Chander Kumar Pahwa vs State of Haryana and Others

M.S. Liberhan, J.—This Letters Patent Appeal has been filed on behalf of claimant against the judgment dated 11.10.1984 of the learned Single Judge in which he awarded a total compensation of Rs. Two lacs, for the injuries suffered by the claimant in a motor vehicle accident caused by negligent driving of respondent No.2.

The appellant only challenged the quantum of compensation awarded to him. The undisputed chequered history of pain and suffering which the appellant suffered so far or his suffering which is not disputed in the course of arguments before us and found by courts runs as under :-

The accident took place on 24.5.1976. The claimant remained . hospitalised as an indoor patient for 319 days in the P.G.I., Chandigarh from the date of accident and remained for about 100 days under the hospital care thereafter. Additional evidence by way of statements of doctors of the P.G.I. Chandigarh, as well as witnesses, was record, In totality it emerges that there were extensive wounds on the right knee with loss of leg below that level, left limb, left side of head, right shoulder, left ear. There was complete peeling of skin exposing the fractures, a crush injury of left leg, multiple fractures of tibia, fracture of fabula, extensive muscle damage, ultimately resulting in loss of legs. Nailing of fractured tibia positioned. Suffered infection, severe spasm bronchioles developed during anesthesia given to remove the dead tissues which was controlled by cortisone. Skin grafting was done from right side stump. Since there was a segment of tibia between the two fractures it required bone grafting. There was pedicle grafting of full thickness of skin from the abdomen. It is stated, that by the time the appeal came up for hearing before the learned Single Judge, six operations were done from 5.8.1976 to 31.3.1977 and about 8 operations have taken place later on. A major operation to make the leg capable of bearing weight was still to await. It was opined that claimant suffered 90% to 100% disability. Though it was opined at that time that left leg was amputated and there was no surety about the right leg, when this appeal came up for hearing, the claimant was brought in Court wherein he has been shown to have lost both his legs. The claimant also remained hospitalised in the Government Medical College, Rohtak, from time to time.

It has been said time and again that compensation in terms of money is a poor consolation to the injured. There can be no substitute in terms of money for the loss of limbs etc. of the injured, yet attempts are made to assess the pecuniary loss and compensation awarded on preponderance of probabilities compensation as have emerged from time to time are :-

(i) Tortfeaser is liable for all damages flowing directly from the tort irrespective of its being expected or not; (ii) The sum arrived at ordinarily should be just and as nearly as possible which should made good, the loss, the sufferer has suffered so far as money could do; (iii) Full compensation is to be made for pecuniary loss suffered which does not mean a wooden formulae of annual income multiplied by years. Past and future prospects of loss have to be determined in terms of money and have to be kept in mind. Compensation for injuries is to be calculated keeping in view the injuries suffered, the pain and suffering undergone or likely to be undergone, physical as well as psychological effects on the health of the sufferer, the expenses incurred including the prospective expenses, the medical treatment and its nature, nursing, special medical appliances, domestic help, consortium, expenses to cure, loss of ability to enjoy pleasant things of life and the qualitative difference made in the life by the injuries causing loss to avail the amenities.

There is no gain saying that while assessing compensation, the Tribunal has to be imaginative, wise and creative though while doing so the principles established that perfect justice is not attainable nor would be wise in the search of nearest approximate of justice. The already judicially determined awards assessing compensation in case of person who has suffered similar injuries can be taken as indicative for arriving at a just compensation.

Lastly though not leastly, it has been summed up that instead of itemissing the compensation under various heads, the Court has to apply the principle to the effect that whether the sum awarded is just and fair sum in the facts and circumstances of each case keeping in view the principles stated above.

