Kalu vs Popat

Pratap Krishna Lohra, J.

The appellant, a victim of road accident, in the instant appeal under Section 173 of the Motor Vehicles Act 1988 (for short, ''the Act of 1988''), has craved for enhancement of quantum of compensation awarded by the learned Motor Accident Claims Tribunal, Bali (for short, ''learned Tribunal'') by its impugned award dated 16th of November 2000.

Apposite facts, for disposal of this appeal are that on the fateful day of 18th May 1997, at about 7:45 AM, while appellant-claimant was travelling in a trekker jeep from Sumerpur to Ajmer to fetch goods for his shop, the unfortunate accident occurred near village Gol Nimbada due to rash and negligent driving of the jeep at a very high speed by its Driver Popat alias Nizam Khan. The jeep changed its side to the other side of the road and dashed with a Neem tree, as a consequence of which appellant suffered grave and serious injuries on his right hand and leg and was taken to Government Bangur Hospital where he was admitted. The goods of the appellant lying in the jeep worth Rs. 20000/- also damaged in the accident. The police registered Case No. 124 for the offence under Section 337, 279 IPC and after investigation filed challan against Popat alias Nizam Khan in the concerned Court.

The appellant in the claim petition stated that at the time of accident, he was 38 years old and was earning Rs. 4,000/- per month by running shop and doing wholesale business of vegetables. He also stated that that his goods costing about Rs. 20,000 lying in the jeep damaged due to the accident and as he suffered simple and grievous injuries and his right hand and leg fractured, it would impair his efficiency and affect his future earnings. With all these averments, the appellant has quantified the total compensation to the tune of Rs. 7,70,000/- under various heads.

After issuance of notices by the learned Tribunal, insurer of Jeep responded to the notice by putting appearance before the learned Tribunal and contested the claim. In the return, the insurer came with the case that the injured has shown his earnings exaggeratedly and has not submitted any evidence in respect of expenditure incurred on treatment. It is stated in the reply that neither any premium was paid by Nizam Khan, nor the insurance company has issued any policy to him therefore it is not liable for payment of compensation. Further, the insurer raised objection regarding the jeep being driven by Nizam Khan without valid driving licence as he was having licence to play auto rickshaw and not for plying taxi. Pointing out alleged violation of the terms of the insurance policy, the insurance company has pleaded that liability of compensation cannot be fastened on it.

Relying on the pleadings of rival parties, the learned Tribunal framed three issues for determination. For proving his case, appellant himself appeared in the witness box and also produced 50 documents for authenticating the quantum of compensation. Against the ocular and documentary evidence of the appellant, no evidence was tendered on behalf of the respondents. The learned Tribunal, on the basis of evidence and other materials on record, decided all the issues in favour of the appellant and against respondent insurer quantifying total amount of compensation as Rs. 30,000/-.

Mr. Kailash Trivedi, learned counsel for the appellant, while assailing the findings of the learned Tribunal has urged that amount of compensation awarded to the appellant is grossly inadequate and not commensurating with the injuries suffered and goods damages in the accident as such the quantum of compensation is required to be enhanced adequately but the learned Tribunal while assessing the compensation has not properly assessed the same, therefore, by taking a benevolent view the award impugned is liable to be modified and compensation deserves to be suitably enhanced.

Per contra, learned counsel for the insurance company, Mr. M.P. Goswami, has stoutly defended the impugned award and submitted that the learned Tribunal has examined the evidence and other material available on record threadbare and has reached to a just conclusion for awarding compensation which is not liable to be enhanced in the backdrop facts and circumstances of the instant case.

I have heard the learned counsel for the rival parties, perused the impugned award, and scanned the record of the learned Tribunal.

The only question for determination in this appeal is whether the award of Rs. 30,000 under different heads in the facts and circumstances of the case and evidence on record can be considered as just and reasonable? If not, what is the just and reasonable compensation, the appellant is entitled to?

Bodily injury is to be treated as a deprivation which entitles a claimant to damages, the amount of damages varies according to gravity of the injury. Deprivation of injuries may bring with it three consequences, namely, (i) loss of earnings and earning capacity; (ii) expenses to pay others for what otherwise he would do for himself; and (iii) loss or diminution in full pleasures of living. Though it is impossible to equate money with human suffering or personal deprivation, the court has to make an attempt to award damages so far as money can compensate the loss. Therefore, while considering deprivation, court should have regard to the gravity and degree of deprivation and the degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the court should be substantial and it should not be merely token damages.

Lord Morris in H. West and Son Ltd. v. Shephard 1958 ACJ 504 (HL, England), emphasized this aspect in the following words:

"Money may be awarded so that something tangible may be procured to replace something else of the like nature which has been destroyed or lost. But money cannot renew a physical frame that has been battered and shattered. All that Judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common assent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards''."

