Hon'ble Saurabh Lavania,J.
(Dictated by Hon'ble Saurabh Lavania,J.) 1- Heard Sri Dinesh Pratap Singh, learned Counsel for the petitioner, learned Standing Counsel and Sri P.V. Chaudhary, learned Counsel for the opposite party no.-11 and Sri Kaushalendra Yadav, learned Counsel for opposite party no.-12.
2- This writ petition was filed in the year 2009 for the following main reliefs:-
"1. To issue a writ, order or direction in the nature of mandamus directing respondent no.-1 to 3 to made comprehensive independent inquiry against respondent no.6,7,8,10, 11 and 12 regarding incident narrated in accompanying writ petition within stipulate time and submit inquiry report before this Hon'ble Court in sealed envelope.
2. To issue a writ, order or direction in nature of mandamus commanding the respondent no.4 to 8 and 10,11,12 to pay Rupees Ten Lakhs as compensation, medical expense with interest @25% and damages caused to petitioner and his entire family including 4 children for entire life and bring them on verge of starvation.
3. To issue a writ, order or direction in nature of mandamus directing respondent no.2, 3, 4 and 5 to ensure the future treatment of affected left hand of petitioner on expenses of Government.
4. To issue a writ, order or direction in nature of mandamus commanding the respondent no.9 to register her First Information Report against respondent no. 10, 11 and 12, who are entirely responsible for incident."
3- With respect to the relief sought, in the writ petition, it has been stated that due to the serious illness/disease the husband of the petitioner, is unable to do any kind of work to earn money and to maintain his family and on account of the same, the petitioner used to work as daily wager (fngkM+h etnwj) for maintaining her family including husband. The petitioner was pregnant and was suffering from fever, cold cough and headache and for the purposes of treatment she went to the Primary Health Centre Harchandpur District Raibareli in short (PHC) on 03.03.2009. At PHC on 03.03.2009, Smt. Saroj Singh ANM (Staff Nurse) was present and she asked about the problem and in response to the same the petitioner informed about simple fever, cold and cough and headache and then Smt. Sudha Singh, ANM (Staff Nurse) told the petitioner that the Medical Officer Dr. Brijesh Kumar Ben is not available at PHC and she will treat the petitioner. Thereafter, Smt. Sudha Singh ANM (Staff Nurse) herself injected two injections in the left hand of the petitioner and asked petitioner to wait for further treatment and after injecting of injections in left hand of the petitioner, the petitioner gone semi conscious. After few hours when the petitioner came out of semi conscious stage, she felt sever and intolerable pain in her entire left hand particularly in fingers of left hand, in which injections were injected by Smt. Sudha Singh ANM (Staff Nurse). It has also been noticed by the petitioner that blackening and dryness was started in her left hand. Thereafter, the petitioner immediately complaint to Smt. Sudha Singh ANM (Staff Nurse), who behaved in a very rude manner and asked to contact Dr. Brijesh Kumar Ben, Medical Officer of PHC. The petitioner thereafter informed the entire episode to Dr. Brijesh Kumar Ben, Medical Officer of PHC and thereafter the said Doctor has written prescription on the Purcha which was obtained by the petitioner after due payment of Rs. 1.00/- at the PHC, and told to petitioner that the she will come out of trouble after taking medicine for one day. The petitioner took the medicine on 04.03.2009 as prescribed by the Medical Officer at PHC, Dr. Brijesh Kumar Ben and even then there was no relief to the petitioner. The condition of the left hand of the petitioner was deteriorated and bleeding was also started from private part of the petitioner in the night of 3/4-3-2009. On 05.03.2009 the petitioner went to another hospital namely Rana Beni Madhav District Hospital, Raibariely and consulted the doctor and entire facts were communicated by the petitioner to the Doctor at Rana Beni Madhav District Hospital, Raibariely. In response doctor informed that the severe pain, dryness and blackening in left hand of the petitioner is on account of post injection Gangrene and further told that reasons for bleeding in private part of the petitioner is perhaps abortion of child womb of the petitioner. The consulting doctor at Rana Beni Madhav District Hospital, Raibariely referred the petitioner to King George Medical University.
4- Thereafter, the petitioner got herself examined at KGMU on 6.3.2009 and the petitioner was admitted in KGMU with severe pain in left hand and her left hand particularly fingers were blackened and dried. After admission at KGMU, the treatment of left hand was started and number of tests including Doppler study test and MRI was conducted on advise of doctors. During the period her admission at KGMU doctor advised/asked the petitioner for operation of left hand in order to stop post injection Gangrene in whole body of the petitioner and to save life of petitioner. It was informed by the doctor of KGMU that the post injection Gangrene is on account of a wrong injection, wrongly injected in left hand of the petitioner.
5- On account of lack of fund , the petitioner was discharged from KGMU on 15.03.2009 without operating the left hand of the petitioner. The discharge certificate (Annexure No.-4 to the writ petition) was provided to the petitioner by the KGMU wherein it has been specifically stated that "Patient admitted to our side as C/0- Gangrene left hand with c/c/ of pain, blackening (L) hand with digils. Since 3 days c H/o Abortion 3 days back c development pain and blackening after cubital Injection outside hospital."
6- After discharge from KGMU the petitioner came back to district Raibareli and after borrowing money on interest she again went to KGMU on 04.04.2009 and consulted the doctor of OPD. Doctors of KGMU advised/asked the petitioner for operation of left hand in order to stop the spreading of the gangrene in whole body and also prescribed the medicine for temporary relief in severe pain in left hand of the petitioner arising due to post injection Gangrene.
7- Lastly on 14.5.2009 the petitioner was operated in private hospital namely "City Nursing Home" Raibareli and her left hand was imputed to overcome post injection Gangrene and save the life of the petitioner as the Gangrene was spreading in whole body of the petitioner.
After being operated the petitioner made a written complaint before the Deputy Chief Medical Officer, Raibareli, requesting therein to take action against the guilty persons. Instead of taking cognizance of the complaint of the petitioner, the said authority threaten the petitioner by using unparliamentary word and threaten the petitioner for dire consequence. Thereafter, the petitioner made the complaint before respondent nos.-1 to 9 regarding whole incident occurred. In complaint, the petitionr has stated that due to negligence of respondent nos.-7, 8 , 11 and 12, the petitioner has lost her left hand and child in womb.
In support of averments made in the writ petition the petitioner has filed the relevant medical documents such as medical prescription, medical report, discharge certificate etc. 8- It has also been stated in the writ petition that with respect to the entire incident the petitioner also lodged an FIR against the erring official of medical department.
9- In the instant writ petition, it has also been stated that in the treatment, the petitioner spent about five lakhs and amount was borrowed/ taken from the relatives and Mahajan on interest.
10- Considering the averments made in the writ petition, this Court on 20.7.2009 passed the following order:-
"Having regard to the serious allegations made in the Writ Petition, we direct the Director General (Medical Health), Lucknow to personally inquire into the matter, and appear before the Court on 28th July, 2009 along-with his Inquiry Report in the matter.
Put up as fresh on 28th July, 2009. "
11- Pursuant to the order dated 20.7.2009 the enquiry was conducted by Director General, Medical and Health Services and a report dated 28.7.2009, was submitted alongwith the affidavit dated 30.07.2009 sworn by the concerned authority i.e. Director General, Medical and Health Services (Dr. I.S. Srivastava).
12- After considering the enquiry report dated 28.7.2009, this Court on 7.9.2009 passed the following order:-
"Dr. Brijesh Kumar Ben and Smt. Sudha Singh, A.N.M., Primary Health Centre, Harchandpur, district Raebareli are present in person, in pursuance of the order passed by this Court. They say that they have already filed objections against the preliminary findings.
We have considered the arguments raised by the parties' counsel. This is a case where criminal negligence on the part of the Doctors and the A.N.M, who attended the patient is in question.
According to the petitioner, because of the aforesaid negligence, the patient developed 'Post Injection Gangrene' in her left hand.
Since in the enquiry conducted by the Director General, Medical and Health, three persons, namely, Dr. S.P. Gupta, Dr. Brijesh Kumar Ben, Medical Officers and Smt. Sudha Singh, A.N.M. Primary Health Centre, Harchandpur, district Raebareli, have been found, prima facie guilty, and as per the report of the Director General, a Committee has been constituted for holding enquiry against Smt. Sudha Singh, we are of the considered opinion that the matter requires early consideration.
Sri A.K. Bhatnagar, learned Standing Counsel, is not in a position to indicate as to whether the State Government has constituted any Disciplinary Committee or any disciplinary proceedings or a detailed enquiry has been initiated against the aforesaid persons, who have been, prima facie, found guilty.
