Delhi District Court
Shimra @ Simra Bano vs Mahender Singh on 15 November, 2014
IN THE COURT OF SHRI NIKHIL CHOPRA,
PO: MACT (SE01), SAKET COURTS, NEW DELHI
Regn. No./Case No.59/14/12
FIR No. 189/2012
Police Station: New Friends Colony
In the matter of:
Shimra @ Simra Bano
D/o. Sh. Najamuddin,
House No. 22/17, Gali No.11,
Zakir Nagar, Okhla
New Delhi. ...Petitioner
VERSUS
1. Mahender Singh
S/o Sh. Rewti Lal,
R/o. Village Sihol,
Mod. Holy Wala
P. S. Chandhutt,
Distt. Palwal,
Haryana (Driver)
2. M/s. Chaudhary Enterprise,
B39, Ali Extn.,
Sarita Vihar,
New Delhi110076 (Owner)
3. IFFCO Tokio General Insurance Co Ltd.
FAI Building,
10 Shaheed Jeet Singh Marg,
Qutub Institutional Area,
New Delhi. (Insurer)
...Respondents
Date of filing of DAR/Claim petition : 18.12.2012
Date on which Award/Judgment was reserved : 15.11.2014
Date on which Award/Judgment was pronounced : 15.11.2014
Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.1/26
Present: Sh. V. Khan, Ld. counsel for the Petitioner.
Sh. Brijesh Bagga, Ld. counsel for the insurance co.
None for Driver or Owner
AWARD
1. Vide this order, I shall dispose off the claim proceedings, as well as Detailed Accident Report filed, on the basis of FIR No.189/2012 PS New Friends Colony under section 279/338 IPC on account of injury suffered by Baby Shimra Bano D/o. Mohd. Najamuddin, in vehicular accident dated 25.08.2012.
2. In the Detailed Accident Report filed on 03.11.2012, as well as the claim petition filed on 18.12.2012, it was reported that Baby Shimra Bano suffered grievous injuries resulting into amputation of her right leg in the vehicular accident, involving Truck No. DL1GB3737, on account of rash and negligent driving by respondent no.1.
3. In the petition filed by Mohd. Najmuddin, father of the minor child, he has stated that on 25.08.2012 at about 03.15 PM, he was riding his bicycle along with his daughter and while he reached Modi Flyover, opp. Modi Mill, truck bearing no. DL1GB3737 driven by respondent no.1 in rash and negligent manner, came from behind and hit them forcefully, resulting into grievous injuries. It is stated that due to the grievous injuries, the petitioner was put to major surgery/amputation of right leg at AIIMS Trauma Centre. It is also stated that the petitioner is a student, pursuing her study and that she has lost her prospects. Compensation has been claimed on various accounts, including disfigurement, permanent disability, pain and suffering and medical expenses etc. Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.2/26
4. In their written statement filed by respondent no.1 and respondent no.2, it has been denied that respondent no.1 was driving the vehicle in rash and negligent manner and that the respondent no.1 is not involved in the accident. It is further stated that respondent no.1 has valid licence and that vehicle was involved with respondent no.3.
5. In its written statement respondent no. 3/Insurance Company, it has been stated that vehicle no. DL1GB3737 is not involved in the accident. It is admitted that the said vehicle was insured for the term 28.02.2012 to 27.02.2013 vide policy no. 79455519. The insurance company is also raised various objections while reserving its right to statutory defences.
6. No issues were framed that the matter was listed for PE vide order dated 23.03.2013.
7. Father Mohd. Najamuddin of the injured has examined himself as PW1.
In his affidavit he has given the factual account of the accident and stated that he himself as well as his daughter were admitted to AIIMS Trauma Centre and that his daughter was discharged on 14.09.2012 for the first time, after a major surgery. He has stated on 21.09.2012 the right leg of his daughter were amputated at AIIMS Trauma Centre but she was again admitted between 7.11.12 to 13.11.12 and her leg was further amputated. He further stated that his daughter was again admitted between 22.01.2013 to 05.02.2013, and again between 13.02.2013 to 15.02.2013, for further operations/surgery.
8. He stated that at the time of accident she was 9 years old and was studying in class 3rd in MCD Primary Girls Models School Bharat Nagar, New Friends Colony and that due to the impact of the accident her Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.3/26 marriage prospects, employment prospectus have been affected and that she has been disfigured for life. He also stated that she also could not participate in normal sports activities in future and that she is to face inconvenience and difficulties for the life time. He also deposed that he spent Rs.1,05,178/ towards medical expenses, Rs.50,000/ towards special diet and Rs.30,000/ towards conveyance. He has also proved the MLC prepared by the Trauma Centre as Ex.PW1/1; discharge summary dated 14.09.2012 as Ex. PW1/2; discharge summary dated 13.11.2012 as Ex.PW1/3; discharge summary dated 05.02.2013 as Ex.PW1/4; discharge summary dated 15.02.2013 as Ex.PW1/5; medical card/prescription as Ex.PW1/6 collectively; disability certificate as Ex.PW1/7; The copy of the identity card issued by the school is Ex.PW1/8; the copy of the Adhar Card as Ex.PW1/9; medical bills as Ex.PW1/10; DAR as Ex.PW1/11 collectively and the claim petition as Ex.PW1/12.
