1. By way of filing this appeal under Section 173 of the Motor Vehicles Act, 1988 the appellants – original claimants have challenged the judgment and order dated 29th July 1997 passed by the learned Motor Accident Claims Tribunal (Main), Surat in MAC Petition No.448 of 1989 whereby the Tribunal has awarded Rs.3,65,000 to the claimant as against the claim of Rs.10,00,000. 2 The short facts of the present appeal are that on 26th January 1989 at about 8.30 AM deceased Parag Shantilal Sancheti was travelling in a luxury bus berating No.GRT 2582 along with marriage party from Navsari to Ahmedabad on National Highway No.8. It is the case of the claimants that when the said Bus reached a place known as Malia Gam Patia Stand, one tempo bearing registration No.MVW 1275, which was coming from opposite direction dashed with the bus in which the deceased was travelling. Because of the impact of the collision, the driver of the bus lost control over the bus due to which the bus went off the road and fell into a ditch. In the said accident, deceased Parag sustained grievous injuries along with other co-passengers. They were removed to hospital and all the claimants have filed separate claim petitions. The claim petition filed by Parag Shantilal Sancheti is numbered as MAC Petition No.448 of 1989 and the same was filed by him claiming compensation of Rs.10 lakhs under various heads. During the pendency of the claim petition, said Parag Shantilal Sancheti died on 1st February 1995 and therefore his heirs were brought on the record.
3 The Tribunal consolidated all the claim petitions and by way of common judgment and award granted Rs.3,65,000 to the heirs of the deceased, the break up of which is as under:
● Pain, Shock and Suffering Rs.1,25,000
● Loss of dependency Rs. 84,000
● Expenses on special diet Rs. 36,000
● Expenses on medical treatment Rs. 36,000
● Expenses on Medicines Rs. 60,000
● Loss to estate Rs. 20,000
● Obsequious ceremony Rs. 2,000 Total Rs.3,63,000
4. Feeling aggrieved by and dissatisfied with the aforesaid judgment and award the appellants, heirs of the original claimant have filed the present appeal for enhancement of the compensation.
5. Heard learned counsel for the parties and perused record.
6. Mr Shah, learned counsel for the Gujarat State Road Transport Corporation raised a preliminary contention that with the death of the original claimant, cause of action also dies and therefore the award passed by the Tribunal cannot be challenged. Mr Shah has, in support of his submission, relied upon the decision of this Court reported in 1996 (2) GLR 212. Ms Anushree Kapadia, learned counsel for the appellants has, however, opposed the said preliminary contention by stating that the said decision is not a good law in view of the decision of the Division Bench of this Court in Letters Patent Appeal No.363 of 1986, more particularly in view of paragraph 9 of the said decision. Paragraph 9 of the said decision reads as under:-
“9. The contention that with the death of original claimant, cause of action also died and, therefore, the award passed by the Tribunal as confirmed by the learned Single Judge should be set aside, has no substance. It is relevant to notice that cause of action had arisen on the date of accident when injuries were caused to original claimant as well as subsequent suffering by original claimant Bhimabhai on account of tortuous act of appellant no.1, who was driving his own scooter. Even if the claimant who was injured, has died, then also legal heir and representative of the deceased would be entitled to claim compensation. Section 155 of the Motor Vehicles Act, 1988, which corresponds with old Section 102 contains statutory provisions as to the effect of death on certain causes of action. This section has over-riding effect as it begins with non-obstente clause. It provides that notwithstanding anything contained in section 306 of the Indian Succession Act, 1925, the death of a person in whose favour a certificate of insurance had been issued, if it occurs after happening of an event which has given rise to a claim, shall not be a bar to the survival of any cause of action arising out of the said event against his estate or against the insurer. In view of statutory provisions made in section 155 of the Motor Vehicles Act, 1988, which wholly correspond with old Section 102 of the Motor Vehicles Act, 1988, we are of the opinion that the respondent was not only entitled to continue the claim petition which was filed by original claimant Bhimabhai, but was also entitled to compensation which could have been awarded to the original claimant. Therefore, the judgment impugned in the appeal cannot be interfered with on the ground that after the death of the original claimant, the respondent was neither entitled to continue the proceedings initiated by original claimant Bhimabhai, nor entitled to receive compensation.”
7. Learned counsel for the appellants submitted that the Tribunal has committed an error in awarding only Rs.1,25,000/- to the claimants under the head of pain, shock and suffering and she has relied upon the decision of Division Bench of this Court rendered in First Appeal No.2071 of 2005 dated 23rd December 2011 wherein the Division Bench of this Court awarded Rs.4 lakhs to the claimants therein under the head of pain, shock and suffering.
