Delhi High Court
Ritu Minor Thr. Her Father & Ors. vs Regional Manager Uttranchal ... on 7 December, 2012
Author: J.R. Midha
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MAC.APP.No.672/2012
% Date of decision : 7th December, 2012
RITU MINOR THR. HER FATHER & ORS. .... Appellants
Through : Mr. Diwan Singh Chauhan,
Adv.
versus
REGIONAL MANAGER UTTRANCHAL STATE ROAD
TRANSPORT CORPN. ..... Respondent
Through : None.
CORAM :-
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT
1. The appellant has challenged the award of the Claims
Tribunal whereby compensation of `15,13,000/- has been awarded
to the appellant. The appellant seeks enhancement of the award
amount.
2. The accident dated 30th July, 1999 resulted in grievous
injuries to the appellant. The appellant was six years old at the
time of the accident. She was going with her parents from Delhi to
Almora by bus. The bus stopped at Garam Pani bus stand and all
the passengers including the appellant got down. The appellant
was standing on the left side of the road when U.P. State Roadways
bus bearing UP-02C 6824 came from behind and crushed the
appellant under its left wheel. The appellant was dragged for a
distance of about 10 feet. The right leg and a part of the left leg of
the appellant were completely crushed under the wheel of the
offending bus. The appellant also suffered multiple injuries to
spinal cord at the level of 6th thoracic vertebra. The injuries
suffered by the appellant and the treatment taken by her are
summarized as under:-
(i) The appellant was initially taken to Civil Hospital, Ranikhet
who referred her to S.S.J. Base Hospital, Haldwani where she was
referred to Delhi. She was admitted in Ram Manohar Lohia
Hospital where she remained till 4th October, 1999. She was
treated for degloving injury of right leg with 90% skin loss and
wounds in lower abdominal area (Ex.PW2/1).
(ii) The appellant was underwent skin grafting and plastic
surgery (Ex.PW2/3). The appellant was also treated for bowel and
bladder injuries (Ex.PW2/4 and Ex.PW2/5). The appellant was
also taken to GMR Institute of Imaging and Research for T-2
Hyper-intensity in the dorsal cord from D-6 to D-8 level.
(iii) There was no movement in the limbs of the appellant for
which she was taken to G.B. Pant Hospital and then to All India
Institute of Medical Sciences on 4th October, 1999 and skin
grafting was opined.
(iv) On 10th October, 1999, the appellant was admitted to
Virmani Hospital, Mayur Vihar, Phase-II, Delhi where she
underwent skin grafting. The appellant was discharged on 19 th
October, 1999 (Ex.PW1/2 and Ex.PW1/3). The appellant
th
underwent further surgeries for skin grafting on 24 October, 1999
and 30th October, 1999 at New Life Hospital.
(v) On 6th December, 1999, the appellant took treatment for
traumatic paraplegia with bed sore, degloving injury on left leg and
incontinency with bladder and bowel (Ex.PW4/C-1 to C-3).
(vi) On 18th December, 1999, the appellant consulted Dr. L.K.
Malhotra, Neurologist who observed that the appellant suffered
complete sensory loss below T-4 level (Ex.PW1/6-8).
(vii) From 27th November, 1999 to 25th August, 2001, the
appellant took treatment from G.B. Pant Hospital where she was
given physiotherapy and occupational therapy along with treatment
for post traumatic transverse mylopathy (Ex.PW5/A to
Ex.PW5/D).
(viii) From 3rd October, 2001 to 27th December, 2001, the
appellant took treatment from Hindu Rao Hospital where she again
underwent physiotherapy exercise.
3. The injuries suffered by the appellant resulted in permanent
disability. The appellant was examined by the Medical Board of
Lok Nayak Hospital. Vide disability certificate dated 11th October,
2003 (Ex.PW6/1), the Medical Board certified the permanent
disability of the appellant to be 80% due to Post Traumatic
Mylopathy (level T-6) with complete paraplegia (power grade-0)
with dense sensory loss and bladder and bowel involvement with
B/L ankle and right knee contracture. The Board opined that the
appellant would require lifelong nursing care.
4. The injuries suffered by the appellant and the treatment
taken by her were proved by the father of the appellant who
appeared in the witness box as PW-3. PW-3 proved the original
bills/cash memos - Ex.PW3/1 to Ex.PW3/101. PW-3 incurred the
expenditure of `70,000/- on the treatment of the appellant in
various hospitals and nursing homes. The medical record in respect
of the treatment of the appellant from Ram Manohar Lohia
Hospital was proved by PW-2 as Ex.PW2/1 to Ex.PW2/5. The
medical record of the appellant in respect of the treatment taken at
Virmani Hospital was proved as Ex.PW1/1 to Ex.PW1/14. The
medical record in respect of the treatment taken by the appellant at
Sant Parmanand Hospital has been proved by PW-4 as Ex.PW4/A1
to Ex.PW4/A-2, Ex.PW4/B and Ex.PW4/C-1 to Ex.PW4/C-3. Dr.
Vinod Puri, Professor and Head of Department of Neurology, G.B.
Pant Hospital appeared in the witness box as PW-5 and proved the
medical record - Ex.PW5/A to Ex.PW5/D. PW-5 also proved the
disability certificate - Ex.PW5/A. Dr. Rajiv Kohil, Physician from
LNJP Hospital appeared as PW-6 and proved the disability
certificate as Ex.PW6/1. PW-6 deposed that the permanent
disability of the appellant was 80% as per permanent disability
certificate - Ex.PW6/1 with respect to the whole body. PW-6
deposed that the dense sensory loss and bladder/bowel involvement
as referred in Ex.PW6/1 was incurable. He further deposed that the
injuries suffered by the appellant were likely to affect the longevity
of her life. PW-6 further deposed that the disability of 80% could
also increase in future and the appellant could also develop many
other complications because of the involvement of bladder and
bowel.