9. In his cross examination he has denied that the accident took place on account on his own negligence or that there was no negligence on the part of respondent no.1. He also denied that the petitioner has not suffered any loss of academy year. He further denied that no expenses were suffered by him as claimed by him.
10. PW2 Sh. Pool Chand, Technician, M/s. P&O International Inc. Vimhans Artificial Limbs Centre, Nehru Nagar, New Delhi has proved his authority letter as Ex.PW2/1 and stated that petitioner was provided with prosthetics for right leg above knee vide invoice no.SP37194 dated 19.10.2013, Ex.PW2/2 for a sum of Rs.88,276/. He stated that since the petitioner is child she would eventually require different prosthetic after some time and also proved the estimate dated 18.10.2013 issued by his employer as Ex.PW2/3. He also stated that the life of the prosthetic is 5 to 7 years and Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.4/26 maintenance cost per year is around 1520 thousands.
11. In his cross examination he has stated that the estimate is for Rs.
3,10,878/ where the bill dated 19.10.2013 is for Rs.88,276/ only and volunteered that prosthetic provided under Ex.PW2/2 is temporary and just for training. It was denied that the actual cost of the limb is Rs.88,276/ or that the estimate is highly inflated. He has also denied that there is no difference between the prosthetics in Ex.PW2/2 and Ex. PW2/3. He has stated that he is not in a position to give any opinion about the kind of prosthetic to be used by the petitioner, or admitted that there are cheaper prosthetics available in the market. He has stated that artificial limb is not merely for cosmetic change but would improve the working condition of the injured. He further stated that he can not say as to by what percentage, the disability would decease in case the prosthetic is applied. He also denied that prosthetic with adjustable heights are also available or that the same are a cheaper option.
12. Despite opportunities no witness was examined by respondents. None had also appeared on behalf of respondents No.1 and 2 at the time of arguments
13. I have heard Ld. counsel for petitioner and Ld. Counsel for respondent no.3, and have gone through the records.
14. Time now to deal with the issues. Though, no formal issues were framed, the aspects of negligence and compensation need to be decided.
NEGLIGENCE
15. PW1, Sh. Nazamuddin, father of the injured has stated that on 25.08.2012 Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.5/26 at about 03.15 pm, he along with the petitioner (Simra Bano) were riding bicycle and were heading towards Okhla Mandi and when they reached Modi Flyover, Truck bearing no. DL1GB3737, being driven by R1 in rash and negligent manner, came from behind and hit him as well as his daughter. He has further deposed that due to the forceful impact his daughter sustained severe and grievous injuries on her leg as well as all over her body. Ld. Counsel for the petitioner has further stated that the proceedings in respect to Nazamuddin have already decided as settled.
16. I have also gone through the the FIR, registered on the statement of Nazmuddin himself and other records available.
17. The witness has categorically deposed about the manner in which the accident took place. Coupled with the facts that the R1 had neither cross examined the witness, nor had himself entered the witness box to deny what has been stated by PW1, the rash and negligent act on the part of the R1 stands proved. Even otherwise, it has been held by Hon'ble Supreme Court that the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident, has been left to a secondary importance, and mere use or involvement of motor vehicle in causing bodily injury or death to a human being or damage to property, would make the petition maintainable under section 166 and 140 of the Motor Vehicle Act.1 No roving inquiry into rashness or negligence on the part of the driver, is to be made. In Basant Kaur 2, it was observed that registration of criminal case against driver of offending vehicle is enough to record finding that the driver of the offending vehicle is responsible for causing the 1 Kaushnamma Begum and others Vs New India Assurance Company Limited -2001 ACJ 421 SC 2 Basant Kaur and others vs. Chattar Pal Singh and Ors.- 2003 ACJ 369 MP (DB) Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.6/26 accident. The issue no. 1 is accordingly decided in favour of the Petitioner.
COMPENSATION
18. Compensation has been claimed on various counts, including for loss of income/future prospects, loss of marriage prospects, disfigurement, loss of enjoyment of life, medical expenses, pain and suffering and prosthetics.
