IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN MISCELLANEOUS FIRST APPEAL NO.811 OF 2015 (MV-I) BETWEEN:
SRI RAJANNA @ RAJU S/O. KAMBADA NARASEGOWDA, AGED ABOUT 42 YEARS, RESIDING AT NO.3828/A, 5TH CROSS ROAD, 2ND MAIN ROAD, GAYATHRINAGAR, BANGALORE – 560 021. ... APPELLANT (BY SRI K.G. KUMARA, ADVOCATE, FOR SRI B.M. CHANDRASHEKHAR, ADVOCATE) AND:
1. SRI SRINIVAS AGE: MAJOR, NO.28, ‘VARADANARAYANASWAMY NILAYA’, 7TH MAIN, RUKMININAGAR, NAGASANDRA POST, BANGALORE – 560 073.
2. ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LIMITED, MILLENNIUM CITY, INFORMATION TECHNOLOGY PARK, UNIT NOS.T-2-2A-TOWER-II, PLOT NO.DN-62, SECTOR-V, SALT LAKE, KOLKATTA – 700 091. ... RESPONDENTS (BY SRI K. SURYANARAYANA RAO, ADVOCATE, FOR R2; R1: NOTICE DISPENSED WITH VIDE COURT ORDER DATED 7/9/2015) * * * THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF THE MOTOR VEHICLES ACT AGAINST THE JUDGMENT AND AWARD DATED 23/10/2014 PASSED IN M.V.C. NO.8825 OF 2010 ON THE FILE OF THE VIII ADDITIONAL SMALL CAUSES JUDGE AND THE MOTOR ACCIDENT CLAIMS TRIBUNAL,
THIS MISCELLANEOUS FIRST APPEAL COMING ON FOR ADMISSION, THIS DAY, NAGARATHNA, J., DELIVERED THE FOLLOWING:
J U D G M E N T Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. This appeal is preferred by the claimant seeking enhancement of compensation by not being satisfied with the quantum of compensation awarded by the VIII Additional Small Causes Judge and the Motor Accident Claims Tribunal (hereinafter referred to as ‘Tribunal’, for the sake of convenience) at Bengaluru in M.V.C. No.8825 of 2010 by judgment and award dated 23/10/2014.
3. For the sake of convenience, parties herein shall be referred to in terms of their status before the Tribunal.
4. Brief facts of the case are, the claimant-appellant filed his claim petition under Section 166 of the Motor Vehicles Act, 1988, (for short, ‘the Act’) seeking compensation of Rs.54,05,000/- on account of serious injuries sustained by him in a road traffic accident. At this stage itself it may be mentioned that his claim petition was clubbed along with M.V.C. No.6515 of 2011 which was filed by his wife. According to the appellant-claimant, on 16/10/2010 at about 9:15 a.m., he was riding Honda Activa motorcycle bearing Registration No.KA-02/HH-7182 on Tumakuru Road (National Highway-4) near B.S.N.L. office along with his wife as a pillion rider; at that time, a canter lorry bearing Registration No.KA-52/4082, came in a rash and negligent manner endangering human life and knocked down the claimant and his wife. On account of the impact, they suffered serious injuries and were shifted to Premier Sanjeevini Hospital, Bengaluru. On account of the crush injuries suffered on the right lower limb, the claimant had to undergo amputation above the knee and he had to resign from his job and has remain at home. Contending that he was hale and healthy and earning a salary of Rs.34,000/- per month by working at Indian Design Export Private Limited and that on account of amputation, he had lost his livelihood and there was loss of amenities and that he had suffered pain and agony, he claimed compensation on various heads. Similarly, the appellant’s wife also filed a claim petition in M.V.C. No.6515 of 2011 on account of injuries sustained by her.
5. In response to the claim petition filed by the appellant herein, respondent No.1-owner of the canter lorry did not appear and was placed ex-parte. The Insurance company appeared through its counsel and filed statement of objections denying the material averments made in the claim petition and contended that liability to satisfy the award would be subject to the conditions of the insurance policy. Hence, insurance company sought for dismissal of the claim petition.
6. On the basis of rival pleadings, the Tribunal framed the following issues in both the claim petitions, which read as under:
i. Whether the petitioners prove that on 16.10.2010 at about 9:15 a.m., near NH-4, near BSNL Office at Tumkur Road, Bangalore, accident took place due to the actionable negligence of the driver of canter lorry bearing registration No. KA-52-4082 by which the petitioners sustained injuries?
ii. Whether the petitioners prove that petitioners are entitled for compensation? If so, what amount and from whom?
iii. What order or award?
