Ibrahim vs Raju & Ors

Ibrahim .......Appellant

Versus

Raju and others .......Respondents

J U D G M E N T

G.S. Singhvi, J.

1. Delay condoned.

2. Leave granted.

3. Feeling dissatisfied with the enhancement granted by the High

Court in the amount of compensation awarded by 2nd Additional Motor

Accident Claims Tribunal, Karwar (for short, `the Tribunal'), the

appellant has filed this appeal.

4. The appellant sustained serious injuries on the head, nose, back and

lower region of abdomen including the pelvic region when the tempo in

which he was travelling met with an accident on 23.4.2000. He was taken

to Vijayashree Orthopaedic Centre for first aid and was then shifted to

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Kasturba Hospital, Manipal. He remained in the hospital from

23.04.2000 to 05.06.2000.

5. The appellant filed a petition under Section 166 of the Motor

Vehicles Act, 1988 (for short, `the Act') and claimed compensation of

Rs.3,00,000/- with interest and cost. He pleaded that the accident was

caused due to rash and negligent driving of the tempo by its driver Shri

Raju; that he had suffered serious injuries in the accident; that he

remained in the hospital for almost one month and a half and had to spend

more than Rs.80,000/- towards medical treatment, conveyance and

expenses of the attendants; that at the time of accident he was a student of

Class 8 and on account of the injuries he was not in a position to continue

his studies.

6. The owner and the driver of the offending vehicle, who were

impleaded as non-petitioners No.1 and 2 did not contest the claim of the

appellant. However, the National Insurance Company, which was

impleaded as non-petitioner No.3 contested the claim by asserting that the

accident was not caused due to rash and negligent driving of the tempo

and that the appellant was himself responsible for the accident.

7. Two of the four issues framed by the Tribunal were whether the

accident was caused due to rash and negligent driving of the tempo and

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whether the appellant was entitled to compensation. After analysing the

evidence produced by the parties, the Tribunal held that the accident was

caused due to rash and negligent driving of the tempo. The Tribunal then

referred to the statements of Dr. Anil K. Bhat, Assistant Professor of

Orthopaedics, who issued disability certificate Exhibit P-140 and Dr.

Joseph Thomas, Professor of Urology, who issued treatment certificate

Exhibit P-141 (both the doctors were working in Kasturba Medical

College and Hospital, Manipal) and awarded compensation to the

appellant under the following heads:

1. Pain and suffering Rs.25,000/-

2. Medical expenses Rs.20,340/-

3 Transportation Rs.

1,900/-

4. Diet and attendant charges Rs.30,600/-

5. Loss of future earning on Rs.21,600/-

account of disability

6. Decline in the prospects of Rs.50,000/

marriage -

___________

Total Rs.1,49,440/-

8. The High Court partly allowed the appeal filed by the appellant

under Section 173 of the Act and enhanced the amount of compensation

by a sum of Rs.40,000/-.

4 9. The appellant has questioned the impugned judgment mainly on the

ground that while determining the amount of compensation, the Tribunal

and the learned Single Judge of the High Court overlooked the parameters

and principles laid down by this Court and did not take into consideration

the expenses likely to be incurred by him for future treatment and the loss

of amenities and enjoyment of life.

10. We have heard learned counsel for the parties and carefully perused

the record. The sufferings of the dependents of those who are killed in

motor accidents and the survivors who are disabled are manifold. Some

time these can be measured in terms of money but most of the times it is

not possible to do so. If an individual is disabled as a result of road

accident, the cost of treatment, care and rehabilitation is likely to be very

high. A very large number of people involved in motor accidents are

pedestrians, children and women and, on account of sheer ignorance,

poverty and other disabilities, majority of them are unable to engage

competent lawyers for putting their cause before the Tribunals and the

Courts. The insurance companies, with whom the vehicles involved in

accidents are insured always have the advantage of assistance of legally

trained mind (law officers and panel lawyers). They contest the claim

petitions by raising all possible technical objections for ensuring that their

clients are either completely absolved or their liability is minimized and

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in the process, adjudication of the claims filed by the victims and/or their

legal representatives is delayed for years together. At times, the delay in

disposal of the claim cases and litigation expenses make the award of

compensation meaningless for survivors of the accidents and/or families

of the victims. This Court has time and again emphasized that the

officers, who preside over the Tribunals adopt a proactive approach and

ensure that the claims filed under the Act are disposed of with required

urgency and compensation is awarded to the victims of the accident

and/or their legal representatives in adequate measure keeping in view the

relevant factors. Unfortunately, despite repeated pronouncements of this

Court in which guiding principles have been laid down for determination

of the compensation payable to the victims of road accidents and/or their

families, the Tribunals and even the High Courts do not pay serious

attention to the imperative of awarding just compensation to the

claimants.

