JUDGMENT
S.K. Gangele, J.
1. This is claimants appeal for enhancement of compensation against the award dated 8.5.2000 passed in Claim Case No. 18 of 1998. Appellant-claimant, a girl aged 14 years, met with an accident on 9.12.1998 when a Fiat car No. MP 045-1034 dashed her when she was going to school. Her left leg was broken and she also sustained injuries in head. Her life has been ruined due to accident, left leg was amputated below knee, a rod was inserted in her right leg too.
2. On her application for claim of compensation under Sections 166 and 140 of Motor Vehicles Act before the Motor Accidents Claims Tribunal, Rajgarh (Biaora), M.P. (hereinafter called ‘the Tribunal’) the Claims Tribunal held that car was driven rashly and negligently and driver, owner and insurance company were liable to pay compensation.
3. On the basis of evidence of applicant-appellant herself, witness No. 1, her father Abrar Hussain, witness No. 2 and Dr. A.K. Mulla, witness No. 3, a surgeon posted at District Hospital, Rajgarh and documentary evidence, the Tribunal held that her left leg was amputated below 4 inch from knee, she suffered injuries in her right leg and awarded Rs. 1,25,000 compensation on following heads:
Expenses on treatment
including expenses of
attendant to attend
and journey from
Rajgarh to Indore Rs. 89,342
Pain and suffering Rs. 10,000
Loss of life expectancy
as handicap person Rs. 25,000
____________
Total Rs. 1,24,342
____________
Roundoff Rs. 1,25,000
4. Learned Counsel for the appellant has submitted that award of the Tribunal is inadequate, it has grossly undervalued the compensation on account of pain and suffering, prospects of marriage, expectancy of life. He relied on judgments of Apex Court in Grifan v. Sarbjeet Singh and this court and other High Courts in Pyarsingh v. Kamlabai ; Fakkirappa v. Yallawwa and Chandra Prakash v. Mangal Singh .
5. The learned Counsel for insurance company, respondent No. 3, has submitted that award is just and proper and as per law.
6. After perusal of the documentary and oral evidence it is clear that accident ruined the life of the applicant. Her left leg has been amputated below knee and as per the doctor, she suffered permanent disability up to 70 per cent. She has received injuries in her right leg too. She was a school going child, now she has become a handicapped person, her marriage prospects, enjoyment of life and aspirations had been shattered. The disappointment, frustration and mental stress in life would be with her lifelong. Although compensation cannot cure her agony and suffering but it minimises up to some extent.
7. In R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. , the Apex Court has held as under with regard to grant of compensation in case of serious injuries:
Broadly speaking, while fixing an amount of compensation payable to a victim of 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.
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 suffering or personal deprivations. Money cannot renew a broken and shattered physical frame.
This court in the case of C.K. Subramonia Iyer v. T. Kunhi Kuttan Nair 1970 ACJ 110 (SC), in connection with the Fatal Accidents Act, has observed:
In assessing damages, the court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable.
When compensation is to be awarded for pain and suffering and loss of amenities 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. The amount of compensation for non-pecuniary loss is not easy to determine but the award must reflect that different circumstances have been taken into consideration.
We have heard learned Counsel for the appellant as well as learned Counsel for the respondents, especially the insurance company which has to bear the burden of compensation. Looking to the facts and circumstances of this case, in our view, an additional award of Rs. 2,00,000 (rupees two lakh only) is required to be granted in favour of the claimant whose right leg was amputated due to rash and negligent driving of the respondent No. 1. The medical evidence shows that he has suffered from 80 per cent disability. But even taking the overall disability of 50 per cent and looking to his income of Rs. 4,000 per month which would have risen further if the appellant had not suffered from this injury at the age of 45 years, considering this aspect and keeping in view his future prospects which are affected because of this permanent injury, we deem it fit to enhance the award of compensation by Rs. 2,00,000 more in addition to Rs. 2,00,000 already ordered by the High Court.
8. A Division Bench of Karnataka High Court in Fakkirappa v. Yallawwa , discussed important judgments with regard to grant of compensation to handicapped persons and held as under:
Bodily injury is to be treated as a deprivation which entitles a claimant to damages, the amount of damages varies according to gravity of the injury. Deprivation of injuries may bring with it three consequences, namely, (i) loss of earnings and earning capacity, (ii) expenses to pay others for what otherwise he would do for himself; and (iii) loss or diminution in full pleasures of living. Though it is impossible to equate money with human suffering or personal deprivation, the court has to make an attempt to award damages so far as money can compensate the loss. Therefore, while considering deprivation, the court should have regard to the gravity and the degree of deprivation and the degree of awareness of the deprivation. While awarding damages in the personal injury cases, the compensation awarded by the court should be substantial and it should not be merely token damages. Lord Morris in his memorable speech in H. West & Son Ltd. v. Shephard 1958-65 ACJ 504 (HL, England), pointed out this aspect in the following words:
Money may be awarded so that something tangible may be procured to replace something else of the like nature which has been destroyed or lost. But money cannot renew a physical frame that has been battered and shattered. All that Judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common assent, awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards.
