: 1 : IN IN IN THE HIGH COURT OF JUDICATURE OF BOMBAY THE HIGH COURT OF JUDICATURE OF BOMBAY THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.998 OF 1996 APPEAL NO.998 OF 1996 APPEAL NO.998 OF 1996 The United India Insurance Co. ...Appellants V/s. Hassenali Shaikh Abdul Shaikh ...Respondent Mr.S.R. Singh, Advocate, for the Appellants. . Mr.Sagar Kesar, Advocate, for the Respondent. CORAM CORAM CORAM : D.G. KARNIK, J : D.G. KARNIK, J : D.G. KARNIK, J DATED DATED DATED : 6TH OCTOBER, 2008 : 6TH OCTOBER, 2008 : 6TH OCTOBER, 2008 ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : 1. This Appeal is directed against the Judgment and Order dated 12th November, 1994 passed by the Motor Accident Claims Tribunal, Thane allowing the claim application of the respondent No.1. 2. On 31st July, 1992, the respondent No.1 (for short "the respondent") suffered an accident while returning home from the school. A truck bearing registration No.MH-09-A-46 belonging to the respondent No.2 while overtaking another truck passed over the right leg of the respondent and dragged him to the extent of 10 to 15 ft. As a result, the respondent sustained crush injury to his right leg. The respondent was taken to the Civil Hospital, Thane where he was admitted as an indoor patient and his right leg was amputed at the knee level and great toe : 2 : and middle finger of the left leg was also amputed. The respondent who was aged 11 years at the time of accident filed a claim for compensation through his guardian and natural father. 3. After considering the evidence adduced by the parties including the Doctor, the Motor Accident Claims Tribunal (for short "the Tribunal") held that the driver of the truck was negligent in driving. It further held that the respondent suffered about 82% to 85% permanent disability on account of negligent driving of the truck belonging to the respondent No.2. Accordingly, the Tribunal awarded a compensation of Rs.3,97,880/- (all inclusive) to the respondent. That decision is impugned in this Appeal. 4. The learned counsel for the appellant fairly stated that the appellant does not challenge the finding of negligence and restricted his arguments to the quantum of compensation. In the light of his submissions, the short question that arises for my consideration is :- "Is the amount of compensation awarded by the Tribunal in any way excessive and needs : 3 : to be reduced ?" 5. My answer is in the negative for the reasons mentioned below. 6. The Tribunal awarded compensation under different heads. It awarded compensation of Rs.22,880/- towards reimbursement of expenses incurred for medicines. It awarded Rs.1,00,000/- towards pain and suffering on account of amputation. It awarded Rs.2,00,000/- for loss of amenities of life and disability. It awarded Rs.50,000/- towards loss of future income. It further awarded a sum of Rs.25,000/- as the expenses which could be required to be incurred by the respondent throughout his life for travel with the help of an attendant. Thus, it awarded a total compensation of Rs.3,97,880/-. 7. It has always been hard to find any objective standard for determining the amount of compensation to be awarded in respect of a loss of a limb of a body especially when the victim is a minor. There is no earning record and there is no way to know what amount the minor would have earned, had he lived his full life without the disability. : 4 : 8. The progress of a minor in the studies often is average at the young age. Differentiation arises only later in life and very often there is little correlation between the actual earning of a person in life and his educational performance at a relatively young age. Economic situation of the parents, though often relevant, may also not be a good guide for determining earning capacity of the minor in future. Children of poor often achieve excellence in life and the children of rich lag behind. Therefore, economic situation of the parents also would not be a sure guide for determining the earning capacity of a minor in future life. If the educational performance of a minor himself at a very young age, his social status and economic earning of the parents are not a sure guide to determine the possible future income, what else could be a test for determining the amount of compensation for a loss of limb of a minor in a vehicular accident. No definitive standard appears to have been laid down in the judicial decisions. However a guide for assessment of damages in personal injury can be found in the decision of the House of Lords in H. West & Son Ltd. V/s. Shephard reported H. West & Son Ltd. V/s. Shephard reported H. West & Son Ltd. V/s. Shephard reported in in in (1963) All E.R. 625 (1963) All E.R. 625 (1963) All E.R. 625, wherein it is said : "My Lords, the damages which are to be awarded for a tort are those which ’so far as money can compensate, will give the : 5 : injure party reparation for the wrongful act an for all the natural an direct consequences of the wrongful act’ [Admiralty Comrs v. Susquehanna (Owners), The Susquehanna]. The words ’so far as money can compensate’ point to the impossibility of equating money with human suffering or personal deprivations. A money award can be calculate so as to make goo a financial loss. Money may be aware so that something tangible may be procure to replace something else of like nature which has been destroyed or lost. But money cannot renew a 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. