Rajesh Kumar vs Parkash Chand and Others

Tarlok Singh Chauhan, J.—The present appeal under Section 173 of the Motor Vehicles Act, 1988, (for short ''Act'') has been preferred by claimant against the award dated 02.04.2004 passed by the learned Motor Accident Claims Tribunal, Una, (hereinafter referred to as the ''Tribunal'') in MAC Petition No. 35 of 2001 whereby he was awarded a sum of Rs. 2,05,000/- as compensation with costs and interest at the rate of 9% per annum.

The facts, in brief, may be noticed thus.

The appellant Rajesh Kumar had filed petition under Section 166 of Motor Vehicles Act, 1988, for grant of compensation for the injuries sustained by him in an accident which took place on 10.04.2001 at about 1.30 p.m. near Jaurbar, Tehsil Amb, District Una. The appellant was infact a pillion rider on scooter bearing No. HP-36-3944 which was being driven by Ravi Nath and when the scooter reached near village Jaurbar, a bus bearing No. HP-36-4536 which was being driven by respondent No. 1(since deceased) in a rash and negligent manner in a wrong side and struck the same with the scooter. The appellant as well as Ravi Nath sustained grievous injuries including fracture of his body. After the accident, the appellant was removed to CHC, Chintpurani, where he was examined and after giving first aid, he was referred to Bharaj Nursing Home, Hoshiarpur, where the appellant remained admitted from 10.04.2001 to 16.04.2001. As per appellant, he was again admitted on 30.04.2001 and he was operated for the fracture of his leg by doctor Rachhpal Singh. On 21.06.2001, the said doctor also did skin grafting and plaster on the leg. The appellant averred that he remained confined to bed for more than one month and had been visiting Bharaj Nursing Home by hiring taxi. The appellant was also treated in Him Bone Joint Care Centre, Gagret. According to appellant, he had spent more than Rs. 50,000/- on medical treatment and at the time of accident he was serving as Pipe Lineman in IPH Sub Division, Dadasiba and earning Rs. 4,700/- per month. The appellant had claimed Rs. 5,00,000/- as compensation.

On notice, the respondents put in appearance before the Tribunal and contested the petition by filing replies. The respondents No. 1 and 2 filed joint reply taking preliminary objections that the petition is bad for non-joinder of necessary parties as driver and insurer of the Scooter bearing No. HP-36-3944 were not impleaded as parties. The accident took place due to sheer negligence of the scooter driver, as such, the petition against the answering respondents was not maintainable. On merits, the respondents have denied most of the allegations and in reply to para-23 of the petition, it was specifically denied that at the time of accident, respondent No. 1 was driving the bus in a rash and negligent manner. The respondents averred that the bus was being driven at a low speed in a conscious manner, whereas, the scooter was being driven in a rash and negligent manner. The scooterist tried to overtake the jeep which was also coming from the same direction. The respondent No. 1 immediately applied brakes and stopped the bus but the scooterist struck the scooter on the side of the stationary bus.

Respondent No. 3 filed separate reply taking preliminary objections that the petition is vague, baseless and does not disclose any cause of action. The ill-fated bus was being driven against the terms and conditions of the insurance policy. The driver of the bus was not having a valid driving licence and the same was being plied without route permit, registration certificate etc.

On the pleadings of the parties, the following issues were framed on 18.01.2003:--

"1. Whether the petitioner has suffered injuries because of rash and negligent driving of bus No. HP-36-4536 by respondent Parkash Chand? OPP.

In case issue No. 1 is proved in affirmative to what amount of compensation the petitioner is entitled to and against whom? OPP.

Whether the petition is bad for non-joinder of necessary parties? OPR -1and 2.

Whether respondent No. 1 was not having a valid and effective driving licence at the time of accident. If so, its effect? OPR-3.

Relief."

The learned Tribunal after recording evidence and evaluating the same awarded a sum of Rs. 2,05,000/- as compensation to the appellant along with interest at the rate of 9% per annum from the date of filing of the petition till realization. This award, insofar as the respondents including the Insurance Company is concerned, has attained finality as it is only the appellant, who has questioned the same on the ground of inadequacy.

