Case: Rekha Jain Vs. Natioanl Insurance Co.Ltd.

3. The necessary brief facts for the purpose of appreciating the rival factual and legal contentions urged in these appeals are stated as under:On 17.08.2001 the appellant was driving a Maruti Car bearing Regn. No. OR 15 D-9005 by which she was going along with her mother Grace Jain from Sambalpur towards Cuttack when the accident occurred. A truck bearing Regn. No. MP 23 D-0096 coming from the opposite direction from Cuttack towards Sambalpur hit the car which resulted in the instantaneous death of the mother of the appellant and the appellant received grievous injuries to her body. She was admitted to the VSS Medical College Hospital, Burla, Sambalpur and subsequently, she had undergone treatment at different Nursing Homes both at Cuttack and in the State of Kerala.4. On account of the accident, grievous injuries were sustained by the appellant on the right side of her face which left permanent scars and caused disfiguration of her face and other parts of her body including her leg. She underwent a number of surgeries due to grievous injuries sustained by her. She underwent treatment from 18.08.2001 to 10.10.2001 at Kalinga Hospital and later on, in different Nursing Homes/hospitals. The District Medical Board issued a certificate dated 24.02.2006 to the appellant certifying that she is suffering from 30% permanent disability. The appellant has approached the Motor Accident Claims Tribunal (for short ‘MACT?) at Sambalpur by filing a claim petition No. 119 of 2002 with a request to award just and reasonable compensation.5. The respondents herein, the owner of the vehicle and the insurer were impleaded and after service of summons on them they filed their statement of objections disputing the claim of the appellant. The owner of the vehicle has admitted the accident and has also stated that the motor vehicle involved in the accident is covered by the insurance policy which was valid up to 30.11.2001. He has further categorically stated that the driver who drove that truck had a valid licence. The respondent Insurance Company in its statement of objections denied its liability on the ground that the accident did not take place on account of rash and negligent driving of the driver who drove the offending vehicle, but was due to a motor cyclist who came in front of the truck on account of which the accident took place. It had further denied the various claims of the appellant.6. The case went for trial and on behalf of the appellant, three witnesses were examined including the appellant and documents were produced in justification of her claim. Both the owner and the Insurance Company have not adduced evidence in justification of their defence taken in their statement of objections. The Motor Accidents Claims Tribunal, on proper appraisal of evidence on record, has answered the contentious issues in favour of the appellant holding that the accident took place on account of rash and negligent driving of the truck by its driver. It is further held by the Tribunal that the appellant is entitled to compensation and awarded Rs. 23,51,726/- both under the heads of pecuniary and non-pecuniary damages with interest @ 6% per annum from the date of filing of the claim application i.e. 30.03.2002 till the date of payment. Aggrieved by the judgment and award of the Tribunal, both the Insurance Company and the appellant filed appeals before the High Court of Orissa in Appeal No. 580 and MACA 846 of 2007 respectively. The appeal of the Insurance Company was allowed by reducing the compensation from 23,51,726/- to Rs. 14,00,000/- after finding fault with the Tribunal in awarding a sum of Rs. 17,51,726/- towards pecuniary damages by accepting the vouchers, hospital bills, receipts which have not been marked as exhibits in evidence on behalf of the appellant. Though, the compensation awarded towards the pecuniary loss for the medical expenses, treatment charges and the purchase of medicines, supported by the documentary evidence, that is, bills, receipts, cash memos and vouchers, as per Exhs. 26-28 series worth Rs. 2,07,713/- and other documents cash memos, hospital bills and receipts etc. were marked as exhibits in the evidence, some of the hospital bills and receipts worth Rs. 5,72,000/-, though available on record, have not been marked as evidence to show that the appellant had also incurred medical expenses amounting to Rs.5,72,000/-. The Tribunal has taken into account all those documents on record as evidence by marking them as exhibits. However, only a sum of Rs.7,77,000/- in total was awarded by the High Court towards pecuniary damages and Rs.6,00,000/- towards non pecuniary damages under different heads which is rounded off in all at Rs.14,00,000/- by modifying the judgment of the Tribunal. The Misc case No. 386 of 2011 filed by the appellant was considered and the High Court modified its earlier order vide its order dated 10.3.2011 directing the Insurance Company to deposit the amount with interest with the Registry of the High Court and out of the said amount, it has directed the Registry to keep 70% in the fixed deposit in the name of the appellant in any of the Nationalized Bank for a period of five years and the balance amount be disbursed to the appellant on proper identification. The appeal of the appellant was dismissed in view of the fact that the appeal filed by the Insurance Company, MACA No. 580 of 