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional." . The above passage has been quoted with approval by the Apex Court in its decision in Jai Jai Jai Bhagwan Bhagwan Bhagwan V/s. Laxman Singh & Ors. reported in (1994) V/s. Laxman Singh & Ors. reported in (1994) V/s. Laxman Singh & Ors. reported in (1994) 5 SCC 5. SCC 5. SCC 5. As held by the House of Lords, the damages to be awarded in an action in tort for loss of limb is "so far as money can compensate and will give the injured party reparation for the wrongful act and for all the natural and direct consequences of the wrongful act." The words "so far as money can compensate", as held by the House of Lords, point to the importance of equating money with human suffering or personal deprivations. Money can be awarded to : 6 : make good financial loss but no amount of money would ever replace a limb which has been destroyed or lost forever. Money cannot renew a physical frame that has been battered and shattered. The physical loss cannot be compensated by money but often acts as a solace for a mental loss and torture for a person who suffers. Instances have been noted wherein persons who claim to be suffering great physical pain on account of an accidental injury are suddenly relieved of the pain when they receive a large amount of money as compensation. The money would, therefore, be able to mitigate, if not eliminate, the mental agony and suffering, provided the money is large enough. It is true that in the present case the money has been awarded under different heads, some of which appear to be overlapping partially but that is inevitable. Part of the pain and suffering (i.e. physical pain) is temporary and lasts for few days after the accident. The mental pain and suffering for the permanent loss of leg however lingers and perhaps is a loss for the rest of the life. That pain and suffering is for loss of future enjoyment of life. Thus the claim for pain and suffering would be for both physical as well as mental suffering and the claim for mental suffering may overlap partly with the claim for general damages. But that cannot be : 7 : ground for denying one or other of the claims altogether. Part of the pain and suffering (i.e. physical pain) is temporary and lasts for few days after the accident. The claim can be considered together under the heading "general damages" including mental pain and suffering for future loss of enjoyment of life as well as for the permanent disability. As stated earlier, no objective standards can be laid down for determining the claim for damages, whether they are given under one composite head or broken up under different heads, for loss of limb of body especially of a minor. It would depend upon the facts and circumstances of each case and the nature of the loss. When one leg of a person is amputed at a knee level, not only would it result in the loss of earning capacity but may completely devastate mental health of the minor victim. A person, whose leg has been amputed at the knee level as also a great toe and another toe of another leg have been amputed, would undoubtedly depend on others not only economically but also emotionally in daily walk of life. 9. Dependence is what causes the greatest suffering physically as well as mentally. Dependence is what a person does not want and that has been : 8 : thrust upon the respondent. Money would only be a partial solace and would not adequately compensate the physical and the mental loss suffered by the respondent - a child. To be dependant on others for the whole of the life is the greatest suffering and that is suffered by the respondent at a very young age of 11 years. That certainly calls for a high compensation. Looking this way, the total amount of compensation awarded cannot be said to be in any way excessive or exorbitant. If the tribunal has erred, it was on the lower side. 10. The learned Counsel for the appellant referred to a decision of this court in Jayawant Jayawant Jayawant Yeshwant Yeshwant Yeshwant Walawalkar V/s. V.P. Shanmugam and another Walawalkar V/s. V.P. Shanmugam and another Walawalkar V/s. V.P. Shanmugam and another reported reported reported in 2002 ACJ 1419 (Bom). (D.B.) and a in 2002 ACJ 1419 (Bom). (D.B.) and a in 2002 ACJ 1419 (Bom). (D.B.) and a decision decision decision of the Supreme Court in Ramesh Chandra V/s. of the Supreme Court in Ramesh Chandra V/s. of the Supreme Court in Ramesh Chandra V/s. Randhir Randhir Randhir Singh and Ors. reported in 1990 ACJ 777 SC. Singh and Ors. reported in 1990 ACJ 777 SC. Singh and Ors. reported in 1990 ACJ 777 SC. I do not find therein anything contrary to the view that I have taken. In paragraph No.7 of the decision in Ramesh Chandra (supra), Ramesh Chandra (supra), Ramesh Chandra (supra), the Supreme Court has rejected the contention that the sum awarded for pain, suffering and loss of enjoyment of life termed as "general damages" should be taken to be covered by damages granted for loss of earnings as misplaced and without any basis. The pain, suffering and loss of : 9 : enjoyment of life is resultant and permanent fact occasioned by the nature of injuries received by the claimants and the mental suffering he had to undergo. Thus, claim for a general damages for pain and suffering, loss of amenities and enjoyment of life were considered to be a separate head from the loss of earnings. 11. In the present case, therefore, the Tribunal has not erred in awarding a separate claim for loss of enjoyment of life and loss of future income. At this stage, I may repeat that in the case like the one at hand where a person has lost a limb of his body, it is not possible to calculate the amount of compensation with mathematical proposition. Unless the view taken by the Tribunal in such cases is found to be grossly inaccurate, it could not be proper to make any minor adjustment in the amount of claim awarded on the ground that the claim awarded tends to be on a bit on the higher side. In such cases it is better to err on the higher side and not lower, if precision is not possible. In the present case, the claim awards is certainly not excessively high. 12. In the circumstances, I find no reason to interfere in the decision of the Tribunal. The : 10 : Appeal is accordingly dismissed without any order as to costs. (D.G. (D.G. (D.G. KARNIK, J) KARNIK, J) KARNIK, J)