7. In support of his case, the appellant let-in his evidence as P.W.1 and his wife was examined as P.W.2. They examined Dr. Lakshmikanth as P.W.3 and Suryakantha the employer of the appellant as P.W.4. They produced thirty-one documents which were marked as Exs.P.1 to P.32, while respondent No.2-insurance company examined Dr. Jagadish B. Shetty as R.W.1 and produced claim settlement as Ex.R.1.
8. On the basis of the evidence on record, the Tribunal awarded compensation of Rs.23,05,300/- with interest at the rate of 8% per annum from the date of claim petition till its realisation to the claimant-appellant herein and observed that 25% of the said amount had to be deducted towards contributory negligence since the appellant herein had not produced the Driving License having regard to the unreported judgment in M.F.A. No.30284 of 2008 disposed of on 5/12/2012. Consequently, instead of Rs.30,73,780/-, a sum of Rs.23,05,335/- was ordered to be paid to the appellant with interest at the rate of 8% per annum. Not being satisfied with the quantum of compensation awarded, the injured claimant has preferred this appeal.
9. We have heard learned counsel for the appellant and learned counsel for respondent No.2-insurance company. Notice to respondent No.1 has been dispensed with vide order dated 7/9/2015. We have perused the material on record as well as the original record.
10. Learned counsel for the appellant contended that the Tribunal was not right in deducting 25% of the compensation awarded towards contributory negligence. He submitted that the said aspect was neither pleaded nor proved by the respondents. Learned counsel for the appellant further contended that in the instant case, the award of compensation on all heads is on the lower side. He submitted that the appellant had sustained grievous crush injuries to the right leg. He underwent surgeries for debridement of wound, but the injuries were severe, ultimately, his right leg had to be amputated. That he is still suffering from pain and agony on account of the amputation. That a sum of Rs.1,00,000/- has been awarded towards pain and suffering, which is inadequate. He further submitted that the appellant had to resign from his job at Indian Design Export Private Limited, where he was earning a salary of Rs.34,000/- per month. On account of amputation of his right leg, functional disability is 100%, but P.W.3 has stated that disability to the right lower limb is only 40%. The Tribunal has also not appreciated the functional disability suffered by the appellant on account of amputation due to the crush injuries. He contended that since the appellant has resigned from his job and he is unable to take up any avocation, the compensation on the head of loss of future earning capacity must be enhanced by reckoning the permanent disability at 100%.
11. He further submitted that a sum of Rs.4,76,640/- has been awarded towards medical expenses, after deducting Rs.49,864/- from the medical bills which were to the tune of Rs.5,26,504/-. However, the Tribunal has not considered Ex.P.17 which consists of a bunch of medical bills. Said medical expenses are totaling to Rs.9,59,225/- which has to be awarded by way of additional compensation. He submitted that a meager compensation of Rs.20,000/- is awarded towards conveyance, nourishment and other incidental expenses, which may be enhanced. Further, the amount awarded towards loss of amenities is very meager and further, compensation of Rs.50,000/- awarded towards prosthesis is also on the lower side. He also contended that this Court may reassess the compensation and enhance it.
12. Per contra, learned counsel for the respondent- insurance company supported the judgment of the Tribunal and contended that the appellant has sought a sum of Rs.54,05,000/- only in the claim petition and that, if the additions are to be made and the compensation has to be enhanced, it would be much higher than what has been sought and therefore, this Court may not interfere and dismiss the appeal. He contended that the Tribunal has taken care to award adequate compensation on all heads, which would not call for enhancement in this appeal.
13. By way of reply, learned counsel for the appellant contended that having regard to the catena of judgments of the Hon’ble Supreme Court, this Court may award just compensation and limit it to the amount of compensation sought before the Tribunal, by taking into consideration the hard fact that the appellant had undergone amputation of the right lower limb which has resulted in total loss of earning capacity. He submitted that although in the claim petition what was sought was Rs.54,05,000/-, nevertheless, having regard to various heads on which compensation has to be awarded and bearing in mind the fact that the appellant has lost his avocation and unable to earn any income, the award of compensation may be enhanced.
14. Having heard learned counsel for the respective parties and on perusal of the material on record and also original record, the points that would arise for our consideration are:
i. Whether the quantum of compensation awarded by the Tribunal would call for any enhancement on the head of loss of future earning capacity, medical expenses, incidental charges, loss of amenities and other heads?
ii. If so, what order?