5. The Claims Tribunal awarded compensation of `15,13,000/-
along with interest @6% per annum. The break-up of the aforesaid
compensation is as under:-
1. Pain and agony : `75,000/-
2. Loss of amenities of life, : `50,000/-
discomfort and inconvenience
3. Loss of education : `2,00,000/-
4. Loss of expectation of life : `3,00,000/-
5. Loss of matrimonial prospects : `50,000/-
6. Compensation towards cost of : `50,000/-
treatment
7. Conveyance : `70,000/-
8. Special diet : `50,000/-
9. Cost of attendant : `1,08,000/-
10. Future treatment : `30,000/-
11. Future conveyance : `50,000/-
12. Future attendant charges : `4,80,000/-
Total : `15,13,000/-
6. The learned counsel for the appellant has urged the
following grounds at the time of hearing of this appeal:-
(i) The compensation for pain and suffering be enhanced.
(ii) The compensation for loss of amenities of life be enhanced.
(iii) The compensation for loss of matrimonial prospects be
enhanced.
(iv) The compensation be awarded for disfiguration.
(v) The compensation for conveyance be enhanced.
(vi) The compensation be awarded for loss of earning capacity
due to permanent disability.
(vii) The compensation be awarded for future medical expenses.
(viii) The compensation to be awarded for wheelchair, special
wheelchair for bathing, special jacket, special commode
chair, special undergarments and tuition fee.
(ix) The rate of interest be enhanced.
7. Vide order dated 20th July, 2012, this Court deemed it
necessary to record the additional evidence relating to the
subsequent events of the treatment taken by the appellant after the
award and also to take on record the present condition of the
appellant under Order XLI Rule 27(1)(b) of the Code of Civil
Procedure. The additional evidence led by the appellant in terms
of the above order is as under:-
7.1 The appellant‟s body below chest level is completely
paralyzed including the bladder and bowel sphincters due to which
there is no sensation below the chest level and the appellant has no
control over natural calls. The appellant cannot stand or walk and
is confined to bed. However, during day time, she moves on
wheelchair.
7.2. At the time of the accident, the appellant was aged 6 years
and was studying in nursery class. She somehow continued her
education by attending the school on a wheelchair.
7.3. The appellant is presently aged 19 years and is studying in
12th standard. The progress report of the appellant‟s education has
been proved as Ex.AW1/1.
7.4. The cost of the wheelchair being used by the appellant is
`20,000/-. The life of a wheelchair is about two years and the
appellant has changed six wheelchairs which has costed her parents
`1,20,000/-. The appellant has been advised to use a motorized
wheelchair and also to take a folding wheelchair. The appellant
has obtained the estimate of the motorized and the folding
wheelchair. The quotation has been placed on record as
Ex.AW1/2. The cost of the motorized wheelchair is `1,25,000/-
and the cost of the folding wheelchair is `22,000/-. The life of the
motorized wheelchair is stated to be two years and the appellant is
claiming `12,50,000/- towards the cost of wheelchair for the next
15 years.
7.5. The doctor has advised the appellant to wear a jacket to
balance her body on the wheelchair which costs `35,000/- and the
durability of jacket is approximately one year.
7.6. The appellant is unable to use normal toilet and seeks special
commode chair which costs `5,000/-.
7.7. The appellant has been advised to use in view of her
condition special undergarments which costs `500/- each.
7.8. The appellant is taking the tuition to continue her studies
which costs `2,000/- per month.
7.9. Since the appellant cannot walk, she has been advised to use
special wheelchair (for bathing) which costs `2,000/-.
7.10. The appellant is regularly taking physiotherapy for which a
Physiotherapist visits every alternate day. The fee of the
Physiotherapist is `500/- per visit.
7.11. Since the appellant is not able to sense the nature call of
urination, she frequently suffers infection and requires medical
treatment which costs about `25,000/- per year for the next 15
years.
7.12. The appellant is keen to go for higher education for which
the attendant is required to accompany her besides the
transportation expenses. The appellant claims `4,000/- per month
towards attendant charges for the next 15 years.
7.13. The appellant also seeks loss of income due to permanent
disability on the basis that she would have earned `15,000/- per
month.
8. On 25th May, 2012, the appellant had appeared before this
Court and her condition was seen. The appellant was brought on a
wheelchair by her parents and she was unable to stand due to post
traumatic mylopathy (level T-6) with complete paraplegia (power
grade-0) with dense sensory loss, bladder and bowel involvement
with B/L ankle and right knee contracture. However, the appellant
appeared to be very ambitious to continue her education.
9. Law with respect to Grant of Compensation in Injury
cases
9.1. The law with respect to the grant of compensation in injury
cases is well-settled. The injured is entitled to pecuniary as well as
non-pecuniary damages. Pecuniary damages also known as special
damages are generally designed to make good the pecuniary loss
which is capable of being calculated in terms of money whereas
non-pecuniary damages are incapable of being assessed by
arithmetical calculations. The pecuniary or special damages,
generally include the expenses incurred by the claimants on his
treatment, special diet, conveyance, cost of nursing/attending, loss
of income, loss of earning capacity and other material loss, which
may require any special treatment or aid to the insured for the rest
of his life. The general damages or the non-pecuniary loss include
the compensation for mental or physical shock, pain, suffering, loss
of amenities of life, disfiguration, loss of marriage prospects, loss
of expected or earning of life, inconvenience, hardship,
disappointment, frustration, mental stress, dejectment and
unhappiness in future life, etc. The above list is not exhaustive and
there may be special or additional circumstances depending on the
facts in each case.
