Jharkhand High Court
Kiran Kumari (Aged About 28 Years) ... vs Hemant Kumar Gupta on 11 March, 2024
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Miscellaneous Appellate Jurisdiction)
M.A. No.290 of 2018
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Kiran Kumari (aged about 28 years) daughter of Sri Charo
Oraon, Resident of village-Borsidag, Post-Chandwa, P.S.
Chandwa, District-Latehar(Jharkhand)
.... .... .... Appellant/Applicant
Versus
1. Hemant Kumar Gupta, S/o Sri Surya Bhusan Prasad, Main
Road, at and post: Lohardaga-835302 P.S. Lohardaga,
District-Lohardaga(Jharkhand) Also at:- Ratu Road (Near
Minakshi Cinema Hall) P.S. Sukhdeo Nagar, At and Post:
Ranchi-934001 District-Ranchi(Jharkhand)
2. The Oriental Insurance Co. Ltd. Lohardaga Branch, Hotel
Novelty Building Palmer Ganj, At and Post: Post-
Lohardaga-835302 P.S. Lohardaga, District-Lohardaga
(Jharkhand)
.... .... .... Respondents/Opposite Parties
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PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
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For the Appellant : Mr. Arvind Kumar Lall, Advocate
For the Resp. No.1 : Mr. Shashank Saurav, Advocate
For the Resp. No.2 : Mr. G.C. Jha, Advocate
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JUDGMENT
C.A.V. ON 12/12/2023 Pronounced On 11 / 03 /2024 Heard learned counsel for the parties.
2. The appellant has preferred this appeal being aggrieved and dissatisfied with the judgment/award dated 03.04.2018 passed by Sri Vishwa Nath Shukla, learned Presiding Officer, Motor Vehicle Accident Claims Tribunal, Ranchi in Motor Accident Claim Case No.202 of 2010, whereby and whereunder the learned Tribunal has awarded unjust and improper amount of compensation to the appellant under the provision of Section 166 of Motor Vehicles Act, 1988 instead of allowing claimed amount in the appeal.
M.A. No.290 of 2018 -2-FACTUAL MATRIX
3. The appellant while about 7 years tender aged girl had gone to school and returning to home on 19.07.1999 boarding on a truck bearing Reg. No.BR-14G-0207 reached near village Lukaiya P.O. Chandwa District Latehar at about 4 PM suddenly the offending vehicle turned turtle due to rash and negligent driving by its driver resulting death of two persons travelling in the said vehicle on the spot and one person died in the hospital during treatment and the present appellant namely Kiran Kumari has sustained crushed injuries in her right leg, which was amputated from middle of the thigh during course of treatment in order to save her life. It is alleged that the appellant remained admitted at RIMS Ranchi for treatment from 19.07.1999 to 30.08.1999 as completely bed ridden. Due to amputation of her right leg from mid of thigh, she has become permanently disabled to the extent of 75 %. She has sustained server mental agony at the time of accident and still her life has become miserable in discharging day to day affairs. She is any how walking through artificial leg and prosecuting her study. She has lost her marriage prospect, future income and amenities in life.
4. In connection with above accident, Chandwa P.S. Case No.32 of 1999 dated 29.07.1999 was instituted against the driver of the offending truck bearing Reg. No.BR-14G-0207 for the offence under sections 279 and 304A of IPC and after investigation, charge-sheet has been submitted against the driver namely Mukhtar Ansari for the offences under Sections 279 and 304A of IPC.
5. The claimant had claimed Rs.10 lakhs as compensation by filing the claim petition after attaining the age of majority but the learned Tribunal has granted very meager amount of compensation to the tune of Rs.4,31,950/- along with interest @ 12 % per annum from the date of award till its realization.
M.A. No.290 of 2018 -3-6. Learned counsel for the appellant assailing the impugned award has submitted that the quantum of compensation as assessed in various heads by the learned Tribunal are as under:-
Sr. No. Heads Amount in Rs.