CMP No. 184 of 2008

During the pendency of the appeal, the appellant moved an application CMP No. 184 of 2008 under Order 41 Rule 27 of the Code of Civil Procedure (for short the ''Code'') for leading additional evidence. It was submitted that after the accident the steel plate inserted in the right leg of the appellant broke down constraining him to undergo an operation on May 25, 2004 for removal of the same. It is then alleged that despite such removal, the infection persisted and ultimately on 07.09.2004 the right leg of the appellant had to be amputated. This not only resulted of the appellant having to pay additional amount of Rs. 50,000/- towards the expenses for such amputation, but even his disability from the existing 40% increased to 70%.

The application was contested only by the Insurance Company, who in their reply contended that the present application had been filed only to grab additional compensation by wrongly alleging therein that the disability of the appellant had increased from 40% to 70%.

This application came to be allowed on 25.07.2014 and the matter thereafter was fixed for recording the evidence of the parties.

The appellant appeared as AW-1 and proved on record the bills and certificates issued by the doctor as Ex. AW-1/1. The invoices of the hospital where he underwent amputation are Ex. AW-1/2 and the bill for artificial limb is Ex. AW-1/3. The appellant also proved on record disability certificate Ex. AW-1/4 issued by the Medical Board certifying disability of the appellant to be 70%. The appellant was subjected to cross-examination only by the Insurance Company, however, nothing adverse came out in such cross-examination.

Appellant thereafter examined Dr. Gurdarshan Gupta as AW-2, who proved on record the disability certificate Ex. AW-1/4 issued by the Medical Board. In his cross-examination by the Insurance Company, he has categorically stated that Ex. AW-1/4 had been signed by all the members of the Medical Board in terms of the guidelines issued by the Government of India.

In rebuttal, the Insurance Company again summoned Dr. Gurdarshan Gupta, (who had earlier been examined as AW-2). This witness on the date of his examination brought the record of the application moved by the appellant for issuance of the disability certificate which had been summoned by the Insurance Company. He categorically stated that the hospital did not retain the records of the individual patients because immediately after going through the medical certificates and after medically examining the patients, these documents are handed over back to the patients.

Thereafter, Insurance Company examined one Manjeet Singh as RW-2 from Punjab Artificial Limb Centre, Hoshiarpur, who stated that they do not keep any records of the patients other than the bills in case where the artificial limbs are ordered. He proved on record the bills Ex. AW-1/3 and also produced on record bill pertaining Ex. AW-1/5. Both these witnesses were not cross-examined since they only supported the case of the appellant.

A perusal of the documents proved on record as Ex. AW-1/1 to Ex. AW-1/5 would show that the appellant had spent a sum of Rs. 13,500/- at the time of removal of the plate as reflected in Ex. AW-1/1. Thereafter, the appellant spent an amount of Rs. 5,900/- vide Ex. AW-1/2 when his leg was amputated. The appellant also spent a sum of Rs. 7,500/- and Rs. 10,000/- as cost towards the artificial limb vide Ex. AW-1/3 and Ex. AW-1/5. The disability presently suffered by the appellant as assessed by the Medical Board vide Ex. AW-1/4 proved to be 70%.

Now taking into consideration the evidence adduced by the appellant before the Tribunal below and the additional evidence led before this Court, I proceed to determine as to whether the compensation awarded by the learned Tribunal is commensurate and compensatory with the injuries and disability sustained by the appellant.

The principles relating to grant of compensation have been noticed by this Court in FAO No. 4234 of 2013 in case titled HRTC versus Sunaina and another decided on 5th May, 2014, wherein this Court held as under:--

"22. The Court cannot be oblivious to the fact that the claimant is a young lady and at the time of accident was about 26 years old. While awarding compensation especially for non-pecuniary loss, the Tribunals have to keep in mind several factors like pain and suffering, loss of amenities of life, special circumstances of the claimant like age, unusual deprivation suffered, effect thereof on his/her future life. It is impossible to equate the money with the human sufferings or personal deprivations. Loss of amenities of life includes loss of expectation of life. Similarly the loss of expectation of life is concerned with the earning capacity. In R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, the Hon''ble Supreme Court has held as under:

"10. It cannot be disputed that because of the accident the appellant who was an active practicing lawyer has become paraplegic on account of the injuries sustained by him. It is 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." 23. The Hon''ble Supreme Court in Rekha Jain Vs. National Insurance Company Ltd. and Others, summed up the legal position regarding award of compensation in injury cases as under:

"28. This Court is required to keep in mind justice, equity and good conscience which must be the primary, relevant and important aspects for awarding just and reasonable compensation to an unfortunate victim, the appellant herein who has sustained grievous injuries to her body and whose future prospects are completely doomed. Further, the Tribunal and courts while awarding compensation for bodily injuries, must realise that the possession of one''s own body is the first and most valuable of all human rights and that all other possessions and ownership are the extensions of the basic right. Bodily injuries should be equated with the deprivation which entitles a claimant to damages and the amount of damages varies in accordance with the gravity of injuries.

In this regard, it is worthwhile to refer to certain paragraphs which have been referred to by the Karnataka High Court in the case of K. Narasimha Murthy Vs. The Manager, Oriental Insurance Company Limited and Another, , wherein the Division Bench of the Karnataka High Court has considered the relevant important aspects from the judgment of this Court and the House of Lords and different learned scholars and authors of books on awarding pecuniary and non pecuniary damages. The abovementioned decision states about the approach of the Motor Accidents Claim Tribunals and Courts for awarding just and reasonable compensation in favour of the claimants in relation to the bodily injuries suffered by them. It is worthwhile to extract Paragraph 16 from K. Narasimha Murthy case (supra), which reads as under:

"16. The Courts and Tribunals, in bodily injury cases, while assessing compensation, should take into account all relevant circumstances, evidence, legal principles governing quantification of compensation. Further, they have to approach the issue of awarding compensation on the larger perspectives of justice, equity and good conscience and eschew technicalities in the decision-making. There should be realisation on the part of the Tribunals and Courts that the possession of one''s own body is the first and most valuable of all human rights, and that all possessions and ownership are extensions of this primary right, while awarding compensation for bodily injuries. Bodily injury is to be treated as a deprivation which entitles a claimant to damages. The amount of damages varies according to gravity of injuries." 30. In R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, , speaking about the heads of compensation, this Court has held thus:

"9. 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 is 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 profit upto the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include; (i) damages for mental and physical shock, pain 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, frustration and mental stress in life." 31. Further, on this point, Justice Viscount Dunedin in Admiralty Comrs v. S.S. Valeria [(1922) 2 A.C. 242 at p. 248], has observed thus:

"The true method of expression, I think, is that in calculating damages you are to consider what is the pecuniary consideration which will make good to the sufferer, as far as money can do so, the loss which he has suffered as the natural result of the wrong done to him". 32. Further, Lord Blackburn in Livingstone v. Rawyards Coal Company [1880 5 App. Cas. 25 at p. 39], has held as under:

"Where any injury is to be compensated by damages, in settling the sum of money to be given.... you should as nearly as possible get at that sum of money which will put the person who has been injured.... in the same position as he would have been in if he had not sustained the wrong." 33. Lord Morris in his memorable speech in H. West and Sons, pointed out this aspect in the following words:

"Money may be awarded so that something tangible may be procured to replace of like nature which has been destroyed or lost. But, the money cannot renew a physical frame that has been battered and shattered. All the 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. Further, more it is eminently desirable that so far as possible comparative injuries should be compensated by comparable awards." 34. In Ward v. James[1966 1 Q.B. 273 at pp. 299-300], speaking for the Court of Appeal in England, Lord Denning laid down three basic principles while dealing with the question of awarding compensation for personal injury:

"....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."

"24. In deciding on the quantum of damages to be paid to a person for the personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries, as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him."

Further, a Division Bench of Karnataka High Court in Basavaraj Vs. Shekhar and Others, has held as under:

"8.....If the original position cannot be restored - as indeed in personal injury or fatal accident cases it cannot obviously be - the law must endeavour to give a fair equivalent in money, so far as money can be an equivalent and so ''make good'' the damage."

"26. Therefore, the general principle which should govern the assessment of damages in personal injury cases is that the Court should award to injured person 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. But, it is manifest that no award of money can possibly compensate an injured man and renew a shattered human frame."