9.2. In R.D. Hattangadi v. Pest Control (India) Pvt. Ltd., (1995)
1 SCC 551, a road accident resulted in 100% disability due to
paraplegia below waist to a lawyer (retired Judge). The Supreme
Court observed that no amount of compensation can restore the
physical frame of the appellant. That is why it has been said by
Courts that whenever any amount is determined as the
compensation payable for any injury suffered during an accident,
the object is to compensate such injury "so far as money can
compensate" because it is impossible to equate the money with the
human sufferings or personal deprivations. Money cannot renew a
broken and shattered physical frame. In its very nature whenever a
Tribunal or a Court is required to fix the amount of compensation
in cases of accident, it involves some guess work, some
hypothetical consideration, some amount of sympathy linked with
the nature of the disability caused. But all the aforesaid elements
have to be viewed with objective standards. When compensation is
to be awarded for pain and suffering and loss of amenity of life, the
special circumstances of the claimant have to be taken into account
including his age, the unusual deprivation he has suffered, the
effect thereof on his future life.
9.3. In Common Cause, A Registered Society v. Union of India,
(1999) 6 SCC 667, the Supreme Court held that the object of an
award of damages is to give the plaintiff compensation for damage,
loss or injury he has suffered. The Court further held that the
elements of damage recognized by law are divisible into two main
groups: pecuniary and non-pecuniary loss. While the pecuniary
loss is capable of being arithmetically worked out, the non-
pecuniary loss is not so calculable. Non-pecuniary loss is
compensated in terms of money, not as a substitute or replacement
for other money, but as a substitute, what McGregor says, is
generally more important than money: it is the best that a court can
do.
9.4. In Nagappa v. Gurudayal Singh, (2003) 2 SCC 274, the
Supreme Court held that if a collection of cases on the quantum of
damages is to be useful, it must necessarily be classified in such a
way that comparable cases can be grouped together. No doubt, no
two cases are alike but still, it is possible to make a broad
classification which enables one to bring comparable awards
together. Inflation should be taken into account while calculating
damages.
9.5. In Divisional Controller, KSRTC v. Mahadeva Shetty,
(2003) 7 SCC 197, the road accident resulted in paraplegia due to
serious injury to the spinal cord. The Supreme Court held that the
object of providing compensation is to mitigate the hardship and
place the claimant as far as possible in the same position
financially as he was before the accident. The quantum of damages
fixed should be in accordance with the injury. An injury may bring
about many consequences like loss of earning capacity, loss of
mental pleasure and many such consequential losses. A person
becomes entitled to damages for mental and physical loss, his or
her life may have been shortened or that he or she cannot enjoy
life, which has been curtailed because of physical handicap. The
normal expectation of life is impaired. The compensation awarded
has to be "just" and not a bonanza. Every method or mode adopted
for assessing compensation has to be considered in the background
of "just" compensation which is the pivotal consideration. Though
by use of the expression "which appears to it to be just", a wide
discretion is vested in the Tribunal, the determination has to be
rational, to be done by a judicious approach and not the outcome of
whims, wild guesses and arbitrariness. The expression "just"
denotes equitability, fairness and reasonableness, and non-
arbitrariness. A person not only suffers injuries on account of
accident but also suffers in mind and body on account of the
accident throughout his life and a feeling is developed that he is no
more a normal man and cannot enjoy the amenities of life as
another normal person can. The Supreme Court further held that
while fixing compensation, suffering of the mind, shortening of life
expectancy, loss of earning capacity, permanence of the disability,
loss of amenities of life etc. are to be considered against the
backdrop of age, marital status, unusual deprivation one has
undertaken in one‟s life etc.
9.6. In Nizam's Institute of Medical Sciences v. Prasanth S.
Dhananka, (2009) 6 SCC 1, the Supreme Court held that adequate
compensation must 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. The Supreme
Court further held that 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 not only on the victim but even more so on the injured‟s
family and attendants and the stress saps their energy and destroys
their equanimity. The Apex Court further held that compensation
has been computed keeping in mind that the brilliant career of the
claimant has been cut short and there is, as of now, no possibility
of improvement in the claimant‟s condition, the compensation will
ensure a steady and reasonable income to the claimant for a time
when the claimant is unable to earn for himself.
9.7. In Arvind Kumar Mishra v. New India Assurance Co. Ltd.,
(2010) 10 SCC 254, the road accident resulted in 100% permanent
disability to a final year engineering student. The Supreme Court
held the functional disability to be 70% to compute the loss of
earning capacity according to the multiplier method. The Supreme
Court further held that the whole idea of compensation is to put the
claimant in the same position as he was insofar as money can.
Perfect compensation is hardly possible but one has to keep in
mind that the victim has done no wrong; he has suffered at the
hands of the wrongdoer and the court must take care to give him
full and fair compensation for what he had suffered.
9.8. In Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343, the
Supreme Court considered a large number of precedents and laid
down the following principles for computation of compensation in
injury cases:-
"General principles relating to compensation in
injury cases
4. The provision of the Motor Vehicles Act, 1988
('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. (See C. K. Subramonia Iyer
v. T. Kunhikuttan Nair - AIR 1970 SC 376, R. D.
Hattangadi v. Pest Control (India) Ltd. - 1995 (1) SCC
551 and Baker v. Willoughby - 1970 AC 467).
