Andhra Pradesh State Road Trans. Corpn. vs R. Dayanand Naidu

Jagannadha Rao, J.—The Respondent who is a lorry driver suffered a serious injury on his hand while travelling as a passenger in the bus of the Respondent A.P.S.R.T.C., when the bus hit another vehicle coming from the opposite direction. The accident occurred on 29.9.1977. The Respondent was thrown violently from his seat and his right arm was grievously injured. There was dislocation and fracture of the right hand elbow. The Respondent was admitted as an inpatient in the Government hospital at Tirupati for 20 days where he underwent a major operation and according to him, his right hand has been permanently disabled. At any rate, he can no longer work as a lorry driver. He is unable to move his right hand freely. Earlier, he was earning Rs. 500/ - p.m. A total sum of Rs. 36,500/ - was claimed as compensation for the injuries.

The Tribunal held that the driver of the Appellant''s bus was negligent and that the accident in question had occurred on that account. The Tribunal awarded Rs. 5,000/ -towards shock, pain and suffering, Rs. 2,000/ - towards medical expenses, Rs. 10,000/ - for ''permanent disability'' and Rs. 3,000/ - for mental agony. It discounted Rs. 3,000/ -towards lump sum and awarded Rs. 17,000/ -. At the time of accident on 29.9.1977, the claimant was about 45 years and the trial took place in March, 1982. The claim petition was filed on 27.3.1978. The Tribunal passed an award for Rs. 17,000/ - on 31.3.1982.

In this appeal by the A.P.S.R.T.C., it is contended by the learned Counsel for the Appellant that the award made by the lower court is on the high side. On the other hand, it is contended by Mr. M. Ratna Reddy for the Respondent-claimant that the award is, in fact, on the low side. He contends that if only an appeal or cross-objections were filed, the claimant would have got a higher sum. In fact, he laments that the amount claimed in the claim petition itself is low.

The point for consideration is: Whether the award made by the Tribunal is liable to be interfered with?

Recently, I had occasion to deal with the heads of pecuniary and non-pecuniary damages and also with the mode of computation of the same. I had mentioned that counsel in the lower courts are not bestowing any attention whatsoever to the pleadings or to the evidence in accident cases, be they cases of injuries or of death. That the present case is an instance of these defects will be obvious presently.

As there is abundant evidence regarding the negligence of the driver of the Appellant''s vehicle, it is not necessary to go into the said question over again. The main question argued is, in fact, about the quantum of compensation.

In my judgment in K. Sapana v. B. Appa Rao 1988 ACJ 113 (AP), I have dealt extensively with the various heads and sub-heads relating to pecuniary and non-pecuniary damages while in P. Satyanarayana through his wife P. Mahalakshmi Vs. I. Babu Rajendra Prasad and Another, , I dealt with the evaluation of non-pecuniary damages, and said that the method consists of awarding conventional amounts for each particular type of injury and upgrading the same to keep pace with inflation. Again in Bhagwandas Vs. Mohd. Arif, , I dealt extensively with the evaluation of pecuniary damages in injury cases and in cases of death and a multiplier Table (based on Indian mortality rates published by the Government of India) was also given after holding that a ''real'' interest rate of 4 per cent is to be taken for discounting purposes. In other words, a 4 per cent rate was adopted as being applicable for non-inflationary periods in India. Basing on the principles mentioned in the abovesaid three judgments, the compensation in the present case has to be fixed.

I shall first take up the question of non-pecuniary damages. As stated in P. Satyanarayana through his wife P. Mahalakshmi Vs. I. Babu Rajendra Prasad and Another, , courts have been awarding conventional sums for loss of different limbs as being in proportion to the pain and suffering or loss of amenities (or enjoyments of life) in respect of the loss of the particular limb. Unfortunately, there has not been much uniformity in awards made by the various High Courts in case of loss of identical limbs. As also pointed out by the Gujarat High Court, in a series of cases, it is necessary to award more or less standardised amounts as non-pecuniary damages for loss of particular limbs, subject, however, to minor deviations. In fact, it is open to the parties to claim specific amounts towards each of the sub-heads of pain, suffering and loss of amenities. The court has to turn to awards made for like injuries in other cases.