15. The fact that the appellant sustained grievous injuries in a road traffic accident that occurred on 16/10/2010 on account of canter lorry bearing Registration No.KA-52/4082 coming in a rash and negligent manner and colliding with the motorcycle bearing Registration No. KA-02/HH-7182 driven by the appellant along with his wife as a pillion rider resulting in amputation of his right lower limb has been established. The controversy is, however, with regard to quantum of compensation awarded by the Tribunal. The Tribunal, on the basis of evidence on record, has awarded compensation of Rs.30,73,780/- and deducted 25% of the same towards contributory negligence and Rs.23,05,300/- only was awarded with interest at the rate of 8% per annum. The heads of awards are as under:
Heads Compensation awarded by the Tribunal (in Rs.) Medical expenses 4,76,640.00 Towards pain and suffering 1,00,000.00 Towards prosthesis 50,000.00 Towards future medical expenses Towards conveyance, nourishment & other incidental expenses, etc.
1,00,000.00 20,000.00 Towards loss of amenities 1,00,000.00 Loss of future income 22,27,140.00 Total 30,73,780.00 16. Before we proceed to reassess the compensation, it is necessary to advert to the observations made by the Hon’ble Supreme Court in Raj Kumar vs. Ajay Kumar [(2011) 1 SCC 343] (Raj Kumar). According to the Hon’ble Supreme Court, the provision of the Motor Vehicles Act, 1988 (“the Act”, for short) makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.
17. In the instant case, on account of the accident which occurred on 16/10/2010 and the grievous injuries sustained in the said accident which were in the nature of crush injuries to the right lower limb, the claimant had to undergo amputation of the said limb above the knee. He resigned his job and has remained at home. He was working at Indian Design Export Private Limited and earning Rs.34,000/- per month. According to the claimant, on account of the amputation, he has lost his livelihood and there has been loss of amenities apart from pain and agony and he has spent a huge amount towards medical expenses. Hence, not being satisfied with the award of compensation by the Tribunal, the claimant has sought enhancement of the same in this appeal.
18. We have perused the impugned judgment of the Tribunal.
19. On perusal of the same, we find that the award of compensation towards pain and suffering is just and proper.
20. The contention of learned counsel for the appellant is that apart from medical expenses which has been awarded by the Tribunal, there are actual hospital expenses, the expenditure for medicines, dressing and other requirements for treating the injuries sustained by the appellant resulting in the amputation of right lower limb which has not been taken into consideration. In this regard, Ex.P.17 consists of numerous medical bills paid by the appellant for the purpose of treating right lower limb totaling to Rs.9,59,225/-.
21. Learned counsel for the respondent-insurance company fairly submits that Ex.P.17 has not been taken into consideration by the Tribunal. In the circumstance, a further sum of Rs.9,59,225/- is awarded towards ‘medical expenses’ including expenses for dressing of the wound on the leg and also subsequent to its amputation i.e., `14,35,865/- (4,76,640+9,59,225).
22. Since the appellant was an in-patient from 16/10/2010 up to 27/11/2010, for over a month, a sum of Rs.50,000/- is awarded towards ‘incidental charges including attendant conveyance, nourishment and other such charges’.
23. Before we proceed to consider as to whether the assessment of “loss of future earning capacity” is just and proper in the instant case, it is necessary to understand the meaning of the expression “permanent disability”, which has been elucidated in Rajkumar. According to the Hon’ble Supreme Court, disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person’s inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person’s inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accidents injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (“the Disabilities Act”, for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation.
24. On the question of assessment of percentage of permanent disability, the Hon’ble Supreme Court speaking through Raveendran J., at paragraphs 9 to 19 has observed as under:-
“9. The percentage of permanent disability is expressed by the Doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body cannot obviously exceed 100%.
10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation.
11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terns of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and Yadava Kumar v. National Insurance Co. Ltd.
12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity.
13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.
14. For example, if the left hand of a claimant is amputated, the permanent physical or functional disablement may be assessed around 60%. If the claimant was a driver or a carpenter, the actual loss of earning capacity may virtually be hundred per cent, if he is neither able to drive or do carpentry. On the other hand, if the claimant was a clerk in government service, the loss of his left hand may not result in loss of employment and he may still be continued as a clerk as he could perform his clerical functions; and in that event the loss of earning capacity will not be 100% as in the case of a driver or carpenter, nor 60% which is the actual physical disability, but far less. In fact, there may not be any need to award any compensation under the head of “loss of future earnings”, if the claimant continues in government service, though he may be awarded compensation under the head of loss of amenities as a consequence of losing his hand. Sometimes the injured claimant may be continued in service, but may not found suitable for discharging the duties attached to the post or job which he was earlier holding, on account of his disability, and may therefore be shifted to some other suitable but lesser post with lesser emoluments, in which case there should be a limited award under the head of loss of future earning capacity, taking note of the reduced earning capacity.
