Gyanti and Another vs Samunder Singh and Others

Pradeep Nandrajog, J.—On 22.11.2002 appellant No. 2 Chhaya Bharti sustained serious injuries in a vehicular accident. She is aggrieved by the quantum of compensation awarded to her.

Total compensation awarded to her is Rs. 1,65,455. Break-up is as under:

(a) Medicines, medical treatment, special diet and conveyance Rs. 15,455 (b) Pain and suffering Rs. 50,000 (c) Loss of enjoyment, amenity and general damages Rs. 1,00,000

Since the injured Chhaya Bharti is in appeal and there are no cross-objections, I need not deal with any other issue dealt with by learned Motor Accidents Claims Tribunal save and except, the quantum of damages awarded.

The date of accident is 22.11.2002. Age of appellant No. 2 as on the date of accident was 7 years.

The period during which the injured remained hospitalised was 4 months, i.e., from 22.11.2002 to 29.3.2003.

The entire treatment was at Sushrut Trauma Centre, Delhi. With regard to injuries suffered by the injured, it is relevant to note the testimony of Dr. V.K. Goel. In his testimony as PW 2, Dr. V.K. Goel, Dy. Medical Superintendent, Sushrut Trauma Centre, Delhi has deposed as under:

As per record the patient was female child of 7 years and she had sustained crush injury in the right leg with fracture both bones leg with vascular injury. Her vessels were all crushed on operation. She remained hospitalised from 22.11.2002 to 29.3.2003. During this period she underwent repair of vessels and external fixator with debridement of the wound and skin grafting later on. The type of injuries the injured had sustained might require repeated operative procedure. The injured has suffered the permanent disability. The entire medical record running into 63 pages is Exh. PW2/A?

A photograph which is Annexure B of this appeal shows the present physical condition of the injured. The same reveals that she is suffering from osteomyelitis. It cannot be disputed that osteomyelitis results in 40 per cent to 60 per cent permanent disability of the limb.

In the light of afore-noted backdrop facts I shall determine the ''fairness'' of the compensation assessed by the Tribunal.

The only question that needs consideration is that whether sum of Rs. 1,50,000 awarded towards pain and suffering as also towards loss of enjoyment of life, amenity and general damages is adequate?

Pecuniary damages suffered are easy to determine, as the Tribunal would have some imperial data before it.

Pecuniary loss may include the following:

(i) Special damages or pre-trial pecuniary loss.

(ii) Prospective loss of earnings and profits.

(iii) Medicinal expenses.

(iv) Cost of future care and other expenses.

An injured is entitled to be put in the same position, as he would have been if he had not been wronged. But it is impossible to be achieved when it comes to non-pecuniary damages. Evaluation of general damages of non-pecuniary damages for pain, suffering, loss of amenities, disfigurement and loss of expectation of life creates a problem.

However, law has evolved certain principles to determine the non-pecuniary damages. Three areas have to be focused:

(I) Conceptual.

(II) Personal.

(III) Functional.

The conceptual treats the loss of a limb as the loss of an asset or a property. The loss though intangible, can be valued. Where it results in potential loss of earning, primary data would be the expected and anticipated fall.

Under personal loss, the damages have to be assessed not in relation to the personal asset but in relation to human happiness. Evaluation being the difference between the happiness the victim would have enjoyed if he had not been injured and the happiness or unhappiness he would experience as an injured. Personal loss would also include loss of amenities.

Under the functional loss, focus is on solace. A person deprived of his ability to do something which he enjoys in life cannot be recompensed for that loss, but can be given money as some consolation or solace.

Non-pecuniary damages are granted where the accident victim survives and suffers an injury. Case-law in India would reveal that non-pecuniary damages are divided into following sub-heads:

(i) Pain and suffering.

(ii) Damages for mental and physical shock.

(iii) Loss of amenities of life which may include a variety of matters, i.e., on account of injury the injured may not be able to walk, run or sit, etc.

(iv) Loss of expectation of life, i.e., on account of injury normal longevity of the life of the person concerned is shortened.

(v) Disfigurement.

(vi) Discomfort or inconvenience, hardship, disappointment, frustration and mental stress in life.

(vii) Loss of marriage prospects.

An analysis of above discussion in relation with the facts of the instant case reveals that compensation awarded by the Tribunal is inadequate. Learned Tribunal has erred in not granting damages to the injured for loss of future earning, disfigurement and loss of marriage prospects.

One of the main items of pecuniary losses is ''loss of earnings'' both past and future.

In the instant case, medical record of the nursing home, Exh. PW2/A shows that the grafting procedure had to be resorted to. Total period spent in the hospital was 4 months. Extent of injury can be gauged from the span of time spent for recovery. Further, physical impairment can be gauged from the nature of injury and operation performed.

A skin grafting is not a complete substitute for the natural healing of the wound when injury is of a lesser magnitude. There is always a shriveling of the graft. Being on the left thigh and the knee movement of the injured would certainly be restricted and this would hamper her future earning capacity.

Loss of future earnings has to be determined with reference to objective facts in the shape of existing earnings, future prospects of growth in the avocation pursued by the deceased. Academic qualifications, nature of avocation, etc., guides the court in determining loss of future earning capacity. In case of minor children, all these factors are missing. In the absence of any imperial data showing the future prospects of injured, I consider it reasonable to award Rs. 50,000 towards loss of future earning capacity.

Disfigurement has always been regarded as an important element in assessing damages, especially where a young girl is disfigured and her prospects of marriage impaired. It is often difficult to decide how much of the damages is awardable for injuries and how much for disfigurement. In the decision reported as Farley v. North East Metropolitan Regional Hospital Board 1954 The Times, 9 Nov., a married woman, aged 30, had both legs badly burnt and scarred while in the hospital and had to have a skin grafting operation which left a scar on her thigh. She was unable to walk far or dance. She was awarded $ 3,000 for disfigurement.

In the instant case, photograph of the injured which is Annexure B of this appeal clearly shows that right leg of the injured is badly disfigured.

Noting the young age of the injured and the extent of disfigurement, I consider it fair and reasonable to award Rs. 50,000 towards ''disfigurement'' and Rs. 50,000 towards ''loss of marriage prospects''.

Thus, appeal stands disposed of by enhancing the compensation as follows:

(a) Loss of future earning capacity Rs. 50,000 (b) Disfigurement Rs. 50,000 (c) Loss of marriage prospects Rs. 50,000 -------------- Total Rs. 1,50,000 --------------

Enhanced compensation in sum of Rs. 1,50,000 shall carry an interest at the rate of 6 per cent per annum from the date of claim petition till date of realisation.

It is further directed that enhanced compensation together with interest accrued thereon be kept in a fixed deposit scheme with a nationalised bank for a period of 5 years.

No costs.