1. Future Los of Earning Rs.1,68,750/-
2. Medical Expenses (no any Rs. 2,000/-
medical bill produced)
3. Transportation Charges Rs.200/-
4. Pain and suffering Rs.10,000/-
5. Special Diet Rs.500/-
6. Attendant Charges Rs.500/-
7. Loss of Marriage prospects Rs.1,00,000/-
8. Loss of amenities and Rs.1,00,000/-
enjoyment of life
9. Loss of expectation of life Rs.50,000/-
Total Rs.4,31,950/-
7. It is further contended that the learned court below has awarded very meager amount of compensation towards future loss of earning, medical expenses, transportation charges, pain and suffering, special diet, attendant charges and other general damages towards loss of marriage prospect, loss of amenities and enjoyment of life, loss of expectation of life but nothing has been awarded in respect of future prospect of the victim who has to sustain her miserable life throughout the life emotionally, psychologically, physically and socially due to amputation of her right leg and also cost of artificial limb, which required to be changed periodically.
8. The assessment of compensation on the basis of notional income i.e. Rs.15,000/- per annum for the injured-appellant, who has suffered 75% permanent disability has been misconceived by the learned Tribunal. Learned counsel for the appellant has M.A. No.290 of 2018 -4- submitted that at least amount claimed of Rs.10 lakhs as compensation has to be granted to the appellant/claimant.
9. Learned counsel for the appellant has placed reliance upon reported judgment of Hon'ble Apex Court in the case of Md. Sabbir @ Sabbir Hussain vs. Regional Manger, UP Road Transport Corporation (2023) 1 JBCJ 217 SC, paragraph No.13 to 29 of which reads as under:-
LOSS OF INCOME DUE TO FUNCTIONAL DISABILITY "13. The Appellant has suffered an amputation of the lower right limb, a fracture in the medial wall of the bilateral orbit, crush injury right leg, fracture tibia right leg, exposed vessels and other injuries. As per the disability certificate, the Appellant has suffered 70% disability, however the High Court has held that the Appellant has only suffered 35% loss in future earnings due to the disability.
14. To assess the quantum of compensation to be awarded, this Court has to assess whether the permanent disability caused has any adverse effect on the earning capacity of the Appellant, as held by this Court in the case of Sandeep Khanuja v. Atul Dande2. The relevant paragraph of the judgment is quoted hereunder:--
"The crucial factor which has to be taken into consideration thus is to assess whether the permanent disability has any adverse effect on the earning capacity of the injured. We feel that the conclusion of the MACT on the application of aforesaid test is erroneous. A very myopic view is taken by the MACT in taking the view that 70% permanent disability suffered by the appellant would not impact the earning capacity of the appellant. The MACT thought that since the appellant is a chartered accountant he is supposed to do sitting work and therefore his working capacity is not impaired..... A person who is engaged and cannot freely move to attend to his duties may not be able to match the earning in comparison with the one who is healthy and bodily able. Movements of the appellant have been restricted to a large extent and that too at a young age."
15. This Court has also laid out in the case of Raj Kumar v. Ajay Kumar that where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation for loss of future earnings would depend upon the impact and effect of the Permanent Disability on his earning capacity. This Court observed as under:--
"Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal M.A. No.290 of 2018 -5- should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanently disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation."
16. The Appellant herein has suffered permanent disability of 70% and has an amputated right lower limb amongst other injuries. The High Court has wrongly taken the view that the Appellant has only suffered 35% functional disability. The Appellant is not a salaried person but is self-employed who manages his business. For the Appellant to be able to augment his income, he is most definitely required to move around. The Appellant can also not drive on his own, which hinders his mobility further. This proves that the functional disability of the Appellant will severely impact his earning capacity, and the 35% functional disability calculated by the High Court is incorrect in the facts and circumstances of the case and in our view the loss of future earning capacity must be calculated at 60%. FUTURE PROSPECTS
17. The High Court has not applied the quantum for future prospect in the compensation granted. In its reasoning, the High Court has stated that the Income tax returns relied upon by the Appellant show that despite the injury the Appellant's income had subsequently increased and hence it cannot be said that there is a loss of future earnings.
18. It is a well settled position of law that in cases of permanent disablement caused by a motor accident, the claimant is entitled M.A. No.290 of 2018 -6- to not just future loss of income, but also future prospects. It has been reiterated by this Court in multiple instances that "just compensation" must be interpreted in such a manner as to place the claimant in the same position as he was before the accident took place.
