Case: Kavita Vs. Deepak

(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 Sri Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Company Limited (2011) 13 SCC 236 , the Court observed: “8. 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.9. 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.” 18. 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.19. Dr. Rajesh Gangwani, who was examined before the Tribunal deposed that the appellant is kept alive by feeding through a pipe and nursing care is required for daily routine work also. He stated that she had suffered 75% permanent disability and there seems to be no probability of recovery as she has lost her capacity for hearing, understanding, speaking and establishing interaction. However, he also stated that since appellant is still under treatment, final conclusion about permanent disability cannot be established. Dr Sunil Athwale, deposed that appellant was gaining consciousness slowly but the status of sense was at the lowest level and no improvement has come in the last 2 and half years. He stated that probability of further improvement is negligible and food and liquid are given through pipes. He stated that disability should be treated as 100% but he had not shown 90% as permanent disability in the certificate as while treatment continues, hope of improvement always prevails. On the basis of the same, the Tribunal held that the appellant had suffered permanent disability however the presumption cannot be drawn that she suffered 75% permanent disability because she is still undergoing treatment and the doctor himself had deposed that final conclusion regarding permanent disability cannot be established till the time treatment continues. The High Court did not record any finding on this issue but increased the amount awarded towards permanent disability and future loss of earning. Since the discharge certificate was issued on 26.6.2004, the claimant had made little progress up till the time the disability certificate was issued on 23.8.2006 and even till date she continues to be in a vegetative state and requires an attendant at all times and continued physiotherapy, we are not inclined to approve the approach of the Tribunal and High Court granting a lump sum compensation because both failed to take into consideration the loss of income during the period of treatment when the appellant was totally incapacitated. Even if the income of the appellant is taken to be Rs.2,000/- , the loss of income during the period of treatment, which continued till the judgment of the High Court i.e. from 2.5.2004 to 18.5.2010 would be Rs.1,47,000/- approximately. 20. As per the disability certificate issued on 23.8.2006, the appellant had virtually become vegetable and, therefore, she is not in a position to look after herself what to say of discharging her functions as partner of Tirupati Enterprises. Therefore, by applying the multiplier of 17, the future loss of earning would come to Rs.3,67,200/-. 21. In light of the decision in Raj Kumar v. Ajay Kumar (supra), the Tribunal and High Court erred in failing to award compensation under the heads of loss of amenities and loss of expectation of life. Relying on the decision in Nizams Institute of Medical Sciences v. Prasanth S. Dhananka (supra) and assuming the claimant’s life expectancy to be 55 years, we deem it appropriate to award attendant charges at the rate of Rs.2000/- per month and physiotherapy expenses at the rate of Rs.3000/- per month. With regard to the head of physical and mental pains the amount is enhanced to Rs.3,00,000/- and another Rs.3,00,000/- is awarded under the heads of loss of amenities and loss of life expectancy.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 caused 100% disability and paraplegia below the waist. While determining compensation payable to him in a claim filed under Section 110A, Motor Vehicles Act,In Arvind Kumar Mishra v. New India Assurance Co. Ltd. and another (2010) 10 SCC 254 , the Court sought to assess future earnings of a final year engineering student who received injuries to the brain among others which resulted in 70% permanent disability and he needed a helper throughout his life. The Courtdo 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 in so far 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. In some cases for personal injury, the claim could be in respect of life times 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 reasonablesupplied)15. In Nizams 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 paralyzed at the age of 20. After detailed examination of the issue, the Court observed asWe 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 the 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 visualized. 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,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 followingprovision 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 medicaldamages (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 , the CourtThe 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.9. 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.19. Dr. Rajesh Gangwani, who was examined before the Tribunal deposed that the appellant is kept alive by feeding through a pipe and nursing care is required for daily routine work also. He stated that she had suffered 75% permanent disability and there seems to be no probability of recovery as she has lost her capacity for hearing, understanding, speaking and establishing interaction. However, he also stated that since appellant is still under treatment, final conclusion about permanent disability cannot be established. Dr Sunil Athwale, deposed that appellant was gaining consciousness slowly but the status of sense was at the lowest level and no improvement has come in the last 2 and half years. He stated that probability of further improvement is negligible and food and liquid are given through pipes. He stated that disability should be treated as 100% but he had not shown 90% as permanent disability in the certificate as while treatment continues, hope of improvement always prevails. On the basis of the same, the Tribunal held that the appellant had suffered permanent disability however the presumption cannot be drawn that she suffered 75% permanent disability because she is still undergoing treatment and the doctor himself had deposed that final conclusion regarding permanent disability cannot be established till the time treatment continues. The High Court did not record any finding on this issue but increased the amount awarded towards permanent disability and future loss of earning. Since the discharge certificate was issued on 26.6.2004, the claimant had made little progress up till the time the disability certificate was issued on 23.8.2006 and even till date she continues to be in a vegetative state and requires an attendant at all times and continued physiotherapy, we are not inclined to approve the approach of the Tribunal and High Court granting a lump sum compensation because both failed to take into consideration the loss of income during the period of treatment when the appellant was totally incapacitated. Even if the income of the appellant is taken to be Rs.2,000/In light of the decision in Raj Kumar v. Ajay Kumar (supra), the Tribunal and High Court erred in failing to award compensation under the heads of loss of amenities and loss of expectation of life. Relying on the decision in Nizams Institute of Medical Sciences v. Prasanth S. Dhananka (supra) and assuming thelife expectancy to be 55 years, we deem it appropriate to award attendant charges at the rate of Rs.2000/per month and physiotherapy expenses at the rate of Rs.3000/per month. With regard to the head of physical and mental pains the amount is enhanced to Rs.3,00,000/and another Rs.3,00,000/is awarded under the heads of loss of amenities and loss of life expectancy.