Case: M. Gopalakrishnan Vs. The United India Insurance Company Limited & Another

Leave granted. Feeling aggrieved by failure of Motor Accidents Claims Tribunal, Chennai (for short, ?the Tribunal?) and the learned Single Judge of the Madras High Court to award just compensation under the Motor Vehicles Act, 1988 (for short, ?the Act?), the appellant has filed these appeals. The appellant, who was 21 years old at the relevant time, suffered grievous injuries on 27.5.2006 when he was hit by lorry bearing No. AP 26 T 2421. He was treated in Government Stanley Hospital, Chennai. He filed a petition under Section 166 of the Act and claimed compensation to the tune of Rs.11 lakhs by alleging that the accident was caused due to rash and negligent driving of the lorry by its driver; that as a result of accident he suffered multiple fractures and major degloving injury on the right foot and ankle, serious injury in the ulna and foot and multiple internal and external injuries all over the body; that the bottom of the right foot was completely darkened because there was no skin growth and broken metatarsal bones are growing downwards and he would have to undergo operations till the age of 30 years for removal of the bones and that he will not be able to the job of cleaner which he was doing at the time of accident.The driver of the lorry involved in the accident remained ex-parte. Respondent No.1 insurance company filed reply and denied the averments contained in the claim petition. It also pleaded that the accident was caused due to carelessness of the appellant himself and respondent No.2 was not at all responsible.the Tribunal framed the following points for consideration:?1) Whether the accident had happened due to the rash and negligent driving of the lorry bearing registration No. AP 26 T 2421?2) Whether the respondents are liable to pay the compensation?3) Whether the petitioner is entitled for the compensation?4) To what relief??In support of his claim, the appellant examined two witnesses and produced the documents which were marked as Exhibits P1 to P9. Respondent No.1 did not adduce any evidence, oral or documentary.After analyzing the evidence produced by the parties and taking into consideration the fact that the respondents had not adduced any evidence to controvert the appellant?s assertion about the mode and manner of accident, the Tribunal concluded that the driver of the lorry had driven the vehicle in a rash and negligent manner resulting in an accident and consequential injuries on the appellant?s body. The Tribunal then briefly considered the nature of injuries, the expenses incurred by the appellant for medical treatment and awarded the following sums:1.Loss of earningsRs.21,000/- 2.Frequent transportation to the hospitalRs.5,000/- 3.NourishmentRs.10,000/- 4.Damage to clothing, articles, and cycleRs.500/- 5.Medical ExpensesRs.19,100/- 6.Pain and suffering due to lossRs.25,000/- 7.Additional transport expensesRs.20,000/- 8.Loss of expectation of martial allianceRs.50,000/- 9.Mental agony and torture due to limping and shortening of legRs.50,000/- 10.Pain and suffering due to crush injury on right foot and loss of skin in the sole of footRs.30,000/- 11.Permanent disabilityRs.40,000/- Total CompensationRs.2,70,600/- The Tribunal also awarded interest at the rate of 9.5% from the date of filing the petition till the date of deposit of amount by respondent Nos.1 and 2.The cross appeals filed by the appellant and respondent No.1 were disposed of by the learned Single Judge of the High Court vide judgment dated 8.10.2010. He referred to the statement of the doctor that the appellant had suffered 40% disability but declared that it is only a partial disability for which the appellant could be awarded Rs.80,000/-. The learned Single Judge further observed that the injuries suffered by the appellant were not such which may result in loss of expectation of proper marital alliance and set aside the compensation awarded under that heard. Under other heads also the learned Single Judge felt that the compensation awarded by the Tribunal was on higher side and reduced the total compensation from Rs.2,70,600/- to Rs.2,10,600/-. Simultaneously, he reduced the rate of interest from 9.5% to Rs.7.5%. We have heard learned counsel for the parties and carefully perused the record. In our view, the impugned judgment and the award passed by the Tribunal are legally unsustainable and are liable to be set aside because both, the High Court and the Tribunal, ignored the propositions of law laid down by this Court in several judgments. In R.D. Hattangadi v. Pest Control (India) Private Limited (1995) 1 SCC 551 , this Court observed that the exercise for determination of compensation in accident cases involve some guess work, some hypothetical consideration, some amount of sympathy linked with the nature of disability. But these elements are required to be considered in an objective manner. In that case, the claimant was a retired judge and practicing when he met with an accident that causes 100% disability and paraplegia below the waist. While determining compensation payable to him in a claim filed under Section 110A, Motor Vehicles Act, 1939, this Court referred to the judgment of the Court of Appeal in Ward v. James (1965) 1 All ER 563, Halsbury?s Laws of England, 4th Edition, Volume 12 (page 446) and observed: ??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.? Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far 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 future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. In 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 life long 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 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.? In Nizam?s Institute of Medical Sciences v. Prasanth S. Dhananka (2009) 6 SCC 1 , this Court was called upon to assess the compensation payable under the Consumer Protection Act, 1986 to the victim of medical negligence who was left completely paralysed at the age of 20. After detailed examination of the issue, the Court observed as under: ?We must emphasize that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The ?adequate compensation? that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. It must also be borne in mind that life has its pitfalls and is not smooth sailing all along the way (as a claimant would have us believe) as the hiccups that invariably come about cannot be visualised. Life it is said is akin to a ride on a roller-coaster where a meteoric rise is often followed by an equally spectacular fall, and the distance between the two (as in this very case) is a minute or a yard. At the same time we often find that a person injured in an accident leaves his family in greater distress vis-?