Shri Siddu Mahadev Bhosale & Anr.” urging various legal grounds and contentions for further enhancement of compensation in the case of a motor accident involving the appellant-claimant herein whereby the High Court enhanced the compensation awarded by the Motor Accidents Claims Tribunal, Belgaum (for short, ‘Tribunal’) by Rs. On account of the accident, the appellant-claimant suffered permanent disability to the extent of 45%. 4,000/- Loss of earning due to disability : Rs.3,24,000/ Towards Medical expenses : Rs. The compensation awarded under the head of pain and suffering, medical expenses, conveyance, special diet, etc., loss of amenities in life and marriage prospects is just and proper and same is not disturbed.
Accordingly, the claimant is entitled for a total compensation of Rs.9,26,800/- as against Rs.6,13,000/- awarded by the Tribunal. Loss of earning due to disability Rs.6,04,800/- 4. 3,13,800/-, which shall carry interest at the rate of 6% per annum from the date of petition till date of realization.” Not satisfied with the compensation awarded by the High Court, the appellant has appealed to this Court urging various contentions in support of further enhancement of the compensation. The accident had occurred on 18.07.2012 when the appellant- claimant was walking on the left side of the Kulgod-Gokak Road, Karnataka when a goods vehicle bearing No KA-23/9426 dashed against the appellant-claimant, whilst being driven in a rash and negligent manner. The Tribunal had awarded a meagre sum of Rs.6,13,000/- along with interest at 6%. The High Court vide its impugned order has only marginally increased the compensation payable to the appellant- claimant from Rs.6,13,000/- to Rs.9,26,800/-. Attendant charges Not awarded No awarded 4500 x 12 x 18 = 9,72,000/- TOTAL 9,26,800/- 6,13,000/- 26,03,600/- 12.
Ashok Kumar and Another, (2014) 5 SCC 330, was pleased to award compensation to the tune of Rs.75,000/- for loss of marriage prospects wherein the claimant was earning only a sum of Rs.3,500/- per month.
It is pertinent to point out herein that the appellant as a consequence of his grievous injuries will not be able to work in the same manner as he used to prior to the accident and therefore, functional disability of the appellant ought to be considered as 100%. in Civil Appeal
No 6365 of 2022 dated September 16, 2022 was pleased to grant compensation to the tune of Rs. 4,00,000/- after taking notice of the grievous nature of the injuries sustained by the Claimant in the said matter and taking into consideration that he had been operated upon 5 times. Ajay Kumar and Another, (2011) 1 SCC 343, has categorically held that adequate compensation ought to be awarded not only for the physical injury and treatment, but also for the loss of earning and his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident. It is pertinent to point out herein that the appellant would be entitled to fair and just compensation in order to place the appellant in such a position as close to how the appellant was living prior to the accident as held by this Court in National Insurance Company Limited v. It is submitted that the High Court after considering the evidence on record and also after considering the MACT award had rightly enhanced the award as claimed by the petitioner as such there is no scope for any further enhancement of the amount in the present petition. The High Court has rightly assessed the future earning as per the law laid down by this Court in Anant son of Sidheshwar Dukre v. Actual loss of income can be awarded for the month in which accident took place.” In fact, the High Court had rather awarded on the higher side under this head i.e.
Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the appellant-claimant has made out any case for further enhancement of the amount of compensation.
Shephard, 1958-65 ACJ 504 (HL, England): “…money cannot renew a physical frame that has been battered.” The principle consistently followed by this court in assessing motor vehicle compensation claims, is to place the victim in as near a position as she or he was in before the accident, with other compensatory directions for loss of amenities and other payments. There is no justification to exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. In our view, it will be nave to say that the wages or total emoluments/income of a person who is self-employed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. Although the wages/income of those employed in unorganised sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the government employees and those employed in private sectors, but it cannot be denied that there has been incremental enhancement in the income of those who are self- employed and even those engaged on daily basis, monthly basis or even seasonal basis. Rather, it would be reasonable to say that a person who is self-employed or is engaged on fixed wages will also get 30% increase in his total income over a period of time and if he/she becomes the victim of an accident then the same formula deserves to be applied for calculating the amount of compensation.” Pranay Sethi, (2017) 16 SCC 680], this Court has held that the benefit of future prospects should not be confined only to those who have a permanent job and would extend to self-employed individuals.
But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. The amount awarded by the Tribunal towards medical expenses (Rs 98,908); for extra nourishment (Rs 25,000) and for attendant’s expenses (Rs 1 lakh) is maintained. The appellant has however, produced an affidavit by his employer in this Court. Taking the income of the appellant as Rs 10,000 p.m., with future prospects @ 50% as awarded by the High Court, the total income of the appellant would come to Rs 15,000 p.m. The appellant is, therefore, awarded Rs 32,40,000 towards loss of earning capacity.” Yet later and in near past, in an accident case, which tragically left in its wake a young girl in a life-long state of paraplegia, this Court, in Kajal v. [(1995) 1 SCC 551 : 1995 SCC (Cri) 250], dealing with the different heads of compensation in injury cases this Court held thus: (SCC p.