5. The heads under which compensation is
awarded in personal injury cases are the following:-
Pecuniary damages (Special Damages)
(i) Expenses relating to treatment, hospitalization,
medicines, transportation, nourishing food, and
miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the
injured would have made had he not been
injured, comprising:
(a) Loss of earning during the period of
treatment;
(b) Loss of future earnings on account of
permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of
marriage).
(vi) Loss of expectation of life (shortening of
normal longevity).
In routine personal injury cases, compensation will be
awarded only under heads (i), (ii)(a) and (iv). It is only
in serious cases of injury, where there is specific
medical evidence corroborating the evidence of the
claimant, that compensation will be granted under any
of the heads (ii)(b), (iii), (v) and (vi) relating to loss of
future earnings on account of permanent disability,
future medical expenses, loss of amenities (and/or loss
of prospects of marriage) and loss of expectation of
life. Assessment of pecuniary damages under item (i)
and under item (ii)(a) do not pose much difficulty as
they involve reimbursement of actuals and are easily
ascertainable from the evidence. Award under the
head of future medical expenses - item (iii) - depends
upon specific medical evidence regarding need for
further treatment and cost thereof. Assessment of non-
pecuniary damages - items (iv), (v) and (vi) -involves
determination of lump sum amounts with reference to
circumstances such as age, nature of
injury/deprivation/disability suffered by the claimant
and the effect thereof on the future life of the
claimant. Decision of this Court and High Courts
contain necessary guidelines for award under these
heads, if necessary. What usually poses some
difficulty is the assessment of the loss of future
earnings on account of permanent disability - item
(ii)(a). We are concerned with that assessment in this
case."
9.9. In Sri Kumaresh v. Divisional Manager, National Insurance
Co. Ltd., 2011 ACJ 1975, the appellant aged 20 years, suffered
amputation of his right leg as a result of the accident. The Supreme
Court held that the injury will not only severely affect his future
prospects of earning, but will also permanently disable him for life
and suffer necessary discomforts which accompany living without
a leg. The Supreme Court awarded compensation of `10 lakhs for
pain and suffering, loss of income during treatment, medical
expenses for whole life, loss of future earnings, loss of amenities
and enjoyment of life including loss of marital prospects,
conveyance charges and food and nourishment.
9.10. In Ramachandrappa v. Royal Sundaram Alliance Insurance
Co. Ltd., (2011) 13 SCC 236, the Supreme Court held that
compensation to be awarded is not measured by the nature,
location or degree of injury but rather by the extent or degree of the
incapacity resulting from the injury. The compensation awarded
should be just, fair and proper. The Supreme Court further held that
the term „disability‟, as so used, ordinarily means loss or
impairment of earning power and has been held not to mean loss of
a member of the body.
9.11. In Sri Laxman @ Laxman Mourya v. Divisional Manager,
Oriental Insurance Co. Ltd., 2012 ACJ 191, the Supreme Court
held that if the victim of an accident suffers permanent or
temporary disability, then efforts should always be made to award
adequate compensation not only for the physical injury and
treatment, but also for the pain, suffering and trauma caused due to
accident, loss of earning and victim‟s inability to lead a normal life
and enjoy other amenities, which he would have enjoyed but for
the disability caused due to the accident.
9.12. In Kavita v. Deepak, (2012) 8 SCC 604, the Supreme Court
held that victims of accident, who are disabled either permanently
or temporarily, adequate compensation should be awarded not only
for the physical injury and treatment but also for the loss of earning
and inability to lead a normal life and enjoy amenities, which one
would have enjoyed had it not been for the disability. The Supreme
Court further held that the amount awarded under the head of loss
of earning capacity is distinct and does not overlap with amount
awarded for pain, suffering, loss of enjoyment of life and medical
expenses.
10. Computation of Compensation in cases of Paraplegia
10.1. In Nizam's Institute of Medical Sciences v. Prasanth S.
Dhananka (supra), the Supreme Court was dealing with the case of
a 20 year old engineering student who became paraplegic due to
negligence in a surgical operation. When the case came up for
hearing, the claimant was aged 40 years and was working as an IT
Engineer earning `28,00,000/- per annum but was confined to a
wheelchair and required an attendant -cum- driver due to the
nature of his work. The Supreme Court awarded a compensation of
`1,00,00,000/-. The break-up of the compensation of
`1,00,00,000/- awarded by the Supreme Court is as under:-
Driver-cum-attendant Charges : `7,20,000/-
Nursing Care : `14,40,000/-
Physiotherapy : `10,80,000/-
Future continuous medical aid : `25,00,000/-
Loss of future earnings : `25,00,000/-
Pain and suffering : `10,00,000/-
10.2. In Kavita v. Deepak (supra), the Supreme Court enhanced
the compensation from `12,76,480/- to `34,38,747/- relating to a
businessman aged 30 years who suffered 75% disability relating to
hearing, understanding, speaking and was reduced to a vegetative
state. The break-up of the compensation of `34,38,747/- is as
under:-
Medical treatment : `7,76,480/-
Medical expenses during the pendency of : `50,000/-
the appeal
Attendant Charges : `6,00,000/-
Future medical expenses (Physiotherapy) : `9,00,000/-
Loss of earning during the period of : `1,45,067/-
treatment
Loss of future earnings on account of : `3,67,200/-
permanent disability
Physical and mental pains : `3,00,000/-
Loss of amenities and loss of expectation : `3,00,000/-
of life
10.3. In K. Suresh v. New India Assurance Co. Ltd., 2012 (10)
SCALE 16, a road accident resulted in triple fracture in spinal cord,
fracture in left leg and right hand shoulder, deep cut and degloving
injury over right left thigh bone and multiple injuries all over the
body which resulted in 75% permanent disability. The Supreme
Court examined the catena of judgments and held that the victim
was entitled to compensation for loss of earning capacity as well as
for permanent disability. The Supreme Court awarded
compensation of `13,48,000/- to the victim of the road accident.