We, under the circumstances, direct that State Government shall appoint an enquiry officer for holding the enquiry, to find out the guilt of the aforesaid three persons in the treatment given to the petitioner Smt. Savitri Devi.
Counsel for the petitioner says that Dr. O.P. Verma be not entrusted the job of enquiry as he had beaten the petitioner, when she met him alongwith her husband, for which, the Superintendent of Police also directed for registration of F.I.R.
All parties appearing in this case, say that Dr. O.P. Verma, be not directed to hold the enquiry.
We, therefore, direct that the State Government shall get the enquiry conducted by an officer, not below the rank of Joint Secretary to the Government of U.P. in the department of Medical and Health, and shall submit the enquiry report before the Court on the next date.
Let the enquiry be conducted within two months from the date of receipt of a certified copy of this order. The parties shall cooperate in the enquiry.
Let the matter be listed on 10.12.09.
The officers present need not appear in person on future dates, unless specifically called for."
13- A bare perusal of the order dated 7.9.2009 and enquiry report dated 28.07.2009 shows that the Director General, Medical and Health Services, found that Dr. S.P. Gupta, Dr. Brijesh Kumar Ben, Medical Officer and Smt. Sudha Singh, ANM (Staff Nurse) PHC, Harchandpur, District Raibareli, were found prima-facie guilty and a committee was constituted for holding enquiry against Smt. Sudha Singh.
14- Vide order dated 07.9.2009 this Court directed the State Government to appoint an enquiry officer to find out the guilt of the three persons mentioned in the order dated 7.9.2009 namely Dr. S.P. Gupta, Dr. Brijesh Kumar Ben, Medical Officers and Smt. Sudha Singh, A.N.M. Primary Health Centre, Harchandpur, district Raebareli.
15- Pursuant to order dated 7.9.2009, the Special Secretary of Department of Medical Health and Family Welfare, submitted its enqury report vide letter dated 07.12.2009 and said report was placed on record through short counter affidavit dated 09.12.2009. It reflects from the report dated 07.12.2009 that the enquiry officer found that ANM Smt. Sudha Singh and Dr. Brijesh Kumar Ben were negligent in treating the petitioner and in enquiry Dr. S.P. Dixit was not found negligent. The relevant paragraph of the short counter affidavit, sworn by Raj Kishore Yadav, Special Secretary, who conducted the enquiry are quoted below for ready reference:-
"6. That the Enquiry Officer conducted detailed enquiry and after examining the petitioner, her husband as well as the persons against whom enquiry was directed to be conducted, namely, Dr. S.P. Dixit, Dr. Brijesh Kumar Ben, Medical Officer and Smt. Sudha Singh, ANM, PHC, Harchandpur, and submitted his Enquiry Report on 7.12.2009 to the Special Secretary, Medical and Health, U.P., Lucknow and found that A.N.M. Smt. Sudha Singh was negligent in injecting the Petitioner by which the Petitioner suffered from Gangrene in her half hand which resulted amputation of the left hand below elbow just above the wrist and also found that the Incharge Medical Officer Dr. V.K. Ben negligent in the treatment of the Petitioner without knowing the case history as well as improper examination of the Petitioner. The Report dated 7.12.2009 alongwith the statement of the Petitioner as well as treatment advise issued from the Hospital as well as the report of the Enquiry conducted by the Director General, Medical and Health Services, U.P., Lucknow is being annexed herewith as ANNEXURE NO.- CA 1 to this counter affidavit.
7. That the Enquiry Officer appointed by the State Government as per the order passed by the Hon'ble Court, found that Shri S.P. Dixit was not negligent in the treatment of the Petitioner, as the facilities for treatment of Gangrene is not available in the District Hospital, Raibareli as it requires to do a color Doppler by which it could be ascertained that to which extent blood vessel was blocked and it is also be ascertained that in blocked vessel blood clotting could be removed by injection or by surgery. It is submitted that as 48 hours have been passed after Gangrene of the hand appropriate treatment could be done only b the color Doppler.
It is also necessary to mention here that as blood vessel is so thin that surgery is to be done by Cardio Vascular/ Plastic Surgeon which is not available in District Hospital, Raibareli and accordingly, Dr. Dixit is not capable of doing appropriate treatment in absence of facilities as stated above for color Doppler as well as Cardio Vascular Surgeon and Plastic Surgeon."
16- In response to the contents of the writ petition, the opposite party nos.-7 and 11, against whom the allegations have been made in the writ petition, filed the affidavit dated 17.8.2009 explaining therein the treatment provided by them to the petitioner. With respect to the preliminary report by Director, Medical Health and Family Welfare, the opposite party nos.-7 and 11 Smt. Sudha Singh, opposite party no.-12 also filed the objection/ short counter affidavit. A detailed counter affidavit dated 22.10.2010 was also filed by the opposite party nos.-7 and 11, explaining therein the treatment provided to the petitioner by them at PHC Harchandpur District Raibareli.
17- With regard to the enquiry report dated 17.12.2009 in the detailed counter affidavit only this fact has been stated that the report is one sided report and the copy of the report was not provided to the deponent of the affidavit/ Dr. Brijesh Kumar Ben.
18- In the facts and circumstances of the case, as stated herein above, this Court, for the purposes of reliefs sought, has perused the the averments made in the writ petition, affidavits filed by the concerned opposite parties and the enquiry reports dated 28.7.2009 and 07.12.2009 and found that the concerned officials of PHC at Harchandpur District Raibareli namely, Smt. Sudha Singh, ANM (Staff Nurse) and Dr. Brijesh Kumar Ben were found negligent in treating the petitioner, on account of which post injection Gangrene was developed in the left hand of the petitioner and for this reason the left hand of the petitioner was amputated.
18- The findings of the enquiry reports have not been challenged/ rebutted by the concerned opposite parties.
19- In view of the findings of enquiry reports dated 28.07.2009, 07.12.2009 and the contents of affidavit dated 30.07.2009 of Dr. I.S.Srivastava and short counter affidavit dated 09.12.2009, we have no hesitation to say and hold that Smt. Sudha Singh, ANM (Staff Nurse) and Dr. Brijesh Kumar Ben, the employee of the State, were negligent in treating the petitioner and being so the petitioner is entitled to the compensation.
20- Now, the questions before this Court are that (i) whether compensation under writ jurisdiction can be awarded and (ii) whether State Government is liable for negligent act of their official?
21. Article 21 of the Constitution gives a person his most cherished right, viz., right to life which includes right to live with human dignity. The public law remedies have also been extended to the realm of tort. The Apex Court, in its various decisions has entertained petitions under Article 32 of the Constitution on a number of occasions and has awarded compensation to the petitioners who had suffered personal injuries at the hands of the officers of the government.
22- The causing of injuries, which amounted tortuous act, was compensated by the Apex Court in many of its decisions beginning from (1983) 4 SCC 141: Rudulsah vs. State of Bihar. In cases relating to custodial deaths and those relating to medical negligence, the Apex Court awarded compensation under the public law domain.
23- The courts have rejected the contentions that the petitioner should have approached the Civil Court for damages and the matter should not have been considered in the petition under Article 226 of the Constitution. 2000 (2) SCC 465: Chairman, Railway Board vs. Chandrima Das).
24- In the case of M.S.Grewal Versus Deep Chand Sood, (2001)8 SCC 151 , the Hon'ble Apex Court observed as under:-
26. Next is the issue "maintainability of the writ petition" before the High Court under Article 226 of the Constitution. The appellants though initially very strongly contended that while the negligence aspect has been dealt with under penal law already, the claim for compensation cannot but be left to be adjudicated by the civil law and thus the civil court's jurisdiction ought to have been invoked rather than by way of a writ petition under Article 226 of the Constitution. This plea of non-maintainability of the writ petition though advanced at the initial stage of the submissions but subsequently the same was not pressed and as such we need not detain ourselves on that score, excepting however recording that the law courts exist for the society and they have an obligation to meet the social aspirations of citizens since law courts must also respond to the needs of the people. In this context, reference may be made to two decisions of this Court: the first in line is the decision in Nilabati Behera v. State of Orissa [(1993) 2 SCC 746 : 1993 SCC (Cri) 527] wherein this Court relying upon the decision in Rudul Sah (Rudul Sah v. State of Bihar [(1983) 4 SCC 141 : 1983 SCC (Cri) 798] ) decried the illegality and impropriety in awarding compensation in a proceeding in which the court's power under Articles 32 and 226 of the Constitution stands invoked and thus observed that it was a clear case for award of compensation to the petitioner for custodial death of her son. It is undoubtedly true, however, that in the present context, there is no infringement of the State's obligation, unless of course the State can also be termed to be a joint tortfeasor, but since the case of the parties stands restricted and without imparting any liability on the State, we do not deem it expedient to deal with the issue any further except noting the two decisions of this Court as above and without expression of any opinion in regard thereto.
