Rajesh vs M.P.S.R.T.C. and Another

S.K. Gangele, J.—Appellant/claimant has filed the present appeal against the award dated 24.2.2001, passed in Claim Case No. 249/2000.

That the appellant was coming from Ujjain to Indore on 29.5.1997 at around 10.30 in the night of his scooter along with one Kamlesh. A bus of respondent No. 1 dashed him; he received serious injuries in his right hand and admitted in Ujjain Hospital.

That, the appellant filed claim application before the Tribunal mentioning that his right hand was damaged badly in the accident. There was plastic surgery on his right hand and due the loss of muscles movement of his fingers were affected, he was working in Government Printing Press and earning Rs. 3,043/- per month. The accident was caused due to rash and negligent driving of driver of the bus.

The respondent denied the claim of appellant.

The Tribunal held that the accident was caused due to rash and negligent driving of the driver of the bus and respondent No. 1 and driver are responsible for payment of compensation. Dr. Rajat Verma, orthopaedic surgeon deposed before the Tribunal that appellant was admitted in his hospital from 30.5.1997 to 3.7.1997, his muscles of right hand were damaged badly and a plastic surgery was done. And for that purpose he had undergone two operations, and due to damage of muscles, fingers of right hand are not moving. Another Doctor Dr. Ashutosh Verma who was medical officer in District Hospital, Indore also deposed that he issued permanent disability certificate to the appellant and also there were Serious injuries in his right hand. There was no muscles for the movement of fingers and 75% permanent disability in movement of wrist and grip power of hand has been reduced up to 40%. On the basis of this, I assessed his permanent disability to 98% right hand not to whole body.

The Tribunal awarded Rs. 17,000/- for medical expenses and Rs. 3,500/ - for loss of earning, when he was in hospital and Rs. 50,000/- towards future loss of earning, Rs. 2,500/- for pain and suffering and a total amount of Rs. 76,553/-. In my opinion the Tribunal has not awarded proper compensation of amount for pain and suffering as held by Hon''ble Supreme Court.

In R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, , the Apex Court has held as under with regard to grant of compensation in case of serious injuries.

Broadly speaking, while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frusturation and mental stress in life.

It cannot be disputed that because of the accident the appellant who was an active practising lawyer has become paraplegic for really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a lifelong handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by Courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury ''so far as money can compensate'' because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame.

This Court in the case of C.K. Subratnonia Iyer v. T. Kunhikuttan Nair 1970 ACJ 110 (SC), in connection with the Fatal Accidents Act has observed:

In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable.

When compensation is to be awarded for pain and suffering and loss of amenities of life, the special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he has suffered, the effect thereof on his future life. The amount of compensation for non-pecuniary loss is not easy to determine but the award must reflect that different circumstances have been taken into consideration.

In Grifan Vs. Sarbjeet Singh and Others, :

We have heard learned Counsel for the appellant as well as learned Counsel for the respondents, especially the Insurance Company which has to bear the burden of the compensation. Looking to the facts and circumstances of this case, in our view, an additional award of Rs. 2,00,000/- (Rupees two lakh only) is required to be granted in favour of the claimant whose right leg was amputated due to rash and negligent driving of the respondent No. 1. The medical evidence shows that he has suffered from 80 per cent disability. But even taking the overall disability of 50 per cent and looking to his income of Rs. 4,000/- per month which would have risen further if the appellant had not suffered from this injury at the age of 45 years, considering this aspect and keeping in view his future prospects which are affected because of this permanent injury, we deem it fit to enhance the award of compensation by Rs. 2,00,000/- more in addition to Rs. 2,00,000/- already ordered by the High Court.

Division Bench of Karnataka High Court Fakkirappa Vs. Yallawwa and Another, discussed important judgment with regard to grant of compensation to handicapped persons and held as under:

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, the Court should have regard to the gravity and the degree of deprivation and the degree of awareness of the deprivation. While awarding damages in the personal injury cases, the compensation awarded by the Court should be substantial and it should not be merely token damages. Lord Morris in his memorable speech in H. West & Son Ltd. v. Shephard 1958 ACJ 504, (HL, England), pointed out 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 as far as possible comparable injuries should be compensated by comparable awards.