15. It may be noted that when compensation is awarded by treating the loss of future earning capacity as 100% (or even anything more than 50%), the need to award compensation separately under the head of loss of amenities or loss of expectation of life may disappear and as a result, only a token or nominal amount may have to be awarded under the head of loss of amenities or loss of expectation of life, as otherwise there may be a duplication in the award of compensation. Be that as it may.
16. The Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of permanent disability. Sections 168 and 169 of the Act make it evident that the Tribunal does not function as a neutral umpire as in a civil suit, but as an active explorer and seeker of truth who is required to “hold an enquiry into the claim” for determining the “just compensation”. The Tribunal should therefore take an active role to ascertain the true and correct position so that it can assess the “just compensation”. While dealing with personal injury cases, the Tribunal should preferably equip itself with a medical dictionary and a handbook for evaluation of permanent physical impairment (for example, Manual for Evaluation of Permanent Physical Impairment for Orthopedic Surgeons, prepared by American Academy of Orthopedic Surgeons or its Indian equivalent or other authorized texts) for understanding the medical evidence and assessing the physical and functional disability. The Tribunal may also keep in view the First Schedule to the Workmen’s Compensation Act, 1923 which gives some indication about the extent of permanent disability in different types of injuries, in the case of workmen.
17. If a Doctor giving evidence uses technical medical terms, the Tribunal should instruct him to state in addition, in simple non- medical terms, the nature and the effect of the injury. If a doctor gives evidence about the percentage of permanent disability, the Tribunal has to seek clarification as to whether such percentage of disability is the functional disability with reference to the whole body or whether it is only with reference to a limb. If the percentage of permanent disability is stated with reference to a limb, the Tribunal will have to seek the doctor’s opinion as to whether it is possible to deduce the corresponding functional permanent disability with reference to the whole body and, if so, the percentage.
18. The Tribunal should also act with caution, if it proposed to accept the expert evidence of doctors who did not treat the injured but who give “ready to use” disability certificates, without proper medical assessment. There are several instances of unscrupulous doctors who without treating the injured, readily give liberal disability certificates to help the claimants. But where the disability certificates are given by duly constituted Medical Boards, they may be accepted subject to evidence regarding the genuineness of such certificates. The Tribunal may invariably make it a point to require the evidence of the Doctor who treated the injured or who assessed the permanent disability. Mere production of a disability certificate or discharge certificate will not be proof of the extent of disability stated therein unless the doctor who treated the claimant or who medically examined and assessed the extent of disability of the claimant, is tendered for cross-examination with reference to the certificate. If the Tribunal is not satisfied with the medical evidence produced by the claimant, it can constitute a Medical Board (from a panel maintained by it in consultation with reputed local hospitals/medical colleges) and refer the claimant to such Medical Board for assessment of the disability.
19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).
(iii) The doctor who treated an injured claimant or who examined him subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.
(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.”
The aforesaid principles have to be applied in the instant case.
25. On the head of loss of future earning capacity, the Tribunal has assessed permanent disability at 33%, based on the evidence of P.W.3-Dr. Lakshmikanth, who had stated that it was 40%. The Doctor has stated 40% having regard to the whole body disability, but the Tribunal has lost sight of the fact that on account of loss of right lower limb by way of its amputation, the claimant had to resign from his job and is not in a position to take up any other job or avocation. Therefore, functional disability is 100% in our view. Of course, learned counsel for the respondent-insurance company contended that it cannot be 100% and that the appellant may be in a position to carryout his duties, but the fact remains that he resigned from his job and was relieved as per Ex.P.12 soon after the accident. He has not been able to seek any other employment or earn any income in any other way. Hence, functional disability must be assessed at 100% though learned counsel for the insurer tried to persuade us to assess it at 90% only. In this regard, we have applied the tests enunciated in paragraph No.13 of the judgment of the Hon’ble Supreme Court in the case of RAJ KUMAR.
26. Salary of the appellant was Rs.32,000/- per month at the time of the accident. Hence, compensation towards ‘loss of future earning capacity’ is `57,60,000/- (Rs.32,000 (100%) x 12 x 15 as the claimant was 37 years of age at the time of accident).