27. The decision of this Court in D.K. Basu v. State of W.B. [(1997) 1 SCC 416 : 1997 SCC (Cri) 92] comes next. This decision has opened up a new vista in the jurisprudence of the country. The old doctrine of only relegating the aggrieved to the remedies available in civil law limits stands extended since Anand, J. (as His Lordship then was) in no uncertain terms observed: (SCC p. 439, para 45) "The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. A court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim -- civil action for damages is a long-drawn and a cumbersome judicial process. Monetary compensation for redressal by the court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at times perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family."
28. Currently judicial attitude has taken a shift from the old draconian concept and the traditional jurisprudential system -- affectation of the people has been taken note of rather seriously and the judicial concern thus stands on a footing to provide expeditious relief to an individual when needed rather than taking recourse to the old conservative doctrine of the civil court's obligation to award damages. As a matter of fact the decision in D.K. Basu [(1997) 1 SCC 416 : 1997 SCC (Cri) 92] has not only dealt with the issue in a manner apposite to the social need of the country but the learned Judge with his usual felicity of expression firmly established the current trend of "justice-oriented approach". Law courts will lose their efficacy if they cannot possibly respond to the need of the society -- technicalities there might be many but the justice-oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweigh the course of justice.
25- It is, therefore, settled law that the court in exercise of extra ordinary power under Article 226 of the Constitution of India can award damages against public authorities. The courts, however, award damages only if it can be established that there was direct negligence on the part of the public authority and that was a proximate cause for the injury or death of the victim and not in every case like if there was a minor infraction of public duty.
26- In the case of Rabindra Nath Ghosal Vs. University of Calcutta & Ors : (2002) 7 SCC 478, the Apex court held as under :-
"The courts having the obligation to satisfy the social aspiration of the citizens have to apply the tool and grant compensation as damages in public law proceedings. Consequently when the court moulds the relief in proceedings under Articles 32 and 226 of the Constitution seeking enforcement or protection of fundamental rights and grants compensation, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizens. But it would not be correct to assume that every minor infraction of public duty by every public officer would commend the court to grant compensation in a petition under Article 226 and 32 by applying the principle of public law proceeding. The court in exercise of extraordinary power under Articles 226 and 32 of the Constitution, therefore, would not award damages against public authorities merely because they have made some order which turns out to be ultra vires, or there has been some inaction in the performance of the duties unless there is malice or conscious abuse. Before exemplary damages can be awarded it must be shown that some fundamental right under Article 21 has been infringed by arbitrary or capricious action on the part of the public functionaries and that the sufferer was a helpless victim of that act."
27- The Apex Court in the matter of Municipal Corporation of Delhi, Delhi vs. Uphaar Tragedy Victims Association and ors: (2011) 14 SCC 481, has dealt with this branch of law extensively. The Apex Court has also held that if the court comes to a conclusion that there was direct negligence on the part of the public authority, what can be awarded as compensation by way of public law remedy need not only be a nominal palliative amount but something more and it can be by way of making monetary amends for the wrong done and by way of exemplary damages, exclusive of any amount recoverable in a civil action based on tortuous liability. The Apex Court has also held that in a case, where life and personal liberty have been violated the absence of any statutory provision for compensation in the Statute is of no consequence. Right to life guaranteed under Article 21 of the Constitution of India is the most sacred right preserved and protected under the Constitution, violation of which is always actionable and there is no necessity of statutory provision as such for preserving that right. Article 21 of the Constitution of India has to be read into all public safety statutes, since the prime object of public safety legislation is to protect the individual and to compensate him for the loss suffered. Duty of care expected from the State or its officials functioning under the public safety legislation is very high.
" Negligence in common parlance mean and imply failure to exercise due care, expected of a reasonable prudent person. It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of safety of others. In most instances, it is caused by heedlessness of inadvertence, by which the negligent party is unaware of the results which may follow from his act. Negligence is thus a breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and a reasonable man would not do (vide Black's Law Dictionary). Though sometimes, the word 'inadvertence' stands and used as a synonym to negligence, but in effect negligence represents a state of the mind which however is much serious in nature than mere inadvertence. There is thus existing a differentiation between the two expressions - whereas inadvertence is a milder form of negligence, 'negligence' by itself mean and imply a state of mind where there is no regard for duty or the supposed care and attention which one ought to bestow. Clerk & Lindsell on Torts (18th Ed.) sets out four several requirements of the tort of negligence and the same read as below:
"(1) the existence in law of a duty of care situation, i.e. one in which the law attaches liability to carelessness. There has to be recognition by law that the careless infliction of the kind of damages in suit on the class of person to which the claimant belongs by the class of person to which the defendant belong is actionable;
(2) breach of the duty of care by the defendant, i.e., that it failed to measure up to the standard set by law;
(3) a casual connection between the defendant's careless conduct and the damage;
(4) that the particular kind of damage to the particular claimant is not so unforeseeable as to be too remote."
30- Needless to say that when a patient is admitted in the hospital, it is the duty of the Doctors and nursing staff of the hospital to give best possible care and treat the patient. There has been a breach of legal duty on the part of the respondents resulting in the petitioner losing her left hand.
31- Keeping in view the observation made by the Hon'ble Apex Court in the case of M.S.Grewal's case (Supra) and the findings of enquiry reports dated 28.07.2009 and 30.07.2009, we find that the medical staff of the State Government was negligent, which led to Gangrene in left hand of petitioner resulting imputation of left hand.
32- There has been a breach of legal duty on the part of respondents resulting amputation of left hand of the petitioner.
33- In our view, due to this inaction on the part of the respondents, the fundamental rights of the petitioner is infringed. The claim made in this petition is in public law, for compensating the petitioner, for deprivation of life and personal liberty. In this case, when the doctors/nurses were administering medication which could cause injury if not properly administered, the principle of Res Ipsa Loquitur applies.
34- In the case of In this case of M.S.Grewal's case (Supra), the Hon'ble Apex Court while dealing with the matter awarding compensation in Public Law remedy considered the doctrine of "vicarious liability" and in para 18, observed as under:-
"Be it noted that the doctrine of 'vicarious liability" has had a fair amount of judicial attention in the English Courts. By the end of 18th century, the idea began to grow that some special importance ought to be attached to the relationship of master and servant and in 1849 it was officially held that existence of that relationship was essential. Thereafter, though primary liability on the part of anyone could be established on proof of direct participation in the tort, such direct participation was not even theoretically required to make a master liable for his servant's torts. The liability is derived from the relationship and is truly vicarious. At the same time, the phrase "implied authority" which had been the cornerstone of the master's primary liability gives way gradually to the modern "course of employment". (vide Winfield & Jolowicz on Tort 15th Ed.)."
35- The maxim of Res Ispa Loquitur is explained in 5Ashish Kumar Mazumdar Vs. Aishi Ram Batra Charitable Hospital Trust & Ors., where para-10 & 11 read as under :-
"10. The maxim res ipsa loquitur in its classic form has been stated by Erlc, C.J.
"...where the thing is shewn to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."
The maxim applies to a case in which certain facts proved by the plaintiff, by itself, would call for an explanation from the defendant without the plaintiff having to allege and prove any specific act or omission of the defendant.
11. In Shyam Sunder v. State of Rajasthan it has been explained that the principal function of the maxim is to prevent injustice which would result if the plaintiff was invariably required to prove the precise cause of the accident when the relevant facts are unknown to him but are within the knowledge of the defendant. It was also explained that the doctrine would apply to a situation when the mere happening of the accident is more consistent with the negligence of the defendant than with other causes."
36- The principle of Res Ispa Loquitur explained in a medical negligence case can be found in 6V.Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr., where paragraph-48 and 49 read as under :-
"48. In the treaties on Medical Negligence by Michael Jones, the learned author has explained the principle of res ipsa loquitur as essentially an 5 (2014) 9 Supreme Court Cases 256 6 (2010) 5 Supreme Court Cases 513 Gauri Gaekwad 15 WP-431-2003 evidential principle and the learned author opined that the said principle is intended to assist a claimant who, for no fault of his own, is unable to adduce evidence as to how the accident occurred. The principle has been explained in the case of Scott v. London & St. 29 Katherine Docks Co. [reported in (1865) 3 H & C. 596], by Chief Justice Erle in the following manner:- "...where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care".