11. In Ward v. James (1965) 1 All ER 563, the Court of Appeal, while

dealing with a case under Section 6 of the Administration of Justice

(Miscellaneous Provisions) Act, 1933 made some important observations,

which are extracted below:

"Although you cannot give a man so gravely injured much for his `lost

years', you can, however, compensate him for his loss during his

shortened span, that is, during his expected `years of survival'. You can

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compensate him for his loss of earnings during that time, and for the cost

of treatment, nursing and attendance. But how can you compensate him

for being rendered a helpless invalid? He may, owing to brain injury, be

rendered unconscious for the rest of his days, or, owing to a back injury,

be unable to rise from his bed. He has lost everything that makes life

worthwhile. Money is no good to him. Yet judges and juries have to do

the best they can and give him what they think is fair. No wonder they

find it well nigh insoluble. They are being asked to calculate the

incalculable. The figure is bound to be for the most part a conventional

sum. The judges have worked out a pattern, and they keep it in line with

the changes in the value of money."

12. In R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. and others

(1995) 1 SCC 551, this Court while dealing with a case involving claim

of compensation under the Motor Vehicles Act, 1939, referred to the

judgment in Ward v. James (supra), Halsbury's Laws of England, 4th edn.,

vol. 12 (page 446) and observed:

"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

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, frustration and mental stress in

life."

In the same case, the Court further observed:

7 "In its very nature whenever a tribunal or a court is required to fix the

amount of compensation in cases of accident, it involves some

guesswork, some hypothetical consideration, some amount of sympathy

linked with the nature of the disability caused. But all the aforesaid

elements have to be viewed with objective standards."

13. In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka

(2009) 6 SCC 1, the three-Judge Bench was dealing with a case arising

out of the complaint filed under the Consumer Protection Act, 1986.

While enhancing the compensation awarded by the National Consumer

Disputes Redressal Commission from Rs.15 lakhs to Rs.1 crore, the

Bench made the following observations which can appropriately be

applied for deciding the petitions filed under Section 166 of the Act:

"We must emphasise that the court has to strike a balance between the

inflated and unreasonable demands of a victim and the equally untenable

claim of the opposite party saying that nothing is payable. Sympathy for

the victim does not, and should not, come in the way of making a correct

assessment, but if a case is made out, the court must not be chary of

awarding adequate compensation. The "adequate compensation" that we

speak of, must to some extent, be a rule of thumb measure, and as a

balance has to be struck, it would be difficult to satisfy all the parties

concerned.

At the same time we often find that a person injured in an accident leaves

his family in greater distress vis-`-vis a family in a case of death. In the

latter case, the initial shock gives way to a feeling of resignation and

acceptance, and in time, compels the family to move on. The case of an

injured and disabled person is, however, more pitiable and the feeling of

hurt, helplessness, despair and often destitution enures every day. The

support that is needed by a severely handicapped person comes at an

enormous price, physical, financial and emotional, not only on the victim

but even more so on his family and attendants and the stress saps their

energy and destroys their equanimity."

(emphasis supplied)

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14. In Reshma Kumari and others vs. Madan Mohan and another

(2009) 13 SCC 422, this Court reiterated that the compensation awarded

under the Act should be just and also identified the factors which should

be kept in mind while determining the amount of compensation. The

relevant portions of the judgment are extracted below:

"The compensation which is required to be determined must be just.

While the claimants are required to be compensated for the loss of their

dependency, the same should not be considered to be a windfall. Unjust

enrichment should be discouraged. This Court cannot also lose sight of

the fact that in given cases, as for example death of the only son to a

mother, she can never be compensated in monetary terms.

The question as to the methodology required to be applied for

determination of compensation as regards prospective loss of future

earnings, however, as far as possible should be based on certain

principles. A person may have a bright future prospect; he might have

become eligible to promotion immediately; there might have been

chances of an immediate pay revision, whereas in another (sic situation)

the nature of employment was such that he might not have continued in

service; his chance of promotion, having regard to the nature of

employment may be distant or remote. It is, therefore, difficult for any

court to lay down rigid tests which should be applied in all situations.

