Rajasthan High Court - Jaipur
Kunal Gaurav Saxena vs Anil Kumar And Ors. on 18 August, 2005
Equivalent citations: 2007ACJ1268, 2006WLC(RAJ)UC83
Author: Vineet Kothari
Bench: Vineet Kothari
JUDGMENT Vineet Kothari, J.
1. The aforesaid cross-appeals--one by the claimants seeking enhancement of compensation awarded by the Tribunal and the other by the insurance company seeking reduction of the awarded amount and interest awarded thereon is usual tug of war in such cases which come before this court in a stream.
2. Kunal Gaurav Saxena, a young boy of 11 years of age met with an unfortunate accident on 12.9.1990 at about 6.45 p.m. when he was riding his bicycle near GRP office near Roadways Bus Depot. Ajmer when truck trailer No. RNW 8125 which was being driven in a rash and negligent manner hit Kunal Gaurav and one of the tyres of the truck crushed his middle part, resulting in complete paralysis of lower part of his body. The claimant filed application before the Tribunal for claim to the extent of Rs. 92,50,000.
3. Claims Tribunal vide its impugned order dated 4.6.1993 while deciding Claim Case No. 74 of 1991 awarded a sum of Rs. 7,02,793 under three heads in favour of the claimant-injured: (i) medical expenses Rs. 2,42,793, (ii) for loss of enjoyment of normal life and amenities Rs. 1,00,000 and (iii) for loss of earnings Rs. 3,60,000. Thus, total amount was Rs. 7,02,793. The Tribunal directed the payment of interest also at the rate of 15 per cent per annum from the date of filing the claim petition, i.e., 12.3.1991 and also costs of Rs. 1,000. The said compensation with interest is said to have been paid to the claimant by now.
4. Learned Counsel for the claimant-appellant, Mr. Ashof Mathur submits that Tribunal has awarded compensation at a low figure. It has not taken into account the future medical expenses which were bound to be incurred for continuous treatment of the injured Kunal who was only 11 years of age at that time and naturally the bills relating to such future medical expenses could not be available at the time of filing of the claim petition. He further submits that the amount of Rs. 1,00,000 for loss of enjoyment of normal life and amenities is also less and that Tribunal while assessing the loss of earnings at Rs. 3,60,000 has taken into account the possibility of only the boy becoming an LDC having monthly average income of Rs. 1,500 and though the Tribunal has taken into account the normal working life of 60 years and that one would start earning at the age of 22 years, thus, the multiplier of 38 should have been applied for computing the compensation under this head whereas the Tribunal has finally ended up in applying the multiplier of 20 at the rate of net annual income of Rs. 20,000 per annum. He also defends the rate of interest of 15 per cent per annum awarded by Claims Tribunal which was prevalent bank rate at that time.
5. As against this, Mr. Mehta, learned Counsel appearing for insurance company vehemently submits that the rate of interest of 15 per cent per annum awarded by the Tribunal is very excessive and the Hon'ble Supreme Court in Municipal Corporation of Greater Bombay v. Laxman Iyer , has held that the High Court had rightly reduced the rate of interest of 15 per cent per annum given by Tribunal to 12 per cent per annum and, therefore, the maximum rate of interest which could have been given by learned Tribunal in the present case could not exceed 12 per cent per annum. He further prays for reduction of compensation awarded by the Tribunal and he submits that looking to the circumstances of the case, the young boy of 11 years of age may be now around 25 years of age and might have achieved the capacity of earning his livelihood by acquiring some qualifications. Upon a question put by the court to the learned Counsel for the appellant, it is informed that despite the crippling situation in which the said young boy unfortunately fell on account of the said accident, he has acquired a degree of BCA (Bachelor of Computer Application) by now, but most of the time, he has to remain bedridden in view of his physical disability resulting from such accident.
6. Learned Counsel for the appellant has brought to my notice the following judgment in support of his submission seeking enhancement of the compensation. A Division Bench of Madras High Court in B. Anandhi v. R. Latha , held in a case where a lady student of final year MBBS of 22 years of age suffered injury of brain and abdomen, fracture of pelvis and brain injury and who was a dancer also, the Tribunal assessed the loss of income at Rs. 10,000 p.m. and applying multiplier of 18 awarded a sum of Rs. 21,60,000 for loss of earning capacity plus Rs. 5,00,000 for pain and suffering and permanent disability, Rs. 1,00,000 for loss of matrimonial life and Rs. 1,00,000 for future medical expenses. The said award of Rs. 30,65,000 was upheld in appeal by the High Court filed by the owner of the vehicle in question.