49. The learned author at page 314, para 3-146 of the book gave illustrations where the principles of res ipsa loquitur have been made applicable in the case of medical negligence. All the illustrations which were given by the learned author were based on decided cases. The illustrations are set out below:-
"Where a patient sustained a burn from a high frequency electrical current used for "electric coagulation" of the blood [See Clarke v. Warboys, The Times, March 18, 1952, CA];
Where gangrene developed in the claimant's arm following an intramuscular injection [See Cavan v. Wilcox (1973) 44 D.L.R. (3d) 42]; 7 When a patient underwent a radical mastoidectomy and suffered partial facial paralysis [See Eady v. Tenderenda (1974) 51 D.L.R. (3d) 79, SCC];
Where the defendant failed to diagnose a known complication of surgery on the patient's hand for Paget's disease[See Rietz v. Bruser (No.2) (1979) 1 W.W.R. 31, Man QB.];
Where there was a delay of 50 minutes in obtaining expert obstetric assistance at the birth of twins when the medical evidence was that at the most no more than 20 minutes should elapse between the birth of the first and the second twin [See Bull v. Devon Area Health Authority (1989), (1993) 4 Med. L.R. 117 at 131.];
Where, following an operation under general anaesthetic, a patient in the recovery ward sustained brain damage caused by bypoxia for a period of four to five minutes [See Coyne v. Wigan Health Authority {1991) 2 Med. L.R. 301, QBD];
Where, following a routine appendisectomy under general anaesthetic, an otherwise fit and healthy girl suffered a fit and went into a permanent coma [See Lindsey v. Mid-Western Health Board (1993) 2 I.R. 147 at 181]; 7 When a needle broke in the patient's buttock while he was being given an injection [See Brazier v. Ministry of Defence (1965) 1 Ll. Law Rep. 26 at 30];
Where a spinal anaesthetic became contaminated with disinfectant as a result of the manner in which it was stored causing paralysis to the patient [See Roe v. Minister of Health (1954) 2 Q.B. 66. See also Brown v. Merton, Sutton and Wandsworth Area Health Authority (1982) 1 All E.R. 650];
Where an infection following surgery in a "well-staffed and modern hospital" remained undiagnosed until the patient sustained crippling injury [See Hajgato v. London Health Association (1982) 36 O.R. (2d) 669 at 682];
Where an explosion occurred during the course of administering Gauri Gaekwad 16 WP-431-2003 anaesthetic to the patient when the technique had frequently been used without any mishap [Crits v. Sylvester (1956) 1 D.L.R. (2d) 502] 37- In this case also gangrene had developed in the petitioner's arm following an intravenous injection which extravasated. Therefore, it was for the respondents to prove the absence of any negligence and due care and attention on its part, in which thus failed.
38- The respondents, which is the State, has failed in its public duty to protect the fundamental rights of the petitioner. The vicarious liability can be linked with the negligence of the doctors and nursing staff. In the case of Nagendra Rao & Co. Vs. State of Andhra Pradesh :(1994) 6 SCC 205, the Apex court in para-25 held as under :
"25. The determination of vicarious liability of the State being linked with the negligence of his officers, if they can be sued personally for which there is no dearth of authority, and the law of misfeasance in discharge of public duty having marched ahead, there is no rationale for the proposition that even if the officer is liable the State cannot be sued."
39- Specific reference may also be made to the decision of the Apex court in Nilabati Bahera Vs. State of Orissa : 1993 (2) SCC 746, wherein the Apex court also held that the concept of sovereign immunity is not applicable to cases of violation of fundamental rights. In paragraph 17 it is summarised as under :-
"17..... a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental right, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution......"
40- Paragraph-96 and 97 of MCD vs. Uphaar (supra) also read as under :-
"96. Courts have held that due to the action or inaction of the State or its officers, if the fundamental rights of a citizen are infringed then the liability of the State, its officials and instrumentalities, is strict. The claim raised for compensation in such a case is not a private law claim for damages, under which the damages recoverable are large. The claim made for compensation in public law is for compensating the claimants for deprivation of life and personal liberty which has nothing to do with a claim in a private law claim in tort in an ordinary civil court.
97. This court in Union of India V. Prabhakaran Vijaya Kumar extended the principle to cover public utilities like the Railways, electricity distribution companies, public corporations and local bodies which may be social utility undertakings not working for private profit. In Prabhakaran a woman fell on a railway track and was fatally run over and her husband demanded compensation. The Railways argued that she was negligent as she tried to board a moving train. Rejecting the plea of the Railways, this Court held that her "contributory negligence" should not be considered in such untoward incidents-the Railways has "strict liability". A strict liability in torts, private or constitutional do not call for a finding of intent or negligence. In such a case the highest degree of care is expected from private and public bodies, especially when the conduct causes physical injury or harm to persons. The question as to whether the law imposes a strict liability on the State and its officials primarily depends upon the purpose and object of the legislation as well. When activities are hazardous and if they are inherently dangerous the Statute expects the highest degree of care and if someone is injured because of such activities, the State and its officials are liable even if they could establish that there was no negligence and that it was not intentional. Public safety legislations generally fall in that category of breach of statutory duty by a public authority. To decide whether the breach is actionable, the Court must generally look at the statute and its provisions and determine whether legislature in its wisdom intended to give rise to a cause of action in damages and whether the claimant is intended to be protected."
(emphasis supplied) 41- In MCD vs. Uphaar (supra) the Apex court has held that right to life guaranteed under Article 21 of the Constitution of India is the most sacred right preserved and protected under the Constitution, violation of which is always actionable and there is no necessity of statutory provision as such for preserving that right. Para-98 of MCD vs. Uphaar (supra) reads as under :
"98. But, in a case, where life and personal liberty have been violated, the absence of any statutory provision for compensation in the statute is of no consequence. Right to life guaranteed under Article 21 of the Constitution of India is the most sacred right preserved and protected under the Constitution, violation of which is always actionable and there is no necessity of statutory provision as such for preserving that right. Article 21 of the Constitution of India has to be read into all public safety statutes, since the prime object of public safety legislation is to protect the individual and to compensate him for the loss suffered. Duty of care expected from State or its officials functioning under the public safety legislation is, therefore, very high compared to the statutory powers and supervision expected from the officers functioning under the statutes like the Companies Act, the Co-operative Societies Act and such similar legislations. When we look at the various provisions of the Cinematograph Act, 1952 and the Rules made thereunder, the Delhi Building Regulations and the Electricity laws the duty of care on officials was high and liabilities strict."
42- Therefore, in such cases the claimant can be awarded compensation which, in the broader sense means providing relief by an order of making monetary amends under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen.
43- The Apex Court in the matter of Nilabati Bahera vs. State of Orissa (supra) has held that compensation in such cases is in the nature of exemplary damages awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and prosecute the offender under the penal law. Paragraph 34 of Nilabati Bahera (supra) reads as under :-
"34. Therefore, when the court molds the relief by granting "compensation" in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrong doer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and persecute the offender under the penal law."
44- In Sube Singh Vs. State of Harayana :(2006) 3 SCC 178, the Apex Court held as under :-
"It is thus now well settled that the award of compensation against the State is an appropriate and effective remedy for redressal of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in the enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under Section 357 Cr.PC. Award of compensation as a public law remedy for violation of the fundamental rights enshrined in Article 21 of the Constitution, in addition to the private law remedy under the law of torts, was evolved in the last two-and-a-half decades."
45- In MCD vs. Uphaar (supra) also the court has held that what can be awarded as compensation by way of public law remedy need not only be a nominal palliative amount but something more. It can be by way of making monetary amounts for the wrong done or by way of exemplary damages, exclusive of any amount recoverable in a civil action based on tortuous liability. Para-64 therein reads as under :-
"64. Therefore, what can be awarded as compensation by way of public law remedy need not only be a nominal palliative amount, but something more. It can be by way of making monetary amounts for the wrong done or by way of exemplary damages, exclusive of any amount recoverable in a civil action based on tortious liability........."
46- Considering the entity the case in the light of Principle enumerated by the Courts of law referred hereinabove, the answer to the question framed by this Court in para of this judgment is in affirmative accordingly. We hold that in writ jurisdiction, in the fact of the case in hand, the compensation/damages can be awarded against the State.
47- Now the question is that for what amount the petitioner is entitled as compensation/damages.
48- In addition to above and for the purposes of awarding compensation and damages it would be proper to refer the observations/principles made by the Apex Court in following judgments.
