Supreme Court - Daily Orders
Afnees (Unconscious) Rep. Thr Mother vs Oriental Insurance Co. Ltd. Vadakara . on 3 May, 2017
Bench: Pinaki Chandra Ghose, Rohinton Fali Nariman
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6445-6446 OF 2017
(Arising out SLP (C) Nos. 36407-36408 of 2016)
AFNEES (UNCONSCIOUS) REP. THR MOTHER Appellant (s)
VERSUS
ORIENTAL INSURANCE CO. LTD. VADAKARA AND ORS. Respondent(s)
O R D E R
1) Leave granted. 2) The appellant-Afnees (unconscious), through his mother, has approached this Court aggrieved by the order passed by the
Division Bench of the High Court of Kerala at Ernakulam whereby the High Court allowed the appeal of the Insurance Company and reduced the amount of compensation awarded by the Motor Accident Claims Tribunal, Vadakara (for short, `the Tribunal') from Rs. 10,88,800/- to Rs.5,76,000/- by applying a multiplier of 16 as the claimant was aged 19 at the relevant time and further partly allowed the appeal of the appellant and awarded Rs. 1 lakh towards future treatment.
3) In the petition filed by the appellant under Section 166 of the Motor Vehicles Act, 1988 (for short, `the Act'), which came to Signature Not Verified be registered as OP (MV) No.575 of 2007, the appellant prayed for Digitally signed by R.NATARAJAN Date: 2017.05.12 12:45:05 IST award Reason: of compensation to the tune of Rs.22,00,000/-. The appellant's claim was founded on the following assertions: 2
(i) That the appellant had suffered grievous injuries in an accident which occurred on 28.12.2006 when his motor cycle was hit by a jeep driven in a rash and negligent manner and in a high speed.
(ii) That he was initially treated at MCH, Calicut from where he was shifted to Indo American Hospital Brain and Spine Centre, Vaikom. He remained in the hospital from 28.12.2006 to 11.02.2007 and 28.02.2007 to 15.03.2007. Due to the accident, the appellant was totally bed ridden and is in a coma (vegetative) stage and the medical board assessed his disability at 100 per cent. His treatment still continues with no improvement and may be in the same position for his remaining life.
(iii) That at the time of accident his age was about 19 years and he was doing part-time job as a sales man drawing a monthly salary of Rs.3,000/- per month.
(iv) That on account of the accident, he is fully dependent for all activities of daily life.
(v) He is from a poor family and his parents, being labourers, cannot afford the treatment expenses.
4) After considering the pleadings of the parties and evidence adduced by them, the Tribunal held that the accident was caused due to rash and negligent driving. The respondent insurance-company admitted the valid insurance coverage over the offending jeep as on the date of accident and has not proved any violation of policy terms and conditions by driver and the owner.
Hence, the above compensation is to be paid by the insurance 3 company. The Tribunal then referred to the Second Schedule of the Act and determined the amount of compensation by assuming the appellant's income to be Rs.3,000/- per month. The Tribunal was of the view that due to 100% disability, the appellant would suffer loss of income to the tune of Rs.36,000/- per annum. The Tribunal then applied the multiplier of 18 and held that the appellant is entitled to Rs.6,48,000/- towards permanent disability. The total compensation awarded by the Tribunal under different heads amounts to Rs. 10,88,800/-.
5) The Tribunal also awarded interest at the rate of 7.5% on the total compensation and directed the respondent insurance company to pay the same from the date of filing of the petition till realisation.
6) Aggrieved by the award of the Tribunal, the appellant preferred an appeal before the High Court seeking enhancement of compensation. The Insurance Company also preferred an appeal seeking reduction of compensation.
7) The Division Bench of the High Court allowed the appeal of the insurance company and held that the multiplier of 16 should have been adopted instead of 18 as the claimant was aged 19 at the material time and reduced the compensation amount to Rs.5,76,000/-. The High Court further partly allowed the appeal of the appellant and awarded Rs. 1 lakh towards future treatment when the claimant is in a coma stage.
8) The only question which arises for our consideration is whether the High Court was justified in reducing the compensation 4 amount and granting only Rs. 1 lakh towards future treatment.
9) Heard the learned counsel appearing for the parties.
10) Learned counsel appearing for the appellant argued that the compensation awarded by the Tribunal was wholly inadequate and the High Court committed serious error by reducing the compensation without taking into consideration the fact that on account of the permanent disability suffered by the appellant, the appellant became bedridden in a stage of coma and is in water bed and he needs someone for his assistance all throughout his life and the loss he sustained at the age of 18 is unfathomable.
11) Learned counsel further argued that the Tribunal and the High Court gravely erred in not awarding just and reasonable compensation for future treatment and the amount awarded is meagre and comes nowhere in the actual expenses incurred for his treatment. The petitioner has been in a vegetative condition ever since the accident and is to remain so for his whole life. Moreover, the parents of the appellant has to incur more than Rs. 5,000/- per month to meet his medical and primary needs alone. Further the appellants mother is compelled to remain at home for the whole time to take care of him and thus she is not in a position to go for any job. Finally, he submitted that the considering all these factors, the courts below ought to have granted a reasonable provision for the treatment of the petitioner.