The relevant portion of the judgment is as under:-
"2. Despite many a pronouncement in the field, it still
remains a challenging situation warranting sensitive as
well as dispassionate exercise how to determine the
incalculable sum in calculable terms of money in
cases of personal injuries. In such assessment neither
sentiments nor emotions have any role. ...There
cannot be actual compensation for anguish of the heart
or for mental tribulations. The quintessentiality lies
in the pragmatic computation of the loss sustained
which has to be in the realm of realistic
approximation. Therefore, Section 168 of the Motor
Vehicles Act, 1988 (for brevity „the Act‟) stipulates
that there should be grant of "just compensation".
Thus, it becomes a challenge for a court of law to
determine "just compensation" which is neither a
bonanza nor a windfall, and simultaneously, should
not be a pittance.
* * *
6. While assessing the damages there is a command
to exclude considerations which are in the realm of
speculation or fancy though some guess work or
some conjecture to a limited extent is
inevitable...Thus, some guess work, some
hypothetical considerations and some sympathy
come into play but, a significant one, the ultimate
determination is to be viewed with some objective
standards. To elaborate, neither the tribunal nor a
court can take a flight in fancy and award an
exorbitant sum, for the concept of conventional sum,
fall of money value and reasonableness are to be kept
in view. Ergo, in conceptual eventuality "just
compensation" plays a dominant role.
* * *
10. It is noteworthy to state that an adjudicating
authority, while determining quantum of
compensation, has to keep in view the sufferings of
the injured person which would include his
inability to lead a full life, his incapacity to enjoy
the normal amenities which he would have enjoyed
but for the injuries and his ability to earn as much
as he used to earn or could have earned. Hence,
while computing compensation the approach of the
tribunal or a court has to be broad based. Needless to
say, it would involve some guesswork as there cannot
be any mathematical exactitude or a precise formula to
determine the quantum of compensation. In
determination of compensation the fundamental
criterion of "just compensation" should be inhered.
* * *
19. ...it is true that compensation for loss of earning
power/capacity has to be determined based on various
aspects including permanent injury/disability, but at
the same time, it cannot be construed that that
compensation cannot be granted for permanent
disability of any nature. It has been mentioned by way
of an example that in a case of a non-earning member
of a family who has been injured in an accident and
sustained permanent disability due to amputation of
leg or hand, it cannot be construed that no amount
needs to be granted for permanent disability. It
cannot be disputed that apart from the fact that
the permanent disability affects the earning
capacity of the person concerned, undoubtedly, one
has to forego other personal comforts and even for
normal avocation they have to depend on others.
* * *
28...this Court has expressed the view that grant of
compensation towards permanent disability is
permissible. Regard been had to the totality of the
facts and circumstances, we are inclined to think that
compensation of Rs. 2,50,000/- should be granted
towards permanent disability and Rs. 2,00,000/-
towards pain and suffering. We have so held as the
injury is of serious nature and under the heading of
non-pecuniary damages compensation is awardable
under the headings of pain and suffering and damages
for loss of amenities of life on account of injury. In the
case of R.D. Hattangadi (supra) this Court has granted
compensation under two heads, namely, "pain and
suffering" and "loss of amenities of life". Quite apart
from that compensation was granted towards future
earnings. In Laxman v. Divisional Manager, Oriental
Insurance Co. Ltd., 2012 ACJ 191 it has been ruled
thus: -
"The ratio of the above noted judgments is that
if the victim of an accident suffers permanent or
temporary disability, then efforts should always
be made to award adequate compensation not
only for the physical injury and treatment, but
also for the pain, suffering and trauma caused
due to accident, loss of earnings and victim‟s
inability to lead a normal life and enjoy
amenities, which he would have enjoyed but for
the disability caused due to the accident."
* * *
32. Calculated on the aforesaid base, the compensation
would be payable on the headings, namely, transport
charges, extra-nourishment, medical expenses, additional
medical expenses, additional transport charges, pain and
suffering, loss of earning capacity and permanent disability
and the amount on the aforesaid scores would be, in toto, Rs.
13,48,000/-..."
(emphasis supplied)
10.4. In New India Assurance Co. Ltd. v. Shweta Dilip Mehta, I
(2010) ACC 318 (DB), the Division Bench of the Bombay High
Court enhanced the compensation from `21,23,848/- to
`49,48,848/- relating to a child aged 11 years, rendered paraplegic
in respect of her entire body from waist down resulting in
permanent disablement of 80% to 90%. The Court held that the
appellant had lost out on several pleasures of her childhood and
adolescence, including the ability to move, run and play freely as
other children do. The Court further held that her condition would
be an impediment to not only her success but also her everyday
ordinary living. Added to this, are the physical and mental
suffering caused by her mental condition itself, its treatment and
the knowledge that she will be never able to lead a normal life.
The Court held that the multiplier method ensures the just
compensation while making for uniformity and certainty of awards.
The relevant portion of the judgment is reproduced hereunder:-
"4. The process of determining compensation by
the Court is an essentially practical task and can
never be an exact science. Perfect compensation is
hardly possible, more so in claims of injury and
disability. As rightly pointed out in H. West & Sons
Ltd. v. Shepherd (1958) ACJ 504 (H. L):
"...money cannot renew a physical frame that has been
battered."
