Islavath Nama vs S.A. Raheem and Another

M. Jagannadha Rao, J.—This appeal raises the question of estimating the non-pecuniary damages for injury to the right leg of the Appellant resulting in fracture of the shaft of the right femur, right upper thigh resulting in shortening of the right leg.

The accident in question occurred on 26.2.1981. The Appellant is an agricultural labourer aged about 25 years and claimed to be earning about Rs. 300/ - p.m. at the time of accident. The claim petition was filed on 12.8.1981, claiming Rs. 45,000/ - as general damages, Rs. 4,000/ - as special damages and Rs. 1,000/ - as medical expenses, in all, Rs. 50,000/ -. The general damages included the claim for loss of earnings at Rs. 300/ - p.m. on the basis that the Appellant, who was aged 25 years, would live another 40 years. Unfortunately, no particular amount was claimed towards pain and suffering or loss of amenities. The trial took place in December, 1981 and the award was given by the Tribunal on 24.2.1982, awarding Rs. 10,500/ - (Rs. 9,000/ - as general damages, Rs. 1,000/ - as special damages and Rs. 500/ - as medical expenses) as against the total claim for Rs. 50,000/ -. The Tribunal referred to Tara Singh v. Mangal Singh 1978 ACJ 53 (P and H), wherein for a similar injury caused to an agriculturist, an award of Rs. 19,000/ - was made assessing loss of earning capacity at 50 per cent to a person who was aged 50 years. There is no proper evidence of the details of the assessment. It is against this award for Rs. 10,500/ - that the claimant has preferred this appeal valuing the appeal at Rs. 50,000/ -.

In this appeal, it is contended by the Appellant''s counsel that the award of Rs. 10,500/ - made by the lower Tribunal is hopelessly low and that the pecuniary and non-pecuniary damages have not been properly or separately evaluated according to law. On the other hand, the learned Counsel for the A.P.S.R.T.C. has contended that the award made by the Tribunal is reasonable.

The point for consideration is as to what amount is to be awarded for the non-pecuniary and pecuniary losses in the present case.

In my judgment in K. Sapana v. B. Appa Rao 1988 ACJ 113 (AP), I have dealt with the heads of non-pecuniary and pecuniary damages. That was a case of amputation of the leg of a young girl. Again, in P. Satyanarayana through his wife P. Mahalakshmi Vs. I. Babu Rajendra Prasad and Another, , I have given the mode of computation of non-pecuniary damages. That was a case of loss of both eyes where the claimant became mentally unsound. In Bhagwandas Vs. Mohd. Arif, , I dealt with the computation of the present value of future earnings. Again in A.P.S.R.T.C. v. R. Dayanand Naidu 1987 (2) ALT 367, I have dealt with estimation of damages for loss of a hand. In the present case, the estimation is for the injuries to a leg-short of amputation.

I shall first deal with the estimation of non-pecuniary losses. The claim petition states that the claimant received multiple injuries, involving fracture of the right thigh, right leg below knee, and injuries to the waist, backbone, left chest and forehead. It is claimed that the Appellant was treated in the Head Quarters Hospital, Khammam for three months and that he was later under treatment by a village doctor for another three months. Expenditure for medicines is claimed at Rs. 1,000/ -. The claimant is an agricultural labourer aged 25 years, said to be earning Rs. 300/ - p.m., and it is stated that he is unable to attend to his normal work. He is married and has to support his wife and a child aged 3 years. The claimant belongs to the lambada community. PW 5, the Civil Surgeon, Khammam Hospital stated that the Appellant sustained the following injuries: (i) Diffused swelling of the size of 5" diameter on the outer aspect of the right thigh in the middle third; (ii) Superficial abrasion of 1" X 1" over the outer aspect of the right knee, and (iii) A lacerated wound 1/2" X 1/8 X 1/8" over the left parietal occipital region of the scalp. According to PW 5, the first wound is a grievous one while injuries 2 and 3 are simple in nature. The X-ray shows fracture of shaft of femur of the right upper thigh. PW 6, who is the Assistant Civil Surgeon, says that the injury to the shaft is grievous and has resulted in permanent disablement. The right leg of the patient has become shorter than the left. The claimant is disabled from attending to his normal duties and work. The patient asked for being discharged as he was not getting assistance from his family members. He was discharged at his request on his promising to undergo treatment elsewhere. PW 6 stated that the Appellant needed a further operation which could be done only at Hyderabad. PW 6 was not cross-examined regarding his evidence that the right leg of the claimant got shortened. PW 4, the claimant''s father, deposed that as the doctors demanded Rs. 500/ - for conducting the operation, the claimant requested to be discharged.