2007 was allowed and the compensation awarded by the Tribunal was reduced. The same judgment is questioned by the appellant in these civil appeals seeking for enhancement of compensation urging various grounds.7.The grounds urged in these appeals are that the High court has exceeded its jurisdiction in interfering with the finding of fact recorded by the Tribunal with regard to award of pecuniary damages towards medical expenses without proper appreciation of pleadings and evidence on record and has considerably reduced the amount under the heading of pecuniary damages from Rs.17,51,726/- to Rs.7,77,000/-. The correctness of the said impugned judgment and order is questioned before this Court contending that the same is not only erroneous but also suffers from error in law and therefore, the appellant prayed for setting aside the same and award just and reasonable compensation in favour of the appellant both under the heads of pecuniary and non-pecuniary damages by applying the law laid down by this Court.8. Further, it is contended by Mr. Sukumar Pattjoshi, learned Senior Counselfor the appellant that the High Court has erroneously interfered with the impugned judgment and award of the Tribunal which is contrary to legal evidence on record and various judgments of this Court with regard to the claim and he also contended that the High Court has not awarded just and reasonable compensation to mitigate the hardship and restore the claimant?s position financially as she was in before the accident.9. Further, the learned Senior Counsel submitted that the High Court was not justified in not enhancing the non pecuniary compensation though sufficient evidence was brought on record by the appellant before the MACT to show that she was a celebrity in the sphere of modeling and acting who had a bright future ahead of her which was doomed by the accident which resulted in number of surgeries conducted on her body. The opportunity for the appellant to act in the movies and T.V. serials is lost by her on account of the grievous injuries sustained by her. The Tribunal has referred the same in its judgment while awarding compensation under different headings of non- pecuniary damages, namely, suffering and future loss of earnings but it did not take into consideration the permanent partial disablement suffered by the appellant which was assessed at 30% and disfigurement of her face due to accident and the fact that she is a celebrity acting in movies and TV serials and also in the field of modeling. Due to disfigurement of her face, she will be losing her future income as she will not get opportunities to act in the films and T.V. serials. Therefore, the learned Senior Counsel submits that both the Tribunal and the High Court were not justified in not awarding the just and reasonable compensation under the heading of future income. They have awarded only a meager amount of Rs.2,00,000/- towards the loss of income during the period of medical treatment though she was unable to earn nearly for a period of four years as she was undergoing treatment. Also, the Tribunal did not award any amount for loss of future income but has awarded a sum of Rs. 1,00,000/- towards the pain and suffering without taking into consideration the fact that she has undergone treatment in various Nursing Homes/Hospitals for plastic surgery and other surgeries and physiotherapy. A paltry sum of Rs. 1,00,000/- was awarded for loss of income during the period of medical treatment of the appellant. A sum of Rs. 2,00,000/- was awarded towards loss of amenities and pleasure of life. Therefore, she has filed the appeals requesting this Court to award just and reasonable compensation by appreciating the legal evidence on record.10. It is further urged that the High Court has failed to take into consideration the fact that the injured appellant is a single lady left in her family who was compelled to engage an attendant during the period of her treatment while she was in a state of immobility. It is further contended by the learned Senior Counsel that the learned members of the Tribunal and the High Court have erred in passing impugned judgment and order which are not in accordance with the cardinal principles laid down by this Court in various judgments in matters of Motor Vehicle Accidents Claims and they also did not consider the various relevant aspects such as the grievous injuries suffered by the appellant which has resulted in disfigurement of her face, who has lost her future career to act in the films and T.V. serials and also through advertisements as well as modeling. The Tribunal and High Court have erred in not taking into consideration the above said relevant aspects of the case to award pecuniary damages and adequate compensation under the heading of non- pecuniary damages without proper appreciation of pleadings and the legal evidence on record particularly when both the owner of the truck and the Insurance Company have not adduced rebuttal evidence. The Insurance Company has not obtained the permission as required under Section 170(b) of the Motor Vehicles Act to avail the defence of the insured and contest in the proceeding on the defence of the insured/ owner. Therefore, the finding of the Tribunal and the High Court in the impugned judgment and order and not awarding just and reasonable compensation in favour of the appellant is not only erroneous but also suffers from error