), this Court observed that the victim (5-
year-old, paraplegic) was entitled to Rs.3,00,000/-.
“14.… The appellant has not only lost his childhood but also
adult life. Therefore, loss of marriage prospects would also be
required to be awarded…”
103. In view of the aforesaid, we award a sum of Rs. 3,00,000/- towards
loss of marriage prospects.
(10)Loss of Amenities
104. The Tribunal held that an amount of Rs. 30,000/- should be
awarded towards loss of amenities. The High Court upheld the amount
of Rs. 30,000/- as awarded by the Tribunal. The claim of the appellant
towards loss of amenities is Rs. 50,000/-.
105. This Court in the case of Pappu Deo Yadav (supra), observed:
“6. The principle consistently followed by this court in
assessing motor vehicle compensation claims, is to place the
victim in as near a position as she or he was in before the
accident, with other compensatory directions for loss of
amenities and other payments. These general principles have
been stated and reiterated in several decisions.
67
[Govind Yadav v. New India Insurance Co.
Ltd. [Govind Yadav v. New India Insurance Co. Ltd., (2011) 10
SCC 683 .….]”
106. In R.D. Hattangadi (supra) it has been held:
“12.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.
x x x x
17.……When compensation is to be awarded for pain and
suffering and loss of amenity of life, the special circumstances
of the claimant have to be taken into account including his
age, the unusual deprivation he has suffered, the effect
thereof on his future life…..”
107. This Court in the case of Raj Kumar (supra) held:
“5. ….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…..”
108. In the case of Sri Laxman alias Laxman Mourya (supra), this
Court observed:
“15. The ratio of the abovenoted judgments is that if the victim
of an accident suffers permanent or temporary disability, then
efforts should always be made to award adequate
compensation not only for the physical injury and treatment,
but also for the pain, suffering and trauma caused due to the
accident, loss of earning and the victim's inability to lead a
normal life and enjoy amenities, which he would have enjoyed
but for the disability caused due to the accident.”
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109. This Court in Govind Yadav (supra) held:
“18. In our view, the principles laid down in Arvind Kumar
Mishra v. New India Assurance Co. Ltd. (2010) 10 SCC 254
and Raj Kumar v. Ajay Kumar (2011) 1 SCC 343 must be
followed by all the Tribunals and the High Courts in
determining the quantum of compensation payable to the
victims of accident, who are disabled either permanently or
temporarily. If the victim of the accident suffers permanent
disability, then efforts should always be made to award
adequate compensation not only for the physical injury and
treatment, but also for the loss of earning and his inability to
lead a normal life and enjoy amenities, which he would have
enjoyed but for the disability caused due to the accident.”
110.Vijaykumar Babulal Modi (supra), the High Court of Gujarat
observed as under:
“It appears that the claim under this head is to the tune of Rs.3
lac. However, the Tribunal has not awarded any sum under the
head 'loss of amenities'. We are of the opinion that this head
must take into account all aspects of a normal life that have
been lost due to the injury caused. As per R.D. Hattangadi's
case (supra), this includes a variety of matters such as the
inability to walk, run or sit, etc. We include here too the loss of
childhood pleasure such as the ability to freely play, dance,
run, etc., the loss of ability to freely move or travel without
assistance. Then, there is the virtual impossibility of marriage
as well as a complete loss of the ability to have sex and to
have and nurture children.”
111. In view of the aforesaid, we award an amount of Rs. 50,000/- for
the loss of amenities taking into consideration the fact that the appellant
was 19 years old at the time of the accident, and also considering the
nature of injuries suffered by him and the extent of his disability.
112. The total compensation awarded by us under different heads is as
under:
S.NO.COMPENSATION AMOUNT
(IN RUPEES)
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1 Loss of earning due to
disability
7,77,600/-
2. Loss of earning for 6
months
48,000/-
3. Medical expenses 1,55,000/-
4. Future medical expenses 2,16,000/-
5. Attendant Charges 4,32,000/-
6. Litigation charges 50,000/-
7. Loss of conveyance 50,000/-
8. Pain and suffering 1,00,000/-
9. Marriage prospects 3,00,000/-
10 Loss of amenities 50,000/-
TOTAL 21,78,600/-
113.Before we close this matter, it needs to be underlined, as observed
in Pappu Deo Yadav (supra) that Courts should be mindful that a
serious injury not only permanently imposes physical limitations and
disabilities but too often inflicts deep mental and emotional scars upon
the victim. The attendant trauma of the victim's having to live in a world
entirely different from the one she or he is born into, as an invalid, and
with degrees of dependence on others, robbed of complete personal
choice or autonomy, should forever be in the judge's mind, whenever
tasked to adjudge compensation claims. Severe limitations inflicted due
to such injuries undermine the dignity (which is now recognized as an
intrinsic component of the right to life under Article 21) of the individual,
thus depriving the person of the essence of the right to a wholesome life
which she or he had lived, hitherto. From the world of the able bodied,
the victim is thrust into the world of the disabled, itself most discomfiting
and unsettling. If courts nit-pick and award niggardly amounts oblivious
of these circumstances, there is resultant affront to the injured victim.
[See: Pappu Deo Yadav (supra)]
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114. We, therefore, direct the respondent No. 1 herein – insurance
company to pay the appellant-claimant the difference in the
compensation awarded herein as against the amount of Rs. 9,26,800/-
as awarded by the High Court. The amount awarded by this Court shall
be deposited by the respondent No. 1 – insurance company within a
period of eight weeks from today after adjusting the amount already
deposited. The rate of interest at the enhanced amount is to be the same
i.e., 6% per annum.
115.In the result, the appeal is allowed to the aforesaid extent. There
shall be no order as to costs.
116. Pending application, if any, stands disposed of accordingly.
….………………………..J.
(SURYA KANT)
…………………………..J.
(J.B. PARDIWALA)
NEW DELHI;
NOVEMBER 16, 2022
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