However, making a monetary assessment of the
injury suffered is the only process devised to
compensate the victim. The process of making such
an assessment, whether in case of death or injury,
is provided in Section 168 of the Motor Vehicles
Act, 1988, which requires that the Tribunals
constituted under the Act determine compensation,
which appears to be 'just.' Thus the Act vests a wide
discretion upon the Tribunals. The decision of the
Hon'ble Apex Court, in Divisional Controller, KSRTC
v. Mahadeva Shetty : 2003 ACJ 1775 (SC) needs
mention here:
It has to be borne in mind that compensation for
life and limb can hardly be weighed in golden
scales.... The quantum of damages fixed should be
in accordance with the injury. An injury may bring
about many consequences like loss of earning
capacity, loss of mental pleasure and many such
consequential losses. A person becomes entitled to
damages for the mental and physical loss, his or
her life may have been shortened or that he or she
cannot enjoy life which has been curtailed because
of physical handicap. The normal expectation of
life is impaired....
* * *
6. ...Every method or mode adopted for
assessing compensation has to be considered in the
background of 'just' compensation, which is the
pivotal consideration. Though by the use of the
expression, 'which appears to be just', a wide
discretion is vested on the tribunal, the
determination has to be rational, to be done with a
judicious approach, and not the outcome of whims,
wild guesses, and arbitrariness.(para 15)
We proceed to deal with the amount awarded under
each head and examine whether the amount thereby
awarded is 'just' as hereunder:
(1) The amount already spent by claimant till date of
Tribunal award
7. The Tribunal in paragraph 25 of its order has
provided the split up of the amount of Rs. 1,23,848/-
awarded to the claimant. The Learned Tribunal arrived
at this amount based on the receipts of medical and
other inevitable expenses, incurred by the claimant,
until the date of its award. We find that the Learned
Tribunal has arrived at this figure in a proper and
reasoned manner, based on evidence. The amount
awarded under this head does not call for any
interference.
* * *
(2) Towards Physical Pains and Mental Shock
10. As regards enhancement of the amount of
Rs.2,00,000/-awarded under this head, two important
points from the above mentioned cases emerge, which
ought to be followed in determining compensation. In
Mahadeva Shetty's case [supra]:
A person not only suffers injuries on account of the
accident, but also suffers in mind and body on account
of the accident throughout his life and a feeling is
developed that he is no more a normal man and cannot
enjoy the amenities of life as a normal person can.
(Para 18)
In R. D. Hattangadi's case [supra], the Hon'ble Apex
Court laid down that:
when compensation is to be awarded for pain and
sufferings and loss of amenities of life, the special
circumstances of the claimant have to be taken into
account including his age, the unusual deprivation he
has suffered and the effect thereof on his future life.
11. In the present case, the Appellant was only 11
years old at the time of the accident. It needs no
mention that on account of the accident, the
Appellant has lost out on several pleasures of her
childhood and adolescence, including the ability to
move, run and play freely, as other children do.
She was a bright and promising student, yet her
condition may now be an impediment to not only
her success, but also everyday ordinary living.
Added to this are the physical and mental suffering
caused by her medical condition itself, its
treatment and the knowledge that she will never be
able to lead a normal life. Even looking after
personal hygiene has become difficult for her, as
the evidence shows. There is also the loss of
expectation of life i.e. the normal lifespan of the
person being shortened due to the injury, which
causes disappointment and stress. We also bear in
mind that if her life expectancy is now 55 years, she
must endure this inconvenience, disappointment
and suffering for as much as 28 years from now.
Keeping in mind the awards under this head to the
claimants in the aforementioned cases by the Hon'ble
Apex Court, we find it proper to increase the
compensation awarded 'towards physical pains and
mental shock', to the appellant to Rs. 4,00,000/-due to
the special circumstances of the case.
(3) Towards Loss of Amenities of Life
12. The Tribunal awarded Rs.1,00,000/-under this
head against the claim of Rs.5,00,000/-made by the
appellant. The Learned Tribunal referred to the
aforementioned principle in R. D. Hattangadi's case
[supra], and felt this amount was proper considering
these aspects. We find that this amount is inadequate.
This head must take into account all aspects of a
normal life that have been lost due to the injury
caused. As per R. D. Hattangadi's case [supra], this
includes a variety of matters such as the inability to
walk, run or sit etc. We include here too the loss of
childhood pleasures such as the free ability to play,
dance, run etc, the loss of ability to freely move or
travel without assistance. Then, there is the virtual
impossibility of marriage as well as a complete loss
of the ability to have sex and to have and nurture
children. On this count alone, in Mahadeva Shetty's
case [supra], the Hon'ble Apex Court had awarded
Rs.50,000/- where the claimant was a bachelor. In the
present case, keeping in mind these factors, and the
age and deprivation of the appellant, we increase the
sum awarded under this head to Rs.3,00,000/-.
* * *
(4) Towards Inevitable Expenses
21. We feel that objective of the Motor Vehicles Act
laying down a structured formula and utilizing the
Multiplier Method is to bring about uniformity in the
compensation amounts awarded by Courts. This Court
has earlier recognized this method to be logically and
legally well established in United India Insurance Co.