It is true that there is an element of arbitrariness in making awards for loss of limbs or for pain, suffering or loss of amenities arising from such losses. But instead of leaving matters to total arbitrariness and absolute inconsistencies between different awards, courts have classified injuries into several types and have tried to standardise the awards basing the same on conventional amounts. Once these amounts are standardised, what all remains is to upgrade the future awards, on the basis of inflation between date of accidents in previous cases and dates of accidents in latter cases. This method, it is now accepted, as pointed out by me in P. Satyanarayana through his wife P. Mahalakshmi Vs. I. Babu Rajendra Prasad and Another, , as reducing the element of arbitrariness and atleast promises consistency. Consistency is maintained not only between awards for same type of injuries, but also between more serious injuries and less serious injuries. It is today well settled that awarding conventional amounts for loss of different limbs is better than leaving everything to pure conjecture. After all, some method based on some rational principle has to be evolved rather than leaving everything to conjecture. Claimants and lawyers will then know where they stand and will have some basic expectation of what the non-pecuniary awards in particular cases are likely to be. If everything is left to chance, it is bound to give room for arbitrariness and discrimination.

As this system of giving conventional amounts has been in vogue in England for some time and losses of limbs have been classified into various categories, it will not be out of place to look to the gradation of awards in that country. The comparative value of limbs will certainly help in making atleast a beginning in rational classification. While the range of awards is set out as a guide, it is not my intention that the same amounts (converted into rupees) are to be awarded here. In fact, the judgments of the Gujarat High Court abound in comparison of estimates of awards for non-pecuniary losses in England as well as in India. The guidance stops with comparison of relative awards. There is no question of awarding the same amounts (converted into rupees) for our purposes.

With this background, I shall briefly refer to the range of awards in 1983-84 in England between different types of injuries as set out in Munkman 1985, p. 184. The dates of awards being 1983-84, the dates of accidents in these cases are atleast three to four years earlier to the dates of awards.

(I) Total wreck cases: �

(a) Total paralysis with little or no consciousness. 35,000

(b) Total paralysis with consciousness. 50,000

(c) Partial paralysis paraplegia (below waist),

or hemiplegia (one side). 30,000 to 50,000

(d) Brain damage causing insane, defective or

psychopathic (misfit) condition, often with paralysis. 50,000

(e) Severe multiple injuries. 50,000

(f) Deformity at birth. 50,000

(II) Partial wreck cases:

(a) Multiple injuries, with or without deformation

with some degree of paralysis. 30,000 to 40,000

(b) Brain damage affecting behaviour or intelligence

(with or without injuries). 35,000

(III) Eyes:

(a) Total blindness (both eyes) 1984. 50,000

(b) Loss of one eye or sight of one eye. 11,000

(c) Lesser eye injuries. 4,750 to 10,000

(IV) Senses of smell and taste:

(a) Standard rate. 10,000

(V) Deafness and ear injuries:

(a) Total deafness. 20,000

(b) High degree of deafness. 7,500 to 5,750

(c) Other cases. 600 to 1,350

(VI) Head and face injuries:

(other than total or partial wreck cases)

(a) serious cases, affecting eyes, memory, speech,

headaches, depression. 10,000

(b) others. 1,000 to 6,500

(VII) Back, neck and trunk injuries:

(a) serious cases; slipped disc, pain, crush etc. 4,000 to 13,500

(b) other cases. 1,200 to 3,500

(VIII) Arms, hands and fingers:

(a) Loss (or virtual loss) of both arms and hands. 50,000

(b) Loss (or virtual loss) of one arm or hand. 25,000

(c) Injuries to arm (including shoulder and elbow):

(i) gross crippling of hand, crushed, arthritis,

restricted movement. 10,000

(ii) injury to ulnar nerve, shoulder. 5,000 to 7,000

(iii) others. 500 to 2,500

(d) Injuries to hand as a whole; or several fingers:

(i) amputation of whole or part of 4 fingers. 12,000

(ii) fingers crushed, one finger amputated-

impaired grip or two fingers cut. 7,500 to 8,000

(iii) other cases. 600 to 2,500

(e) Wrist:

(i) gross disability, upto 30 per cent unable to work. 8,000

(ii) movement restricted, pain. 6,500

(iii) disabled, unfit for employment. 4,800

(iv) other cases. 1,000 to 4,000

(f) Damage to one finger only:

(i) loss of index finger. 3,000

(ii) others. 1,000 to 2,500

(g) Thumb injuries: �

(i) total loss. 7,500 (upto)

(ii) injury-but no loss. 1,100

(IX) Leg and hip injuries:

(a) loss of both legs or feet. 37,500 to 50,000

(b) other gross injuries to both legs. 16,000 to 30,000

(c) Loss (or virtual loss) of one leg. 25,000 to 28,000

(d) Pelvis and hip joint:

(i) serious cases. 10,000

(ii) others. 4,500 to 10,000

(e) Other injuries to legs:

(i) gross crippling including shortening

of leg with pain. 7,000 to 10,000

upwards upto

(ii) substantial crippling and pain. 3,000 to 4,500

(iii) others-limp. 1,200 to 2,500

(f) Knee:

(i) knee or knee cap pins movement restricted, pain. 8,000

(ii) other cases. 1,600 to 4,500

(g) Ankle:

(i) fracture-unable to walk even with stick

for more than 50 yards. 7,500

(ii) other cases-screns. 1,000 to 1,500

(h) Injuries to feet:

(i) fractured heel, no movement wire, toes shortened. 8,000 to 10,000

(ii) other cases of fractures. 1,500 to 7,000

(i) Soft tissue injuries:

(i) Serious cases-pain. 5,000

(ii) Twisted knee, muscle damage. 400 to 4,000

(X) Genital-Urinary organs:

(i) fracture of femur, pubic bones dislocation

of pelvic joint, damage to urethra. 25,000

(ii) damage to bladder etc. upto 10,000

(XI) Scars and Disfigurement:

Awards range from 600 to 2,500

(XII) Burns:

(i) Serious burns-leading to amputation of leg. 25,000

(ii) Mild burns. 1,500 to 4,000

(XIII) Minor injuries: 350 to 1,500

(XIV) Slight or trivial injuries: 50 to 300

(XV) Mental disorder and neurosis:

(i) Serious cases. 22,500

(ii) Other cases. 7,500

I have given the range of awards in England for the purpose of giving an idea of the comparison between awards for different types of injuries. I repeat that it is certainly not my intention that the above amounts should be converted into rupees and awarded.

In the present case, the right hand of the claimant has no doubt been not amputated. But, it is in the evidence of the claimant that he is not at all able to move the right hand freely. The evidence is that after the major surgery that was done, he has pain in the right hand and cannot move the same. Learned Counsel for the Appellant has no doubt placed some reliance on the evidence of PW 5, the Assistant Civil Surgeon, to say that the disability is only 20 per cent. But PW 5 admits that the claimant will continue to have pain and that he will not have free movement of the right hand. It is not understandable as to how PW 5 could still say that the claimant could still drive a heavy vehicle. The learned Counsel for the Respondent-claimant is, in my opinion, right in contending that having regard to the pain and lack of movement in the right hand, there can be no question of the claimant being able to drive a heavy vehicle and there is also no purpose in any technical estimation of the disability at 20 per cent. There cannot, as per the evidence, be any possibility of the claimant using the right hand as such. In Munkman''s classification above referred to, it will be seen (VIII, IX) that in the cases of hand and leg, though there may not be any amputation as such, the immobility of the limb may amount to a ''virtual loss'' of the limb. From the evidence in the case, I am clearly of the view that this is a case of ''virtual loss'' of the right hand.

On the basis that this is a case of ''virtual loss'' of the right hand, the damages have to be ascertained. In P. Satyanarayana through his wife P. Mahalakshmi Vs. I. Babu Rajendra Prasad and Another, , where the claimant lost both eyes and became of unsound mind due to the severe head injury, I awarded Rs. 50,000/ - towards the non-pecuniary damages, i.e., pain and suffering and loss of amenities. The accident there was on 4.4.1979. Again in K. Sapana''s case 1988 ACJ 113 (AP), I have awarded a sum of Rs. 35,000/ - for loss of one leg, she being a young girl and her prospects of marriage having also been affected, due to amputation. The accident there was on 24.4.1978. Bearing in mind the comparative range of awards in England as set out above, it will be, in my opinion, reasonable to estimate the damages for loss of one hand at or about Rs. 25,000/ - for a man aged about 45 years on date of accident, who is already married and having children.

I shall now also refer to the range of comparative awards for loss of one hand by the various High Courts in our country.

S1. Date of

Decision Loss of hand Amount of non-

No. accident

pecuniary dama-

ges awarded

5.7.1967 1977 ACJ 213 (P and H) paralysis of hand. Rs. 10,000/ -

before 1972 1972 (13) Guj. LR. amputation of

662

hand, 11 years boy Rs. 17,500/ -

28.7.1974 1986 ACJ 761 (Raj) amputation of

hand, 25 years person Rs. 12,000/ -

15.11.1974 1978 ACJ 478 (Ori) amputation of

hand, 14 years Rs. 35,000/ -

14.9.1975 1983 ACJ 167 (All) No amputation but

hand rendered useless

for a cricket player Rs. 40,000/ -

12.5.1975 1981 ACJ 138 (Karn) Hand lifeless, 9 years Rs. 10,000/ -

(plus Rs. 25,000/ -

general damages)