19. The accident that caused the injury took place on 12.06.2009. The acknowledgement of both the Income Tax Returns produced by the Appellant show that Tax Returns were till 31.03.2008 and 31.03.2009. Both the Income Tax Returns produced as proof of income were from before the accident took place, and hence the High Court's finding that the income of the Appellant has increased after the disability is incorrect.
20. It is also to be noted that even if the income of the Appellant had increased after the accident, it would not be enough grounds to disable the Appellant from claiming compensation for future prospect as the rise in income may be attributed to multiple other factors.
21. In light of National Insurance Company Limited v. Pranay Sethi, the applicable 40% addition of future prospects will be given as compensation to the Appellant herein.
COMPENSATION FOR THE PURCHASE AND MAINTENANCE OF THE PROSTHETIC LEG
22. The High Court has awarded a compensation of Rs. 5,20,000/- for the prosthetic limb and Rs. 50,000/- towards repair and maintenance of the same. The Appellant submits that the cost of the prosthetic limb itself is Rs. 2,60,000/- and the life of the prosthetic limb is only 5-6 years. The prosthetic limb also requires repair and maintenance after every 6 months to 1 year, and each repair costs between Rs. 15,000 to Rs. 20,000/-. This would mean that the prosthetic limb would last the Appellant for only 15 years under the current compensation. The Appellant at the time of the accident was aged 37 years and has a full life ahead. It has been clearly stated by this Court in the case of Anant Son of Sidheshwar Dukre (Supra) that the purpose of fair compensation is to restore the injured to the position he was in prior to the accident as best as possible. The relevant paragraph of the judgment is being extracted herein:
"In cases of motor accidents leading to injuries and disablements, it is a well settled principle that a person must not only be compensated for his physical injury, but also for the non- pecuniary losses which he has suffered due to the injury. The Claimant is entitled to be compensated for his inability to lead a full life and enjoy those things and amenities which he would have enjoyed, but for the injuries."
"The purpose of compensation under the Motor Vehicles Act is to fully and adequately restore the aggrieved to the position prior to the accident."M.A. No.290 of 2018 -7-
23. As per the current compensation given for the prosthetic limb and its maintenance, it would last the Appellant for only 15 years, even if we were to assume that the limb would not need to be replaced after a few years. The Appellant was only 37 years at the time of the accident, and it would be reasonable to assume that he would live till he is 70 years old if not more. We are of the opinion that the Appellant must be compensated so that he is able to purchase three prosthetic limbs in his lifetime and is able to maintain the same at least till he has reached 70 years of age. For the Prosthetic limbs alone, the Appellant is to be awarded compensation of Rs. 7,80,000 and for maintenance of the same he is to be awarded an additional Rs. 5,00,000/-.
NON-PECUNIARY COMPENSATION
24. The High Court has upheld the compensation awarded by the Ld. Tribunal for non-pecuniary damages, which comes to Rs. 3,00,000/- in total. Considering the nature of the permanent disability caused by the accident and the effect it will have on the Appellant's life, this Court is of the opinion that the compensation provided by the High Court for non-pecuniary heads is inadequate.
25. In R.D. Hattangadi v. Pest Control (India) (P) Ltd.5 dealing with the different heads of compensation in injury cases this Court held that:
"Broadly speaking while fixing the 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 the 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 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."
26. In light of the above decision of this Court and the facts and circumstances of the case at hand, the compensation to be awarded is as follows:
I. Compensation for pain and suffering - Rs. 2,00,000/- II. Compensation for Loss of Amenities of Life - Rs. 2,00,000/-M.A. No.290 of 2018 -8-
III. Compensation for disability and disfigurement - Rs. 2,00,000/-
CONCLUSION
27. We are of the opinion that while awarding compensation in cases of permanent disability caused to claimants, the courts must look at the case in totality, and must consider the socio- economic background of the claimants. The Appellant herein comes from an economically weaker section of the society.
28. It is almost universally seen that persons from marginalized backgrounds often face an additional layer of discrimination due to bodily disabilities. This is because persons from marginalized sections of the society already face severe discrimination due to a lack of social capital, and a new disability more often than not compounds to such discrimination. In such circumstances, to preserve the essence of justice, it becomes the duty of the Court to at the very least restore the claimant as best as possible to the position he was in before the occurrence of the disability, and to do so must award compensation in a liberal manner.
