1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 969 OF 2008 WITH FIRST APPEAL NO. 1262 OF 2008. The New India Assurance Co. Ltd. ...Appellant Vs. Shweta Dilip Mehta and Ors. ...Respondents WITH Shweta Dilip Mehta ...Appellant Vs. Muralidhar Shankar Khare & Ors. ...Respondents. .... Mr. Sameer Tambekar, for Respondent Nos. 1 & 2 in F. A. 1262 of 2008. Mr. S. M. Dange, Responent No.3 in F. A. 1262 of 2008 & for Appellant, in F.A. No.969 of 2008. Mr. Tejpal S. Ingale for Respondent No.1 in F.A. 969 of 2008. .... CORAM : S. A. BOBDE & S. J. KATHAWALLA, JJ. RESERVED ON : 5TH DECEMBER 2009. PRONOUNCED ON : 14TH DECEMBER 2009. JUDGMENT (Per S. A. Bobde, J.) 1. The present appeals arise from the order of the Motor Accidents Claims Tribunal (hereinafter referred to as “the Tribunal”) at Sangli, in Petition No. 323/1993, decided on 16.8.2007. At the outset, we 2 must mention that the Learned Advocate for the Insurance Co. (original Respondent No. 3 before the Tribunal; hereinafter referred to as “respondent”) has not pressed their appeal before us and has been allowed to withdraw it. The facts in brief are that one Dilip Shah was proceeding to Kohlapur along with his family and the family of his close friend, Dilip Mehta, in a Maruti 800 car bearing Registration No. MH-01-A/122. In all, 6 persons were travelling in the car. On 2.5.1993, at about 6-30 a.m., the car met with an accident near Itkari Phata when a truck, bearing Registration No. MHF-6469, which was travelling in the opposite direction, collided with it. As a result, the driver, Mr. Dilip Shah, died instantaneously, while the other passengers were severely injured. Ms. Shweta Dilip Mehta (hereinafter referred to as the “appellant”), aged 11 years at the time, was rendered paraplegic i.e. her entire body from waist – down is paralysed since the day of the accident and doctors assess her permanent disablement to an extent of 80 – 90 per cent. 2. It seems that initially the police in fact registered an offence against the driver of the Maruti 800 for rash and negligent driving. The Tribunal having examined the evidence on record found that the accident occurred due to the sudden detachment of the two front wheels along with the axle of the truck. Consequently, the truck driver lost control and collided head – on with the Maruti 800. This 3 detachment of the front wheels occurred because the truck was old and not properly maintained. We find from the evidence before us that the Tribunal has come to a correct conclusion in this regard and the accident did not occur due to any fault of the driver of the Maruti 800, in which the girl was travelling, but occurred due to the negligent maintenance of the truck. In any case, whether or not the truck driver or owner was negligent has not been specifically contended before us by the respondent. 3. The present appeals relate to the Tribunal’s award of compensation, u/s 166 of the Motor Vehicles Act, 1988, to the appellant by the Tribunal, which was claimed against the respondent. The appellant had initially filed a claim for Rs. 20 lakh in 1993, but amended the plaint on 4.2.2006 to a claim of Rs. 91 lakh. The Tribunal, as per its judgment dated 16.8.2007, awarded the appellant Rs. 21, 23, 848/-, computed under various heads, for both pecuniary and non-pecuniary losses, caused by the accident. The appellant submits that this award was inadequate to meet all the expenses incurred and likely to be incurred and presses her claim for Rs. 91 lakh before us. We must mention here that an effort was made for settlement of the claim, however, it failed and we hence proceed to calculate the quantum of compensation which is to be awarded to the appellant. 4 4. The process of determining compensation by the Court is an essentially practical 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 & Sons Ltd. v. Shepherd [(1958) ACJ 504 (H. L)]: “...money cannot renew a physical frame that has been battered.” 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 Motor Vehicles Act, 1988, 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 the Hon’ble Apex Court, in Divisional Controller, KSRTC v. Mahadeva Shetty [2003 ACJ 1775 (SC)] needs mention here: “It has to be borne in mind that compensation for life and limb can hardly be weighed in golden scales...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 5 consequential losses. A person becomes entitled to damages for the 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.... ...Every method or mode adopted for assessing compensation has to be considered in the background of ‘just’ compensation, which is the pivotal consideration. Though by the use of the expression, ‘which appears to be just’, a wide discretion is vested on the tribunal, the determination has to be rational, to be done with a judicious approach, and not the outcome of whims, wild guesses, and arbitrariness.” (para 15) 5. The Hon’ble Apex Court in R. D. Hattangadi v. Pest Control (India) Pvt. Ltd. [1995 ACJ 366 (SC)] posited certain principles to be followed: “While fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary 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 the two 6 concepts, pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning; (iii) other material loss. So far as non-pecuniary damages are concerned, they may include (i) damage 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 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.” 