In A.P.S.R.T.C. v. R. Dayanand Naidu 1987 (2) ALT 367, I have given the details of the range of awards in England in the cases of various types of injuries so that lawyers and courts can obtain an idea of the conventional amounts. In P. Satyanarayana through his wife P. Mahalakshmi Vs. I. Babu Rajendra Prasad and Another, , I have given a range of awards in total wreck cases including loss of both eyes. I awarded Rs. 50,000/ - as non-pecuniary losses. In K. Sapana''s case 1988 ACJ 113 (AP), I have awarded Rs. 35,000/ - for loss of one leg by amputation and in Dayanand Naidu''s case 1987 (2) ALT 367, I estimated the ''virtual loss'' of the right hand at Rs. 25,000/ -. These awards are referable to the respective dates of the accidents in those cases. The question in the present case is with regard to shortening of the leg due to the fracture of femur.

It will be seen that in England, the range for loss of both legs is upto � 50,000, loss of one leg about � 25,000, and serious cases of fracture and limp upto � 10,000, while lesser injuries with limp are compensated by awarding upto � 4,500.

I shall now refer to the awards for non-pecuniary losses by various High Courts in India according to chronology of the date of accident. These cases relate to accident to leg involving shortening of leg (as distinguished from amputation cases).

Sl. Date of Citation Award for pain, suffering

No. accident

and loss of amenities

9.11.1963 1972 ACJ 27 (MP) Rs. 6,000/ -

14.9.1965 1974 ACJ 367 (P and H) Rs. 11,000/ -

11.3.1968 1981 ACJ 460 (Bombay) Rs. 10,000/ -

22.7.1968 1976 ACJ 156 (Gujarat) Rs. 15,000/ -

28.3.1970 1982 ACJ (Supp) 104 (P and H) Rs. 6,000/ -

13.5.1970 1976 ACJ 45 (Karnataka) Rs. 2,500/ -

13.7.1972 1983 ACJ 90 (Gauhati) Rs. 10,000/ -

23.7.1972 1981 ACJ 167 (Gujarat) Rs. 15,000/ -

2.9.1972 1981 ACJ 53 (Gujarat) Rs. 25,000/ -

25.3.1973 1982 ACJ 45 (Gujarat) Rs. 15,000/ -

27.9.1974 1986 ACJ 654 (Gujarat) Rs. 35,000/ -

10.10.1974 AIR 1978 Guj 158 Rs. 22,500/ -

24.8.1976 1982 ACJ (Supp) 625 (Gujarat) Rs. 10,000/ -

30.10.1976 1986 ACJ 736 (P and H) Rs. 10,000/ -

6.12.1976 1983 ACJ 436 (Allahabad) Rs. 20,000/ -

28.1.1977 1982 ACJ 451 (Kerala) Rs. 15,000/ -

30.5.1977 1981 ACJ 416 (P and H) Rs. 15,000/ -

19.12.1977 1986 ACJ 127 (Gujarat) Rs. 5,500/ -

18.8.1978 1986 ACJ 481 (P and H) Rs. 25,000/ -

24.5.1981 1985 ACJ 150 (Karnataka) Rs. 30,000/ -

On a comparison of these awards, it will be noted that in our country, the awards for fracture of femur and consequent shortening of leg are comparatively lower than awards in cases of amputation of leg. On the other hand, in England, the awards for shortening of leg are almost about one-half or less than the awards for loss of one leg. In the context of the trend of awards in India, we have naturally to go by them in preference to the comparative scheme in England.