in law. Therefore, it is contended by Mr. Pattjoshi, the learned Senior Counsel that the appellant is entitled to just and reasonable compensation. The learned Senior Counsel placed strong reliance on the evidence on record and has contended that the appellant was a good actress and model and worked in many films, albums, T.V. serials etc. and she had also won many awards like ?Ponds Woman of Tomorrow? for the year 1999, best actress in feature film ?Maa Pari Kiye Haba? etc. The said legal evidence was neither challenged nor was any rebuttal evidence adduced on behalf of either the owner of the truck or the Insurance Company to show that the appellant is not entitled to just and reasonable compensation. However, the High Court should have taken into consideration all the relevant facts and evidence on record as the Tribunal has failed to exercise its power and discharge its statutory duty to award just and reasonable compensation in her favour. The learned Judge of the High Court should have considered that the appellant is a film actress and her beauty is an essential requirement for acting in films, T.V. Serials and modeling. When her beauty is lost on account of disfigurement of her face, she has lost everything which means that there is hundred percent functional disability in her life. But, both the Tribunal and the High Court did not even consider 30% permanent partial disablement suffered by the appellant at the time of passing the award to determine the compensation under various heads of non-pecuniary damages. Further, it is contended by the learned Senior Counsel that the loss of future income of the appellant is on account of the fact that she had suffered grievous injuries in the accident and therefore her life has become miserable. In future as well, she will not be able to act in films and T.V. serials. The High Court as well as the Tribunal have failed to consider the evidence adduced by the injured appellant in her examination-in-chief wherein she has categorically stated about her income per annum and the loss of future income. Both the Tribunal and the High Court have not properly evaluated the evidence on record and have not applied the law on the point to determine the future loss of income of the appellant and on other heads to award just and reasonable compensation. Therefore, the learned Senior Counsel submitted that the impugned judgments of the Tribunal and the High Court are erroneous in this regard and are liable to be set aside and require modification with award of just and reasonable compensation. She has stated in her evidence that she earned Rs.50,000/- from ?Ponds beauty? competition, Rs.30,000/- from Oriya feature film ?Maa Pari Kiye Haba?, Rs.60,000/- from Oriya feature film ?Dharma Debata?, Rs. 75,000/- from Malayalam feature film ?Paith Dhigem Alam?, Rs.10,000/- from each T.V. serial, Rs.5,000 to Rs.7,000/- from each album. Further, it is urged by the learned Senior Counsel that both the Tribunal as well as the High Court erred in not differentiating between pecuniary damages and non pecuniary damages at the time of determining compensation and awarding the same. The law is well settled by this Court that pecuniary damages under various heads such as expenses incurred by the appellant that is, medical expenses, expenses spent towards surgeries, loss of earning during the period of medical treatment and expenses incurred by her to engage an attendant and other material losses suffered by her, should have been awarded by the Tribunal and the High Court under pecuniary damages. The Tribunal did not consider the above relevant aspects and evidence on record to award just and reasonable compensation. In relation to other two aspects, that is, loss of earning up to the date of trial and other losses suffered by the appellant, the same were also not considered. The Tribunal and the High Court have erred in not granting relief to the appellant considering the aspect of the loss of expectation of life on account of grievous injuries and shortened longevity of the appellant?s life. The Tribunal and the High Court have erred in not granting relief to the appellant by appreciating the facts of inconvenience, hardship, discomfort, disappointment, frustration and mental stress, pain and suffering and agony caused to her. They further failed to take into consideration the most important fact, that the face of the injured appellant was fully and hopelessly disfigured due to accident and she got plastic surgery on her entire face and other parts of her body by the plastic surgeons outside the State of Odisha. After plastic surgery, the appellant?s face appearance got changed and she herself was not able to recognize her changed face in the mirror. It is further urged by the learned Senior Counsel on behalf of the appellant that both the Tribunal as well as the High Court have failed to take into consideration all the relevant facts deposed by her before the Tribunal- that she has been undergoing treatment due to the accident which would continue till the complications subsist and she requires a lot of money to be spent for her future treatment and she also requires an attendant for this purpose. Therefore, impugned judgments and awards of both the Tribunal and the High Court are vitiated on both the counts of erroneous finding and error in law as they have not awarded just and reasonable compensation in favour of the appellant.