29. While no material compensation can completely negate the trauma and suffering that the injured and his family faces, the law only knows the language of monetary compensation in such cases. It then becomes the duty of the court to translate the provisions of monetary compensation into a fabrication that helps the injured and his family in coping with their loss."
10. Leaned counsel for the appellant has further placed reliance upon the reported judgment of Hon'ble Apex Court in the case of Rajiv Sharma Vs. Yogendar Singh @ Gappu and Ors. 2022 (4) TAC SC 726, paragraph No.5 and 6 of which reads as under:-
"5. The loss of a limb has a permanent effect on the psychology of a person as well as the difficulties which he faces because of the amputation in daily course of life. Consequently, we deem it appropriate to award a sum of Rs.10 lakhs towards pain and suffering and loss of amenities. In addition thereto, the appellant would require replacement of artificial limb keeping in view the growth of the child. The High Court has awarded Rs 8 lakhs for one artificial limb but since the artificial limb has to be replaced after some time keeping in view the normal growth of the child, a cost of another Rs.8 lakhs towards provision of artificial limb is granted. Thus, the appellant shall be entitled to compensation as under:
Head Amount
A Loss of future prospects 4,53,600
(1500+40% x 18) (2100 x 12x 18)
B Pain and suffering and loss of 10,00,000
M.A. No.290 of 2018
-9-
amenities
C Medical expenses (for 2 time 16,00,000
limb replacement)
Total 30,53,600
6.The compensation thus is computed as Rs.30,53,600/. The appellant shall also be entitled to interest at the rate of 6 % p.a. as awarded by the Tribunal from the date of filing of the claim application till its realization."
11. Leaned counsel for the appellant has further reliance upon the judgment of Hon'ble Apex Court in the case of G. Vivek Vs. National Insurance Co. Ltd. 2022 )4) TAC 728 SC, paragraph Nos.6, 7, 11, 12, 13, 14 and 15 which reads as under:-
"6. The Appellant sought compensation under the Motor Vehicles Act, 1989. The Tribunal at Koraput at Jeypore, Odisha, allowed his claim petition and awarded compensation of Rs.78,82,497/- (rounded off to Rs.78,83,000/-). The Tribunal awarded a sum of Rs.16,82,497/- under the head of medical expenses, transport and attendant fees for dressing. Another sum of Rs.26,00,000/- was awarded for the purchase of prosthesis and maintenance. The new prosthesis' rate which was supposed to to be changed every five years was taken as Rs.5,00,000/-. Cost of maintenance of prosthesis was assessed at the rate of Rs.30,000/- per year. The Tribunal also awarded a sum of Rs.27,00,000/- towards loss of future income.
7. While accepting the appeal preferred by the Insurance Company in part, thereby reducing the compensation amount of Rs.56,00,000/-, the only reason discernible from the Order passed by the High Court reads as follows:- "As the claimant sustained disability to the extent of 97% due to amputation of his right leg and other complications, learned Tribunal has applied the multiplier of `15' to calculate the loss of income. Taking the notional income of the claimant at Rs.10,000/- per month and adding 50% towards his future prospects, learned Tribunal has awarded Rs.27,00,000/-, towards loss of future income. Learned Tribunal has further awarded Rs.16,82,497/- towards medical expenses, transport and attendant charges, Rs.3,00,000/- towards pain and suffering, Rs.2,00,000/- towards future medical expenses and Rs.2,00,000/- towards loss of engagement and marriage prospects.
Law is well settled that pecuniary loss suffered by the claimant is to be assessed on the basis of actual expenses incurred. Therefore, the claimant having filed bills and vouchers to show that he had incurred medical expenses of Rs.10,15,949/-, M.A. No.290 of 2018 -10- learned Tribunal was not justified in awarding Rs.16,82,497/- towards medical expenses, transport and attendant fees. Moreover there is no basis for assessing the cost of new prosthesis at Rs.5,00,000/- nor there is any basis for calculating medical future expenses at Rs.2,00,000/. Though non pecuniary loss can be assessed on notional basis, the same must have a co- relation to the actual cost which an injured may incur in future for treatment of his injuries sustained in the accident. In other words, non-pecuniary loss towards future medical treatment, loss of income towards attendant expenses etc. must have a nexus with the actual rate for incurring such expenses and not on mere assumption. The award of compensation must be just and fair irrespective of the claims made and the same should not be a bonanza for the claimant."