6. With these broad principles in mind, we proceed to examine the appellant’s claim for enhancement of the compensation awarded to her by the Tribunal. The Tribunal’s award is split up as follows: Expense Amount (Rs.) 1] Amount spent by claimant till date of Tribunal award 1, 23, 848/- 2] Towards physical pains and mental shock 2, 00, 000/- 3] Towards loss of amenities of life 1, 00, 000/- 4] Towards inevitable expenses 10, 00, 000/- 5] Towards loss of future income 7, 00, 000/- 7 TOTAL 21, 23, 848/- The Tribunal also awarded different rates of interest which is as follows: (i) 12% p. a. from filing of the petition till 31.12.2002. (ii) 7.5% p. a. from 1.1.2003 to 31.12.2006. (iii) 10% p. a. from 1.1.2007 till realization of the amount. We proceed to deal with the amount awarded under each head and examine whether the amount thereby awarded is ‘just’ as hereunder: 1] The amount already spent by claimant till date of Tribunal award 7. The Tribunal in paragraph 25 of its order has provided the split up of the amount of Rs. 1, 23, 848/- awarded to the claimant. The Learned Tribunal arrived at this amount based on the receipts of medical and other inevitable expenses, incurred by the claimant, until the date of its award. We find that the Learned Tribunal has arrived at this figure in a proper and reasoned manner, based on evidence. The amount awarded under this head does not call for any interference. 2] Towards Physical Pains and Mental Shock 8 8. The Learned Advocate for the Appellant has contended before us that the Learned Tribunal erred in awarding Rs. 2 lakh as compensation under this head. He contends that the Learned Tribunal ought to have awarded compensation separately towards ‘physical pains’ and ‘mental shock and suffering’ i.e. these ought to be treated as separate heads for compensation. He further submits that the appellant ought to be awarded Rs. 5 lakh under each of these heads. 9. The Learned Tribunal based its decision to award the compensation under the single head of ‘physical pains and mental shock’ based on the reasoning that ‘physical pains is inclusive of mental shock.’ Though it is difficult to accept the statement that ‘physical pains is inclusive of mental shock’, we agree that the compensation for both should be considered under the same head. We recall Lord Denning’s observations in Ward v. James [(1965) 1 All E. R. 563] where he states that the process of determining compensation must be such that the awards are both ‘assessable’ and ‘uniform.’ ‘Assessable’ means that the awards are conventional figures based on experience or comparable cases. On the other hand, ‘uniform’ refers to similar awards in similar cases and circumstances. We find that similar cases have treated ‘physical pain’ and ‘mental shock’ as a single head for awarding compensation. In R. D. Hattangadi’s case [supra], the Hon’ble Apex Court granted Rs. 1,50, 000/- to a 52 year old advocate, 9 who was rendered paraplegic by a motor accident, under the single head of ‘pains and sufferings.’ Again in Mahadeva Shetty’s case [supra], the claimant was an unmarried mason, rendered paraplegic by a motor accident, and the Hon’ble Apex Court granted Rs. 1, 00, 000/- under the single head of ‘mental agony, pain and suffering.’ We also note that the Second Schedule of the Motor Vehicles Act, 1988, in paragraph 4 (i), which deals with General Damages to be awarded in case of injuries and disabilities, refers to ‘pain and sufferings’ as a single head of General Damages. We may also use the the Second Schedule as a guideline, even while awarding compensation u/s 166 of the Act, as per the decision in S. Kaushanuma Begum v. New India Assurance Co. Ltd. [AIR 2001 SC 485]. We hence find no merit in the contention of the Appellant that ‘physical pain’ and ‘mental shock’ ought to be treated as separate heads for compensation. 10. As regards enhancement of the amount of Rs. 2, 00, 000/- awarded under this head, two important points from the above mentioned cases emerge, which ought to be followed in determining compensation. In Mahadeva Shetty’s case [supra]: “A person not only suffers injuries on account of the accident, but also suffers in mind and body on account of the accident throughout his life and a feeling is developed that 10 he is no more a normal man and cannot enjoy the amenities of life as a normal person can.” (Para 18) In R. D. Hattangadi’s case [supra], the Hon’ble Apex Court laid down that: “when compensation is to be awarded for pain and sufferings and loss of amenities of life, the special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he has suffered and the effect thereof on his future life.” 11. In the present case, the Appellant was only 11 years old at the time of the accident. It needs no mention that on account of the accident, the Appellant has lost out on several pleasures of her childhood and adolescence, including the ability to move, run and play freely, as other children do. She was a bright and promising student, yet her condition may now be an impediment to not only her success, but also everyday ordinary living. Added to this are the physical and mental suffering caused by her medical condition itself, its treatment and the