So far as non- pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in the future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. 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.” Both the courts below have held that since the girl was a young child of 12 years only notional income of Rs 15,000 p.a. This young girl after studying could have worked and would have earned much more than Rs 15,000 p.a.
New India Assurance Company, (2013) 14 SCC 15, this Court considered the case of a victim, whose injury was assessed to 70% as loss of earning capacity for amputation of the arm; he was a postgraduate diploma holder in mechanical engineering, 32 years of age and earning about Rs. However, it is not in dispute that the claimant suffered such a permanent disability as a result of injuries that he is not in a position of doing the specialised job of designing, refrigeration and air conditioning. The process of making such an assessment, whether in case of death or injury, is provided in Section 168 of the Act which requires that the tribunals constituted under the Act determine compensation, which appears to be ‘just’. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. 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. The provision of the Motor Vehicles Act, 1988 (“the Act”, for short) 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. Kunhikuttan Nair [(1969) 3 SCC 64 : AIR 1970 SC 376],
R.D.
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. What usually poses some difficulty is the assessment of the loss of future earnings on account of permanent disability—Item (ii)(a). Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured.
The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. [(2010) 10 SCC 254 : (2010) 3 SCC (Cri) 1258 : (2010) 10 Scale 298] and Yadava Kumar v.
The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. Sometimes the injured claimant may be continued in service, but may not be found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.
The Tribunal may also keep in view the First Schedule to the Workmen’s Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. Mere production of a disability certificate or discharge certificate will not be proof of the extent of disability stated therein unless the doctor who treated the claimant or who medically examined and assessed the extent of disability of the claimant, is tendered for cross- examination with reference to the certificate. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability). The doctor further stated in his evidence that the appellant got delayed joined fracture in the humerus bone of his right hand with wiring and nailing and that he had suffered 55% disability and cannot drive any motor vehicle in future due to the same. The appellant was present in person in the High Court and it was observed and noticed by the High Court that the right hand of the appellant was completely crushed and deformed. DTC [(2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002], the total loss of future earnings of the appellant will be at Rs 54,000 16 = Rs 8,64,000.” In Anthony alias Anthony Swamy v.
PW 3 had assessed the physical functional disability of the left leg of the appellant at 75% and total body disability at 37.5%. The appellant is therefore held entitled to compensation for loss of future earning based on his 75% permanent physical functional disability recalculated with the salary of Rs 5,500 with multiplier of 14 at Rs 6,93,000.” The question of amount of compensation payable to one suffering injury as a result of motor vehicle accident was considered in Syed Sadiq and Others v. But even by conservative approach, if we presume that the vegetable vending by the appellant claimant involved selling vegetables from one place, the claimant would require assistance with his mobility in bringing vegetables to the market place which otherwise would be extremely difficult for him with an amputated leg.
The appellant claimant in his appeal further claimed that he had been earning Rs 10,000 p.m. Ram Avtar Tomar and Others, (2012) 2 SCC 267 ( page 272), in a case of injury entailing loss of a leg, this Court held that medical evidence of the extent of disability should not be mechanically scaled down: “8. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effects on one’s personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or a cycle-rickshaw-puller.
Janardhan case [(2008) 8 SCC 518 : (2008) 2 SCC (L&S) 733], set aside the High Court judgment and held that the tanker driver had suffered 100% disability and incapacity in earning his keep as a tanker driver as his right leg was amputated from the knee and, accordingly, restored the order passed by the Commissioner of Workmen’s Compensation. We, accordingly, find and hold that the compensation for the loss of the appellant’s future earnings must be computed on that basis. He suffered 70% permanent disability, and mental and physical agony. This Court enhanced the compensation, observing the proper manner to calculate the extent of disability. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body.
The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. A very myopic view is taken by MACT in taking the view that 70% permanent disability suffered by the appellant would not impact the earning capacity of the appellant. If a Chartered Accountant is doing taxation work, he has to appear before the assessing authorities and appellate authorities under the Income Tax Act, as a Chartered Accountant is allowed to practice up to Income Tax Appellate Tribunal. Susamma Thomas [(1994) 2 SCC 176 : 1994 SCC (Cri) 335], the Court chose to apply multiplier of 18 keeping in view the age of the victim, who was 25 years at the time of the accident. MACT had awarded compensation of Rs 70,000 for permanent disability, which stands enhanced to Rs 14,28,000. The conventional basis of assessing compensation in personal injury cases— and that is now recognised mode as to the proper measure of compensation—is taking an appropriate multiplier of an appropriate multiplicand.” In Pappu Deo Yadav v. In this case, the loss of an arm, in the opinion of the court, resulted in severe income earning impairment upon the appellant. 229 Dated 18/07/12 Date of admission -18/7/2012 Date of discharged – 6/8/2012 Diagnosis Burst Fracture D 12 vertebra with paraplegia. X-ray no.-9832 Dated on 23/07 / 2012 -Fracture 1 to 6 ribs with Hydropneumothorax, surgical emphysema. CT CHEST(PLAIN): on 18/07/2012 -Fracture of right 1st to 6th ribs along posterior/lateral aspect. -Gross hydropneumothorax/hemothorax on the right side with pneumomediastinum causing gross shift of mediastinum towards left side and partial collapse of right lung.