19. Before dilating upon these aspects, the injuries suffered by the Petitioner needs to be properly envisaged. Father of the Petitioner has categorically stated in his evidence that the Petitioner was admitted in the hospital for four times, and that she was operated for several times. The MLC dated 25/08/2012ExPW1/1, records her injuries as "Traumatic Amputation of RT Leg (Lower half and upper half of Rt Leg are attached by skin tag and some muscle fibers). Degloved and crushed wound of Rt Leg"
20. Ex.PW1/2 The initial Discharge Summary dated 14/09/2012, shows that the Petitioner remained admitted from 25/08/2012 to 14/09/12 and was subjected to surgery , on 25/08/2012. Her diagnosis is recorded as " RTI with # BB Rt Leg with dital neurovascular defect with degloving injury, and mangled Rt Leg" . It further records the History as "Degloved and crushed wound of Rt Leg involving whole leg..Lower ½ and upper ½ of Rt leg are attached only by Skin Tag and some Muscle fibers.,Tebia and Febula are crushed at the level of upper 2/3rd andlower 1/3rd Rt side, Abraision 1X1 Cms, left knee". The operative procedures are recorded as : "25/8/12RT B/K Amputation and STSG 25/8/12Debridement 3/9/12Stump revision and STSG RT B/s Stump"
Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.7/2621. Ex.Pw1/3Discharge Summary dated 13/11/2012, shows that the Petitioner was readmitted on 7/11/12 and discharged on 13/11/12 and was also surgically operated upon. The diagnosis of the petitioner has been recorded as -"FOC of post RTI with RT below Knee Amputation with Raw area over stump site and osteomylites developed over stump site". It further shows that the she was subjected to further amputation of Rt leg, above knee, which is recorded as"10.11.12Above knee Amputation (Under G.A. Painting & Drepping done, above Knee Amputation done. (68 Cm of Distal Femur). Hemostatis achieved. Stump closed after putting a Romovac Suction drain.Dressing done with Orthoroll and slab was applied"
22. Ex.PW1/3 Discharge Summary dated 5/02/13 shows that the Petitioner was readmitted on 22/01/2013 and discharged on 5/02/13 and that she was again surgically operated upon, on 22/1/2013. Her diagnosis has been recorded as"F/U/C of Rt ak amputation stump discharging sinus". The operative procedures have been recorded as "Under GA both sinus tract open one in comunicating with cavity in intramuscular plane anteriorly with suture in situ removed all tract open curatage done pus sample taken wound washed and packed with gauge"
23. Subsequently, she was again admitted on 13/2/2013 and discharged on 15/2/13. The Discharge reportExPW1/5, shows that she was operated on 14/02/13 for " Excision of Sinus tract and Refashioning of Stump"
24. Petitioner has also placed on record the original treatment cards/prescriptions, issued by AIIMS, as ExPw1/6 (colly), which prove that the Petitioner had been visiting the hospital quite regularly and had been subjected to extensive medication, and has also been advised Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.8/26 physiotherapy. The records placed show that she had been visiting hospital until 18/2/2013.
25. Ex.PW1/7 -Disability certificate dated 1/8/13, issued by Pt. Madan Mohan Malviya Hospital shows that she has suffered permanent disability to the tune of 80%, pertaining to Right Lower Limb.
26. Time now to deal with the claims of the Petitioner.
27. The Petitioner Side has vehemently contended that the Petitioner was a bright student and would have earned handsomely and that she was a bright student. He has contended that the Petitioner's future prospects have be diminished by 100% on account of amputation of the right leg, above knee, and the Petitioner would thus be entitled to compensation on account of loss of future income/prospects.
28. Ld. counsel for the Respondent No.3, on the other hand, has contended that the petitioner was merely nine years old and far from becoming an earning person and as such no compensation needs to be awarded to the petitioner on any such account.
29. Ld. counsel for the Respondent No. 3 has further contended that the contentions of petitioner side are without any factual basis and there is no evidence that the petitioner was a bright student or had promising future prospects, and considering the fact that she was in school at the time of accident, the uncertainties of life cannot be overlooked and it cannot be presumed that the petitioner would have earned handsomely, as has been claimed by the petitioner side. Ld. counsel for the Respondent No.3 has relied upon Master Mallikarjun Vs. Divisional Manager, National Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.9/26 Insurance Company Limited & Anrs, while contending that the petitioner at best is entitled to compensation in accordance with the said law. Ld. counsel for Respondent No. 3 has further contended that the Law relating to compensation in such cases stands settled by the Hon'ble Supreme Court in the said case and has contended that the compensation on all aspects cannot exceed the limit set by the said law.
30. Ld. Counsel for the petitioner has relied upon National Insurance Company Vs. Swaraj Singh Ors I (2014) ACC 684 (Delhi) V. Mekala Vs. M. Malthi & Ors2014 ACJ 1441, in support of his contentions.