49- The Apex Court in Achutrao Haribhau Khodwa v. State of Maharashtra [1996(2) SCC 634], while considering the doctrine of res ipsa loquitur and the vicarious liability of the Government for the negligent act of its employees, observed that running a hospital was an exercise of the State's sovereign power and as such, the State is vicariously liable in tort for the tortious acts committed by its servants. The relevant observation reads thus:
"11. The High Court observed that the Government cannot be held liable in tort for tortious acts committed in a hospital maintained by it because it considered that maintaining and running a hospital was an exercise of the State's sovereign power. We do not think that this conclusion is correct. Running a hospital is a welfare activity undertaken by the Government but it is not an exclusive function or activity of the Government so as to be classified as one which could be regarded as being in exercise of its sovereign power. In Kasturi Lal Case itself, in the passage which has been quoted hereinabove, this Court noticed that in pursuit of the welfare ideal the Government may enter into many commercial and other activities which have no relation to the traditional concept of governmental activity in exercise of sovereign power. Just as running of passenger buses for the benefit of general public is not a sovereign function, similarly the running of a hospital, where the members of the general public can come for treatment, cannot also be regarded as being an activity having a sovereign character. This being so, the State would be vicariously liable for the damages which may become payable on account of negligence of its doctors or other employees."
50- The Apex Court in Paschim Banga Khet Mazdoor Samity v. State of W.B. 1996(4) SCC 37, observed that the Constitution envisages the establishment of a welfare State at the federal level as well as at the State level and that the primary duty of the Government is to secure the welfare of the people. The Supreme Court observed that medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare State. The Supreme Court made it very clear that failure on the part of a Government hospital to provide timely medical treatment to a person in need of such treatment results in violating of his right to life guaranteed under Article 21 of the Constitution of India.
51- In State of Maharashtra v. Kanchanmala Vijaysing Shirke : 1995(5) SCC 659, the Apex Court explained the scope of vicarious liability in the following words:
"Traditionally, before the court directed payment of tort compensation, the claimant had to establish the fault of the person causing injury or damage. But of late, the fault is being read as because of someone's negligence or carelessness. Same is the approach and attitude of the courts while judging the various liability of the employer for negligence of the employee. Negligence is the omission to do something which a reasonable man is expected to do or a prudent man is expected to do. Whether in the facts and circumstances of a particular case, the person causing injury to the other was negligent or not has to be examined on the materials produced before the Court. It is the rule that an employer, though guilty of no fault of himself, is liable for the damage done by the fault or negligence of his servant acting in the course of his employment. In some case, it can be found that an employee was doing an authorised act in an unauthorised but not a prohibited way. The employer shall be liable for such act, because such employee was acting within the scope of his employment and in so acting did something negligent or wrongful. A master is liable even for acts which he has not authorised provided they are so connected with acts which he has been so authorised. On the other hand, if the act of the servant is not even remotely connected within the scope of employment and is an independent act, the master shall not be responsible because the servant is not acting in the course of his employment but has gone outside."
52- The Apex Court in Chameli Singh v. State of U.P. : 1996(2) SCC 549 observed that the right guaranteed under Article 21 of the Constitution of India cannot be exercised without the basic human rights including the right to medical care. The Supreme Court observed:
"8. In any organised society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter. These are basis human rights known to any civilised society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights.........................."
53- Now, as far as damages/compensation under pecuniary loss is concerned, the principle of 'restitutio in integrum' would apply. The petitioner is entitled to be put in the same position in which he would have been if she had not sustained the wrong. A person injured by the negligent act of others is definitely entitled to general damages for non-pecuniary loss such as pain, suffering and loss of amenities and also pecuniary loss, both past and future. She has incurred medical expenses as well. The petitioner is entitled for compensation/damages for the embarrassment for the disability and disfigurement. The petitioner is also entitled to damages for the loss of ability to use his limbs, including the loss of pride and pleasure and loss of marriage prospects.
54- In the present case, the lady had a right to life under Article 21 of the Constitution of India. Healthy and happy life has been curtailed by the criminal neglect of the respondents causing her amputation of left hand serious and painful burn. She has to live with a trauma and shall remain handicap throughout the life. The petitioner has to go through inconvenience, hardship, discomfort, disappointment, frustration and mental stress throughout his life.
55- The Apex Court in the case of R.D.Hattangadi Vs. Pest Control (India) Pvt. Ltd. And ors., reported in (1995) 1 SCC 551, have laid down the following principles to determine compensation for disability:
" 9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include .
expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far 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."
56- The Apex Court in the case of Rekha Jain vrs. National Insurance Company Limited and ors., reported in (2013) 8 SCC 389, have reiterated the following principles for granting compensation for personal injury:
"40. It is well-settled principle that in granting compensation for personal injury, the injured has to be compensated (1) for pain and suffering; (2) for loss of amenities; (3) shortened expectation of life, if any; (4) loss of earnings or loss of earning capacity or in some cases for both; and (5) medical treatment and other special damages. In personal injury cases the two main elements are the personal loss and pecuniary loss. Chief Justice Cockburn in Fair's case, supra, distinguished the above two aspects thus:
"In assessing the compensation the jury should take into account two things, first, the pecuniary loss the plaintiff sustains by the accident : secondly, the injury he sustains in his person, or his physical capacity of enjoying life. When they come to the consideration of the pecuniary loss they have to take into account not only his present loss, but his incapacity to earn a future improved income".
41. McGregor on Damages (14th Edition) at paragraph no. 1157, referring to the heads of damages in personal injury actions, states as under:
"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 sub-divided 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 tort feasor 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 assessing compensation in personal injury cases.
42. In R. Venkatesh v. P. Saravanan & Ors.[12], the High Court of Karnataka while dealing with a personal injury case wherein the claimant sustained certain crushing injuries due to which his left lower limb was amputated, held that in terms of functional disability, the disability sustained by the claimant is total and 100% though only the claimant's left lower limb was amputated. In paragraph 9 of the judgment, the Court held as under:
"9. As a result of the amputation, the claimant had been rendered a cripple. He requires the help of crutches even for walking. He has become unfit for any kind of manual work. As he was earlier a loader doing manual work, the amputation of his left leg below knee, has rendered him unfit for any kind of manual work. He has no education. In such cases, it is well-settled that the economic and functional disability will have to be treated as total, even though the physical disability is not 100 per cent".
43. Lord Reid in Baker v. Willoughby, has said:
"A man is not compensated for the physical injury; he is compensated for the loss which he suffers as a result of that injury. His loss is not in having a stiff leg; it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned."
44. The aforesaid principles laid down by this Court, Appeal Cases, House of Lords and leading authors and experts referred to supra, whose opinions have been extracted above, with all fours, are applicable to the fact situation for awarding just and reasonable compensation in favour of the appellant as she had sustained grievous injuries on her face and other parts of the body which is assessed at 30% permanent disablement by competent doctors."
57- In the instant case, the petitioner has been crippled off throughout her life. Her left arm has been amputated. She won't be able to lead and enjoy those comforts and amenities of life which depend on freedom of movement. In Civil Appeal No. 11466 of 2014, Raman vrs. Uttar Haryana Bijli Vitran Nigam Ltd. & ors., decided on 17th December, 2014, their lordships of the Hon'ble Supreme Court have upheld the compensation of Rs. 60 lacs awarded by the learned Single Judge of Punjab and Haryana High Court, in the case of electrocution. Their lordships have held as under:
"19. In view of the law laid down by this Court in the above referred cases which are extensively considered and granted just and reasonable compensation, in our considered view, the compensation awarded at Rs. 60 lakhs in the judgment of the learned Single Judge of the High Court, out of which 30 lakhs were to be deposited jointly in the name of the appellant represented by his parents as natural guardian and the Chief Engineer or his nominee representing the respondent-Nigam in a nationalised Bank in a fixed deposit till he attains the age of majority, is just and proper but we have to set aside that portion of the judgment of the learned Single Judge directing that if he survives, he is permitted to withdraw the amount, otherwise the deposit amount shall be reverted back to the respondents as the same is not legal and valid for the reason that once compensation amount is awarded by the court, it should go to the claimant/appellant. Therefore, the victims/claimants are legally entitled for compensation to be awarded in their favour as per the principles/guiding factors laid down by this Court in catena of cases, particularly, in Kunal Saha's case referred to supra. Therefore, the compensation awarded by the Motor Vehicle Tribunals/Consumer Forums/State Consumer Disputes Redressal Commissions/National Consumer Disputes Redressal Commission or the High Courts would absolutely belong to such victims/claimants. If the claimants die, then theSuccession Act of their respective religion would apply to succeed to such estate by the legal heirs of victims/ claimants or legal representatives as per the testamentary document if they choose to execute the will indicating their desire as to whom such estate shall go after their death.
For the aforesaid reasons, we hold that portion of the direction the of the learned Single Judge contained in sub-para (v), to the effect of Rs. 30 lakhs compensation to be awarded in favour of the appellant, if he is not alive at the time he attains majority, the same shall revert back to the respondent- Nigam after paying Rs.5 lakhs to the parents of the appellant, is wholly unsustainable and is liable to be set aside. Accordingly, .
we set aside the same and modify the same as indicated in the operative portion of the order.