Scarman, L.J. in Thomas v. British Railways Board 1977 ACJ 222 (CA, England), made following observations:

"...the greatest element of damage in a case such as this is the pain, the suffering and the loss of the ordinary pleasures and convenience associated with healthy and mobile limbs. All that the court can do is to award such a sum as will enable the plaintiff to acquire some material possessions or to develop a lifestyle which will offset to some extent her terrible disability."

In Birkett v. Hayes 1983 ACJ 697 (CA, England), awarding of fair compensation is highlighted by following observations:

"There is nothing to guide us but the feeling of what is fair... the Judge has to award compensation for the past and also for the future pain, suffering and loss of amenities. The future that lies ahead, beyond the date of trial, is often of more consequence than the past. The Judge awards a lump sum on the date of trial to cover all."

The general principle which should govern the assessment of damages in personal injury cases is that the court should award to injured persons such a sum of money as will put him in the same position as he would have been in if he had not sustained the injuries. This principle is sometimes referred to as restitution in integrum. However, no award of money can possibly compensate a man and renew a shattered human frame.

Though there are difficulties and uncertainties in assessing damages for personal injuries, that fact should not preclude an assessment as best as can, in the circumstances be made. In personal injury cases, the two main elements to be considered are the personal loss and pecuniary loss. In personal injury cases compensation can be given for (i) pain and suffering; (ii) loss of amenities; (iii) shortened expectation of life, if any; (iv) loss of earnings or loss of earning capacity, or in some cases, for both; and (v) medical treatment and other special damages."

Keeping in mind the principles and norms on the subject, I now proceed to examine the facts of this case and the award of compensation by the learned Tribunal. The injured-claimant, at the relevant time was a young man of 38 years earning his livelihood by running a bakery shop and wholesale business of vegetables, sustained simple and grievous bodily injuries in the accident, which is evident from the documentary evidence available on record, namely, Ex.4 Injury Report and Ex.5 MLC and X-Ray Report of Government Bangar Hospital Pali where the injured remained hospitalized for a period of one and a half month. On account of accident appellant-claimant sustained fractures of his hand and leg and submitted certificate of permanent disability Ex.11 in which the doctor has opined appellant-claimant sustaining 15 per cent permanent disability. The evidence of father of claimant who examined himself as PW 1 recites that during treatment a sum of about Rs. 80,000 was incurred by him and after accident is unable to lift weight as such he has to depend on an employee to whom Rs. 1500 is to be paid as remuneration as such his earning from shop has decreased to Rs. 3,000 per month from earlier Rs. 4500 per month and during the continuity of treatment he could not earn his livelihood which resulted in loss of Rs. 50,000. In addition to that he also mentioned about pain and sufferings which resulted on account the accident. He produced medical records, medical bills and receipts etc.

The injuries sustained by the appellant in the accident resulted in fracture of his bones and the prolonged treatment with hospitalization for one and half month in addition to pain and sufferings ultimately resulted in 15% disability. The learned Tribunal has awarded a sum of Rs. 6,200 towards medical bills, Rs. 15,000/- for the permanent disability incurred, Rs. 8,800 towards hospitalization, medical expenses, loss of earnings and pain and sufferings total amounting to Rs. 30,000, which in the facts and circumstances appears to be on the lower side.

The amount awarded learned Tribunal towards permanent disability is too low and it has not awarded any amount towards hospitalization and attendant charges. The appellant is a resident of Jawai Bandh, Bali and, it is possible that the parents and relatives of the appellant would have had to travel between Jawai Bandh and Pali on several occasions in connection with treatment of claimant-appellant. Claimant having sustained permanent disability will cause frustration, discomfort, disappointment, inconvenience, etc., It is beyond cavil of doubt that no amount of compensation would restore the damage caused however the courts are enjoined with the duty to award compensation which is just, reasonable, adequate.

Having regard to the facts, it is considered appropriate that the claimant is awarded a sum of Rs. 35,000 towards disability instead of Rs. 15,000, and also Rs. 20,000 towards hospitalization, special food and nutrition, Rs. 10,000 for medical attendance in addition to Rs. 6,200 awarded by the learned Tribunal against medical bills and Rs. 8,800 towards pain and sufferings arriving at total compensation amount as Rs. 80,000/-.

Therefore, in totality, the appellant-claimant is declared entitled for total amount of compensation to the tune of Rs. 80,000/-. The enhanced amount of compensation to the tune of Rs. 50,000/- is required to be paid by the respondent insurance company within a period of two months from today. The enhancement amount shall also carry interest @9% per annum from the date of filing of the claim petition by appellant-claimant.