IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. FAO(MVA) No.44 of 2005 Reserved on : April 18, 2009 Date of Decision : May 5, 2009 Janki Ram …Appellant Versus: Bahadur Singh & Anr. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant : Mr. J. L. Bhardwaj, Advocate For respondent No. 1: Mr. Rajinder Dogra, Advocate For respondent No. 2: Mr. Sanjeev Kuthiala, Advocate SANJAY KAROL, JUDGE (Oral). The claimant herein has assailed the impugned award dated 23.9.2004 passed by the Motor Accident Claims Tribunal-II, in M.A.C. Petition No.52-S/2 of 2002 titled as Janki Ram vs. Bahadur Singh & Anr. awarding compensation of Rs.3 lacs. The challenge is on the ground that the compensation awarded is much on the lower side and, therefore, needs to be enhanced. The insurer and the owner of the vehicle have accepted the award and have not filed any appeal/cross-objections. The claimant filed a petition under Section 166 of the Motor Vehicles Act (hereinafter referred to as ‘the Act’) claiming compensation of Rs.2 lacs due to the permanent disability of 80% sustained by him in his left leg in an accident which took place on 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 12.8.2002. The petitioner was travelling in vehicle No. HP-14-3852 being driven by Shri Netra Singh and on its way from Solan to Delhi, the vehicle met with an accident. The accident occurred due to the rash and negligent driving of the driver. In the accident, petitioner suffered multiple injuries. He had to undergo medical treatment at Post Graduate Institute Hospital, Chandigarh, where he remained admitted from 14.8.2002 upto 22.8.2002. He was operated upon and his left leg had to be amputated. FIR No.202/2002 dated 12.8.2002 under Sections 279, 337, 338 & 304-A IPC was registered against the driver of the vehicle No.HP-14-3852 owned by Shri Bahadur Singh. The petitioner who was plying his own taxi was earning about Rs.6500/- to 7000/- per month. In addition thereto, he was having income from agricultural source. The petition was resisted by the owner who denied any negligence on the part of the driver engaged by him. It was denied that the petitioner had suffered injuries in the accident which resulted into his permanent disability. The vehicle being insured with the United India Insurance Co. Ltd., the insurer filed a separate reply disputing liability as also pleading that the vehicle in question was being driven in violation of the terms and conditions of the Insurance Policy. Hence, the insurer was not liable to have indemnified the insured. Based on the pleadings of the parties, the Tribunal framed the following issues:- 1. Whether on 12.8.2002 at 2.30 a.m. near Kali Palton Pul, G.T. Road, Ambala Cantt, the petitioner sustained multiple grievous injuries due to the rash and negligent driving of Canter No. HP-14-3852 now deceased as alleged? …..OPP 3 2. If issue No.1 is proved, to what amount of compensation, the petitioner is entitled to and from whom? …..OPP 3. Whether the offending canter driver did not have a valid and effective driving license at the time of accident? …..OPR-2 4. Whether the offending vehicle was being driven in violation of the provisions of Motor Vehicle Act and in violation of the standard policy conditions as alleged? …..OPR-2 Opportunity to lead evidence was afforded to the parties and it is a matter of record that the petitioner examined six witnesses and the respondent owner while appearing as witness simply tendered in evidence the Insurance Policy and the driving licence of the driver. The insurer did not lead any evidence. Appreciating the material on record (oral and documentary), the Tribunal returned the findings that on 12.8.2002 vehicle No.HP-14- 3852 met with an accident near Kali Palton Pul, G.T. Road, Ambala Cantt, in which the petitioner sustained multiple and grievous injuries. The cause of the accident being rash and negligent driving of the deceased driver. On the question of quantum, considering the fact that the petitioner sustained 80% permanent disability on his right leg as also he had incurred expenses for medical treatment. The Tribunal awarded the following compensation:- Pecuniary damages: i) Expenditure on medical treatment : Rs.30,000.00 Non-Pecuniary damages: ii) Expenditure on attendant and transportation : Rs. 20,000.00 iii) Pain and sufferings : Rs. 40,000.00 iv) Loss of amenities of life : Rs.50,000.00 v) Loss of future income : Rs.1,60,000.00 -------------------- Total Rs. 3,00,000.00 ------------------- 4 I have heard the learned counsel for the parties and also perused the record. Petitioner examined following witnesses:- Shri Janki Ram (PW-1), Shri Satya Narain (PW-2), Shri Baldev Raj (PW-3), Dr. Anil Bansal (PW-4), Shri Anil Kumar (PW-5) & Shri Bahadur Singh (PW-6). Claimant as PW-1 deposed that prior to the accident, he owned and plied taxi No.HP-01-0405. After incurring necessary expenditure, he was saving Rs.6500/- to 7000/- per month. He was also contributing towards the agriculture work carried out by his mother and other family members. In the 2½ acres of land, they used to cultivate vegetables and have an income of Rs.80,000/- to 90,000/- per month. Due to the injuries sustained in the accident, his left leg had to be amputated. For the medical treatment, he incurred an expenditure of Rs.35,000/-. He had to engage a driver at a salary of Rs.4,000/- per month to ply the taxi. His engagement broke due to the disability and future prospectus of his marriage stand marred. The bills towards medical expenses were produced by him on record. That the petitioner acquired permanent disability of 80% stands proved by Dr. Anil Bansal (PW-4) who has not only proved the disability certificate Ext.P-1 but also deposed that the petitioner cannot work even with the use of crutches and can only work by sitting. PW-6 has deposed that he was employed as a driver by the claimant on a monthly salary of Rs.2800/- to drive the claimant’s vehicle. He generates income of Rs.5000/- to 7000/- per month. It is true that the claimant has not placed on record any documentary evidence to substantiate his income. But it is a settled 5 law that some guess work is permissible while determining the compensation payable under the Act. It stands proved that the petitioner owned vehicle which was being plied as taxi and he had some agricultural land which is irrigated and cultivable. Learned counsel for the appellant has sought enhancement of compensation awarded by the Tribunal under the head ‘Loss of future income’. The Tribunal has not assigned any reason while arriving at a figure under the said head. Petitioner can neither do agriculture work nor ply the