There are divergent views. In some cases it has been suggested that some

sort of hypotheses or guess work may be inevitable. That may be so.

In the Indian context several other factors should be taken into

consideration including education of the dependants and the nature of job.

In the wake of changed societal conditions and global scenario, future

prospects may have to be taken into consideration not only having regard

to the status of the employee, his educational qualification; his past

performance but also other relevant factors, namely, the higher salaries

and perks which are being offered by the private companies these days. In

f act while determining the multiplicand this Court in O riental Insurance

C o. Ltd. v. Jas huben held that even dearness allowance and perks with

regard thereto from which the family would have derived monthly

benefit, must be taken into consideration.

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One of the incidental issues which has also to be taken into consideration

is inflation. Is the practice of taking inflation into consideration wholly

incorrect? Unfortunately, unlike other developed countries in India there

has been no scientific study. It is expected that with the rising inflation

the rate of interest would go up. In India it does not happen. It, therefore,

may be a relevant factor which may be taken into consideration for

determining the actual ground reality. No hard-and-fast rule, however,

can be laid down therefor."

(emphasis supplied)

15. In Arvind Kumar Mishra v. New India Assurance Company

Limited and another (2010) 10 SCC 254, the Court considered the plea

for enhancement of compensation made by the appellant, who was a

student of final year of engineering and had suffered 70% disablement in

a motor accident. After noticing the factual matrix of the case, the Court

observed:

"We do not intend to review in detail state of authorities in relation to

assessment of all damages for personal injury. Suffice it to say that the

basis of assessment of all damages for personal injury is compensation.

The whole idea is to put the claimant in the same position as he was

insofar as money can. Perfect compensation is hardly possible but one has

to keep in mind that the victim has done no wrong; he has suffered at the

hands of the wrongdoer and the court must take care to give him full and

fair compensation for that he had suffered."

(emphasis supplied)

16. In Raj Kumar vs. Ajay Kumar and another (2011) 1 SCC 343, the

Court considered some of the precedents and held:

"The provision of the Motor Vehicles Act, 1988 ("the Act", for short)

makes it clear that the award must be just, which means that

compensation should, to the extent possible, fully and adequately restore

the claimant to the position prior to the accident. The object of awarding

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damages is to make good the loss suffered as a result of wrong done as far

as money can do so, in a fair, reasonable and equitable manner. The court

or the Tribunal shall have to assess the damages objectively and exclude

from consideration any speculation or fancy, though some conjecture with

reference to the nature of disability and its consequences, is inevitable. A

person is not only to be compensated for the physical injury, but also for

the loss which he suffered as a result of such injury. This means that he is

to be compensated for his inability to lead a full life, his inability to enjoy

those normal amenities which he would have enjoyed but for the injuries,

and his inability to earn as much as he used to earn or could have earned.

The heads under which compensation is awarded in personal injury cases

are the following:

Pecuniary damages (Special damages)

(i) Expenses relating to treatment, hospitalisation, medicines,

transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injured would have made

had he not been injured, comprising:

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on account of permanent disability.

(iii) Future medical expenses.

Non-pecuniary damages (General damages)

(iv) Damages for pain, suffering and trauma as a consequence of the

injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life (shortening of normal longevity).

In routine personal injury cases, compensation will be awarded only

under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where

there is specific medical evidence corroborating the evidence of the

claimant, that compensation will be granted under any of the heads (ii)(b),

(iii), (v) and (vi) relating to loss of future earnings on account of

permanent disability, future medical expenses, loss of amenities (and/or

loss of prospects of marriage) and loss of expectation of life."

(emphasis supplied)

17. In the light of the above, we shall now consider whether the

compensation awarded to the appellant is just and reasonable or the

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Tribunal and the High Court committed an error by not awarding

compensation for the future treatment, deprivation of opportunity to

undertake further studies and consequential loss of earning/income which

he would have derived by taking up appropriate job or doing some

business as also diminution of the marriage prospects.