11. In our view, the Tribunal was justified in awarding a sum of Rs.20,00,000/- towards cost of new prosthesis at the rate of Rs.5,00,000/- to be changed four times in five years. In other words, the Tribunal awarded this cost component only for 20 years despite the fact that Appellant was hardly of the age of 15- 16 years old at the time when the Award was passed.
12. There is no rationale for the High Court to reduce the cost of the prosthesis from Rs.20,00,000/- to Rs.5,00,000/-.
13. Having held so, the Appellant is indeed entitled to Rs.26,00,000/- towards cost and maintenance of prosthesis and that being so, the compensation amount stands increased from Rs.5,00,000/- (as awarded by the High Court) to Rs.26,00,000/- and excluding a sum of Rs.5,00,000/- awarded by the High Court towards cost of prosthesis, totaling to Rs.71,00,000/-.
14. In addition to the above, we hold the Appellant entitled to a sum of Rs.1,00,000/- towards transport expenses and attendant fees for dressing. In this manner, the compensation amount is increased to Rs.72,00,000/- (Rs.71,00,000/-+ Rs.1,00,000/-)
15. The appeal is, consequently, allowed in the above terms.
12. Leaned counsel for the appellant has further placed reliance upon the judgment of Hon'ble Apex Court in the case of Sidaram Vs. Divisional Manager United India Insurance Co. Ltd and Anr. (2023) 1 JLJR SC 373, paragraph Nos.29, 30, 31, 32, 38, 54, 55, 56, 57, 59, 60, 61, 62, 68, 69, 76, 82, 89, 93, 96, 97, 98, 99, 103, 111, 113 and 114 which reads as under:-
"29. The process of determining the compensation by the court is essentially a very difficult task and can never be an exact science. Perfect compensation is hardly possible, more so in claims of injury and disability. As rightly pointed out in H. West & Son Ltd. v. Shephard [H. West & Son Ltd. v. Shephard, 1964 M.A. No.290 of 2018 -11- AC 326 : (1963) 2 WLR 1359 : (1958-65) 65 ACJ 504 (HL)] (HL, England):
"... money cannot renew a physical frame that has been battered."
30. The principle consistently followed by this Court in assessing motor vehicle compensation claims, is to place the victim in as near a position as she or he was in before the accident, with other compensatory directions for loss of amenities and other payments. These general principles have been stated and reiterated in several decisions. [Govind Yadav v. New India Insurance Co. Ltd. [Govind Yadav v. New India Insurance Co. Ltd., (2011) 10 SCC 683]
31. It is now a well-settled position of law that even in cases of permanent disablement incurred as a result of a motor accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects as well. We have come across many orders of different tribunals and unfortunately affirmed by different High Courts, taking the view that the claimant is not entitled to compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. That is not a correct position of law. There is no justification to exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. Such a narrow reading is illogical because it denies altogether the possibility of the living victim progressing further in life in accident cases -- and admits such possibility of future prospects, in case of the victim's death.
32. This Court has emphasised time and again that "just compensation" should include all elements that would go to place the victim in as near a position as she or he was in, before the occurrence of the accident. Whilst no amount of money or other material compensation can erase the trauma, pain and suffering that a victim undergoes after a serious accident, (or replace the loss of a loved one), monetary compensation is the manner known to law, whereby society assures some measure of restitution to those who survive, and the victims who have to face their lives.
38. However, making a monetary assessment of the injury suffered is the only process devised to compensate the victim. The process of making such an assessment, whether in case of death or injury, is provided in Section 168 of the Act which requires that the tribunals constituted under the Act determine compensation, which appears to be "just". Thus, the Act vests a wide discretion upon the tribunals. The decision of this Court in Karnataka SRTC v. Mahadeva Shetty [Karnataka SRTC v. Mahadeva Shetty, (2003) 7 SCC 197 : 2003 SCC (Cri) 1722] , needs mention here (para 15) : (SCC p. 204) M.A. No.290 of 2018 -12- "15. ... It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. Bodily injury is nothing but a deprivation which entitles the claimant to damages. The quantum of damages fixed should be in accordance with the injury. An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such consequential losses. A person becomes entitled to damages for mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life, which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just", a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness."
