Karnataka High Court
A. Anandan vs Abdul Azeez And Anr. on 17 October, 2003
Equivalent citations: 2004ACJ1091, 2003(6)KARLJ134, 2003 AIR KANT HCR 2838, 2003 A I H C 4667, 2003 AIR - KANT. H. C. R. 2838, 2003 AIHC 4667, (2004) 2 TAC 582, (2004) 1 KCCR 515, (2004) 2 ACJ 1091, (2003) 6 KANT LJ 134
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
JUDGMENT S.R. Nayak, J.
1. In a bodily injury case arising out of a motor vehicle accident, the injured being aggrieved by the judgment and award dated 8-11-2000 passed in MVC No. 2834 of 1996 on the file of the Motor Accident Claims Tribunal and Additional Judge, Court of Small Causes, Bangalore City (SCH-5), for short, 'the MACT, has preferred this appeal under Section 173(1) of the Motor Vehicles Act, 1988, for short 'the Act'.
2. The facts of the case in brief are as follows:
In an accident involving a motor-cycle bearing Reg. No. MEM-3769 owned by the 1st respondent and insured by the 2nd respondent-Insurance Company, the appellant sustained certain injuries. He was in-patient in the Victoria Hospital between 19-8-1996 to 23-8-1996 (both days inclusive) and even after discharge from the hospital, he had to undergo medical treatment for a period of three months. In the accident the claimant sustained bimalleolar fracture of the right ankle joint and when he was in-patient in the Victoria Hospital, he underwent surgery and POP cast. The appellant on the date of the accident was aged 47 years and he was a mechanic and according to him, he was earning monthly income of Rs. 3,000/-. The claimant-appellant alleging that the accident took place solely on account of rash and negligent driving by the driver of the motor-cycle filed claim petition before the MACT under Section 166 of the Act, claiming total compensation of Rs. 4,00,000/-under various heads. Although the owner of the motor-cycle was served with notice, he remained unrepresented. However, the 2nd respondent-Insurance Company on service of notice contested the claim petition by filing a written statement, in which all material averments made in the claim petition are denied. On the other hand, it. was contended by the Insurance Company that the claimant himself was responsible for the accident. It is alleged that the appellant suddenly entered the road to cross without looking at the vehicle or traffic on the road and in the process he sustained injury.
3. In premise of the above pleading of the appellant-claimant and the Insurance Company, the MACT has framed the following issues:
"ISSUES
01. Does petitioner prove that he met with RTA and suffered injuries as claimed by him and it is due to the rash and negligent driving of motor-cycle bearing No. MEM 3797?
02. If so to what compensation and from who he is entitled to?
03. What award or order?"
4. The appellant-claimant in support of his claim examined himself as P.W. 1, and also examined Dr. Ramesh Krishna from Victoria Hospital as P.W. 2, Sri S. Gopalakrishna, who is a medical records technician from Sanjay Gandhi Hospital as P.W. 3 and marked 16 documents as Exhibits P. 1 to P. 16. On behalf of the respondent none was examined nor any document was adduced.
5. The learned Presiding Officer of the MACT on appreciation of oral and documentary evidence and the issue relating to actionable negligence came to the conclusion that the accident took place mainly due to rash and negligent driving of the motor-cycle by the driver-cum-owner. At the same time, the learned Presiding Officer of the MACT also held that the claimant also contributed negligence for causing accident by making attempt to cross the road without noticing any vehicles on the road. In that view of the matter, he apportioned the negligence between the driver of the motor-cycle and the appellant in the ratio of 80:20.
6. The MACT having taken the age of the appellant and income of the appellant as on the date of the accident and kind of treatment he had taken in the hospital as in-patient and out-patient, awarded a sum of Rs. 15,000/- towards pain and suffering, Rs. 3,000/- towards medical expenses, Rs. 9,000/- towards loss of income during treatment, Rs. 3,900/- towards loss of future income and Rs. 2,500/- towards loss of amenities of life and happiness. Out of the above sums determined as compensation, the MACT having deducted 20%, ultimately awarded a sum of Rs. 26,720/- with interest at 9% per annum from the date of petition till its realisation. Hence, this appeal by the aggrieved claimant.