30.5.1976 1986 ACJ 507 (P and H) amputation of hand Rs. 1 lakh

9.5.1979 1983 ACJ 44 (AP) amputation of hand Rs. 9,500/ -

From the above Table of cases, it will, no doubt, be observed that there is not much uniformity in the awards. This is because of the fact that while making awards, the courts did not review the earlier awards for similar injuries or for other more serious or less serious injuries. As stated by me earlier, it is time, we try to achieve some measure of uniformity and consistency in awards for like injuries. It is with this object in view that I have taken the trouble of giving all the above details. It is not difficult to give some random figure as damages in any given case but if we have to be consistent, we have to evolve some rational procedure in making assessments. It is true that the very award of conventional amounts for loss of particular limbs is in itself to some extent arbitrary but that does not mean that we should not try to reduce the scope of arbitrariness in the awards for non-pecuniary losses. Litigants as well as lawyers must as already stated be in a position to anticipate atleast a particular range within which any particular case may fall so that proper and appropriate amounts can be claimed in claim petitions and evidence led in that behalf. It will be dangerous to the rule of law to leave everything for chance and speculation.

On a consideration of the Table of Indian cases, it will be seen that item No. 7 is too high and item Nos. 6 and 8 are indeed too low. Bearing in mind the awards in P. Satyanarayana through his wife P. Mahalakshmi Vs. I. Babu Rajendra Prasad and Another, and K. Sapana''s case 1988 ACJ 113 (AP), which awards have been arrived at by me on a comparative assessment of other awards, and bearing in mind the range of awards in England as given in Munkman, one has to make reasonable estimate for loss of a hand. The Gujarat High Court (see item No. 2 in Table) has been consistently following the method adopted by me. Whenever similar cases arose the Gujarat High Court was upgrading previous awards for non-pecuniary losses by applying the Wholesale or Consumer Price Index figures. On that basis also if Rs. 17,500/ - was awarded for amputation of hand in a pre-1972 injury case, I am of the view that the figure of Rs. 25,000/ - for loss of one hand will be, more or less, reasonable.

It is unfortunate that the court below has deducted Rs. 3,000/ - towards lump sum payment out of the sums arrived at for ''non-pecuniary losses'' and medical expenses.

No such question of deducting for lump sum arises in cases of the sums awarded for ''non-pecuniary losses'' such as for pain, suffering and loss of amenities. Such a question of deduction is absolutely irrelevant in cases of non-pecuniary losses or even for medical expenses etc., the latter being actuals.

The court below has awarded Rs. 2,000/ -towards medical expenses. It has not awarded anything towards loss of earnings from date of accident up to date of trial (on actuals) or anything towards present value of future losses from date of trial till age of retirement (or thereafter, if there is no retirement). It is unfortunate that there is also no proper pleading nor evidence except that the claimant was earning Rs. 500/ - p.m. So far as past losses upto date of trial are concerned they have to be calculated on actuals and so far as present value of future losses is concerned, the age at the date of trial is to be taken into account for arriving at the appropriate multiplier. I may here clarify that it is only in injury cases that the computation of loss of earnings has to be separately made upto date of trial on actuals and by way of estimating the present value of future losses by applying the actuary''s multiplier appropriate to the age of the injured person at the date of trial.

In fatal accident cases, there is no question of computing the losses upto date of trial and again after date of trial. This is because of the fact that the person having died, the whole future losses from that date have to be ''estimated'' as opposed to injury cases where the claimant being alive upto date of trial, the actuals can be worked out and the estimation there starts only for the period after the trial. Further when the actuary''s multiplier from the Table is adopted, no question of deduction arises for lump sum payment.

As the sums arrived at by me, namely, Rs. 25,000/ - for non-pecuniary losses and Rs. 2,000/ - for medical expenses themselves amount to Rs. 27,000/ - as against the award of Rs. 17,000/ - made by the lower court, there is no need to estimate the damages for loss of earnings, past and future. This is again one of those unfortunate cases where the claimant has not been able to get the damages legally due to him for want of adequate pleas and evidence.

There is, therefore, no warrant for interfering with the award of Rs. 17,000/ - made by the lower Tribunal. The-said award shall carry interest at 12 per cent per annum from the date of petition in view of the stay orders obtained by the Appellant in this appeal. The Supreme Court is now awarding 12 per cent per annum rate of interest from date of petition.

For the aforesaid reasons, the appeal is dismissed, but without costs and it is clarified that interest will run at the rate of 12 per cent per annum from date of petition on the sum awarded by the Tribunal.