20. The remaining compensation amount of Rs. 30 lakhs to be deposited in a fixed deposit account in the name of the petitioner (minor) under joint guardianship of the parents of Raman and the Engineer-in-Chief or his nominee representing the respondent-Nigam, in the Nationalised Bank as corpus fund, out of which an interest of Rs.20,000/- p.m. towards the expenses as indicated in sub-para (vi) of the order passed by the learned Single Judge, cannot be said to be on the higher side, but in our view, the said amount of compensation awarded is less and not reasonable and having regard to the nature of 100% permanent disability suffered by the appellant, it should have been much higher as the appellant requires permanent assistance of an attendant, treatment charges as he is suffering from agony and loss of marital life, which cannot be compensated by the amount of compensation awarded by the learned Singh Judge of the High Court. Hence, having regard to the facts and circumstances of the case, it would be just and proper for this Court to restore the judgment of the learned Single Judge on this count and we hold that the directions contained in the said judgment are justifiable to the extent indicated above. The Division Bench while exercising its appellate jurisdiction should not have accepted the alleged requisite instructions received by the counsel on behalf of the appellant and treated as ad idem and modified the amount as provided under sub-para (vi) of the order of the learned Single Judge and substituted the para 4 in its judgment as indicated in the aforesaid portion of the judgment which is wholly unreasonable and therefore, it is unsustainable in law as it would affect the right of the appellant for getting his legal entitlement of just and reasonable compensation for the negligence on the part of the respondents.
21. In view of the foregoing reasons, after considering rival legal contentions and noticing the 100% permanent disability suffered by the appellant in the electrocution accident on account of which he lost all the amenities and become a deadwood throughout his life, and after adverting the law laid down by this Court in catena of cases in relation to the guiding principles to be followed to award just and reasonable compensation in favour of the appellant, we pass the following order:-
(I) The appeal is allowed after setting aside the substituted paragraph No.4 of the impugned judgment and order of the Division Bench of the High Court particularly, in place of sub para (vi) of the judgment and order of the learned Single Judge with modifications made by us in this judgment in the following terms.
(II) We restore the compensation awarded at sub-paras
(v) and (vi) of the order of the learned single Judge:
(a) in the modified form that the compensation is awarded with direction to the respondents to keep Rs.30 lakhs in the Nationalised Bank in the name of the appellant represented by his father as a natural guardian till the age of attaining majority of the appellant.
(b) The further direction contained in the judgment of the learned Single Judge that if the appellant is not alive at the time of attaining the age of majority, the deposit amount shall be reverted to the respondents, is set aside.
(c) We further declare that the said amount of compensation of Rs.30 lakhs exclusively belongs to the appellant and after his demise it must go to the legal heirs or representatives as it is the exclusive estate of the appellant as the it is the compensation awarded to him for the 100% permanent disability suffered by him due to electrocution on account of the negligence of the respondents. The monthly interest that would be earned during the period of his minority shall be withdrawn by the appellant's guardian and spend the same towards his monthly expenses and after he attains the majority, it is open for him either to continue the deposit or withdraw the same and appropriate for himself or his legal heirs or legal representative, if he does not survive.
(d) The deposit of Rs. 30 lakhs as corpus amount as directed at sub- para(vi) of the judgment of the learned Single Judge shall be in the name of the appellant exclusively represented by his natural guardians/parents till he attains majority, the income that would be earned on such deposit amount can be drawn by the parents every month to be spent for personal expenses. The Bank in which the deposit is made in the name of Chief Engineer shall be deleted and the name of the appellant shall be entered as directed above. After attaining the age of majority, the appellant is at liberty to withdraw the above said amount also. If for any reason the appellant does not stay alive, his heirs/legal representatives can withdraw the said amount.
(e) The other directions in the judgment of the learned Single Judge to the respondents for compliance shall remain intact, the same shall be complied with and the .
report shall be submitted before the learned Single Judge."
58- The Apex Court in the case of Balram Prasad vrs. Kunal Saha and others & connected matters, reported in (2014) 1 SCC 384, wherein it has been held as follows:
"97. The claim for enhancement of compensation by the claimant in his appeal is justified for the following reasons.
98. The National Commission has rejected the claim of the claimant for "inflation" made by him without assigning any reason whatsoever. It is an undisputed fact that the claim of the complainant has been pending before the National Commission and this Court for the last 15 years. The value of money that was claimed in 1998 has been devalued to a great extent. This Court in various following cases has repeatedly affirmed that inflation of money should be considered while deciding the quantum of compensation:- In Reshma Kumari and Ors. Vs. Madan Mohan and Anr. (supra), this Court at para 47 has dealt with this aspect as under:
"47.One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard-and-fast rule, however, can be laid down therefor."
99. In Govind Yadav Vs. New India Insurance Company Ltd.(supra), this court at para 15 observed as under which got re-
iterated at paragraph 13 of Ibrahim Vs. Raju & Ors. (supra):-
15. In Reshma Kumari v. Madan Mohan this Court reiterated that the compensation awarded under the Act .
should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the judgment are extracted below: (SCC pp. 431-32 & 440-41, paras 26-27 & 46-47)
26. The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
27. The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guesswork may be inevitable. That may be so.
46. In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. V. Jashuben held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration.
47. One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the .
actual ground reality. No hard-and-fast rule, however, can be laid down therefor."
100. The C.I.I. is determined by the Finance Ministry of Union of India every year in order to appreciate the level of devaluation of money each year. Using the C.I.I. as published by the Government of India, the original claim of Rs.77.7 crores preferred by the claimant in 1998 would be equivalent to Rs.188.6 crores as of 2013 and, therefore the enhanced claim preferred by the claimant before the National Commission and before this Court is legally justifiable as this Court is required to determine the just, fair and reasonable compensation. Therefore, the contention urged by the appellant-doctors and the AMRI Hospital that in the absence of pleadings in the claim petition before the National Commission and also in the light of the incident that the subsequent application filed by the claimant seeking for amendment to the claim in the prayer of the complainant being rejected, the additional claim made by the claimant cannot be examined for grant of compensation under different heads is wholly unsustainable in law in view of the decisions rendered by this Court in the aforesaid cases.
Therefore, this Court is required to consider the relevant aspect of the matter namely, that there has been steady inflation which should have been considered over period of 15 years and that money has been devalued greatly. Therefore, the decision of the National Commission in confining the grant of compensation to the original claim of Rs.77.7 crores preferred by the claimant under different heads and awarding meager compensation under the different heads in the impugned judgment, is wholly unsustainable in law as the same is contrary to the legal principles laid down by this Court in catena of cases referred to supra. We, therefore, allow the claim of the claimant on enhancement of compensation to the extent to be directed by this Court in the following paragraphs.
101. Besides enhancement of compensation, the claimant has sought for additional compensation of about Rs.20 crores in addition to his initial claim made in 2011 to include the economic loss that he had suffered due to loss of his employment, home foreclosure and bankruptcy in U.S.A which would have never happened but for the wrongful death of his wife. The claimant has placed reliance on the fundamental principle to be followed by the Tribunals, District Consumer Forum, State Consumer Forum, and the National Commission and the courts for awarding "just compensation". In support of this contention, he has also strongly placed reliance upon the observations made at para 170 in the Malay Kumar Ganguly case referred to supra wherein this Court has made observations as thus:
"170. Indisputably, grant of compensation involving an .
accident is within the realm of law of torts. It is based on the principle of ecognized in integrum. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. (See Livingstone v. Rawyards Coal Co.)"
102. The claimant made a claim under specific heads in great detail in justification for each one of the claim made by him. The National Commission, despite taking judicial notice of the claim made by the claimant in its judgment, has rejected the entire claim solely on the ground that the additional claim was not pleaded earlier, therefore, none of the claims made by him can be considered. The rejection of the additional claims by the National Commission without consideration on the assumption that the claims made by the claimant before the National Commission cannot be changed or modified without pleadings under any condition is contrary to the decisions of this Court rendered in catena of cases.
103. In support of his additional claim, the claimant places reliance upon such decisions as mentioned hereunder:
103.1. In Ningamma case (supra), this Court has observed at para 34 which reads thus:
"34. Undoubtedly, Section 166 of the MVA deals with "just compensation" and even if in the pleadings no specific claim was made under Section 166 of the MVA, in our considered opinion a party should not be deprived from getting "just compensation" in case the claimant is able to make out a case under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the court is duty- bound and entitled to award "just compensation" irrespective of the fact whether any plea in that behalf was raised by the claimant or not."