7. He also relies upon the Apex Court decision in case of R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. , wherein the injured, a practising lawyer of 52 years of age who suffered the injury in the form of paraplegia below his waist. The Tribunal in view of permanent disability awarded a sum of Rs. 26,25,992 but the same was reduced in appeal by the High Court to the sum of Rs. 8,57,352. On further appeal by the claimant, the Apex Court disallowed the reduction made by the High Court under the heads of expenses for home attendants, allopathic medicines and post-physiotherapy and enhanced the amount of compensation from Rs. 8,57,352 to Rs. 14,46,000. It would be relevant to reproduce the part of the said judgment which lays down the guidelines for computing the compensation under two heads, pecuniary damages and special damages. Paras 9, 10 and 11 are reproduced:
(9) Broadly speaking, while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which 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 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.
(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.
(11) In the case Ward v. James (1965) 1 All ER 563, it was said:
...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 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 the 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.
8. Thus, the legal position and on which there is no dispute also is that compensation has to be just and fair. What is just and fair will necessarily have to depend upon the facts and circumstances of the case obtaining in each case coming before the court. While the pecuniary damages will have to be based on the evidence proved in due process of law before the trial courts, the ascertainment of compensation in the form of special damages under the different heads given above by Apex Court, will necessarily involve some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. It need not be emphasised that it will have to be viewed with objective standards and while the court cannot become the source of distribution of any largesse or bounty in such cases, it also cannot turn Nelson's eye to the stark realities of life and circumstances of which even a judicial notice can be taken. Therefore, what will be just and proper in each and such cases, is left to the best objective wisdom of the court.
9. Claims Tribunal in the present case, while computing the compensation after giving the categoric finding that on account of rash and negligent driving of the said truck trailer, the claimant suffered the injuries of the nature which have rendered him almost permanently disabled for whole of his life, has been rather conservative while awarding the compensation in three heads given above. This court is of the opinion that the Claims Tribunal has erred in not making any assessment of the future medical expenses which would be required to be spent for treatment of the injured. It has also taken a rather pessimistic view that the highest the injured could have become was an L.D.C. and, therefore, monthly income of Rs. 1,500 was taken. There is no justification in not awarding any amount under different heads as taken by Apex Court in the judgment cited above. The other heads of non-pecuniary damages like damages for mental and physical shock, pain and suffering, loss of normal marital life and inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
10. Thus looking to the overall facts and circumstances of the case, it is considered just and proper to make the following enhancement in the award of the Tribunal. For future medical care and expenses, a further sum of Rs. 2,00,000 deserves to be paid to the claimant. A sum of Rs. 1,00,000 towards special damages for the different heads given above, viz., for loss of marital life and disappointment, hardship, etc. and an ad hoc enhancement of Rs. 2,00,000 for the loss of earnings taking into account future prospects of the injured, is made. Thus, total enhancement of Rs. 5,00,000 deserves to be awarded in favour of the claimant.
11. As far as the question of rate of interest is concerned, there is some force in the submission of the learned Counsel for the insurance company, relying on the judgment of Apex Court in Laxman Iyer's case . Therefore, the rate of 15 per cent per annum deserves to be reduced to 12 per cent per annum from the date of claim application till the date of payment. However, the enhanced amount would be payable with the interest at the rate of 7.5 per cent per annum from the date of award, i.e., 4.6.1993 till the date of payment. The enhanced amount with awarded interest shall be deposited in fixed deposit in the name of injured and his parents, either or survivor, in a scheduled bank and running interest on such deposit shall be allowed to be withdrawn by the claimant. To the extent of 75 per cent of the enhanced amount with interest at the rate of 7.5 per cent per annum, be deposited in the fixed deposit account as aforesaid and balance 25 per cent of the amount and running interest of fixed deposit shall be allowed to be withdrawn by the claimant.
12. With these modifications, the present appeals are disposed of. No order as to costs.