18. A perusal of the record shows that the appellant had produced

substantive evidence to prove that as a result of accident he had suffered 8

grievous injuries including fracture of pelvis and he had to remain in the

hospital for one month and a half; that he was treated by Dr. Anil K. Bhat,

Assistant Professor, Orthopaedics and Dr. Joseph Thomas, Professor of

Urology and that on account of grievous injuries he was unable to

continue his studies. In his deposition, Dr. Joseph Thomas categorically

stated that the appellant will have to undertake life long treatment for

recurrence of urethral strictures and consequential dysfunction due to

fracture of pelvis. Unfortunately, neither the Tribunal nor the High Court

adverted to this part of the evidence and omitted to award compensation

for the expenses likely to be incurred by the appellant for future

treatment. One can reasonably expect that the appellant who was only 18

years old at the time of accident would live for at least next 50 years. The

Tribunal awarded Rs.20,340/- for expenses incurred by the appellant for

treatment taken by him in the hospital. Although, Dr. Thomas did not

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indicate the approximate expenditure likely to be incurred by the

appellant and his family for future treatment, keeping in view the nature

of injuries and the fact that he will have to take treatment for the

remaining life, it will be reasonable to infer that he will be required to

spend a minimum of Rs.1,000/- per month for future treatment, which

would necessarily include fees of the doctors, medicines, transportation,

etc. In the absence of concrete evidence about the anticipated

expenditure, we think that ends of justice will be met if the appellant is

awarded a sum of Rs.2 lacs which, if deposited in a fixed deposit, would

earn an interest of Rs.14,000/- to 16,000/- per annum.

19. On account of the injuries suffered by him, the prospects of the

appellant's marriage have considerably reduced. Rather, they are

extremely bleak. In any case, on account of the fracture of pelvis, he will

not be able to enjoy the matrimonial life. Therefore, the award of

Rs.50,000/- under this head must be treated as wholly inadequate. In the

facts and circumstances of the case, we feel that a sum of Rs.2 lacs should

be awarded to the appellant for loss of marriage prospects and enjoyment

of life.

20. The compensation awarded for loss of future earning on account of

permanent partial disablement is ex facie unreasonable. Respondent No.3

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did not produce any evidence to controvert the appellant's assertion that

on account of the injuries suffered in the accident, he had to abandon his

studies. The consequences which followed were extremely grave

inasmuch as he lost all opportunities for making a career in future. The

prospects of the appellant's marriage are extremely bleak. Therefore, a

sum of Rs.2 lacs deserves to be awarded under these heads.

21. We are conscious of the fact that in the petition filed by him, the

appellant had claimed compensation of Rs.3 lacs only with interest and

cost. It will be reasonable to presume that due to financial incapacity the

appellant and his family could not avail the services of a competent

lawyer and make a claim for adequate compensation. However, as the

Tribunal and the High Court and for that reason this Court are duty bound

to award just compensation, we deem it proper to enhance the

compensation from Rs.1,89,440/- to Rs.6 lacs. This approach is in tune

with the judgment in Nagappa v. Gurudayal Singh (2003) 2 SCC 274. In

that case, the Court considered a similar issue, referred to the judgments

of the Bombay High Court in Municipal Corporation of Greater Bombay

v. Kisan Gangaram Hire 1987 ACJ 311 (Bombay), Orissa High Court in

Mulla Mod. Abdul Wahid v. Abdul Rahim 1994 ACJ 348 (Orissa) and

Punjab and Haryana High Court in Devki Nandan Bangur v. State of

Haryana 1995 ACJ 1288 (P&H) and observed:

14 "For the reasons discussed above, in our view, under the MV Act, there is

no restriction that the Tribunal/court cannot award compensation amount

exceeding the claimed amount. The function of the Tribunal/court is to

award "just" compensation which is reasonable on the basis of evidence

produced on record. Further, in such cases there is no question of claim

becoming time-barred or it cannot be contended that by enhancing the

claim there would be change of cause of action. It is also to be stated that

as provided under sub-section (4) to Section 166, even the report

submitted to the Claims Tribunal under sub-section (6) of Section 158 can

be treated as an application for compensation under the MV Act. If

required, in appropriate cases, the court may permit amendment to the

claim petition."

22. In the result, the appeal is allowed. The impugned judgment is

modified and it is declared that the appellant shall be entitled to total

compensation of Rs.6 lacs with interest at the rate of 6% per annum from

the date of filing the claim petition. If respondent No.3 has already paid

the compensation in terms of the award of the Tribunal and the impugned

judgment, then it shall pay the balance amount with interest at the rate of

6% per annum on the enhanced amount of compensation within a period

of 3 months. If the amount awarded by the Tribunal and the High Court

has not been paid so far, then respondent No.3 shall pay the total amount

of Rs.6 lacs to the appellant with interest at the rate of 6% per annum

within the said period of 3 months.

....................................J.

(G.S. Singhvi)

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....................................J.

(Asok Kumar Ganguly)

New Delhi,

October 31, 2011.