103.2. In Malay Kumar Ganguly case, this Court by placing reliance on the decision of this Court in R.D. Hattangadi Vs. Pest Control (India) (P) Ltd.,(supra) made observation while remanding back the matter to National Commission solely for the determination of quantum of compensation, that compensation should include "loss of earning of profit up to the date of trial"
and that it may also include any loss 'already suffered or is likely to be suffered in future'. Rightly, the claimant has contended that when original complaint was filed soon after the death of his wife in 1998, it would be impossible for him to file a claim for "just compensation" for the pain that the claimant suffered in the course of the 15 years long trial.
103.3. In Nizam Institute case supra, the complainant had sought a compensation of Rs.4.61 crores before the National Commission but he enhanced his claim to Rs 7.50 crores when the matter came up before this Court. In response to the claim, this Court held as under:
82. The complainant, who has argued his own case, has submitted written submissions now claiming about Rs 7.50 crores as compensation under various heads. He has, in addition sought a direction that a further sum of Rs 2 crores be set aside to be used by him should some developments beneficial to him in the medical field take place. Some of the claims are untenable and we have no hesitation in rejecting them. We, however, find that the claim with respect to some of the other items need to be allowed or enhanced in view of the peculiar facts of the case."
103.4. In Oriental Insurance Company Ltd. Vs. Jashuben & Ors.(supra), the initial claim was for Rs.12 lakhs which was subsequently raised to Rs.25 lakhs. The claim was partly allowed by this Court.
103.5. In R.D. Hattangadi Vs. Pest Control (India) (supra) the appellant made an initial compensation claim of Rs.4 lakhs but later on enhanced the claim to Rs.35 lakhs by this Court.
103.6. In Raj Rani & Ors. Vs. Oriental Insurance Company Ltd. & Ors.,(supra) this Court has observed that there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. The relevant paragraph reads as under:
"14. In Nagappa v. Gurudayal Singh this Court has held as under: (SCC p. 279, para 7) "7. Firstly, under the provisions of the Motor Vehicles Act, 1988, (hereinafter referred to as "the MV Act") there is no restriction that compensation could be awarded only up to the amount claimed by the claimant. In an appropriate case, where from the evidence brought on record if the Tribunal/court considers that the claimant is entitled to get more compensation than claimed, the Tribunal may pass such award. The only embargo is- it should be "just" compensation, that is to say, it should be neither arbitrary,fanciful nor unjustifiable from the evidence. This would be clear by reference to the relevant provisions of the MV Act."
103.7. In Laxman @ Laxaman Mourya Vs. Divisional Manager, Oriental Insurance Co. Ltd. & Anr.,(supra) this Court awarded more compensation than what was claimed by the claimant after .
making the following categorical observations:-
"24. ....in the absence of any bar in the Act, the Tribunal and for that reason, any competent court, is entitled to award higher compensation to the victim of an accident."
103.8. In Ibrahim Vs. Raju & Ors.,(supra) this Court awarded double the compensation sought for by the complainant after discussion of host of previous judgments.
104. In view of the aforesaid decisions of this Court referred to supra, wherein this Court has awarded "just compensation" more than what was claimed by the claimants initially and therefore, the contention urged by learned senior counsel and other counsel on behalf of the appellant-doctors and the AMRI Hospital that the additional claim made by the claimant was rightly not considered by the National Commission for the reason that the same is not supported by pleadings by filing an application to amend the same regarding the quantum of compensation and the same could not have been amended as it is barred by the limitation provided under Section 23 of the Consumer Protection Act, 1986 and the claimant is also not entitled to seek enhanced compensation in view of Order II Rule 2 of the CPC as he had restricted his claim at Rs.77,07,45,000/-, is not sustainable in law. The claimant has appropriately placed reliance upon the decisions of this Court in justification of his additional claim and the finding of fact on the basis of which the National Commission rejected the claim is based on untenable reasons. We have to reject the contention urged by the learned senior counsel and other counsel on behalf of the appellant-doctors and the AMRI Hospital as it is wholly untenable in law and is contrary to the aforesaid decisions of this Court referred to supra. We have to accept the claim of the claimant as it is supported by the decisions of this Court and the same is well founded in law. It is the duty of the Tribunals, Commissions and the Courts to consider relevant facts and evidence in respect of facts and circumstances of each and every case for awarding just and reasonable compensation. Therefore, we are of the view that the claimant is entitled for enhanced compensation under certain items made by the claimant in additional claim preferred by him before the National Commission.
105. We have to keep in view the fact that this Court while remanding the case back to the National Commission only for the purpose of determination of quantum of compensation also made categorical observation that:
"172. Loss of wife to a husband may always be truly compensated by way of mandatory compensation. How one would do it has been baffling the court for a long time. For .
compensating a husband for loss of his wife, therefore, the courts consider the loss of income to the family. It may not be difficult to do when she had been earning. Even otherwise a wife's contribution to the family in terms of money can always be worked out. Every housewife makes a contribution to his family. It is capable of being measured on monetary terms although emotional aspect of it cannot be. It depends upon her educational qualification, her own upbringing, status, husband's income, etc."
In this regard, this Court has also expressed similar view that status, future prospects and educational qualification of the deceased must be judged for deciding adequate, just and fair compensation as in the case of R.K. Malik & Anr. (supra).
106. Further, it is an undisputed fact that the victim was a graduate in psychology from a highly prestigious Ivy League school in New York. She had a brilliant future ahead of her. However, the National Commission has calculated the entire compensation and prospective loss of income solely based on a pay receipt showing a paltry income of only $30,000 per year which she was earning as a graduate student. Therefore, the National Commission has committed grave error in taking that figure to determine compensation under the head of loss of dependency and the same is contrary to the observations made by this Court in the case of Arvind Kumar Mishra Vs. New India Assurance which reads as under:
"14. On completion of Bachelor of Engineering (Mechanical) from the prestigious institute like BIT, it can be reasonably assumed that he would have got a good job. The appellant has stated in his evidence that in the campus interview he was selected by Tata as well as Reliance Industries and was offered pay package of Rs. 3,50,000 per annum. Even if that is not accepted for want of any evidence in support thereof, there would not have been any difficulty for him in getting some decent job in the private sector. Had he decided to join government service and got selected, he would have been put in the pay scale for Assistant Engineer and would have at least earned Rs. 60,000 per annum. Wherever he joined, he had a fair chance of some promotion and remote chance of some high position. But uncertainties of life cannot be ignored taking relevant factors into consideration. In our opinion, it is fair and reasonable to assess his future earnings at Rs. 60,000 per annum taking the salary and allowances payable to an Assistant Engineer in public employment as the basis."
107. The claimant further placed reliance upon the decisions of this Court in Govind Yadav Vs. New India Insurance Co. Ltd.(supra), Sri Ramachandrappa Vs. Manager, Royal Sundaram .
Alliance Insurance (supra), Ibrahim Vs. Raju & Ors., Laxman @ Laxman Mourya Vs. Divisional Manager, Oriental Insurance Co. Ltd. (supra) and Kavita Vs. Dipak & Ors (supra) in support of his additional claim on loss of future prospect of income. However, these decisions do not have any relevance to the facts and circumstances of the present case. Moreover, these cases mention about "future loss of income" and not "future prospects of income" in terms of the potential of the victim and we are inclined to distinguish between the two.
108. We place reliance upon the decisions of this Court in Arvind Kumar Mishra's case (supra) and also in Susamma Thomas (supra), wherein this Court held thus:
"24. In Susamma Thomas, this Court increased the income by nearly 100%, in Sarla Dixit the income was increased only by 50% and in Abati Bezbaruah the income was increased by a mere 7%. In view of the imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50% of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words 'actual salary' should be read as 'actual salary less tax'). The addition should be only 30% if the age of the deceased was 40 to 50 years. There should be no addition, where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to ecognized the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances."
109. Further, to hold that the claimant is entitled to enhanced compensation under the heading of loss of future prospects of income of the victim, this Court in Santosh Devi Vs. National Insurance Company and Ors. (supra), held as under:
"18. Therefore, we do not think that while making the observations in the last three lines of para 24 of Sarla Verma judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self-employed or who is paid fixed wages. 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."
110. In view of the aforesaid observations and law laid down by this Court with regard to the approach by the Commission in awarding just and reasonable compensation taking into consideration the future prospects of the deceased even in the absence of any expert's opinion must have been reasonably judged based on the income of the deceased and her future potential in U.S.A. However, in the present case the calculation of the future prospect of income of the deceased has also been scientifically done by economic expert Prof. John F. Burke. In this regard, the learned counsel for the other appellant-doctors and the Hospital have contended that without amending the claim petition the enhanced claim filed before the National Commission or an application filed in the appeal by the claimant cannot be accepted by this Court. In support of this contention, they have placed reliance upon the various provisions of the Consumer Protection Act and also decisions of this Court which have been adverted to in their submissions recorded in this judgment. The claimant strongly contended by placing reliance upon the additional claim by way of affidavit filed before the National Commission which was sought to be justified with reference to the liberty given by this Court in the earlier proceedings which arose when the application filed by the claimant was rejected and this Court has permitted him to file an affidavit before the National Commission and the same has been done. The ground urged by the claimant is that the National Commission has not considered the entire claim including the additional claim made before it.