Learned counsel for the appellant in order to buttress his submission relied on the principles laid down by Hon''ble the Supreme Court for assessing the compensation, by its judgment reported as R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, wherein the damage has been categorised into two categories i.e. one is pecuniary damage that is actually suffered and calculated which includes the medical expenses incurred loss of earning and other material losses while the other is special, damages or non-pecuniary damages which are incapable of being assessed by arithmetical calculations. These category of damages includes damage for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future, the loss of amenities of life which may include a variety of matters, loss of expectation of life, disappointment, frustration and mental stress in life etc.

Learned counsel for the appellant then relied on United India Insurance Co. Ltd. Vs. Narendra Pandurang Kadam and Others, wherein the Hon''ble Supreme Court awarded compensation of Rs. 6,25,000/- to a student who suffered shortening of leg, fracture of ribs, operation of fingers, and skin grafting etc.

Learned counsel for the appellant also referred to Gursharan Singh Sandhu v. State of Haryana and Ors.(1981) 99 P.L.R. 581, wherein the claimant remained hospitalised for about 600 days resulting in 14 operations, shortening of the leg, hindrance in ankle movements, chopping of heel and disability to the extent of 40%. A sum of Rs. 3 lacs were awarded as compensation along with 10% per annum interest. Similarly, in Dr. M.L. Sharma v. The State of Haryana and Anr. (1991)100 P.L.R. 308 wherein the claimant suffered 50% disability including shortening of leg etc. and inspite of the facility of free treatment had to pay the overhead expenses and the claimant was 40 years old Income Tax Deputy Collector, was awarded a sum of Rs. 2,25,000/- as compensation. In this case, emphasis was made on considerations spelt out as under:-

"It may be observed that it is an accepted principle that while awarded compensation in an injury case, one should keep in mind that the amount awarded to the claimants is just. Pecuniary as well as non-pecuniary loss suffered has to be taken in mind while calculating the compensation to be awarded. The amount awarded should be reasonable and fair. The claimant is entitled to the full compensation of the probable estimated pecuniary loss. It is no concern of the Court as to how the money awarded would be used by the claimant or whether the claimant can personally use the money awarded. The question the Court should pose to itself is whether after the receipt of the injuries and the aftermath of the accident, would be person be able to lead the normal life as he would have had but for the injuries? Has the personality of the claimant been effected or received a set back ? Hence the chances of rising in the service career or otherwise been retarded, affected or marred ? What is the pain and suffering that the claimant had already suffered and would be suffering for the rest of his life."

Similarly in Smt. Sudesh Raizada Vs. Deepak Gupta and Others, , wherein the claimant suffered brain injury, an award of Rs. 5 lacs was not considered to be unreasonable. Learned counsel for the appellant further cited the instance of Shri Tejinder Singh Gujral Advocate v. Inderjit Singh and Anr. (1987)92 P.L.R. 417 wherein compensation for future agony was granted at Rs. one lac and Rs. 300/- per month for 16 years was awarded for the attendant.

In the instant case, the learned Single Judge after noticing the sufferance of the injured, assessed a sum of Rs. 30,000/- as compensation for the burden of conveyance charges which undoubtedly has now become an unavoidable expenditure for the injured.

In our considered view, the learned Single Judge while assessing the conveyance charges incurred for coming and going to the P.G.I. for almost about 400 days by the attendants of the injured as well as he himself, has erred and though it is very difficult to find out mathematically the exact amount incurred, the compensation awarded is to meagre. Further the expenditure of conveyance having been accepted by the State at Rs. 30,000/- as the same has not been challenged, it would not be unreasonable, rather it would be just to assess the conveyance expenses incurred by the claimant and his attendants at Rs. 25,000/-. Thus the total expenditure under the heading of conveyance charges for the past is assessed at Rs. 25,000/- and for the future a sum of Rs. 30,000/- to Rs. 40,000/- would not be unreasonable. It is not being unrealistic, as future unfolded when the appeal is being decided, the amount assessed for conveyance is not a just compensation particularly keeping in view that the claimant has been glued to the wheel chair for all times to come in life. Keeping in view the ground realities and the price index rising, we award a sum of Rs. 66,000/- as just compensation for conveyance charges. We find support in this regard from the assessment made by Hon''ble the Supreme Court with regard to conveyance charges in R.D. Hattangadi''s case (supra), wherein almost in the similar circumstances conveyance charges of a person with wheel chair, were assessed at Rs. 1,42,000/-.