knowledge that she will never be able to lead a normal life. Even looking after personal hygiene has become difficult for her, as the evidence shows. There is also the loss of expectation of life i.e. the normal lifespan of the person being shortened due to the injury, which causes disappointment and stress. We also bear in mind that if her life expectancy is now 55 11 years, she must endure this inconvenience, disappointment and suffering for as much as 28 years from now. Keeping in mind the awards under this head to the claimants in the aforementioned cases by the Hon’ble Apex Court, we find it proper to increase the compensation awarded ‘towards physical pains and mental shock’, to the appellant to Rs. 4, 00, 000/- due to the special circumstances of the case. 3] Towards Loss of Amenities of Life 12. The Tribunal awarded Rs. 1, 00, 000/- under this head against the claim of Rs. 5, 00, 000/- made by the appellant. The Learned Tribunal referred to the aforementioned principle in R. D. Hattangadi’s case [supra], and felt this amount was proper considering these aspects. We find that this amount is inadequate. 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 pleasures such as the free ability to 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. On this count alone, in Mahadeva Shetty’s case [supra], the Hon’ble Apex Court had awarded Rs. 50, 000/- where the claimant was a bachelor. In the present 12 case, keeping in mind these factors, and the age and deprivation of the appellant, we increase the sum awarded under this head to Rs. 3, 00, 000/-. 4] Towards Inevitable Expenses 13. The appellant claimed before the tribunal a sum of Rs. 17, 458/- at minimum, as recurring inevitable expenses. This expenditure includes the amounts required to be spent for attendants, charges for physiotherapy, salary of a driver, expenditure towards petrol etc. The Learned Tribunal examined the claim and found that there was some element of exaggeration, such as a claim of Rs. 1500/- on a masseur and another Rs. 3000/- as charges for the physiotherapist, which he felt were repetitive. Having considered all the expenses, he concluded that a sum of Rs. 10, 00, 000/- is to be given under this head, so that the amount fetches Rs. 7000 – 8000 a month by way of interest. The appellant contends that this sum is inadequate and ought to be at least Rs. 25, 00, 000/- in order to give an interest of about Rs. 17, 000/- p.m. 14. Inevitable expenses is that burden of expenses, which the injured person is required to incur including the need for nursing, constant attendance, extra nourishment, medical expenses as well as any other expense that may arise in the future. We bear in mind the caveat laid 13 down in Phillps v. Western Railway Co. [1874 4 Q. B. D. 406], which is that this is the only occasion on which the claimant may be awarded compensation, as he cannot sue again for it and hence a full compensation must be given. It is hence important to account for all expenses incurred and likely to be incurred and award reasonable sums for each. It is also important to remember the decreasing money value. [Nagappa v. Gurudayal Singh; (2003) 2 SCC 274] Lastly, the life expectancy of the injured is to be kept in mind. We feel that life expectancy of the victim in such a case can be reasonably assumed to be at least 55 years, given the advancements in medical science etc. The claimant’s age on the date of the accident was 11 years, which means that the remaining period of life expectancy from that date is 44 years i.e. 1993 – 2037. 15. Coming to the expenses, it is clear that the appellant will require an attendant to assist her in her daily activities. However, we cannot accept the submission of the Learned Advocate for the appellant, who first stated that this requires an expenditure of Rs. 20, 000 p. m and later in the Affidavit in rejoinder dated 3.12.2009 submitted that the appellant has two attendants which results in monthly expenditure of Rs. 8500/-. We feel that these are highly exaggerated figures. As stated in R. D. Hattangadi’s case [supra], the Court need not be mathematical in calculating expenses on home attendants, but ought to 14 look at circumstances prevailing in society to decide the amount. We feel that the average cost of keeping a home attendant would be about Rs. 2500/- p. m. for the period of life expectancy. Accordingly, the annual expense on an attendant works out to Rs. 30, 000/-. The appellant’s condition renders her unable to walk about and she would require a car to get to even the nearest of places. The family would also require employing a driver, as it cannot be expected reasonably that some family member would always be present to drive the vehicle. It is hence necessary to consider the expenses on the driver’s salary and petrol and other maintenance expenses. The average driver’s salary for this period is at the least Rs. 3000/- p. m. and the average petrol and maintenance expenses as Rs. 2000/- p. m. Accordingly, this works out annually to Rs. 36, 000/- for driver’s salary and another Rs. 24, 000/- annually for petrol and maintenance expenses. 