31. Before proceeding further it seems imminent as well as desirable to deal with the contentions of the parties as far as the loss of future prospects/income is concerned. In Master Mallikarjun Vs. Divisional Manager Civil Appeal No.7139/13, Hon'ble Supreme Court while dealing with case of 12 years old child, having suffered disability of right lower limb and 18 per cent of the entire body granted Rs.3,75,000/ as total compensation, on various accounts, including pain and suffering, heart ships, loss of amenities, loss of earning to the parents etc. The Hon'ble Supreme Court observed as under:
"Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for the treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs. 3 lakhs; upto 90%, Rs. 5 lakhs and above 90 %, it should be Rs. 6 lakhs. For permanent disability upto 10%, it should be Rs. 1 lakh, unless there are exceptional circumstances to take different yardstick. In the instnant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows: Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.10/26 HEAD COMPENSATIN AMOUNT Pain and suffering already undergone and to be Rs. 3,00,000/ suffered in future, mental and physical shock, hardship, inconvenience, and discomforts, etc., and loss of amenities in life on account of permanent disability.
Discomfort, inconvenience and loss of earnings to Rs. 25,000/ the parents during the period of Hospitalization.
Medical and incidental expenses during the Rs. 25,000/ period of hospitalization for 58 days.
Future medical expenses for correction of the mal Rs. 25,000/ union of fracture and incident expenses for such treatment.
TOTAL Rs. 3,75,000/
"
32. In V. Mekhla Vs. M. Malthi Ors. 2014, ACJ 1441, Hon'ble Supreme Court, while dealing with a case of 16 years old girl child with 70% permanent disablement, granted a sum of Rs. 30,93,000/ including Rs. 22,68,000/ towards loss of earning capacity. The Hon'ble Supreme Court observed as under.:
"The claimantappellant is aggrieved by the determination of monthly notional income of the deceased by the High Court by taking a meager sum of Rs. 6,000 instead of Rs. 18,000 per month as she is a student studying in the XI Standard holding first rank in her school. She had an excellent career ahead of her but for the accident in which she has sustained grievous injuries and has become permanently disabled. Both the Motor Accidents Claims Tribunal, Poonamallee (for short ' the Tribunal') as well as the High Court of Judicature at Madras failed to take into consideration all the relevant legal aspects of the matter, namely, having arrived at the conclusion that on account of permanent total disablement suffered by the claimantappellant on account of injuries sustained in the accident her future loss of income should have been assessed taking into consideration her age at the time of accident which was 16 and that she is a brilliant student and could have acquired professional degree and procured a wellpaid job either in public or private sector thereby at least she would have earned a sum of Rs. 18,000 per month. Also, the future prospects of revision of wages, dearness allowance, increments and promotional benefits could have been earned by her. However, because of the accident caused by rash and negligent act of the driver of the offending vehicle of the ownerrespondent she has been deprived of her Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.11/26 potential income to eke out a comfortable livelihood as she has become permanently disabled, this legal and factual aspect has not been taken into consideration both by the Tribunal and the High Court. Therefore, she placed reliance upon the law laid down by this court in the case of Santosh Devi vs. National Insurance Co. Ltd. 2012 ACJ 1428 (SC), having prospects should have been added by both the Tribunal and appellate court to the national monthly income that could be fixed for determination of the loss of earnings as she has become permanently disabled. Therefore, the compensation under this head of loss of earnings is required to be enhanced considerably.
The Ld. Counsel for the appellant further submitted that claimantappellant has been deprived of the enjoyment of life as well as the marital prospects. Further, the concurrent finding recorded by the High Court in the impugned judgment shows that the appellant on account of the knee injuries and permanent disablement and mal united knee bones is unable to walk without crutches and she is suffering from severe pain while walking and further the thickness of both the legs is also reduced due to the injuries sustained by her in accident and multiple surgeries were conducted on her. This relevant aspect should have been taken into consideration both by the Tribunal and the High Court. Further, she has to use crutches throughout her life for mobility which she is required to periodically purchase, the cost of which has not been awarded either by the Tribunal or by the High Court. Therefore, the learned counsel for the appellant has requested this court to award a suitable compensation keeping in view the above mentioned facts.
XXXXXXX
17. The fact that the appellant was a brilliant student at the time of the accident should also be taken into consideration while awarding the compensation to her. Therefore, taking Rs. 6,000 as monthly national income by the Tribunal for the purpose of awarding compensation under this head is too meager an amount. The Ld. Counsel appearing for respondent No. 2 contended that the appellant can still finish her education and find employment and, therefore, there is no necessity to enhance the amount of compensation under the head of 'loss of income' and 'future prospects'. It is pertinent to reiterate here that the claimantappellant has undergone and is undergoing substantial pain and suffering due to the accident which has rendered both her legs dysfunctional. This has reduced the scope of her future prospects including her marriage substantially.