In the above case, their Lordships of the House of Lords observed that the bodily injury is to be treated as a deprivation which entitles plaintiff to the damage and that the amount of damages varies according to the gravity of the injury. Their Lordships emphasized that in personal injury cases the Courts should not award merely token damages but they should grant substantial amount as compensation.

In Ward v. James (1965) 1 All. ER 563, speaking for the Court of Appeal in England, Lord Denning while dealing with the question of awarding compensation for personal injury had laid down three basic principles

Firstly, assessability: In cases of grave injury, where the body is wrecked or brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Secondly, uniformity: There should be some measure of uniformity in awards so that similar decisions may be given in similar cases; otherwise there will be great dissatisfaction in the community and much criticism of the administration of justice. Thirdly, predictability: Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to Court, a thing very much to the public good.

The principle is sometimes referred to as restitution in interregnum; but it is manifest and universally realized that no award of money can possibly compensate a man and renew a shattered human frame. Lord Morris of Borth-Y-Gest in the case of Perry v. Cleaver 1969 ACJ 363 (HL, England), said:

To compensate in money for pain and for physical consequences is invariably difficult but...no other process can be devised than that of making a monetary assessment.

Damages must be full and adequate. Field, J. in Phillips v. South Western Railway Co. (1871) 1 QBD 106, held:

You cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recollect that this is the only occasion on which compensation can be given. The plaintiff can never sue again for it. You have, therefore, now to give him compensation, once and for all. He has done no wrong; he has suffered a wrong at the hands of the defendants and you must take care to give him full fair compensation for that which he has suffered.

Though, undoubtedly there are difficulties and in certainties in assessing the damages for personal injury case, that fact should not preclude an assessment as best as can, in the circumstances, be made, Lord Halsbury in Mediana (1900) AC 113, said:

Of course the whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages; nevertheless, it is remitted to the jury, or those who stand in place of the jury, to consider that compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident.... But, nevertheless, the law recognizes that as a topic upon which damages may be given.

McGregor on Damages, 14th Editional Para 1157, referring to the heads of damages in personal injury actions states:

The person physical injured may recover both for his pecuniary losses and his non-pecuniary losses. Of these the pecuniary losses themselves comprise two separate items, viz., the loss of earnings and other gains which the plaintiff would have made had he not been injured and the medical and other expenses to which he is put as a result of the injury, and the Courts have subdivided the non-pecuniary losses into three categories, viz., pain and suffering) loss of amenities of life and loss of expectation of life.

Besides, the Court is well advised to remember that the measures of damages in all these cases "should be such as to enable even a tortfeasor to say that he had amply atoned for his misadventure". The observation of Lord Devlin that the proper approach to the problem or to adopt a test as to what contemporary society would deem to be a fair sum, such as would allow the wrongdoer to "hold up his head among his neighbors and say with their approval that he has done the fair thing", is quite opposite to be kept in mind by the Court in determining compensation in personal injury cases.

In the result, for the foregoing reasons, we allow the appeal in part with costs. In substitution of the impugned award, we award a sum of Rs. 5,85,000/- with 9 per cent interest per annum from the date of claim petition till its payment.

On the basis of the above facts and circumstances of the case and principle of law in my opinion it would be just and proper if the appellant be awarded an amount of Rs. 50,000/- for pain and suffering because he has to suffer lifelong and the Tribunal has already granted 2,500/- to the appellant, hence he will get 47,500/- as enhanced compensation. Consequently, the appellants will be entitled Rs. 47,500/- as enhanced amount with an interest of 6% per annum from the date of filing of the application before the Tribunal. The impugned award is modified to the above extent. The appeal is allowed to the above extent accordingly, without any order of the cost.