vehicle owned by him as a taxi. He cannot seek employment. Therefore, in effect his functional disability is 100%. It is of permanent nature. It is a settled law that an injured person is compensated for the loss which he incurs as a result of physical injury and not for physical injury itself. The compensation to be awarded has to be just, fair and not niggardly. Though it may not be a bounty. This Court in FAO No. 329 of 2005, titled as Raj Kumar vs. Satpal & Ors. decided on 1.1.2009 has held as under:- “The assessment of damages in personal injury cases raises great difficulties. It is not easy to convert the physical and mental loss into monetary terms. There has to be a measure of calculated guess work and conjecture. An assessment, as best as can, in the circumstances, should be made.” It referred to and relied upon various judicial pronouncements which, for deciding the issue are being reproduced as under:- H.West & Son Ltd. V. Shephard, 1958-65 ACJ 504 (HL, England). “Money may be awarded so that something tangible may be procured to replace something else of the like nature which has been destroyed or lost. But money cannot renew a 6 physical frame that has been battered and shattered. All that Judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common assent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards.” In Ward v. James, (1965) 1 All ER 563, Lord Denning has observed as under: “Firstly, accessibility: In cases of grave injury, where the body is wrecked or brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Secondly, uniformity: There should be some measure of uniformity in awards so that similar decisions may be given in similar cases; otherwise there will be great dissatisfaction in the community and much criticism of the administration of justice. Thirdly, predictability: Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to court, a thing very much to the public good.” In the case of Mediana, (1900) AC 113, Lord Halsbury held: “Of course the whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages; nevertheless, it is remitted to the jury, or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation 7 establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident. But, nevertheless, the law recognizes that as a topic upon which damages may be given.” In Perry v. Cleaver, 1969 ACJ 363 (HL,England), Lord Morris of Borth-y-Gest held thus: “To compensate in money for pain and for physical consequences is invariably difficult but no other process can be devised than that of making a monetary assessment.” In Phillips versus Western Railway Co., (1874) 4 QBD 406, Field, J., it was held : “You cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recollect that this is the only occasion on which compensation can be given. The plaintiff can never sue again for it. You have, therefore, now to give him compensation once and for all. He has done no wrong, he has suffered a wrong at the hands of the defendants and you must take care to give him full fair compensation for that which he has suffered.” McGregor on Damages, 14th Edn., para 1157,referring to heads of damages in personal injury actions states: “The person physically injured may recover both for his pecuniary losses and his non-pecuniary losses. Of these the pecuniary losses themselves comprise two separate items, viz., the loss of earnings and other gains which the plaintiff would have made had he not been injured and the medical and other expenses to which he is put as a result of the injury, and the courts have sub-divided the non-pecuniary losses into three categories, viz., pain and suffering, loss of amenities of life and loss of expectation of life.” 8 In R.D. Hattangadi versus Pest Control (India) Pvt. Ltd., 1995 ACJ 366 (SC), speaking about the heads of compensation, the Apex Court held thus: “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 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 shall 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.” In Concord of India Insurance Co. Ltd. versus Nirmala Devi, 1980 ACJ 55 (SC), the Apex Court held: “The determination of the quantum must be liberal, not iggardly since the law values life and limb in a free country in generous scales.” This Court in Brestu Ram versus Anant Ram and others, 1989(2) Sim. L.C.298, held: 9 “It is pecuniary loss, i.e. capable of calculation in terms of money, and nonpecuniary loss i.e. loss that cannot be easily assessed with accuracy-Pecuniary loss is the loss suffered by the victim due to the loss of earnings or other profits which he had been earning and was to earn in future at the same rate or at same promoted scale. Non-pecuniary loss consists of damages awarded for pain and sufferings, loss of amenities and loss of enjoyment of life and prospects. Under non- pecuniary loss, for want of accurate assessment, a global figure could be arrived at and paid as compensation. Under pecuniary loss the assessment can be made easily by taking into consideration at least the monthly income actually earned by the victim and the difference between what he would be capable to earn on disablement. It is well settled that in disablement cases compensation has always to be higher than even in cases of death since it is given to the living victim of the accident both for his personal loss and for economic loss. It can be said that the bodily injury is to be treated as a deprivation which entitled the victim to claim damages, which vary according to the gravity of the injury. Further, due to this injury, there can be loss of earnings, completely or partial due to the accident on his capacity to earn the same. Another consequence may be the loss he suffers on account of the enjoyment of life or full pleasures of living.” The Court awarded Rs.5,40,000/- to the claimant who was 26 years of age and had sustained 75% disability. In my considered view, interest of justice would be met if by taking the petitioner’s functional disability to be 100%, his income is taken to be Rs.3000/- per month. This is the bare minimum which the State of Himachal Pradesh, was paying as minimum wages to a skilled labourer at the time of accident. Since the petitioner was 36 years of age at the time of accident, therefore, multiplier of 14 can be safely 10 applied. Thus, the petitioner shall be entitled to compensation of Rs.3000/- x 12 x 14 = Rs.5,04,000/- towards loss of future income instead of Rs.1,60,000/-. Petitioner shall be entitled to all other sums and interest as awarded by the Tribunal. The impugned award is modified accordingly. The present appeal is disposed of as such. ( Sanjay Karol ), Judge. May 5, 2009. (rana)