7. We have heard the learned Counsels for the parties and perused the impugned judgment.
8. The learned Counsel for the appellant while assailing the finding recorded by the MACT attributing contributory negligence on the part of the appellant would contend that that finding could not be sustained, firstly, because the driver of the motor-cycle was not examined nor any document was produced by any of the respondents. The learned Counsel would also contend that in the light of the oral testimony of the appellant, the correctness of which is not seriously contested by the respondent in the cross-examination, it is clearly established that the accident took place solely on account of rash and negligent driving by the driver of the motor-cycle.
9. It was contended by the learned Counsel for the appellant that in determining loss of future income the MACT has committed an error apparent on its face in not taking into account the permanent disablement of the appellant, but also in applying multiplier 13 to the monthly income of the appellant directly without first multiplying the same by 12 in order to arrive at loss of annual income. The learned Counsel would also point out that in the bodily injury cases, injured persons are also entitled to compensation towards attendant charges, transportation charges and special food etc. and therefore, the MACT ought to have awarded reasonable compensation under those heads. The learned Counsel would also maintain that even the compensation awarded under the other heads, in the facts and circumstances of the case and the evidence on record are on lower side. Learned Standing Counsel for the Insurance Company, on the other hand, would support the impugned award and maintain that the compensation awarded by the MACT is just and reasonable.
10. Let us first advert to the contention of the learned Counsel for the appellant with regard to the finding recorded by the MACT on the issue relating to actionable negligence and apportioning the blame to an extent of 20% to the appellant-claimant. As already pointed out that although the owner was served with notice, he did not put in appearance and contest the claim. Though the Insurance Company chose to file the written statement, it did not examine the owner-cum-driver of the motor-cycle or adduce any other rebuttal evidence before the MACT. As it could be seen from the written statement, it is not the case of the 2nd respondent-Insurance Company that the accident took place on account of negligence on the part of the owner-cum-driver of the motor-cycle as well as the appellant. It is true that even in the absence of such plea in the written statement, if the facts established by the evidence could possibly lead to an inference that the claimant also contributed negligence in causing the accident, the MACT may be justified in recording a finding of contributory negligence against the claimant also. The question is whether the evidence led before the MACT would warrant drawing of such inference against the claimant.
11. Having perused the evidence and materials placed before us, we are not persuaded to draw any such inference to attribute contributory negligence on the part of the appellant in causing the accident. In conclusion, we cannot sustain the finding of the MACT attributing 20% of the contributory negligence to the appellant in causing the accident.
12. It is borne out by the records and evidence led before the MACT that the appellant was in-patient in Victoria Hospital between 19-8-1996 to 23-8-1996 (both days inclusive) and when he was in-patient he had to undergo a surgery for fracture of the bone and POP cast was applied. It has come in evidence that the appellant could not attend to his work at least for a period of three months after the accident. It is also seen from the evidence that on account of the accident there was shortening of right leg of the appellant by 11/2 inches.
13. In deciding 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. In Basavaraj v. Shekar, 987(2) Kar. L.J. Sh. N. 337 (DB), LLR 1987 Kar. 1399 (DB) a Division Bench of this Court held that:
"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".
In other words, 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. The principle is sometimes referred to as restitutio in integrum; but it is manifest and universally realised that no award of money can possibly compensate a man and renew a shattered human frame. Lord Morris of Borthy Gest in Parry v. Cleaver, 1970 AC 1 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".
14. Damages must be full and adequate. Field, J., said in Phillips v. South Western Railway Company, (1874)4 QBD 406 held:
"You cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recollect that this is the only occasion on which compensation can be given. (The plaintiff) can never sue again for it. You have, therefore, now to give him compensation, once and for all. He has done no wrong; he has suffered a wrong at the hands of the defendants and you must take care to give him full fair compensation for that which he has suffered".