-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity. We can also visualize the anxiety of the complainant and his parents for the future after the latter, as must all of us, inevitably fade away. We, have, therefore computed the compensation keeping in mind that his brilliant career has been cut short and there is, as of now, no possibility of improvement in his condition, the compensation will ensure a steady and reasonable income to him for a time when he is unable to earn for himself.? In Raj Kumar v. Ajay Kumar (2011) 1 SCC 343 , this Court considered large number of precedents and laid down the following propositions: ?The provision of the Motor Vehicles Act, 1988 (?the Act?, for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of 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.? In Sri Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance company Limited (2011) 13 SCC 236 , this Court observed as under: ?The compensation is usually based upon the loss of the claimants earnings or earning capacity, or upon the loss of particular faculties or members or use of such members, ordinarily in accordance with a definite schedule. The Courts have time and again observed that the compensation to be awarded is not measured by the nature, location or degree of the injury, but rather by the extent or degree of the incapacity resulting from the injury. The Tribunals are expected to make an award determining the amount of compensation which should appear to be just, fair and proper. The term ?disability?, as so used, ordinarily means loss or impairment of earning power and has been held not to mean loss of a member of the body. If the physical efficiency because of the injury has substantially impaired or if he is unable to perform the same work with the same ease as before he was injured or is unable to do heavy work which he was able to do previous to his injury, he will be entitled to suitable compensation. Disability benefits are ordinarily graded on the basis of the character of the disability as partial or total, and as temporary or permanent. No definite rule can be established as to what constitutes partial incapacity in cases not covered by a schedule or fixed liabilities, since facts will differ in practically every case.? In light of the principles laid down in the aforementioned cases, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, 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 inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses.The most serious error committed by the Tribunal and the High Court is that neither of them awarded compensation to the appellant for future medical treatment. The compensation awarded by the Tribunal for nourishing food, pain and suffering, loss of income during the period of treatment and thereafter and loss of amenities of life including marital prospect and expectation of life was also wholly inadequate. By reducing amount under various heads the High Court virtually rubbed salt in the wound of the appellant.In our considered view, the High Court was not at all justified in declaring that the disability suffered by the appellant was partial. While the appellant had proved the nature of injury and the extent of disability by examining the doctor, who opined that the appellant had suffered 40% permanent disability and further that he will have to undergo operations till his 30th year for removal of the bones. The learned Single Judge of the High Court, without assigning any reason, declared that the disability was partial. Therefore, that part of the impugned judgment is liable to be set aside.We are further of the view that the Tribunal and the High Court were bound to award adequate compensation in lieu of the expenses already incurred for treatment and also for ?future medical expenses? for next 9 years keeping in view the escalating cost of medical treatment. Having regard to the nature of injuries and the fact that the appellant will have to undergo 9 operations for removal of the downward growing bones, we deem it proper to award total compensation of Rs.4 lakhs under this head. For ?pain and suffering? for 9 years, the appellant deserves to be awarded compensation of Rs.3 lakhs. For ?loss of marital expectation?, the appellant deserves to be awarded compensation of Rs.3 lakhs. For ?loss of income, etc.,? the appellant deserves to be awarded a sum of Rs.1 lakh.

Decision:
1[ds]In light of the principles laid down in the aforementioned cases, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, 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 inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses.The most serious error committed by the Tribunal and the High Court is that neither of them awarded compensation to the appellant for future medical treatment. The compensation awarded by the Tribunal for nourishing food, pain and suffering, loss of income during the period of treatment and thereafter and loss of amenities of life including marital prospect and expectation of life was also wholly inadequate. By reducing amount under various heads the High Court virtually rubbed salt in the wound of the appellant.In our considered view, the High Court was not at all justified in declaring that the disability suffered by the appellant was partial. While the appellant had proved the nature of injury and the extent of disability by examining the doctor, who opined that the appellant had suffered 40% permanent disability and further that he will have to undergo operations till his 30th year for removal of the bones. The learned Single Judge of the High Court, without assigning any reason, declared that the disability was partial. Therefore, that part of the impugned judgment is liable to be set aside.We are further of the view that the Tribunal and the High Court were bound to award adequate compensation in lieu of the expenses already incurred for treatment and also formedical expenses? for next 9 years keeping in view the escalating cost of medical treatment. Having regard to the nature of injuries and the fact that the appellant will have to undergo 9 operations for removal of the downward growing bones, we deem it proper to award total compensation of Rs.4 lakhs under this head.