Ltd. v. Mandatai 1995 (1) TAC 68 (Bom). We
distinguish the judgment in Nizam's case [supra] from
the present matter before us, based on the fact that this
is a case of disability caused by motor accident and
not medical negligence. The circumstances of a case
of medical negligence where a doctor did not do
things which he ought to have done or did things he
ought not to have done and the circumstances of a
road accident are very different. It must be
remembered that the legislature has enacted the Motor
Vehicles Act, 1988, with the object of recognizing the
principles of fault and no - fault liability with respect
to motor accidents and bringing uniformity in
compensation awards for such cases. However, it is
not so with medical negligence cases, where liability
and compensation has always been determined by the
Courts themselves, having regard to the peculiar facts
of each case. We therefore cannot accept the argument
that the Multiplier Method need not be applied in this
case, based on the decision in Nizam's case [supra].
* * *
24...As per this progression, the multiplier in the
present case, for a victim below 15 years of age ought
to have been 19. However, we are also bound by the
judgment in Trilok Chandra's case [supra], where the
Hon'ble Apex Court held that even in cases under
Section 166 of the Act, the maximum multiplier to be
applied is 18, which was an increase from the existing
maximum value of 16 that was laid down earlier in
Susamma Thomas's case [supra]. The cap of '18' as the
maximum multiplier that may be applied in any case
has been reiterated in Sarla's case [supra] as well.
Hence we conclude that irrespective of the
mathematical progression in the schedule, the
maximum multiplier that may be applied is 18, even if
the victim is below 15 years. Thus, in the present case,
the multiplier to be applied for computing 'loss of
future income' for the victim is 18.
25. To compute the compensation, we will have to
assume an annual income in this case, as the appellant
did not work at the time of the accident, being only 11
years old. The Second Schedule specifies Rs.15,000/-
per annum to be assumed as income in case of non -
earning victims. However, we find this sum wholly
inadequate in the present time. Moreover, the
appellant was a bright student who seemed to be set
for a successful future, prior to the accident. In fact,
inspite of the accident, the appellant has managed to
complete her M. Com. which itself is testimony to her
potential. We feel that taking all contingencies,
calamities and disadvantages that may have occurred
in the appellant's normal future into account, to
consider an annual income of 1,00,000/is reasonable.
Applying the multiplier of 18 to this amount, the
appellant is entitled to Rs.18,00,000/-as compensation
towards loss of future income, which, if deposited at
standard interest rates, would accrue an interest
approximately equal to the assumed annual income.
26. To sum up, the appellant is entitled to
compensation as follows:
Expense Amount (Rs.)
1) Amount spent by claimant till 1,23,848/-
date of Tribunal award
2) Towards physical pains and 4,00,000/-
mental shock
3) Towards loss of amenities 3,00,000/-
of life
4) Towards inevitable expenses 23,25,000/-
5) Towards loss of future income 18,00,000/-
TOTAL 49,48,848/-"
(emphasis supplied)
10.5. In Oriental Insurance Co. Ltd. v. Naynaben Harshadkumar
Kotech, 2012 Indlaw Guj 549, the Division Bench of the Gujarat
High Court enhanced the compensation from `11,50,000/- to
`26,86,400/- in the case of 100% permanent disability due to
paraplegia with respect to the entire lower part of the body. The
victim was working in Indian Oil Corporation and he could not
walk and sit on his own and needed help/assistance. His left leg
was amputated and the right leg and the portion below the lower
part of the body became non-functional. The break-up of the
compensation awarded by the Gujarat High Court is as under:-
Medical Expenses : `5,00,000/-
Pain, Shock and Suffering : `3,00,000/-
Actual loss of income : `3,50,000/-
Damages to Scooter : `10, 000/-
Loss of future Income : `15,26,400/-
10.6. In Lopaben Saumilbhai Bhavnagari v. Sandip Suryakant
Shah, First Appeal No.2091/2011 decided on 17th February, 2012,
a victim of a road accident aged 32 years suffered paraplegia due to
the road accident which resulted in 100% permanent disability.
The claimant was married having two children. She was rendered
completely bed-ridden. She was unable to pursue even day to day
activities and needed continuous attention. The Gujarat High
Court held that a higher amount should have been awarded towards
pain, shock and suffering and enhanced the compensation from
`20,66,300/- to `25,66,300/-.
10.7. In Arun Sondhi v. DTC, I (2001) ACC 615, a final year
student aged 21 years pursuing B.A. course from St. Stephen‟s
College, Delhi suffered leg amputation and paralysis in a road
accident which resulted in 100% permanent disability. This Court
enhanced compensation from `8,68,781/- to `19,16,781/-. The
relevant portion of the judgment is reproduced hereunder:-
"4. It goes without saying that Appellant had become
crippled and permanently disabled forever. His
permanent disability was 100% and he was living
his life, whatever its worth, in a wheelchair. It is
also the admitted position that he had become
paraplegic and had lost control even over his urine
and stool. He required assistance of an attendant
and medical treatment all the time which involved
a recurring expenditure. His plight would not be
described in words, nor could his pain and
suffering, frustration and disappointments be
gathered or gauged. An athlete of yester-year must
be ruing his survival which had plunged him in a
veritable hell.
5. No money could obviously compensate him for all
this and consequently no reasonable compensation
could be determined for what he had and must be
going through. But all the same the Courts had to
undertake the exercise in the discharge of their duty if
only to compensate him to the extent payment of
money could. As was aptly observed in Ward V
James 1965 (1) APPER 56:-
"Although you cannot give a man so gravely injured
much for his lost year, loss during his shortened span,
that is, during his expected "years of survival". You
can compensate him for loss of earnings during that
time and for the cost of nursing treatment and
attendance. But how can you compensate him for
being rendered a helpless invalid. He has lost
everything that makes life worthwhile. Money is no
good to him. Yet Judges and Jurisdiction have to do
the best they can and give him what they think is fair.