XXXXXX
19. Therefore, in the light of the principles laid down in the aforesaid case, it would be Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.12/26 just and proper for this court and keeping in mind her past results, to take Rs. 10,000 as her monthly national income for computation of just and reasonable compensation under the head of loss of income. Further, the High Court has failed to take into consideration the future prospects of income based on the principles laid down by this court in catena of judgment referred to supra. Therefore, the appellant is justified in seeking for reenhancement under this head as well and we hold that the claimantappellant is entitled to 50 per cent increase under this head as per the principle laid down by this court in the case of Santoshi Devi, 2012 ACJ 1428 (SC). XXXXXXXX The amount of compensation awarded under the head of 'loss of enjoyment of life and marriage prospects' at Rs. 2,00,000 is totally inadequate since her marriage prospects has substantially reduced and on account of permanent disablement she will be deprived of enjoyment of life. Therefore, it would be just and proper to enhance the compensation from Rs. 2,00,000 to Rs. 3,00,000. Insofar as the purchase of crutches periodically, it would be just and proper to award a sum of Rs. 50,000.
Thus, the claimantappellant in this appeal is entitled to a total amount of Rs. 30,93,000 as compensation with an interest at the rate of 9 per cent per annum based on the principle laid down by this court in Municipal Corporation of Delhi vs. Association of Victims of Uphaar Tragedy, 2012 ACJ 48 (SC), from the date of filing of the application till the date of payment."
33. In National Insurance Company Vs. Swaraj Singh Ors. I (2014) ACC 648 (Delhi), Hon'ble Delhi High Court had upheld the grant of Rs. 16,99,200/ towards artificial limb.
"Undisputedly, Respondent No.1/injured received grievous injuries due to which his left lower limb was amputated. It cannot be in dispute that after the amputation of left lower limb, the fixation of Prosthesis is imperative for the victim. The expert from Endolite Prosthetic and Orthotic Centre, who appeared as PW 4 deposed with the help of documentary evidence that prosthesis for the victim would range from Rs. 1,18,400/ to Rs. 3,51,400/ depending upon the quality of material. He also deposed that the life of artificial limb being four years and extensive prosthesis are more agile.
As the amount towards artificial limb is concerned, it is important to note that the injured would be able to withdraw the amount as and when the replacement would Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.13/26 require. Even otherwise, a person cannot be brought back to his normal life despite the artificial limb. It is only supportive in nature and helps to bring back the normal life to a certain extent.
Relying upon the deposition of the expert and with the help of documentary evidence, learned Tribunal has awarded compensation towards the artificial limb. In view of above discussion, I am of the considered opinion that the amount granted for artificial limb is not on a higher side."
34. Ld. counsel for the Respondent No.3 has contended that since the child was not earning, there is no loss of earning and as such there is no necessity for any compensation to be granted. The petitioner side , on the other hand, have contended that the child has lost future prospects to lead the dignified life as well as of future income, on account of amputation of the right leg.
35. Ld. counsel for the petitioner contended that simply because the petitioner was 9 years old it can not be assumed that she did not have any future prospectus and thus she can not be deprived of compensation on this count. He further contended that the case like that of petitioner, warrant assessment of notional income and she can not be treated as non earning person for the purpose of assessment of compensation. The stress by R3 side, on the contrary, is to the fact that the petitioner was merely a student with future unknown and full of uncertainties. Rival contentions seem to be militating against each other, with equal exertion. With this hind sight, the issue can not be fence straddled and needs deeper scrutiny, in order that the issue can be met with effectively and judicially. A reference to various judicial pronouncements, thus, seems to be desirable.
36. In The Divisional Controller, KSRTC Vs. Mahadeva Shetty and Anr.
2003/ACJ/1775, Hon'ble Supreme Court observed as under: "14. The main principles of law on compensation for injuries were worked out Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.14/26 in 19th Century, where railways accidents were becoming common and all actions were tried by Jury. Though the cases have antiquated air it is still useful to refer to them. The necessity that damages should be 'full' and 'adequate' was stresses by the court by Queen's bench in Fair v. London and NorthWestern Railway Co. 1869) 21 LT 326. The word 'compensation' is derived from Latin work "compensate" meaning "weigh together" or "balance". In Rushton v. National Coal Board (1953) 1 AII. E.R.314 it was observed".
"Every member of this Court is anxious to do all he can do to ensure that the damages are adequate for the injuries suffered, so far as they can be compensated for an injury, and to help the parties and others to arrive at a fair and just figure."
15. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which to it appears to be 'just'. 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 to 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 the mental and physical loss, his or her life may h ave been shortened or that he or she cannot in joy life which has been curtailed because of physical handicap. The normal expectation of life is impaired. But at the same time it has be to be borne in mind that the compensation is not expected to be a wind fall for the victim. Statutory provisions clearly indicate 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. Measures 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 side discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.15/26 approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and nor arbitrary. If it is not so it cannot be just"
37. In R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and OthersI (1995/ACC/281, Hon'ble Supreme Court observed as under: "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 is capable of being calculated in terms of money; whereas nonpecuniary 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 upto the date of trial; (iii) other material loss. So far nonpecuniary damages are concerned, they many include (i) damages for mental and physical shock, pain 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 life long 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.
In the case Ward v. James [1995] 1 AII E.R. 563 it was said:
Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.16/26Although 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 brain injury, be rendered unconscious for the rest of his days, or, owing to 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 high 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 change in the value of money."
38. In R. Venkata Ramana and Anr. Vs. The United India Insurance Company Ltd. and Ors. 2013/ACJ/2641, Hon'ble Supreme Court observed as under:
"4. After considering the evidence and looking at the injuries suffered and physical condition of the injured, namely, Rajanala Ravi Krishna, who was hardly 17 years old at the time of the accident, by way of compensation, the tribunal awarded a sum of Rs. 18,75,800/ with the interest @ 7.5% from the date of presentation of the petition till realization of the said amount.
7. The learned Counsel appearing for the Appellants had submitted that the Tribunal had awarded just and proper compensation which ought not to have been reduced by the High Court. The learned Counsel had taken us through the order passed by the Tribunal and the relevant evidence. Upon perusal of the evidence, we find that the son of the Appellants, as a result of the accident, is suffering from 80% permanent disability. The Neurologist who had been examined by the Tribunal had stated that there was no chance of any improvement in the health of the injured. Upon perusal of the evidence, we find that Rajanala Ravi krishna, as a result of the accident, tracheotomy and other surgeries performed on him, he has practically become bedridden, except for the fact that he can be moved in a wheel chair. He requires continuous nursing because he is unable to perform his day to day activities. In the circumstances, the learned Counsel had submitted that the amount of compensation awarded by Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.17/26 the Tribunal was just and proper.
8. On the other hand, the learned Counsel appearing for the Respondent Insurance Company had submitted that the Tribunal had awarded huge amount of compensation to a person who was not having any income and was only a student, whose future was not known to anyone. In the said circumstances, according to the learned Counsel, the High Court had rightly considered the judgment delivered by this court in the case of Sarla Verma v. Delhi Road Transport Corporation MANJU/SC/0606/2009 : 2009 (6) SCC 121 while awarding just amount of compensation. He had supported the judgment delivered by the High Court and had submitted.
9. Upon hearing the learned Counsel and looking at the impugned judgment and the order of the Tribunal as well as the evidence adduced on behalf of the claimants, we are of the view that the Tribunal was not at all lenient in the matter of awarding the compensation and the compensation awarded by the Tribunal was just and proper. "
39. In view of the above Judicial Pronouncements, the contentions of the ld.
Counsel for the R3 that the petitioner was a 9 years old student at the time of accident and, thus, not entitled to any compensation on account of loss of future prospectus/income, can not be accepted. In V. Mekla the Hon'ble Supreme Court, while dealing case of 16 years old student, rejected the contention of the insurance company visavis the compensation under the head of loss of income and future prospectus while holding that the accident had rendered both the legs as dysfunctional, the scope of her future prospects have been affected substantially. The Hon'ble Supreme Court further observed that it would be just and proper to take Rs.10,000/ as the monthly notional income, for the purpose of compensation under the head of loss of income. The Hon'ble Supreme Court further held that the petitioner is also entitled to 50% increase under the said head.
40. The entitlement of the petitioner to compensation under the head of loss Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.18/26 of income/future prospects, thus can not be denied, however, before the same can be assessed, the contention of ld. Counsel for R3 needs to be met with. Ld. Counsel for petitioner has contended that as per the law, no notional income can be assessed in as much as the age of petitioner was below 15 years, having regard to the fact that no multiplier has been prescribed for injured belonging to the said age group. The said contention again would be contrary to be very spirit of the above judgments. Besides, the lack of any fool proof measure for assessment would not, by, be a disability for the Tribunal for assessment of the compensation. Regardless the fact that there is no material on record suggestive of or leading to assessment of notional income, it would be unjust to say that the petitioner would not be entitled to any loss of future income/ prospects . True that the Hon'ble Supreme Court in Malikaarjun's case has fixed schedule of payment of compensation in case of injured minor, but the subsequent pronouncement in V. Mekla by the Hon'ble Supreme Court has gone further, considering the various aspects for assessment of notional income in case of the minor injured. Though it may be verify contended that the future as its own uncertainties, but the same would also never be a ground to deprive an injured of compensation arising out of loss of prospects.
