Case: V. Mekala Vs. M. Malathi

3. The claimant-appellant is aggrieved by the determination of monthly notional income of the deceased by the High Court by taking a meager sum of [pic]6,000/- instead of [pic]18,000/- per month as she is a student studying in the 11th Standard holding first rank in her school. She had an excellent career ahead of her but for the accident in which she has sustained grievous injuries and has become a permanently disabled. Both the Motor Accident Claim Tribunal, Poonamallee (for short the Tribunal) as well as the High Court of Judicature at Madras failed to take into consideration all the relevant legal aspects of the matter namely, having arrived at the conclusion that on account of permanent total disablement suffered by the claimant-appellant on account of injuries sustained in the accident her future loss of income should have been assessed taking into consideration, her age at the time of accident which was 16 and that she is a brilliant student and could have acquired professional degree and procured a well paid job either in public or private sector thereby at least she would have earned a sum of [pic]18,000/- per month. Also, the future prospects of revision of wages, dearness allowance, increments and promotional benefits could have been earned by her. However, because of the accident caused by rash and negligent act of the driver of the offending vehicle of the owner- respondent she has been deprived of her potential income to eke out a comfortable livelihood as she has become permanently disabled, this legal and factual aspect has not been taken into consideration both by the Tribunal and the High Court. Therefore, she placed reliance upon the law laid down by this Court in the case of Santosh Devi v. National Insurance Company Ltd. & Ors. [(2012) 6 SCC 421] , having regard to her age, 50% of the future prospects should have been added by both the Tribunal and Appellate Court to the notional monthly income that could be fixed for determination of the loss of earning as she had lost her earning capacity as she has become permanently disabled. Therefore, the compensation under this head of loss of earnings is required to be enhanced considerably4. The second ground sought to be pressed into operation by the learned counsel on behalf of the claimant-appellant is that the concurrent finding of fact recorded by the High Court on the basis of evidence of Doctor-PW2, who has examined the appellant, who has made observations regarding the nature of her injuries which will be recorded in the later part of this judgment5. Upon examination of the claimant-appellant, the Doctor-PW2 opined that she is not able to squat, her disability is ascertained at 70%, therefore, she is not able to sit with cross legged comfortably on the floor and the right range of movement (Gionimeter) – fixed flexim deformity of 850 - ligament instability present on account of grievous injuries sustained by her in the unfortunate accident. Therefore, PW2 has assessed the permanent disability of the claimant-appellant at 70% and to this effect he has issued Ex. P12-the Disability Certificate and the same was marked as an exhibit in justification of the claim for awarding just and reasonable compensation under the loss of earning, pain and suffering, loss of amenities and mental agony. The above said substantial piece of evidence in the form of disability certificate on record has not been taken into consideration in the proper perspective by the High Court though it has concurred with the finding of fact recorded by the Tribunal in re-appreciating the evidence on record. The legal aspect of the matter regarding the quantum of compensation is required to be dismissed and awarded to compensate for human pain and suffering and deprivation of happiness and enjoyment of personal life of the claimant. The compensation that would be awarded can not be equated with the human sufferings or personal deprivation as observed by this Court in the case of R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. & Ors. [(1995) 1 SCC 551] 6. Both the Tribunal and Appellate Court were required to consider the fall in the value of money which requires continuing reassessment of these awards and periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and are not subject to large variations in individual cases as held in the case of R.D. Hattangadi (supra).

Reasoning:
11. The first question is required to be answered in favour of the claimant-appellant for the following reasons :-Having regard to the nature of following injuries sustained by the appellant in the accident which is an undisputed fact :-Right lower limb: Hypertrophic scar extending from distal thigh to distal 2/3rd of right leg circumferentiallyDecreased sensation over the M/3rd of Right legLeft leg: Hypertrophic scar over middle 3rd to distal 3rd of left leg and with patchy areas decreased sensation over the scarMuscle wasting of both the legs presentRight Ankle: Equinous deformity of Right ankle of 1st present. Fixed Flexim deformity of II Joints of toes about 10th present16. Further, having regard to the undisputed fact that there has been inflation of money in the country since the occurrence of the accident, the same has to be taken into account by the Tribunal and Appellate Court while awarding compensation to the claimant-appellant as per the principle laid down by this court in the case of Govind Yadav which has reiterated the position of Reshma Kumari v. Madan Mohan [(2009) 13 SCC 422] case, the relevant paragraph of which reads as under: 46. In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration19. Therefore, in the light of the principles laid down in the aforesaid case, it would be just and proper for this Court, and keeping in mind her past results we take [pic]10,000/- as her monthly notional income for computation of just and reasonable compensation under the head of loss of income. Further, the High Court has failed to take into consideration the future prospects of income based on the principles laid down by this Court in catena of cases referred to supra. Therefore, the appellant is justified in seeking for re-enhancement under this head as well and we hold that the claimant-appellant is entitled to 50% increase under this head as per the principle laid down by this Court in the case of Santosh Devi (supra).20. The compensation under the head pain & suffering and mental agony was awarded by the High Court after recording concurrent finding with the award passed by the Tribunal. However, the courts below have not recorded the nature of the permanent disablement sustained by the appellant, while awarding [pic]1,00,000/- under this head which is too meager an amount and is contrary to the judgment of R.D. Hattangadi and Govind Yadav cases (supra).22. The amount of compensation awarded under the head of Loss of enjoyment of life and marriage prospects at [pic]2,00,000/- is totally inadequate since her marriage prospect has substantially reduced and on account of permanent disablement she will be deprived of enjoyment of life. Therefore, it would be just and proper to enhance the compensation from [pic]2,00,000/- to [pic]3,00,000/-. In so far as, purchase of crutches periodically, it would be just and proper to award a sum of [pic]50,000/-23. Further, the accident had taken place on 11.4.2005 and the claimant- appellant, since then has been fighting for justice, first, in the Motor Accident Claim Tribunal, then the High Court and finally before us. Therefore, we consider that she is rightfully entitled to the cost of litigation as per the principle laid down by this Court in the case of Balram Prasad v. Kunal Saha & Ors. [(2014) 1 SCC 384] Therefore, we award a sum of [pic]25000/- under the head of cost of litigation