54. The Tribunal held that although the appellant herein had claimed that he was earning Rs 9000 per month from his business of selling of utensils, yet the appellant was not in a position to adduce any documentary evidence in that regard. Although Dr Anil B. Patil (PW 2) in his oral evidence has deposed that the appellant suffered a permanent disability to the tune of 45%, yet the Tribunal held that the appellant had suffered a permanent disability of only 30%. The Tribunal applied the multiplier as explained in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 :
(2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] . Accordingly, the compensation awarded for the loss of earning capacity was determined as follows:
Rs 5000 × 12 × 18 × 30% = INR 3,24,000
55. The High Court enhanced the income to Rs 7000 stating that the same was determined by the Tribunal on a lower side. Further, the High Court held that having regard to the evidence of the treating doctor, the permanent disability of the appellant should be determined at 40%. In such circumstances, the High M.A. No.290 of 2018 -13- Court while applying the multiplier, enhanced the compensation to be awarded under the head of loss of earning capacity to Rs 7000, as under:
Rs 7000 × 12 × 18 × 40% = INR 6,04,800
56. The evidence on record indicates that the appellant suffered paraplegia due to the accident. Paraplegia is a form of paralysis of lower body. It restricts everyday routine more particularly the physical activity and leads to : (i) deprivation of simple pleasures and amenities of life, (ii) 100% loss of earning capacity, (iii) long- term secondary complications requiring continuous care, medical treatment and hospitalisation, (iv) feeling of helplessness, depression, anger, stress, anxiety, etc. In short, paraplegia impairs physical, mental and psychological health and has devastating impact on the social and financial well-being of the victim.
57. In the case on hand, the appellant was in the business of selling utensils and used to travel to various villages to sell the same. With this disability in the form of paraplegia being suffered by the appellant, it is not possible for him now to walk a long distance or stand for a long period. His business could be said to have been gravely impacted. Further, the appellant at the time of accident was just 19 years old. The High Court enhanced his notional income from Rs 5000 to Rs 7000 per month. The appellant claimed that his notional income be determined at Rs 9000.
59. Thus, we are of the view, more particularly keeping in mind the dictum of this Court in Kirti [Kirti v. Oriental Insurance Co. Ltd., (2021) 2 SCC 166 : (2021) 1 SCC (Civ) 704 : (2021) 1 SCC (Cri) 731] that it is not necessary to adduce any documentary evidence to prove the notional income of the victim and the Court can award the same even in the absence of any documentary evidence. In Kirti [Kirti v. Oriental Insurance Co. Ltd., (2021) 2 SCC 166 : (2021) 1 SCC (Civ) 704 : (2021) 1 SCC (Cri) 731] it was stated that the Court should ensure while choosing the method and fixing the notional income that the same is just in the facts and circumstances of the particular case, neither assessing the compensation too conservatively, nor too liberally.
60. In the overall view of the matter, we are convinced that we should determine the notional income of the appellant herein at Rs 8000 per month. The same would result in the compensation being enhanced as under:
Rs 8000 × 12 × 18 × 45% = INR 7,77,600 (2) Loss of earning for 6 months
61. Compensation under the aforesaid head was awarded by the Tribunal and the High Court. The Tribunal awarded only Rs 40,000 under this head. The High Court enhanced it to Rs 42,000.
M.A. No.290 of 2018 -14-62. We uphold the payment towards loss of earning for six months as awarded by the High Court and applying the revised income, enhance the same as under:
Rs 8000 × 6 = INR 48,000
68. The Tribunal has observed that the doctor has deposed that the appellant is likely to incur expenses of Rs 2,50,000 towards future medical expenses. However, according to the Tribunal, there was no sufficient and cogent evidence in that regard under this head. Accordingly, the Tribunal awarded Rs 25,000. The High Court thought it fit not to award any amount for future medical expenses as there was no evidence adduced by the appellant in regard to future treatment that may be required. The High Court however, thought it fit to clarify that in the event if the appellant incurs any expenses towards any surgery or treatment in future on account of the injury suffered and if he proves the same, then the insurer shall indemnify the same.