111. The claimant has placed strong reliance upon V.P. Shantha's case (supra) in support of his contention wherein it was held as under:
"53. Dealing with the present state of medical negligence cases in the United Kingdom it has been observed: The legal system, then, is faced with the classic problem of doing justice to both parties. The fears of the medical profession must be taken into account while the legitimate claims of the patient cannot be ignored.
Medical negligence apart, in practice, the courts are increasingly reluctant to interfere in clinical matters. What was once perceived as a legal threat to medicine has disappeared a decade later. While the court will accept the absolute right of a patient to refuse treatment, they will, at the same time, refuse to dictate to doctors what treatment they should give. Indeed, the fear could be that, if anything, the pendulum has swung too far in favour of therapeutic immunity. (p. 16) It would be a mistake to think of doctors and hospitals as easy targets for the dissatisfied patient. It is still very difficult to raise an action of medical negligence in Britain; some, such as the Association of the Victims of .
Medical Accidents, would say that it is unacceptably difficult. Not only are there practical difficulties in linking the plaintiff's injury to medical treatment, but the standard of care in medical negligence cases is still effectively defined by the profession itself. All these factors, together with the sheer expense of bringing legal action and the denial of legal aid to all but the poorest, operate to inhibit medical litigation in a way in which the American system, with its contingency fees and its sympathetic juries, does not.
A patient who has been injured by an act of medical negligence has suffered in a way which is ecognized by the law â€" and by the public at large â€" as deserving compensation. This loss may be continuing and what may seem like an unduly large award may be little more than that sum which is required to compensate him for such matters as loss of future earnings and the future cost of medical or nursing care. To deny a legitimate claim or to restrict arbitrarily the size of an award would amount to substantial injustice. After all, there is no difference in legal theory between the plaintiff injured through medical negligence and the plaintiff injured in an industrial or motor accident. (pp. 192-93) (Mason's Law and Medical Ethics, 4th Edn.)"
112. The claimant has also placed reliance upon the Nizam Institute of Medical Sciences case referred to supra in support of his submission that if a case is made out, then the Court must not be chary of awarding adequate compensation. The relevant paragraph reads as under:
"88. We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The 'adequate compensation' that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned."
113. The claimant has further rightly contended that with respect to the fundamental principle for awarding just and reasonable compensation, this Court in Malay Kumar Ganguly's case (supra) has categorically stated while remanding this case back to the National Commission that the principle for just and reasonable compensation is based on 'restitutio in integrum' that is, the claimant must receive sum of money which would put him in the same position as he would have been if he had not sustained the wrong.
114. Further, the claimant has placed reliance upon the .
judgment of this Court in the case of Ningamma's case (supra) in support of the proposition of law that the Court is duty-bound and entitled to award "just compensation" irrespective of the fact whether any plea in that behalf was raised by the claimant or not. The relevant paragraph reads as under:
"34. Undoubtedly, Section 166 of the MVA deals with "just compensation" and even if in the pleadings no specific claim was made under Section 166 of the MVA, in our considered opinion a party should not be deprived from getting "just compensation" in case the claimant is able to make out a case under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the court is duty-bound and entitled to award "just compensation" irrespective of the fact whether any plea in that behalf was raised by the claimant or not."
115. He has also rightly placed reliance upon observations made in Malay Kumar Ganguly's case referred to supra wherein this Court has held the appellant doctors guilty of causing death of claimant's wife while remanding the matter back to the National Commission only for determination of quantum of compensation for medical negligence. This Court has further observed that compensation should include "loss of earning of profit up to the date of trial" and that it may also include any loss "already suffered or likely to be suffered in future". The claimant has also rightly submitted that when the original complaint was filed soon after the death of his wife in 1998, it would be impossible to file a claim for "just compensation". The claimant has suffered in the course of the 15 years long trial. In support of his contention he placed reliance on some other cases also where more compensation was awarded than what was claimed, such as Oriental Insurance Company Ltd. Vs. Jashuben & Ors., R.D.
Hattangadi , Raj Rani & Ors, Laxman @ Laxaman Mourya all cases referred to supra. Therefore, the relevant paragraphs from the said judgments in-seriatum extracted above show that this Court has got the power under Article 136 of the Constitution and the duty to award just and reasonable compensation to do complete justice to the affected claimant.
116. In view of the aforesaid reasons stated by us, it is wholly untenable in law with regard to the legal contentions urged on behalf of the AMRI Hospital and the doctors that without there being an amendment to the claim petition, the claimant is not entitled to seek the additional claims by way of affidavit, the claim is barred by limitation and the same has not been rightly accepted by the National Commission."
59- Now we have to award the just and fair compensation as per the principles laid down in the judgments cited hereinabove. For compensation we are considering the case of 100% disability, keeping in view the fact that such type of laborers would not be engaged in routine. The petitioner was a 25 years old lady at the time of amputation of left hand, which was amputated on account of negligence of State Officials. Life expectancy can safely be taken as per the prevailing trends of 70 years. She would have safely worked for 35 years. Accordingly, the appropriate multiplier, in the present case, would be 18. In facts of the case the income in the entirely has to be taken into consideration.
60- Needless to say that with rise in price index there has been considerable increase in wages. The salaries of the Government Employees and those employed in Private Sectors have been increased. It cannot be denied that there has been incremental enhancement of those who are self employed and even those engaged on daily wages, monthly wages or even seasonal wages. We can take judicial notice of the fact that the minimum wages have been increased by the Central Government as well as State of U.P. According to the notification issued by the State of U.P. under the Minimum Wages Act, 1948, dated 28.01.2014, the minimum wages for unskilled worker prescribed for the State of U.P. is Rs. 5750 per month, which comes to Rs. 192 per day (approx.).
61- Considering the notional income approved by the Hon'ble Apex Court i.e. Rs. 100 per day in the case related to claim under the Motor Vehicle Act, 1988, which was approved by the Hon'ble Apex Court in the year 2008 in the case of Laxmi Devi Vs. Mohammad Tabbar, (2008) 12 SCC 165 for the accident occurred on 12.04.2004 and increase in the wages, as mentioned above, this Court feels that in the instant case the average notional income should be taken as Rs. 150 per day on the relevant period of the year 2009, as it has been stated in writ petition that the petitioner "use to work as daily wager ''Dihari Mazdoor'".
Thus, the annual income of the petitioner would be Rs. 54,000/-. Keeping in view the age of the petitioner on relevant date, which according to the writ petition is 25, the multiplier of 18 would be proper for just compensation. According to paragraphs 3 and 6 of the writ petition the family of the petitioner contains 6 members including petitioner and accordingly the deduction to the extent of 1/4 (i.e. deduction of Rs. 54,000 x 1/4 = Rs. 13,500/-) can safely be applied. Thus the annual income of the petitioner comes out to be Rs. 54,000-13,500= Rs. 40,500/-. Annual income multiplied by 18 is equal to Rs. 40,500 x 18 i.e. Rs. 7,29,000/-.
After enhancement of 25% (i.e. Rs. 7,29,000 x 25% = Rs. 1,82,250/-), it would be proper to add Rs. 1,82,250/- for granting the amount towards future prospectus. Thus, the total loss of the income of the petitioner comes to Rs. 9,11,250/- (54,000 - 13,500 = 40,500 x 18 = 7,29,000 + 1,82,250=9,11,250) (Rupees Nine Lac Eleven Thousand Two Hundred Fifty).
The petitioner is entitled for pain and suffering, including mental distress, trauma and discomfort and inconvenience as also towards life amenities/pleasures and loss of happiness. She is also entitled for securing artificial/robotic limbs and medical expenses incurred in the heads mentioned herein before. Towards aforesaid heads this Court finds that Rs. 5,00,000/- as lump-sum be provided as damages to the petitioner.
62- Accordingly, we hold that the petitioner would be entitled to Rs. 5,00,000/- in addition to Rs. 9,11,250/-. The amount awarded in this judgment shall carry the simple interest @ 9% per annum from the date of expiry of period provided for compliance of the judgment till actual payment is made.
63- The writ petition is allowed with direction to the respondent no. 2 to pay the above mentioned amount within a period of three months from the date of presentation of certified copy of the judgment.
Order Date :- 30.5.2019 Jyoti/-