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12) Learned counsel for the respondent supported the impugned judgment and argued that the appellant has failed to make out a case for further enhancement in amount of compensation.
13) We have considered the respective submissions. This Court has, from time to time, expressed concern over the increasing number of motor accidents and pendency of large number of cases involving adjudication of claims made by the legal representatives of the deceased as also by those who suffer permanent injuries and disabilities of various types as a result of accidents.
14) The personal sufferings of the survivors and disabled persons are manifold. Sometimes they can be measured in terms of money but most of the times it is not possible to do so. If an individual is permanently disabled in an accident, the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term `compensation' used in Section 166 of the Motor Vehicles Act, 1988 (for short, `the Act') would include not only the expenses incurred for immediate treatment, but also the amount likely to be incurred for future medical treatment/care necessary for a particular injury or disability caused by an accident.
15) In R.D. Hattangadi v. Pest Control (India) Private Limited, (1995) 1 SCC 551, this Court while dealing with a case involving claim of compensation under the Motor Vehicles Act, 1939, referred 6 to the judgment of the Court of Appeal in Ward v. James (1965) 1 All ER 563, Halsbury's Laws of England, 4th Edition, Volume 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:
"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 7 nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards."
16) In Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343, the Court considered some of the precedents and held:
"The provision of the Motor Vehicles Act, 1988 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 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:8
(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."
17) In the circumstances, we shall now consider whether the compensation awarded to the appellant is just and reasonable or he is entitled to enhanced compensation.
18) In our view, considering the age of the petitioner and the fact that he is fairly educated, it can be reasonably assumed that he would have earned at least Rs.3,000/- per month taking into account the disability of the petitioner to be 100%, the Tribunal rightly awarded the multiplier of 18 and came to a figure of Rs. 9 6,48,000/- and the High Court is wrong in allowing the appeal of the Insurance Company assessing the disability compensation at Rs. 5,76,000/- by adopting the multiplier of 16. (See Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121)
19) Though the appellant had claimed an amount of Rs. 22,00,000/- under different heads as compensation, the Tribunal has granted a meagre sum of Rs. 10,88,000/- and the High Court further reduced the compensation amount. We are of the view that the compensation of Rs. 1 lakh awarded by the High Court for future treatment was wholly inadequate as the High Court without considering the fact that the appellant because of the accident has to remain in the bed in his remaining life and he needs a person for his care and caution every time.
20) Therefore, we set aside the order passed by the High Court insofar as it relates to the disability compensation and upheld the order passed by the Tribunal insofar as the disability compensation is concerned. Insofar as the future treatment is concerned, we modify the order passed by the High Court as given herein below.
21) In our considered view, the loss sustained by the appellant cannot be compensated in terms of money since the accident vanish the colourful dreams of a young man at his teenage. The pain and suffering which had to face by each and every member of his family 10 also cannot be measured out. Therefore, we are of the view that the cost of living as also the cost of expenses likely to be incurred for periodical treatment has substantially increased. Therefore, it will be just and proper to award a sum of Rs.5,00,000/- to the appellant for future treatment. If this amount is deposited in fixed deposit, the interest accruing on it will take care of the cost of treatment i.e. fees of the doctor and other ancillary expenses.
22) The compensation awarded by the Tribunal for the loss of amenities and extra nourishment and special diet was also meagre. It can only be a matter of imagination as to how the appellant will have to live for the rest of life in bed. The appellant may be expected to live for at least 50 years. During this period he will not be able to live like normal human being and will not be able to enjoy the life. Therefore, it would be just and reasonable to award him a sum of Rs.5,00,000/- for the loss of amenities and enjoyment of life.
23) In the result, the appeals are allowed. The impugned judgment and the award of the Tribunal are set aside. It is declared that the appellant is entitled to total compensation of Rs. 20,13,800/- with interest @ 7% per annum from the date of filing the claim petition till the date of realization. The respondent insurance company is directed to pay the amount of compensation, after deducting the payments made, if any, with interest within a period 11 of one month from today in the form of a Bank Draft prepared in the name of the appellant to be released to the appellant through the guardian.
.......................... J.
(PINAKI CHANDRA GHOSE) .......................... J.
(ROHINTON FALI NARIMAN) New Delhi;
May 03, 2017.
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ITEM NO.11 COURT NO.6 SECTION XIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s).
36407-36408/2016
(Arising out of impugned final judgment and order dated 05/01/2012 in MACA No. 1048/2010 05/01/2012 in MACA No. 1403/2010 passed by the High Court Of Kerala At Ernakulam) AFNEES (UNCONSCIOUS) REP. THR MOTHER Petitioner(s) VERSUS ORIENTAL INSURANCE CO. LTD. VADAKARA AND ORS. Respondent(s) (with office report) Date : 03/05/2017 These petitions were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE PINAKI CHANDRA GHOSE HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN For Petitioner(s) Mr. Manoj V. George, Adv.
Mr. Zulfiker Ali P. S, AOR Ms. Shilpa M. George, Adv.
For Respondent(s) * UPON hearing the counsel the Court made the following O R D E R The appeals are allowed and the impugned judgment and the award of the Tribunal are set aside in terms of the signed order.
(R. NATARAJAN) (SUMAN JAIN)
Court Master Court Master
(Signed order is placed on the file)
* Appearance slip not given in Court