16. Next, we must consider that the appellant requires physiotherapy. The importance of physiotherapy for persons injured in road accidents has already been stressed upon in R. D. Hattangadi’s case [supra]. The Learned Advocate for the appellant submits that the appellant requires physiotherapy on every alternate day, which works out to Rs. 3000/- p. m. We have seen the sums granted towards physiotherapy expenses in other cases and also the bills of physiotherapy expenses already undergone by the appellant. Accordingly, we think it reasonable to 15 consider Rs. 3000/- p.m. as the average expense per sitting throughout the remaining period of physiotherapy. This works out to an annual cost of Rs. 36, 000/-. The Learned Advocate for the appellant has submitted that the family has not employed a nurse for the appellant and hence we find no need to consider cost for nursing. We do accept the Learned Advocates plea for considering recurring medical and sanitary expenses. The decision in Nagappa’s case [supra] may be mentioned here: “The Act does not provide for passing of further award after the final award is passed. Therefore, in a case where injury to a victim requires periodical medical expenses, fresh award cannot be passed or previous award cannot be reviewed when the medical expenses are incurred after finalization of the compensation proceedings...It is not improper to take into account expenditure genuinely and reasonably required to be incurred for future medical treatment. Future medical expenses required to be incurred can be determined only on the basis of fair guesswork after taking into account increase in the cost of medical treatment.” It is clear that the condition of the appellant requires her to take constant medication and also use sanitary pads, due to her inability to 16 use the toilet like a normal person. The learned advocate for the appellant has also submitted several hospital bills of treatment already undergone for ITB implantation, right leg fracture etc, upon being put to strict proof of these claims by the respondent. We note that the cost of the ITB implant refills required every 3 months itself is Rs. 2000/-. The appellant has already, during the course of this appeal suffered a fractured leg once and required an ITB pump to ease her discomfort by loosening her paralysed legs. She has also had to purchase a wheelchair for her movement. We refrain from going into the individual expenses incurred on each of these items. However, we feel that at minimum, a sum of Rs. 5000/- p. m. is required from hereon to account for recurring medical and sanitary expenses of the appellant. Accordingly, it works out to Rs. 60,000/- annually. We cannot accept the submission of the respondent that the appellant’s fathers cross – examination has revealed certain mitigating circumstances which we must consider. Neither can we accept the respondent’s submission that there is a good chance of recovery of the appellant. The learned advocate for the respondent himself admitted that there has been no improvement in the appellant’s condition since the day of the accident in 1993 till the present date. Her disability has been assessed as a permanent disability of 80 – 90 per cent. We hence reject these submissions of the respondent. 17 17. The annual inevitable expenses are hence summed up as: Expense Amount (Rs.) 1] Attendant 30, 000/- 2] Driver 36, 000/- 3] Petrol and Vehicle Maintenance etc. 24, 000/- 4] Physiotherapy 36, 000/- 5] Recurring medical and sanitary expenses 60, 000/- TOTAL 1, 86, 000/- It is already settled in Nagappa’s case [supra] that the Court may award a long – term deposit, the interest on which helps meet such recurring inevitable expenses. We assume that the average rate of interest from an FDR for the period of life expectancy is 8% p. a. Hence, in order to obtain an annual interest of Rs. 1, 86, 000/-, an amount of approximately Rs. 23, 25, 000 would have to be deposited. The appellant is accordingly awarded such deposit, the interest on which bears up for inevitable expenses during the remaining period of life expectancy. 5] Towards Loss of Future Income 18. The Learned Tribunal computed Rs. 7, 00, 000/- as compensation under this head in order to yield a sum of Rs. 5000/- p. m. as interest, 18 to cover loss of earnings. The Learned Advocate for the appellant contended that this sum may not yield Rs. 5000/- as annual interest, and even if it did, this sum as annual income was pleaded for in the year 1998-99, but at present, it ought to be adjusted for inflation and considered at around Rs. 10,000 - 12,000/- p. m. The Tribunal did not apply the multiplier method, which is the standard practice to calculate loss of income, but instead did so based on an estimate of future earnings of the claimant for the remaining period of life expectancy, and awarded a sum which would yield that amount as interest. 19. The Learned Advocate for the Appellant contended that the multiplier method ought not to be applied in the present case and brought before us the case of Nizam Institute of Medical Sciences v. Prasanth Dhananka & ors. [Civil Appeal No. 4119 of 1999] to press his claim. In that case, the Hon’ble Apex Court awarded Rs. 25 lakhs towards loss of future income, to a 28 year old I. T. Engineer, rendered paraplegic as a result of medical negligence in carrying out a surgery. He refers us to paragraph 40 of this judgment, which states as follows: “The kind of damage that the complainant has suffered, the expenditure that he has incurred