41. Assuming the petitioner to be child of normal intellect with average results and average education, the possibility of the petitioner getting employed can not be ruled out. Having regard to the fact that she has suffered 80% permanent disability in respect of the right lower limb and the fact that the petitioner is a girl child, the Tribunal is a opinion that the functional disability so suffered by her is also not less then 80% in as much as, she would not be able to find a suitable employment, even if she is educated upto a average level. Having regard to the relevant consideration in this respect, the Tribunal deems fit that payment of lumpsum amount of Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.19/26 Rs.10 Lac, towards loss of future prospects/income, to the petitioner would be just, apt and equitable in the facts and circumstances of the case. The, petitioner, is accordingly awarded a sum of Rs.10 Lac on this count.
42. Petitioner is awarded Rs.25,000/ under the head of conveyance as it is common knowledge that the victim of vehicular accident is required to under take follow up visits to the doctor. Petitioner is awarded Rs.50,000/ for special diet as it is common knowledge that when one suffers injuries or remains ill, is required to take special diet and extra nourishment for recovery.
43. Considering the fact that the petitioner was also advised physiotherapy, a sum of Rs.30,000/ is awarded to the petitioner.
44. As regard pain and suffering it has been contended that the petitioner had to undergo four major surgical operations, including two amputations and that the pain and suffering endured by her can be imagined from the medical record placed.
45. Considering the fact that the petitioner had remained admitted for 42 number of days, and her treatment had continued till February 2013, as per the record placed, the nature and extent of injury, a sum of Rs.4 Lakhs is awarded to the petitioner towards pain and suffering.
46. Considering the nature of injuries the necessity of the attendant can not be ruled out as such a sum of Rs.50,000/ is awarded to the petitioner assuming that she must have required help at attendant for initial one year.
47. Petitioner is a girl child and having regard to the loss of limb, her marital Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.20/26 prospects have been diminished substantially. A sum of Rs.2 Lakhs is awarded to the petitioner towards loss of marital prospects.
48. Petitioner is awarded a sum of Rs.1 Lac towards compensation on account of disfigurement and sum of Rs.2 Lakhs towards loss of enjoyment of life.
49. Petitioner side has proved the expense of Rs.1,05,178/ towards purchase of medicines and implants etc, and, accordingly, a sum of Rs. 1,05,178/ is awarded to the petitioner towards reimbursement of expense.
50. As far as the prosthetics are concerned the petitioner side has contended that the petitioner would be requiring a new prosthetics in every 45 years, involving expenses of Rs.4 to 5 lacs per prosthetic. Ld. Counsel for petitioner has invited the attention of the Court towards the testimony of PW2 Sh. Phool Chand, Technician, M/s. P& O International Inc., Vimhans Artificial Limbs Centre, who has deposed that since the petitioner is a child, she would eventually require a different prosthetic after some time. He also proved the invoice/Ex.PW2/2, towards sale of prosthetic to the petitioner in a sum of Rs.88,276/. The witness has further deposed that the life of the prosthetic is 57 years and the cost of maintenance is Rs.15,000/ to 20,000/ per year. Ld. Counsel for the R3, on the other hand has contended that the said figures are manipulated, and at best the petitioner can be awarded a sum of Rs.88,276/ towards the reimbursement of bill of purchase of prosthetic. In regard with the necessity of different prosthetic in future, he had contended that even if such a necessity is assumed, the amount mentioned in Ex.PW2/2 i.e. Rs.88,276/ ought to be considered. He has further contended that the quotation/assessment dated 18.10.2013, citing total cost of Rs.3,10,878/, is manipulated one and there are various Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.21/26 economical variants available in the market.
51. Ld. counsel for the parties have been heard at length on these aspects.
Having gone through the relevant record and considering the fact that the petitioner is a child and is yet to grow in terms of height and weight, and further considering the age of prosthetic generally, the necessity of the replacing prosthetic can not be ruled out. Even if it is assumed that the age of prosthetic is 5 years, the petitioner would be requiring atleast 9 replacements. Considering the objections raised by ld. Counsel for R3, and assuming that the each replacement would cost Rs.2.5 Lac including maintenance, sum of Rs.22.5 Lacs, needs to be awarded to the petitioner towards prosthetics for future. As such a sum of Rs.22.5 Lacs is awarded to the petitioner, in addition to Rs.88,276/ already spent by the petitioner.
52. It is vehement contention, of the ld. Counsel for R3 that the petitioner would not be entitled to any interest over the cost of future prosthetic, if any awarded in as much as the same is the future expense. The said contention of the ld. Counsel for the R3 is quiet reasonable and logical. The petitioner thus, would not be entitled to any extent over the amount of future prosthetic.