69. Dr Anil B. Patil (PW 2) has deposed categorically that the appellant would require future medical expenses to the tune of Rs 2,50,000. We are of the view that having regard to the evidence on record that the appellant would be incurring costs towards medical expenses in future along with physiotherapy and nursing and considering that the appellant at the time of accident was 19 years old, today his age would be around 29 years, even if a bare minimum of Rs 1000 is spent per month, then it comes to:
Rs 1000 × 12 × 18 = Rs 2,16,000
76. Thus, we award an amount of Rs 4,32,000 towards the attendant charges.
82. In view of the aforesaid, we award an amount of Rs 50,000 towards litigation expenses.
89. Hence, we may grant the appellant loss of conveyance and special diet up to Rs 50,000 considering that after the accident at Kulgod-Gokak Road, the appellant was shifted to Lakeview Hospital, Belgaum wherein he was admitted as an indoor patient from 18-7-2012 to 6-8-2012 for 19 days, and took treatment for the injuries suffered by him, and continued to take the treatment after getting discharged from the hospital as well.
93. Pain and suffering would be categorised as a non-pecuniary loss as it is incapable of being arithmetically calculated.
Therefore, when compensation is to be awarded for pain and suffering, special circumstances of the claimant have to be taken into account including the victim's age, the unusual deprivation the victim has suffered, the effect thereof on his or her future life. This Court in R.D. Hattangadi [R.D. Hattangadi v. Pest Control (India) (P) Ltd., (1995) 1 SCC 551 : 1995 SCC (Cri) 250] , while discussing this aspect held that : (SCC pp. 556 & 559, paras 10 &
17) M.A. No.290 of 2018 -15- "10. It cannot be disputed that because of the accident the appellant who was an active practising 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.
17. ... When compensation is to be awarded for pain and suffering and loss of amenity 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."
96. This Court has awarded compensation for pain and suffering by looking into the circumstances of the case. Therefore, considering that the appellant was only 19 years at the time of the accident and suffered a permanent disability of 45%, he ought to be awarded compensation under this head.
97. Furthermore, the decision of this Court in Nagappa [Nagappa v. Gurudayal Singh, (2003) 2 SCC 274 :
2003 SCC (Cri) 523] , holds that there is no embargo in awarding compensation more than that claimed by the claimant.
98. In view of the aforesaid, we award an amount of Rs 1,00,000 towards pain and suffering.
(9) Marriage prospects
99. The Tribunal held that the appellant was young, and due to the physical disability, his marriage prospects are now almost nil. The Tribunal awarded Rs 20,000 under this head. The High Court upheld the amount of Rs 20,000.
103. In view of the aforesaid, we award a sum of Rs 3,00,000 towards loss of marriage prospects.
111. In view of the aforesaid, we award an amount of Rs 50,000 for the loss of amenities taking into consideration the fact that the appellant was 19 years old at the time of the accident, and also considering the nature of injuries suffered by him and the extent of his disability.
113. Before we close this matter, it needs to be underlined, as observed in Pappu Deo Yadav [Pappu Deo Yadav v. Naresh Kumar, (2022) 13 SCC 790 : 2020 SCC OnLine SC 752] that courts should be mindful that a serious injury not only M.A. No.290 of 2018 -16- permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victim's having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the Judge's mind, whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognised as an intrinsic component of the right to life under Article 21) of the individual, thus depriving the person of the essence of the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit-pick and award niggardly amounts oblivious of these circumstances, there is resultant affront to the injured victim. (See Pappu Deo Yadav [Pappu Deo Yadav v. Naresh Kumar, (2022) 13 SCC 790 :
2020 SCC OnLine SC 752] .)
114. We, therefore, direct Respondent 1 herein--insurance company to pay the appellant claimant the difference in the compensation awarded herein as against the amount of Rs 9,26,800 as awarded by the High Court. The amount awarded by this Court shall be deposited by Respondent 1 -- insurance company within a period of eight weeks from today after adjusting the amount already deposited. The rate of interest at the enhanced amount is to be the same i.e. 6% p.a."