Conclusion I am of the opinion that considering the clinical signs & radiological findings the patient has got the total permanent physical disability of 45% to whole body in respect to D12 fracture and neurological weakness with inability to stand, sit & walk. I state that movements of left knee flexion grade-2, extension grade-3, right knee grade 3-4 and movements of left foot, plantar-grade -1 dorsiflexion-grade-3 and left foot grade 3-4 and muscle wasting calf and thigh muscle++ Further I state that X-ray taken on 29-07-2013 reveals old fracture D12 with implants in situ, functional disability observed to the petitioner are:- pain in the left knee and left leg and weakness in both legs and inability to stand and walk, unable to squat and sit cross leg. It is false to say that to help the petitioner I am deposing falsely.” In the cross-examination at the instance of the insurance company, he has deposed: “It is true that I am orthopedic surgeon and I am not neuro surgeon. It is false to say that for not taking follow-up treatment by the petitioner this injury has worsened. It is false to say that I have given higher side medical bills to help the petitioner. Susamma Thomas, (1994) 2 SCC 176: “The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. For instance, if the deceased was, say 25 years of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of dependency for 45 yearsvirtually adopting a multiplier of 45and even if one-third or one-fourth is deducted therefrom towards the uncertainties of future life and for immediate lump sum payment, the effective multiplier would be between 30 and 34. Accordingly, the compensation awarded for the loss of earning capacity was determined as follows: 5000 x 12 x 18 x 30% = INR 3,24,000/- 55. With this disability in the form of paraplegia being suffered by the appellant, it is not possible for him now to walk a long distance or stand for a long period. Taking the above rationale into account, the situation is quite clear with respect to notional income determined by a court in the first category of cases outlined earlier, those where the victim is proved to be employed but claimants are unable to prove the income before the court.
The same would result in the compensation being enhanced as under: 8000x 12 x 18 x 45% = INR 7,77,600/- (2) Loss of earning for 6 months 61. We uphold the payment towards loss of earning for six months as awarded by the High Court and applying the revised income, enhance the same as under: 8000 x 6 = INR 48,000/- (3) Medical Expenses 63. In this regard, the appellant adduced documentary evidence in the form of medical bills/receipts to the tune of Rs.1,54,931/-, as stated in the order of the Tribunal. In the non-pecuniary heads, the compensation can be computed for the mental and physical pain and sufferings in the present and in future, loss of amenities of life including loss of marital bliss, loss of expectancy in life, inconvenience, hardship, discomfort, disappointment, frustration, mental agony in life, etc.” The Tribunal has observed that the doctor has deposed that the appellant is likely to incur expenses of Rs. The High Court thought fit not to award any amount for future medical expenses as there was no evidence adduced by the appellant in regard to future treatment that may be required. The High Court held: “ So far as future medical expenses are concerned, the amount claimed in the petition was to the tune of Rs.
In that case, the adequate amount which can be awarded for future medical expenses would be Rs. 25,000=00 awarded towards future medical expenses to Rs. Rs 3,00,000 under the head “future treatment”, would meet the ends of justice. So far as this head is concerned, neither the Tribunal nor the High Court thought fit to award anything. Namita Sekhon, 2019 SCC OnLine P&H 6271] observed that the claimant has now started practice as an advocate, therefore, future loss of earning has been calculated only for 10 years, applying the multiplier of 16, without looking to the facts that the claimant cannot perform the work of advocacy similar to the other advocates by attending the cases in different courts. But now the claimant has become major, and looking to the nature of injuries, future medical expenses that includes the attendant charges, use of diapers due to loss of urination senses is required to be calculated including future medical expenses. While the High Court proceeded on the premises that the rate of the attendant charges is variable after every five years, however, the Court calculated the amount @ Rs 2000 thereafter @ Rs 4000 p.m.
Hattangadi’s case (supra) held as under:- “9. 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”. The Judges have worked out a pattern, and they keep it in line with the changes in the value of money.” 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 guess work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall.