In the above case, their Lordships of the House of Lords observed that the bodily injury is to be treated as a deprivation which entitles plaintiff to the damage and that the amount of damages varies according to the gravity of the injury. Their Lordships emphasised that in personal injury cases the courts should not award merely token damages but they should grant substantial amount as compensation.
In Ward v. James (1965) 1 All ER 563, speaking for the Court of Appeal in England, Lord Denning while dealing with the question of awarding compensation for personal injury had laid down three basic principles:
Firstly, assessability: In cases of grave injury, where the body is wrecked or brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Secondly, uniformity: There should be some measure of uniformity in awards so that similar decisions may be given in similar cases; otherwise there will be great dissatisfaction in the community and much criticism of the administration of justice. Thirdly, predictability: Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to court, a thing very much to the public good.
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 Borth-y-Gest in the case of Perry v. Cleaver 1969 ACJ 363 (HL, England), 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.
Damages must be full and adequate. Field, J. in Phillips v. South Western Railway Co. (1871) 1 QBD 106, 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 and fair compensation for that which he has suffered.
Though, undoubtedly there are difficulties and uncertainties in assessing the damages for personal injury case, that fact should not preclude an assessment as best as can, in the circumstances be made, Lord Halsbury in 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.
McGregor on Damages, 14th Edn., para 1157, referring to the heads of damages in personal injury actions states:
The person physically injured may recover both for his pecuniary losses and his non-pecuniary losses. Of these the pecuniary losses themselves comprise two separate items, viz., the loss of earnings and other gains which the plaintiff would have made had he not been injured and the medical and other expenses to which he is put as a result of the injury, and the courts have subdivided the non-pecuniary losses into three categories, viz., pain and suffering, loss of amenities of life and loss of expectation of life.
Besides, the court is well advised to remember that the measures of damages in all these cases ‘should be such as to enable even a tortfeasor to say that he had amply atoned for his misadventure’.
The observation of Lord Devlin that the proper approach to the problem or to adopt a test as to what contemporary society would deem to be a fair sum, such as would allow the wrongdoer to ‘hold up his head among his neighbours and say with their approval that he has done the fair thing’, is quite apposite to be kept in mind by the court in determining compensation in personal injury cases.
In the result, for the foregoing reasons, we allow the appeal in part with costs. In substitution of the impugned award, we award a sum of Rs. 5,85,000 under the following heads with 9 per cent interest per annum from the date of claim petition till its payment:
Pain and suffering Rs. 50,000
Loss of amenities of
life, happiness,
frustration, etc. Rs. 1,00,000
Loss of marriage
prospects Rs. 50,000
Amputation of leg
below knee Rs. 1,50,000
Loss of expectation
of life Rs. 50,000
Medical expenses
inclusive of special
food, nourishment Rs. 25,000
Attendant and conveyance
charges Rs. 10,000
Future medical expenses
to replace artificial leg till
he attains age of 22 years Rs. 1,50,000
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Total Rs. 5,85,000
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Advocate's fee is fixed at Rs. 1,500
9. On the basis of above principles of law I am of the opinion that impugned award is grossly undervalued and has not considered appropriate principles of law with regard to grant of compensation. Admittedly, the girl became handicapped, due to the accident, her prospects of marriage has been affected adversely, she requires some treatment as rehabilitation throughout her life. She could not earn, hence, some maintenance and expenses for her lifelong lonely life. Looking to the above facts and circumstances of the case it would be just to award compensation to the appellant for pain and suffering Rs. 50,000, loss of amenities of life and expectations Rs. 50,000 and loss of marriage prospects Rs. 50,000, plus in addition to Rs. 89,342 rounded off to Rs. 90,000 for medical treatment already awarded by the Tribunal. A total compensation of Rs. 2,40,000. But Tribunal has already awarded Rs. 1,25,000 hence, the appellant will be entitled to an enhanced compensation of Rs. 1,00,000 because jurisdiction of this court is up to Rs. 1,00,000 only. The enhanced amount shall carry an interest of 9 per cent from the date of filing of the application by the claimant-appellant before the Tribunal.
Consequently the appeal filed by the appellant is allowed, the compensation of Rs. 1,25,000 awarded by the Tribunal is further enhanced by Rs. 1,00,000 (rupees one lakh) with interest of 9 per cent from the date of filing of the application before the Tribunal with costs. Counsel’s fee Rs. 2,000.