The learned Single Judge has assessed the loss of income for the period, the appellant remained on leave without pay as well as his wife to the extent of Rs. 26,000/- and Rs. 5400/- respectively. Calculating the future loss, the total amount; under this head was assessed at Rs. 40,000/-. In our considered view, it is on a; much lower side rather too meagre an assessment for the loss suffered in future: prospects of advancement in career. A sum of Rs. 9000/- as the loss of future career advancement in our considered view in the present day, or even at the time of the accident is not even peanuts to the appellant. In our considered view keeping in view in index of assessment noticed by Hon''ble the Supreme Court in R.D. Hattangadi''s case (supra) wherein the loss of income was assessed at Rs. 18000/-for the past and Rs. 1,60,000/- for the future, it would be just to assess compensation for loss of future advancement in career at least at the loss which the appellant has already suffered, which comes to Rs. 40,000/- by rounding up the assessed as just compensation at Rs. 75,000/- for husband and wife.

The Hon''ble Single Judge has estimated the expenditure incurred for 420 days on the overhead expenditure incurred by the appellant in the treatment i.e. special diet taken by the claimant (ii) The diet and expenditure incurred by the attendants gratituously on the claimant, other non-reimbursible medicines and medical equipments etc. at Rs. 20,000/- which is at a much lower side. It does not come to even 100/- rupees per day. Keeping in view the number of days, the claimant remained hospitalised in the P.G.I. and thereafter in other hospitals and getting out-door treatment from the P.G.I. visiting from time to time till day, it would be just and reasonable to assess the amount under this head at the rate of Rs. 150/-per day. By rounding up the figure the total amount in the circumstances of the case can be reasonably assessed at Rs. 50,000/-. Thus, the amount of Rs. 20,000/-awarded by the learned Single Judge is enhanced to Rs. 50,000/-.

In the totality of the facts and circumstances of the case wherein the claimant is embedded to the wheel chair and cannot take care of his daily needs particularly when his wife is in service, he needs an attendant for the rest of his � life, keeping in view the judgment of Hon''ble the Supreme Court in R.D. Hattangadi''s case (supra) for assessing expenditure for the home attendant for the past and future in respect of a claimant who is again fixed to a wheel chair, to the tune of Rs. 2,40,000/-, in our considered view the reasonable assessment for a permanent attendant needed by the appellant in the peculiar circumstances particularly when his wife is in employment and he is permanently in need of the aid of i wheel chair, would be at Rs. 50,000/-

Awarding of compensation for pain and suffering, physiothraphy, consultation of doctors, 100% permanent disability, psychological embellishment, loss of enjoyment of amenities of life, inability to walk for the rest of life, reasonable shortening of the life span, disappointment, frustration, mental and physical shock, undergoing of surgeries, large number of operations prospective pain and suffering, prospective/undergone and still to be undergone, to the extent of Rs. 1 lac, in our view, is not an adequate compensation. Accordingly we enhance compensation to the extent of Rs. 1,55,000/- under the aforesaid counts i.e. 55000/- more than the awarded Hon''ble judge.

The total amount of compensation to which the appellant has been found entitled under various heads of claims, thus, comes to Rs. 4,00,000/-. Accordingly, the award of learned Single Judge is modified to the extent that now the appellant shall be entitled to a total compensation as itemised above, of Rs. 4 lacs i.e. Rs. 2 lacs more than that what has been awarded by the learned Single Judge. The appellant shall also be entitled to 10% P.A. interest on the enhanced compensation from the date of claim application till the date of payment.

In the light of the above observations, this letters patent appeal is allowed and the award of the learned Single Judge is modified to the extent indicated above. No order as to costs.