Lord Morris of Borth-y-Gest in Parry v. Cleaver [[1970] 1 AC 1 at p. 22], has 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". 37. The necessity that the damages should be full and adequate was stressed by the Court of Queen''s Bench in Fair v. London and North Western Railway Company [21 L.T. (N.S.) 326 (1869)]. In Rushton v. National Coal Board [1953 1 QB 495 at p. 499], Singleton L.J. has said that:

"When damages have to be assessed in a case of this kind there are many elements for consideration: the pain and suffering undergone and that which may occur in the future; the loss of some of the amenities of life; the fact that a man with an injury of this kind will always require some measure of help, even though he may be able to earn considerable money. These are some of the matters which have to be taken into consideration, and another is the fact that his earnings will probably be less than they were before." 38. In Fowler v. Grace [(1970) 114 Sol. Jo. 193], Edmund Davies, L.J., has said that:

"It is the manifest duty of the Tribunal to give as perfect a sum as was within its power''. There are many losses which cannot easily be expressed in terms of money. If a person, in an accident, loses his sight, hearing or smelling faculty or a limb, value of such deprivation cannot be assessed in terms of market value because there is no market value for the personal asset which has been lost in the accident, and there is no easy way of expressing its equivalent in terms of money. Nevertheless a valuation in terms of money must be made, because, otherwise, the law would be sterile and not able to give any remedy at all. Although accuracy and certainty were frequently unobtainable, a fair assessment must be made. Although undoubtedly there are difficulties and uncertainties in assessing damages in personal injury cases, that fact should not preclude an assessment as best as can, in the circumstances be made." 39. In Mediana, [1900] AC 113 at p. 116], the plaintiffs were deprived of the use of their own lightship, but sustained no pecuniary loss as another lightship was kept in reserve. Yet, it was held that the plaintiffs were entitled to substantial damages for the loss of the use of their ship for a period, and Lord Halsbury L.C. answered the objection that assessment was too uncertain by observing that:

"....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 what 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 recognises that as a topic upon which damages may be given."

"32. In personal injury cases, the Court is constantly required to form an estimate of chances and risks which cannot be determined with precision. It is because, the law will disregard possibilities which are slight or chances which are nebulous; otherwise, all the circumstances of the situation must be taken into account, whether they relate to the future which the plaintiff would have enjoyed if the accident had not happened, or to the future of his injuries and his earning power after the accident. Damages are compensation for an injury or loss, that is to say, the full equivalent of money so far as the nature of money admits; and difficulty or uncertainty does not prevent an assessment."

It is well-settled principle that in granting compensation for personal injury, the injured has to be compensated (1) for pain and suffering; (2) for loss of amenities; (3) shortened expectation of life, if any; (4) loss of earnings or loss of earning capacity or in some cases for both; and (5) medical treatment and other special damages. In personal injury cases the two main elements are the personal loss and pecuniary loss. Chief Justice Cockburn in Fair''s case, supra, distinguished the above two aspects thus:

"In assessing the compensation the jury should take into account two things, first, the pecuniary loss the plaintiff sustains by the accident : secondly, the injury he sustains in his person, or his physical capacity of enjoying life. When they come to the consideration of the pecuniary loss they have to take into account not only his present loss, but his incapacity to earn a future improved income". 41. McGregor on Damages (14th Edition) at paragraph No. 1157, referring to the heads of damages in personal injury actions, states as under:

"The person physically 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 sub-divided 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 neighbours and say with their approval that he has done the fair thing'', is quite apposite to be kept in mind by the Court in assessing compensation in personal injury cases."

In R. Venkatesh Vs. P. Saravanan and Others, , the High Court of Karnataka while dealing with a personal injury case wherein the claimant sustained certain crushing injuries due to which his left lower limb was amputated, held that in terms of functional disability, the disability sustained by the claimant is total and 100% though only the claimant''s left lower limb was amputated. In paragraph 9 of the judgment, the Court held as under:

"9. As a result of the amputation, the claimant had been rendered a cripple. He requires the help of crutches even for walking. He has become unfit for any kind of manual work. As he was earlier a loader doing manual work, the amputation of his left leg below knee, has rendered him unfit for any kind of manual work. He has no education. In such cases, it is well-settled that the economic and functional disability will have to be treated as total, even though the physical disability is not 100 per cent." 43. Baker v. Willoughby, 1970 AC 467 , has said:

".....A man is not compensated for the physical injury; he is compensated for the loss which he suffers as a result of that injury. His loss is not in having a stiff leg; it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned....." 17. Keeping in view the aforesaid principles, the Court is bound to award just and reasonable compensation in favour of the claimants, who have sustained grievous injuries and suffered disability. The claimant in the present case is unable to lead a full life and enjoy the amenities of life like a normal human being. Though the original position of the claimant cannot be restored, however, an endeavour has to be made to give him fair equivalent money, so as to make good the damage. Though, it may be emphasized that this Court is not unmindful or oblivious of the fact that no monetary compensation can possibly compensate an injured man and renew a shattered and battered human frame.

Though, it is not possible for the Court to make a precise assessment of the pain and trauma suffered by a person whose right leg has been seriously injured which finally resulted in its amputation thereby increasing the permanent disability of the appellant from 40% to 70%. Because of his amputation, the appellant has spent following amounts Rs. 13500/-, Rs. 5,900/-, Rs. 7,500/- and Rs. 10,000/-.

The learned Tribunal below has awarded the compensation under the following heads:--

Indisputably, the appellant has throughout been suffering and undergoing pain and trauma and the same would continue throughout his life. Admittedly, at the time of the accident the appellant was a young man of 33 years. For the rest of his life, the appellant will suffer from trauma of not being able to walk properly, lead a normal life and move about freely without support. Therefore, the compensation of Rs. 50,000/- on this account is too meager and insufficient and is required to be suitably increased.

In Baker v. Willoughby, 1970 AC 467 , the Hon''ble Supreme Court was dealing with somewhat a similar case of 33 years old man, who had suffered 55% disability and it was held as under:

"17. Further, we refer to the case of Rekha Jain and Another Vs. National Insurance Company Ltd., , wherein this Court examined catena of cases and principles to be borne in mind while granting compensation under the heads of (i) pain, suffering and (ii) loss of amenities and so on. Therefore, as per the principles laid down in the case of Rekha Jain and another (supra) and considering the suffering undergone by the appellant herein, and it will persist in future also and therefore we are of the view to grant Rs. 1,50,000/- towards the pain, suffering and trauma which will be undergone by the appellant throughout his life. Further, as he is not in a position to move freely, we additionally award Rs. 1,50,000/- towards loss of amenities and enjoyment of life and happiness.

We further award an amount of Rs. 20,000/- towards special diet, Rs. 40,000/- towards attendant expenses during the period of treatment and Rs. 20,000/- towards transportation.

Since, the claim of the appellant has been pending for several years before the Courts, we are of the view to award a sum of Rs. 40,000/- towards costs incurred during pendency of the appeal."

Taking into account that the sufferings undergone by the appellant would persist in future also, I therefore, award a sum of Rs. 1,50,000/- towards pain, sufferings and trauma which will be undergone by the appellant throughout his life.

Further, like in Jakir Hussein''s case (supra), the appellant herein is also not in a position to move freely, therefore, he is entitled to a sum of Rs. 1,50,000/- towards loss of amenities and enjoyment of life and happiness.

Further it is legitimate to assume that while the appellant had been undergoing treatment, he would have incurred the expenses of attendant, special diet and nutrition, transportation charges for which he is awarded a lumpsum compensation of Rs. 50,000/-. Apart from the above, the appellant has incurred expenses in pursuing his case initially before the Tribunal and thereafter before this Court and, therefore, he is entitled to a lumpsum compensation of Rs. 50,000/- under this head.

The Tribunal has awarded a sum of Rs. 5,000/- towards loss of expectation of life on account of disability and a sum of Rs. 10,000/- towards future medical treatment and these findings having remained unchallenged are therefore not being disturbed.

In view of the aforesaid discussion, apart from the compensation already awarded by the learned Tribunal, the appellant would be entitled to a further compensation of Rs. 3,66,900/- alongwith interest at the rate of 9% per annum on the entire compensation amount from the date of filing of the claim petition till the date of its payment.

The appeal is allowed in the aforesaid terms, so also the pending application(s), if any.