53. The petitioner claimant is, thus, entitled to following compensation: Head of compensation Amount (in Rs.) Expenses towards medical 1,05,178 / Loss of future income on account of 10,00,000/ disability Conveyance charges 25,000/ Special Diet 50,000/ Pain and suffering 4,00,000/ Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.22/26 Expenses on account of physiotherapy 30,000/ Loss of enjoyment of life 2,00,000/ Attendant charges 50,000/ On account of disfigurement 1,00,000/ Loss of marital prospects 2,00,000/ Cost spent on prosthetic 88,276/ Total 22,48,454/ Purchase of future prosthetics 22,50,000/ RELIEF
54. It is the vehement concern of Ld. Counsel for R3 that since the petitioner has not spent anything towards the purchase of prosthetic, except a sum of Rs.88,276/, she is not entitled to interest over the compensation granted, if any, to the petitioner for purchase of prosthetic in future. It is his further concern that the amount so granted may not be utilized for the purpose of purchase of prosthetic, and as such safeguards are necessary. The concern of ld. Counsel for respondent no.3 weighs heavily and as such no interest is paid to the petitioner over and above the amount of Rs.22.5 Lacs, awarded to her for purchase of future prosthetics for the period from filing of the petition till the date of the award.
55. As far as the amount of Rs.22,48,454/ is concerned, the petitioner is entitled to interest @ 9% per annum from the date of filing of DAR/petition, whichever is earlier, till date of the award. The respondent no.3 being the insurer is directed to deposit the above amount with State Bank of India, Saket Court Complex, New Delhi within 45 days, failing which the amount to carry interest @ 12% p.a. for the period of default.
56. Out of the remainder a sum of Rs.3 Lac be paid to the petitioner, Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.23/26 immediately, and the rest to be maintained in FDRs, in the manner prescribed in the following tabulate form: Sr Name of Amount Amount to be Amount to be Interest . the Awarded released to deposited /maintained in Whether n Petitione the the FDR with break up payable or o. r / Petitioner and duration liable to be Claimant Claimant credited in the A/c of the Petitioner/Clai mant on monthly basis Shimra Rs.22,48,454/ Rs.3,00,000/ No Bano + Rs.19,48,454/ + Interest Interest @ 9% @ 9% accrued on the accrued on the entire amount awarded entire amount to the Petitioner awarded to the Petitioner Amount of the Term fixed Deposit 30% of the 5 years above amount 30% of the 7 years above amount 40% of the 9 years above amount
57. As regard safeguards, the insurance would be at liberty to deposit the amount of Rs.22.5 Lacs separately, which is directed to be maintained in a FDR in the name of the petitioner for a longer term. The petitioner would be entitled to get the amount released periodically, to the extent spent on purchase of the prosthetic, upon submission original bills and upon satisfaction of the Senior Manager of the bank. The bank shall have the right to refuse the release of the part amount in case the bank is not satisfied about the genuineness of the claim. The bank shall not release more than a sum of Rs.3.5 Lacs in one go, and to ensure that there is a gap of 4 to 5 years between each of such release. Needless to say that in the event of any Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.24/26 dispute or difference, either sides may approach the Tribunal for the purpose of directions.
58. The Bank Account/Fixed Deposits are subject to and to be regulated by the following conditions :
1. Interest on the fixed deposit be paid to the Petitioner(s) / Claimant(s) by automatic credit of interest in their saving bank accounts with State Bank of India, Saket Court Branch, New Delhi.
2. Bank to issue Photo Identity card to Petitioner(s)/Claimant(s) for facilitating her identity and the withdraw from the said account be permitted subject to due verification.
3. No cheque book be issued to Petitioner(s) / Claimant(s) without permission of the Court. Original Pass book shall be given to the Petitioner(s) / Claimant(s) together with the copies of the FDRs.
4. Original Fixed Deposit Receipts to be retained by the bank in safe custody and be handed over to Petitioner(s) / Claimant(s) on expiry of the term/maturity of the Fixed Deposit.
5. No loan, advance or withdrawal to be permitted/allowed in respect of the Fixed Deposits, without the permission of the Court.
6. The Bank Shall transfer the savings account to any other branch of the State Bank of India, as per the request and convenience of the Petitioner(s) / Claimant(s).
7. Petitioner(s)/Claimant(s) to furnish all relevant documents for opening of the saving Bank Account and Fixed Deposit Receipts, with the Branch Manager, State Bank of India, Saket Courts Complex Branch.
59. Copy of this award be given to the respondents as well as to the petitioner free of cost. Copy of this award be also sent to SBI, Saket Court Complex Branch for Record and compliance.
60. List on 15.12.2014 for compliance.
Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.25/2661. File after necessary compliance be consigned to record room.
Announced in open Court
Dated: 15.11.2014 (NIKHIL CHOPRA)
PO: MACT01 (SE)/SAKET COURTS, NEW DELHI
Suit No.59/2014 Shimra @ Simra Bano Vs. Mahender Singh & Ors Page No.26/26