13. Learned counsel for the respondents refuting aforesaid contentions raised on behalf of the appellants has submitted that the girl was admittedly 7 years old on the date of alleged accident. Although, the claim case was filed after 10 years when she attained the age of majority. It is settled law that compensation in motor accident claim must be awarded considering every aspect of the case including the social strata of the victim/injured and should be just and reasonable in the fact and circumstances. It is meant to recompense the victim and put him/ her in same situation as the accident has not taken place. It is not a bonanza to take advantage of accident for monetary benefits. In the instant case, medical cost was provided by the Government as the claimant is a tribal girl and artificial limb was also provided by charitable institution. Now the victim has completed her intermediate examination as per evidence of her father.
Learned Tribunal has touched all the aspects and heads under which the compensation may be awarded and has very wisely and M.A. No.290 of 2018 -17- aptly awarded the amount of compensation for the accident, which occurred in the year 1999. The appellant wants to take the advantage of recent pronouncement of Hon'ble Apex Court for her past inaction about 10 years. The amount of compensation awarded by learned Tribunal is just and reasonable, which does not require any interference by way of this appeal, hence, this appeal has no merits and the same may be dismissed.
14. Now rebutting back to the factual facts and determination of compensation in this case in the light of above guidelines and leading principles propounded by Hon'ble Apex Court , it is obvious that the learned Tribunal has based the income of the 7 years victim girl as per provision of Scheduled-II appended to the Motor Vehicle Act, 1988 inserted in the year 1995 and the present case is contemporaneous i.e. of the year 1999. Therefore, the notional income applied in this case appears to be reasonable but declining the future prospect and very scanty amount of compensation towards expenses in treatment and other heads of general damages like loss of marriage prospect, loss of amenities and enjoyment of life, loss of expectation of life has been awarded. No provision has been made towards expenses for replacement of artificial limb which is required to be changed periodically. In this regard, the contention of learned counsel for the respondent that the artificial limb was provided to the victim girl by charitable institution cannot be entertained as a ground for future replacement of limb through charitable institution, as the victim girl cannot be made twice victimized to take shelter of any charitable institution or seeking sympathy from others. Therefore, the compensation towards replacement of artificial limb is vital aspect of the award of reasonable compensation.
15. I have taken into consideration of rival submissions of the parties and general principles of law for assessment of compensation in the case of injuries where permanent disability has been caused to the extent of amputation of leg below thigh as discussed above and applying the same in the factual scenario of the case, the computation of just and reasonable compensation to the victim of this case is commutated as under in a tabular chart:-
M.A. No.290 of 2018 -18-Sr. No. Heads Amount in Rs.
1. Future Loss of Earning + Future Rs.3,15,000/-
Prospect 40%
(15,000 of 40% = 6,000)
[15,000+6,000=21,000] [21,000 x 15
=3,15,000]
2. Medical Expenses (no any Rs. 5,000/-
medical bill produced)
3. Transportation Charges Rs.5,000/-
4. Pain and suffering Rs.50,000/-
5. Special Diet Rs.2,500/-
6. Attendant Charges Rs.2,500/-
7. Loss of Marriage prospects Rs.2,00,000/-
8. Loss of amenities and enjoyment Rs.2,00,000/-
of life
9. Loss of expectation of life Rs.1,00,000/-
10. Replacement of artificial limb Rs.7,50,000/-
Total Rs.16,30,000/-
16. In view of aforesaid discussion and reasons, the impugned award passed by learned Tribunal is hereby set-aside/modified to the extent mentioned above and the appellant is awarded Rs.16,30,000/- as compensation on account of permanent disability sustained in the accident arising out of use of motor vehicle along with interest @ 9 % per annum from the date of institution of the claim case before the learned Tribunal i.e. 30.09.2010 till its realization.
17. Respondent No.2-the Oriental Insurance Co. Ltd. is directed to satisfy the aforesaid modified award within six weeks from the date of this judgment after deducting the amount if any, already paid to the appellant in compliance of the judgment/award passed by the learned Tribunal, failing which, the aforesaid amount of award along with interest shall be realized from the respondent No.2-Oriental Insurance Co. Ltd. through process of law along with cost of realization.
18. In view of above, this appeal is allowed subject to modification of impugned Award as stated above.
M.A. No.290 of 2018 -19-19. Let the copy of this judgment along with LCR be sent back to the learned Tribunal for information and needful.
20. Pending I.A(s), if any, are disposed of accordingly.
(Pradeep Kumar Srivastava, J.) High Court of Jharkhand, Ranchi Date: 11/03/2024 Pappu-N.A.F.R./