I have pointed out earlier that I have awarded Rs. 50,000/ - for a total wreck case involving loss of both eyes and mental derangement in P. Satyanarayana through his wife P. Mahalakshmi Vs. I. Babu Rajendra Prasad and Another, , Rs. 35,000/ - in K. Sapana''s case 1988 ACJ 113 (AP), for amputation of leg to a young girl, the sum including the amount for loss of chances of marriage. Again in R. Dayanand Naidu''s case 1987 (2) ALT 367, I awarded Rs. 25,000/ - for ''virtual loss'' of one hand. In the context of these awards for other injuries and also in the context of the awards in the above table set out for fracture of femur and shortening of leg, I estimate the non-pecuniary loss towards pain, suffering and loss of amenities to be atleast Rs. 20,000/ - as on 26.2.1981, in the present case. There is no difference between rich and poor persons so far as non-pecuniary losses are concerned.

Coming to the question of pecuniary losses, the medical expenditure claimed at Rs. 1,000/ - can be awarded. So far as loss of earnings is concerned, the losses upto date of trial have to be estimated and worked out for the percentage of disability. Likewise the present value of the future losses has to be estimated and the percentage of disability has to be ascertained. If we go by the claimant''s evidence and the evidence of PW 6, there is total disability for the claimant working as an agricultural labourer. There is, no doubt, no contra evidence. Decided cases show the disability factor in similar cases estimated between 35 per cent to 75 per cent. [See 35 per cent in Tribhovandas Kishibhai Patel v. Iven Daulal Raubens 1982 ACJ (Supp) 625 (Gujarat); 50 per cent in Natubhai Anopsing Jadeja v. State of Gujarat 1986 ACJ 654 (Gujarat); 55 per cent in Ahmedabad Municipal Corporation v. Niranjan Ambalal Patel 1981 ACJ 53 (Gujarat); 75 per cent in Ramsumer Habai Yadao v. State of Maharashtra 1981 ACJ 460 (Bombay)]. In Ramsumer Habai Yadao v. State of Maharashtra 1981 ACJ 460 (Bombay), it was a case of a labourer and the disability was estimated at 75 per cent. This percentage is obviously based on the comparatively lesser chances of rehabilitation of a labourer, particularly a lambadi. While in the estimation of non-pecuniary damages for pain, suffering and loss of amenities, the poverty of a person is irrelevant, as pointed out by me in P. Satyanarayana through his wife P. Mahalakshmi Vs. I. Babu Rajendra Prasad and Another, , the economic condition is relevant in estimating the pecuniary losses. On the facts of this case and particularly in the context of the evidence of PW 6, the doctor, I will proceed on the basis that the percentage of disability is to be worked out at 50 per cent. The claimant contended that he was earning Rs. 300/ - p.m. in 1981. Even assuming that he was earning Rs. 5/ - per day on an average or Rs. 150/ - p.m. and applying the percentage of disability of 50 per cent the loss would be Rs. 75/ - p.m. The date of the accident is 26.2.1981 while the date of trial is December, 1981. The claimant was 25 years at the time of accident. The past losses upto date of trial would be Rs. 75 X 8 = Rs. 600/ -. The multiplier for computing the present value of future losses for a person aged 26 (at trial), would be atleast 17.50 from the table of multipliers given in Bhagwandas Vs. Mohd. Arif, . As the claimant is a labourer who can earn beyond 60 years and the table in Bhagawan Das'' case is for those retiring at 60, the multiplier has to be slightly increased. Taking the multiplier atleast at 18.50, the present value of future losses will be Rs. 75 X 12 X 18.50 = Rs. 16,650/ -. The past loss and present value of future losses comes to Rs. 600 + 16,650 = Rs. 17,250/ -.

The sum total of the non-pecuniary and pecuniary losses comes to Rs. 20,000/ - + Rs. 17,250/ - = Rs. 37,250/ -. The sum awarded towards medical expenses is Rs. 1,000/ -. The total compensation is, therefore, Rs. 38,250/ -. The Supreme Court is awarding interest at 12 per cent per annum from the date of petition.

The appeal is, accordingly, allowed and the damages are awarded at Rs. 38,250/ - with interest at 12 per cent per annum from the date of petition. There will be no order as to costs.