Reasoning:
The High Court has gravely erred both on facts and in law in interfering with the impugned judgment and award of the Tribunal in reducing the pecuniary damages awarded towards medical expenses incurred by the appellant herein from Rs.17,51,726/- to Rs.7,77,000/- solely on the ground that there is no documentary evidence in relation to the amount spent towards medical expenses which is awarded by the Tribunal. This assumption by the learned Judge of High Court is factually not correct. As could be seen from the record, there are large number of medical bills and vouchers produced by the appellant for having spent the money towards the surgeries conducted upon her and payment made to the various Hospitals and Nursing Homes namely, V.S.S. Medical Hospital, Burla, Kalinga Hospital, Bhubaneshwar, Nursing Home, Cuttack along with purchase of medicines for the aforesaid period which run to Rs.17,51,726/-. The above said factual aspects are stated in unequivocal terms in her statement of evidence, and she has also referred to the documents such as bills, receipts and vouchers obtained by her from various medical stores on the basis of the prescriptions of the doctors who have treated her. Some of the documents were marked in the evidence of PW-3 - the appellant herein and she had spoken about the expenses incurred towards her treatment and purchase of medicines. In relation to some other documents, the learned counsel for the Insurance Company has objected for making them exhibits without raising tenable objections. The learned member of the Tribunal neither upheld nor rejected the objection raised by the counsel on behalf of the respondent Insurance Company at the time of marking documents through the appellant in her evidence. Nonetheless, the learned member of the Tribunal has taken those documents into consideration and has awarded compensation under pecuniary damages having regard to the clinching evidence on record that the surgeries were conducted and treatment was taken by her in various hospitals and Nursing Homes for a period of four years. The correctness of the said claim is examined by us with reference to the documents in Ann. P-7 produced in this case, in which date-wise particulars with regard to the name of the Institutions and Medical Stores, the expenses incurred and bill numbers, payment made for the purpose of conducting blood tests, purchase of medicines, purchase of blood from the blood bank and cost of surgeries spent by the appellant are given. The Tribunal, in the absence of rebuttal evidence and the nature of cross examination of the appellant-PW3 made by the learned counsel on behalf of the Insurance Company and the evidence adduced by the appellant herein and the claim made by her under the pecuniary damages towards the medical expenses, tests, surgeries etc. and other incidental purposes, has accepted and has rightly awarded a sum of Rs. 17,51,726/- under the heading of medical expenses. The same has been arbitrarily and unreasonably, without assigning any cogent and valid reason, interfered with by the High Court and it has erroneously modified the judgment by reducing the amount from Rs. 17,51,726/- to Rs. 7,77,000/-. This has been very lightly interfered with by the learned Judge of the High Court without application of mind and consideration of legal evidence on record particularly in the absence of rebuttal evidence and further, the Insurance Company was unable to show that the documents referred to supra produced by the appellant in her evidence are fabricated documents, which have been produced with deliberate intention to prefer a false claim in this regard as contended by the learned counsel on behalf of the Insurance Company. We have carefully examined the evidence on record and the findings of the Tribunal to examine as to whether the findings recorded by the High Court in the impugned judgment for reduction of pecuniary damages from Rs.17,51,726/- to Rs.7,77,000/- is correct. On careful perusal of the evidence and documents produced by the appellant we have to hold that the finding and reason recorded by the High Court is wholly erroneous in law as the same is contrary to the facts pleaded and proved by producing evidence on record. Therefore, the same requires to be interfered with by this Court in these appeals. Accordingly, point Nos. (i) and (ii) are answered in the affirmative in favour of the appellant. The finding and reason recorded by the High Court in not awarding just and reasonable compensation under the various heads of non pecuniary damages for which she is legally entitled to on the basis of proven facts, legal evidence on record and law laid down by this Court, is not only erroneous but also suffers from error in law. On this aspect, separate reasons are assigned while answering point Nos. (iii) & (iv).14. Point No.(iii) is also required to be answered in favour of the appellant. We are of the view that the appellant is substantially entitled to enhancement of compensation under various heads of non-pecuniary damages having regard to the concurrent findings recorded on this aspect of the matter by the High Court. Both the Tribunal and the High Court have accepted the nature of injuries sustained by her and the percentage of permanent partial disablement suffered by her due to the Motor Vehicle Accident as per the Disability Certificate No.943 dated 24.2.2006 issued by the Chief Medical Officer of the District Medical Board of Sambalpur. This aspect of the matter is very relevant for the purpose of examining the claim of the appellant and also to find out as to whether the Tribunal and the High Court were justified in not awarding just and reasonable compensation in favour of the appellant under the various heads of non-pecuniary damages. This Court is required to keep in mind justice, equity and good conscience which must be the primary, relevant and important aspects for