The High Court took the view that the appellant is entitled to the amount of Rs…….Sometimes the delay and litigation expenses make the award passed by the Tribunal and even by the High Court (in appeal) meaningless….. The disadvantaged and the poor are deprived of access to justice because of the costs of litigation, both in terms of actual expenses and lost opportunities, and the laudable goal of securing justice—social, economic and political enshrined in the Preamble to the Constitution of India remains an illusion for them. In the last two-and-a- half decades the institution of the Legal Services Authorities has rendered yeoman’s service in the field of providing legal aid to the poor but a lot is required to be done for ensuring justice to economically deprived section of the society and those who suffer from other disabilities like illiteracy and ignorance.
The learned Single Judge of the High Court had allowed the appeal filed by the dependants of Nanag Ram under Section 173 of the Motor Vehicles Act, 1988 (for short “the Act”) and enhanced the compensation awarded by the Motor Accidents Claims Tribunal, Jaipur (for short “the Tribunal”) by an amount of Rs 4,85,000 and directed the appellant to pay the enhanced compensation with interest at the rate of 12% per annum from the date of filing the claim petition till 31-12- 2000 and at the rate of 9% from 1-1-2001 till the payment thereof, but on account of ex parte interim order passed by this Court on 23-7-2007 Sheo Chand, SLP (C) No 11345 of 2007, order dated 23-7-2007 (SC)], the claimants could get only a paltry sum of Rs 2 lakhs and they perhaps thought that it will not be worthwhile to spend money for contesting the special leave petition filed by the appellant. Therefore, I award an amount of Rs.20,000/- under this head.” The Tribunal awarded Rs. The High Court in Para 11 of its impugned judgment dated 25.04.2018, held: “The compensation awarded under the head of pain and suffering, medical expenses, conveyance, special diet, etc., loss of amenities in life and marriage prospects is just and proper and same is not disturbed” 85. Therefore, we find that in view of the physical condition, the appellant is entitled to one attendant for the rest of his life though he may be able to walk with the help of assistant device. The question of determination of compensation directly came up before Supreme Court in Raj Kumar Vs. Tribunal awarded compensation under the heads of loss of future earning, pain and sufferings, loss of earning during period of treatment, medical expenses, conveyance and special diet. Hence, we may grant the appellant loss of conveyance and special diet up to Rs 50,000/- considering that after the accident at Kulgod- Gokak Road, the appellant was shifted to Lakeview Hospital Belgaum wherein he was admitted as an indoor patient from 18.7.2012 to 6.8.2012 for 19 days, and took treatment for the injuries suffered by him, and continued to take the treatment after getting discharged from the hospital as well. Pecuniary damages also known as special damages are generally designed to make good the pecuniary loss which is capable of being calculated in terms of money whereas non-pecuniary damages are incapable of being assessed by arithmetical calculations. Therefore, when compensation is to be awarded for pain and suffering, special circumstances of the claimant have to be taken into account including the victim’s age, the unusual deprivation the victim has suffered, the effect thereof on his or her future life.
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. While fixing compensation for pain and suffering as also for loss of amenities of life, features like his age, marital status and unusual deprivation he has undertaken in his life have to be reckoned.” In another case of this Court in Nizam’s Institute of Medical Sciences v. This Court has awarded compensation for pain and suffering by looking into the circumstances of the case. The Tribunal held that the appellant was young, and due to the physical disability, his marriage prospects are now almost nil. On the point of loss of marriage prospects, we feel that it is a major loss, keeping in mind the young age of the appellant and the High Court has gravely erred in not awarding adequate compensation separately under this head and instead clubbed it under “loss of future enjoyment of life” and “pain and suffering”. We thereby award Rs 75,000 towards loss of marriage prospects…” 101. In the facts and circumstances of the case, we feel that a sum of Rs 2 lakhs should be awarded to the appellant for loss of marriage prospects and enjoyment of life.” 102. 3,00,000/- towards loss of marriage prospects. 30,000/- should be awarded towards loss of amenities. New India Insurance Co…….When compensation is to be awarded for pain and suffering and loss of amenity of life, the special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he has suffered, the effect thereof on his future life…..” 107. The ratio of the abovenoted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to the accident, loss of earning and the victim’s inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.” 109.
We are of the opinion that this head must take into account all aspects of a normal life that have been lost due to the injury caused. We include here too the loss of childhood pleasure such as the ability to freely play, dance, run, etc., the loss of ability to freely move or travel without assistance. COMPENSATION AMOUNT (IN RUPEES) 1 Loss of earning due to disability 7,77,600/- 2. Marriage prospects 3,00,000/- 10 Loss of amenities 50,000/- TOTAL 21,78,600/- 113.
Case Title: SIDRAM Vs. THE DIVISIONAL MANAGER UNITED INDIA INSURANCE CO. LTD (2022 INSC 1204)
Case Number: C.A. No.-008510-008510 / 2022