27. Since we have considered the permanent disability as 100%, we delete the compensation on the head ‘loss of amenities’ at Rs.1,00,000/- awarded by the Tribunal, as learned counsel for the insurer contended that when whole body disability is assessed at 100%, it is unnecessary to award on the head of loss of amenities. We find considerable force in the said submission. Further, towards future medical expenses including walking-aid, a sum of Rs.50,000/- is awarded.
28. Hence, the compensation is reassessed at Rs.74,95,865/- which is as under:
Heads Compensation awarded by this Court (in Rs.) Pain and suffering 1,00,000.00 Medical expenses (4,76,640 + 9,59,225) 14,35,865.00 Incidental charges 50,000.00 Loss of future earning capacity 57,60,000.00 Walking-aid/Future medical expenses 50,000.00 Total 73,95,865.00 29. Learned counsel for the respondent-insurance company contended that the award of 8% interest per annum is without any reason and that, normally this Court awards 6% interest per annum.
30. We find considerable force in the said argument.
The total compensation shall carry interest at the rate of 6% per annum from the date of claim petition till realisation, instead of interest at the rate of 8% as awarded by the Tribunal.
31. We wish to observe that though the claim made by the claimant/appellant herein was only Rs.54.00 lakh before the Tribunal and no amendment has been sought for enhancing the amount in this appeal. Nevertheless, bearing in mind the following judgments, we are of the view that the appellant herein is entitled to enhanced compensation.
(a) In Ward vs. James [(1965) 1 All ER 563], the Court of Appeal, while dealing with a case under Section 6 of the Administration of Justice (Miscellaneous Provisions) Act, 1933 made some important observations, which are extracted below:
“Although you cannot give a man so gravely injured much for his ‘lost years’, you can, however, compensate him for his loss during his shortened span, that is, during his expected ‘years of survival’. You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to a back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet judges and juries have to do the best they can and give him what they think is fair. No wonder they find it well nigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The judges have worked out a pattern, and they keep it in line with the changes in the value of money.”
(b) In R.D. Hattangadi vs. Pest Control (India) Pvt.
Ltd. and others [(1995) 1 SCC 551], this Court while dealing with a case involving claim of compensation under the Motor Vehicles Act, 1939, referred to the judgment in Ward v. James (supra), Halsbury’s Laws of England, 4th edn., vol. 12 (page 446) and observed:
“In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards.”
(c) In Nizam’s Institute of Medical Sciences vs.
Prasanth S. Dhananka [(2009) 6 SCC 1], the three-Judge Bench was dealing with a case arising out of the complaint filed under the Consumer Protection Act, 1986. The Bench made the following observations which can appropriately be applied for deciding the petitions filed under Section 166 of the Act: “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 charry 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.
At the same time we often find that a person injured in an accident leaves his family in greater distress vis-à-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity.”
(d) This approach is in tune with the judgment in Nagappa v. Gurudayal Singh [(2003) 2 SCC 274]. In that case, the Court considered a similar issue, referred to the judgments of the Bombay High Court in Municipal Corporation of Greater Bombay v. Kisan Gangaram Hire 1987 ACJ 311 (Bombay), Orissa High Court in Mulla Mod. Abdul Wahid v. Abdul Rahim 1994 ACJ 348 (Orissa) and Punjab and Haryana High Court in Devki Nandan Bangur v. State of Haryana 1995 ACJ 1288 (P&H) and observed:
“For the reasons discussed above, in our view, under the MV Act, there is no restriction that the Tribunal/court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/court is to award “just” compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time-barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub-section (4) to Section 166, even the report submitted to the Claims Tribunal under sub-section (6) of Section 158 can be treated as an application for compensation under the MV Act. If required, in appropriate cases, the court may permit amendment to the claim petition.”
32. Further, we find that the Tribunal was not right in deducting 25% towards contributory negligence as the same was neither pleaded by the respondent nor proved. Even if for a moment, it is to be assumed that the appellant did not possess a valid and effective Driving License as on the date of accident, that has no relevance in so far as insurance company is concerned as the driver of the offending insured vehicle possessed a valid licence.
33. 75% of the compensation shall be deposited in a Fixed Deposit in any Post-Office or Nationalized Bank deposit for an initial period of ten years and the appellant shall be entitled to draw periodical interest on the said deposit. The balance compensation shall be released to him, after due identification.
34. Appeal filed by the claimant-appellant is allowed in the aforesaid terms.
Parties to bear their respective costs.
Office to return the lower Court record to the Tribunal, forthwith.
Sd/- JUDGE kvk Sd/- JUDGE