7.1 She further submitted that the Tribunal has also committed an error in awarding only Rs.84,000 under the head of future economic loss. In the judgment of the Division Bench, the Division Bench has considered the notional income of Rs.1500 per month and added 50% as the future prospective income and considered Rs.2250 to be the monthly income of the injured. If it is multiplied by 12, the annual dependency would come to Rs.27,000 and if the multiplier of 6 is adopted, then he future economic loss would come to Rs.1,62,000. As against that, the Tribunal has awarded only Rs.84,000/- and therefore the appellants would be entitled to get an additional sum of Rs.78,000 under this head.
7.2 Ms Kapadia next contended that no amount under the head of attendant charges were not granted by the Tribunal though the Tribunal has discussed on this point in paragraph 37 of the judgment and observed that when it comes to prolonged treatment the claimants must have engaged some attendant and therefore attendant charges could have been granted.
8 Learned counsel for the respondent has contended that the claim under Section 163A is required to be deducted and if any amount is granted on the ground of actual loss, then, no amount is required to be granted under the head of loss to estate and obsequious ceremony and therefore Rs.22,000 is required to be deducted from the award.
9 In view of the judgment of the Division Bench wherein the Division Bench has considered the notional income of Rs.1500 per month and added 50% as the future prospective income and considered Rs.2250 to be the monthly income of the injured, in the present case also the same is required to be accepted. The monthly income of the injured was Rs.2250 and if it is multiplied by 12, the annual dependency would come to Rs.27,000. As the injured survived for six years and looking to the age of the applicants if the multiplier of 6 is adopted, then the future economic loss would come to Rs.1,62,000. As against that, the Tribunal has awarded only Rs.84,000/- Therefore the appellants are entitled to get an additional sum of Rs.78,000 under this head.
10. Further, as the injured was confined to bed and was required to be attended to round the clock, the Tribunal ought to have awarded attendant charges. Ms Kapadia, learned counsel for the appellant contended that the appellant has incurred an amount of Rs.3000 per month as attendant charges. In the case of R.D. Hattangadi v. Pest Control (India) Pvt. Limited, reported in 1995 ACJ 366 (SC), the Honourable Supreme Court while observing that the Court need not be mathematical in calculating expenses on home attendant but ought to look upon the circumstances prevailing in the society to decide the amount, held 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 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 non-pecuniary damages are concerned, they may 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.
11. In the case Ward v. James, 1965 (1) All ER 563, it was said:
"Although you cannot give a man so gravely injured much for his "lost years", you can, however, compensate him for his loss during his shortened span, that is, during his expected "years of survival". You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to 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 for him. Yet Judges and Juries have to do the best they can and give him what they think is fair. No wonder they find it well nigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The Judges have worked out a pattern, and they keep it in line with the changes in the value of money."
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. But all the aforesaid elements have to be viewed with objective standards.”
12. The Supreme Court in the case of C.K. Subramonia Iyer v. T.Kunhikuttan Nair, AIR 1970 SC 376, 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."
13. In Halsbury's Laws of England, 4th Edition, Vol. 12 regarding non-pecuniary loss at page 446 it has been said :-
"Non-pecuniary loss : the pattern : Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. 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 particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award.
The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases."
While denying the claim of Rs.3000 per month, this Court feels that the average cost of keeping a home attendant would be around Rs.1,000 per month and Rs.12,000 per year. As the injured survived for six years, the claimants would be entitled to Rs.72,000/- under the head of Attendant Charges.
10. Thus, the claimants are entitled to for the following amounts:-
● Pain, Shock and Suffering Rs.1,25,000
● Loss of dependency Rs.1,62,000
● Expenses on special diet Rs. 36,000
● Expenses on medical treatment Rs. 36,000
● Expenses on Medicines Rs. 60,000
● Attendant Charges Rs. 72,000 Total Rs.4,91,000 The appellants are therefore entitled to additional amount of Rs.1,28,000/- (Rs.4,91,000 – Rs.3,63,000).
11. In view of the aforesaid discussion, the judgment and award dated dated 29th July 1997 passed by the learned Motor Accident Claims Tribunal (Main), Surat in MAC Petition No.448 of 1989 whereby the Tribunal has awarded Rs.3,63,000 to the claimant is modified and the claimants are now entitled to Rs.4,91,000. Thus, the claimants are entitled to get additional amount of Rs.1,28,000 along with interest at the rate of 7½ % per annum from the date of application till realisation. However, in view of the order dated 29th September 2003 passed by this Court, the appellants are not entitled to interest for the period from 11.11.1997 till 29.09.2003.
Appeal is allowed to the aforesaid extent with no order as to costs.
(K.S.Jhaveri, J.) *mohd