15. Though, undoubtedly there are difficulties and uncertainties in assessing damages for personal injury case, that fact should not preclude an assessment as best as can, in the circumstances be made. Lord Halsbury, In re Mediana, 1900 AC 113 said:
"Of course, the whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages; nevertheless, it is remitted to the jury, or those who stand in place of the jury, to consider 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".
16. Having regard to the nature of the injuries and the kind and length of treatment taken by the appellant and the principles governing determination of just compensation in personal injury cases, we think that a sum of Rs. 30,000/- would be just compensation towards pain and suffering. The MACT has awarded a meager sum of Rs. 3,000/- towards medical expenses on the ground that the appellant did not produce any evidence to show actual expenditure incurred by him towards medical treatment. It is true that the appellant did not produce any evidence before the MACT to show the actual cost of treatment. Simply because the appellant did not produce evidence, the duty of the Tribunal does not cease and it is expected to determine the probable cost of medical treatment having regard to the nature of the injuries and kind and length of treatment taken by the appellant as in-patient and out-patient. As repeatedly held by the Courts, in such fact situation, an element of guess-work has to play its role. Since the appellant had to take treatment for injuries sustained by him for more than three months both as in-patient and out-patient and since he had to undergo a surgery and POP cast, even in the absence of any concrete evidence led by the appellant before the MACT, we think that it is just and reasonable to award atleast Rs. 10,000/- towards medical expenses and accordingly, we award a sum of Rs. 10,000/- towards medical expenses. We, however, do not find any justification to enhance the compensation awarded by the MACT towards loss of income during treatment. It is fairly established that the appellant could not attend to his normal work only for a period of three months and admittedly the monthly salary of the appellant was Rs. 3,000/- and therefore, a sum of Rs. 9,000/- awarded by the MACT towards loss of income during the treatment is justified and legal.
17. This takes us to the question whether a sum of Rs. 3,900/-awarded by the MACT towards loss of future income could be regarded as just compensation. In determining the loss of fixture income the MACT has committed an error apparent on its face. The MACT while determining total loss of earning capacity has directly applied multiplier 13 to the monthly income without multiplying the monthly income by 12 in order to arrive at yearly loss of income. We are also of the considered opinion that the MACT in the factual situation of this case, was not justified in taking the whole body permanent disability at 10% though P.W. 2-Doctor in his evidence assessed the permanent disability between 10% to 15% for the whole body. It needs to be noticed that the appellant is a manual worker and therefore, the physical impairment particularly 11/2 inches shortening of the right leg of the appellant should have gone into the decision making. Therefore, we think that the ends of justice will be met by taking the whole body permanent disability at 20% instead of 10%. Multiplier 13 applied by the MACT is proper. In that view of the matter loss of future income would be Rs. 93,600/- (3,000 x 12 x 13 = 4,68,000/- and 20% of which comes to Rs. 93,600/-).
18. The MACT in awarding a petty sum of Rs. 2,500/- towards loss of amenities of life and happiness has exhibited conservatism to the core. The compensation to be awarded by the statutory Tribunal, it is trite, should reflect justness and reasonableness in terms of time and space concerned and that feature is totally lacking in the impugned award. Therefore, we think that a sum of Rs. 15,000/- towards loss of amenities of life and happiness would be a just compensation.
19. It is well-settled that in bodily injury pases that the injured person is also entitled for compensation towards attendant charges, transportation charges and special food etc. No compensation is awarded by the MACT under those heads. But, we do not have any concrete evidence to show what exactly the appellant-claimant spent under those heads. In that view of the matter and taking into account the probable expenditure incurred by the appellant during three months of the treatment, we award a sum of Rs. 10,000/- towards attendant charges, transportation charges and special food etc.
20. In the result and for the foregoing reasons, we allow the appeal in part with cost and in substitution of the amount awarded, we award total compensation of Rs. 1,67,600/- with 9% interest from the date of claim petition till its realisation. The Advocate's fee is fixed at Rs. 1,500/-.