awarding just and reasonable compensation to an unfortunate victim, the appellant herein who has sustained grievous injuries to her body and whose future prospects are completely doomed. Further, the Tribunal and courts while awarding compensation for bodily injuries, must realise that the possession of one?s own body is the first and most valuable of all human rights and that all other possessions and ownership are the extensions of the basic right. Bodily injuries should be equated with the deprivation which entitles a claimant to damages and the amount of damages varies in accordance with the gravity of injuries. In this regard, it is worthwhile to refer to certain paragraphs which have been referred to by the Karnataka High Court in the case of K. Narasimha Murthy vs. The Manager, Oriental Insurance Company Limited and Anr. [ILR 2004 Karnataka 2471 ], wherein the Division Bench of the Karnataka High Court has considered the relevant important aspects from the judgment of this Court and the House of Lords and different learned scholars and authors of books on awarding pecuniary and non pecuniary damages. The abovementioned decision states about the approach of the Motor Accidents Claim Tribunals and Courts for awarding just and reasonable compensation in favour of the claimants in relation to the bodily injuries suffered by them. It is worthwhile to extract Paragraph 16 from K. Narasimha Murthy case (supra), which reads asThe Courts and Tribunals, in bodily injury cases, while assessing compensation, should take into account all relevant circumstances, evidence, legal principles governing quantification of compensation. Further, they have to approach the issue of awarding compensation on the larger perspectives of justice, equity and good conscience and eschew technicalities in the decision-making. There should be realisation on the part of the Tribunals and Courts that the possession of ones own body is the first and most valuable of all human rights, and that all possessions and ownership are extensions of this primary right, while awarding compensation for bodily injuries. Bodily injury is to be treated as a deprivation which entitles a claimant to damages. The amount of damages varies according to gravity ofview of the aforesaid decisions of this Court and various courts and High Court of Karnataka and authors referred to supra, we have to record the finding of fact having regard to the nature of grievous injuries and her disfigured face and that she was acting as an actress in the films, T.V. serials, etc. her functional disablement is 100%. This relevant aspect of the matter has been conveniently omitted to be considered both by the Tribunal as well as by the High Court while determining compensation under various heads of non-pecuniary damages. For the foregoing reasons, we are of the view that under the different heads of non-pecuniary damages she is entitled to higher compensation in her appeal. For that purpose, we are required to consider her annual income for the purpose of computation of just and reasonable compensation under the aforesaid different heads of non-pecuniary damages. It is in her evidence that her income depends upon the project. She got 30,000/- for her first film ?Maa Pari Kiye Haba? and Rs.75,000/- for Malayalam film ‘Paith Digem Alam?. For her performance in a serial, she used to get within Rs.7000/- to 10,000/-. She had received Rs.50,000/- for winning the ?Ponds Women of Tomorrow? Contest. The said evidence remains unchallenged in the cross examination by the counsel for the respondent Insurance Company. Having regard to her age and qualification and that she was acting in various Oriya and Malayalam films, T.V. serials and that she was in the beginning stage of her acting career and having regard to the fact that she has acted in various films, she would have definitely had a very good chance for acting in future if she had not suffered the grievous injuries, facial disfigurement and other injuries on account of the accident. She has also stated in her evidence that she is an assessee for income tax. She has got PAN card and has produced the same. Having regard to the aforesaid legal evidence on record and in the absence of documentary evidence to show her probable annual income, it would be proper for this Court to take her probable annual income as Rs.5,00,000/- for the purpose of computation of her future loss of earning. We have already held that though the disability certificate speaks of her disability at 30% on account of disfigurement of the face and other injuries to her body, her physical fitness is completely changed, she has put on weight 4 to 5 kgs., she is not fit to act and no film producer will offer her roles in their films to act as an actress. Having regard to the nature of the vocation, we have to hold that she is suffering from 100% functional disability. In the light of the facts of this case and keeping in view the aforesaid evidence on record that she is a film actress and also taking into consideration that in the film world of this country the heroine will certainly get the substantial sum for acting in films, T.V. serials, modeling, it would be just and proper for us to take 50% of her annual income for the purpose of computation of her future loss of income keeping in view that throughout her life she may not be in a position to act in the films, albums and modeling. Her annual income is assessed at Rs.5,00,000/-. 50% of which is Rs.2,50,000/- per annum which is multiplied by 17 as the proper multiplier considering her age at the time of accident by applying the legal principle laid down by this Court in Sarla Verma & Ors. v. Delhi Transport Corp. & Anr. [2009 (6) SCC 121 ], which amounts to Rs.42,50,000/-. Hence, we award Rs.42,50,000/- compensation under the aforesaid head. The Tribunal awarded only Rs.2,00,000/- which is enhanced to Rs.42,50,000/- under the said head.