No wonder they find it well neigh insoluble. They are
being asked to calculate the incalculable. The figure is
bound to be for the most part of converted sum."
6. Given regard to all this, it becomes difficult to
assess the non-pecuniary damages in the present
case because whatever amount was awarded to the
incapacitated and crippled Appellant, it would not
restore his broken body and shattered life. But all
the same an effort was required to be made to
grant him a reasonable compensation that could at
least mitigate his suffering and hardship had
reduce the intensity of his pain, if not provide him
bare minimum amenities and enjoyment of life.
* * *
9. At this stage, we noticed Supreme Court judgment
in A.K.Mishra Vs. Muniam Babu : [1999]2SCR518
awarding Rs. 5 lacs to a 23 year old youngman whose
special cord was damaged in the road accident, by and
large in similar circumstances. But this judgment, in
over view, does not lay down any generalised
principle or guideline for award of non-pecuniary
damages in serious accident injury case. The
determination of compensation in such cases would
depend on the facts and circumstances of each case
and notwithstanding the element of sympathy
involved with the accident victim. We are also
conscious of the fact that assessment of
compensation in such cases had to be on objective
standards and not based on any fanciful or
whimsical calculations. But since a bit of conjecture
was permissible, it presented no difficulty to make
provision for the recurring medical expenditure and
attendance for the Appellant and we feel that
estimated compensation for this was based on a
conservative estimate."
(emphasis supplied)
10.8. In New India Assurance Co. Ltd. v. Senthil Kumar, (2009) 2
LW 767, the victim of a road accident suffered fracture,
compression of spinal cord and paraplegia resulting in 100%
disability. The Madras High Court enhanced the compensation
from `8,53,000/- to `9,60,000/-. The relevant portion of the
judgment is as under:-
"11. In this case, the injured claimant suffered fracture
and compression of the spinal cord and has been
diagnosed as a paraplegic injury. According to
Webster Dictionary paraplegic means "complete
paralysis of the lower half of the body usually
resulting from damage to the spinal cord". The
disability assessed in this case under Ex.A-12 is 100%
and that is not in dispute. Therefore, adopting
multiplier method will be appropriate. In view of the
Full Bench decision in Cholan Roadways Corporation,
compensation under two heads, viz., loss of earning
power and for disability cannot be granted.
* * *
16. The Division Bench of this Court in United India
Insurance Co. Ltd. v. Veluchamy. 2005 (1) CTC 38
sets out the parameters as to when the multiplier
method can be adopted in the case of injury. In
Paragraph 11 of the decision reads thus:
11. The following principles emerge from the
above discussion:
(a) In all cases of injury or permanent
disablement 'multiplier method' cannot be
mechanically applied to ascertain the future
loss of income or earning power.
(b) It depends upon various factors such as
nature and extent of disablement, avocation
of the injured and whether it would affect his
employment or earning power, etc. and if so,
to what extent?
(c) (1) If there is categorical evidence that
because of injury and consequential
disability, the injured lost his employment or
avocation completely and has to be idle for
the rest of his life, in that event loss of income
or earnings may be ascertained by applying
the 'multiplier method' as provided under
the Second Schedule to Motor Vehicles Act,
1988.
(2) Even so there is no need to adopt the
same period as that of fatal cases as provided
under the Schedule. If there is no amputation
and if there is evidence to show that there is
likelihood of reduction or improvement in
future years, lesser period may be adopted
for ascertainment of loss of income.
(d) Mainly it depends upon the avocation or
profession or nature of employment being
attended by the injured at the time of
accident."
(emphasis supplied)
10.9. In Union of India v. Sham Lal, III (2010) ACC 174, the
claimant, working with All India Radio, became paraplegic due to
the road accident which resulted in 90% permanent disability.
Following R.D. Hattangadi (supra), the compensation was
enhanced from `6,67,200/- to `22,23,200/-. The break-up of the
compensation awarded by this Court is as under:-
Pain and Suffering : `1,50,000/-
Loss of amenities of life and loss of : `1,50,000/-
expectation of life
Pecuniary Damages : `10,56,000/-
Attendant Charges : `1,50,000/-
Conveyance : `15,000/-
Special Diet : `35,000/-
Loss of Income : `6,67,200/-
10.10. In Dr. Dattatraya Laxman Shinde v. Nana Raghunath Hire,
(2011) 5 Mah LJ 854, a young doctor suffered paraplegia in a
motor accident. The paraplegia affected both motor and sensory
below thoracic 12 with complete bladder and bowel involvement.
Following R.D. Hattangadi (supra) and Raj Kumar (supra), the
Bombay High Court enhanced the compensation from `8,85,000/-
to `34,50,000/-. The relevant portion of the judgment is as under:-
"23. In the present case, the Appellant will never be
able to practice medicine. He will not be able to
continue as a lecturer due to physical disability.
Moreover, witness examined by the Appellant
admitted that the Appellant is not qualified for the
post of a lecturer as he is not holding a post graduate
degree. He is incapable of earning any income. No
argument is necessary to come to the conclusion that
this is a case of 100% loss of earning capacity. In the
year 1993, the income of the Appellant as a lecturer
was around Rs. 4,200/-. The Appellant had an
excellent academic record. It is obvious that the
income of the Appellant would have been much
higher than Rs. 4,200/-. In a matter like this, exercise
of determining the compensation always involves an
element of guess work. Looking to the academic
record of the Appellant, the income can be reasonably
taken at Rs. 6,000/- per month. Multiplier of 18 will
have to be applied as on the date of the accident the
age of the Appellant was about 25 years. Applying
multiplier of 18, the loss of income can be quantified
at Rs. 12,96,000/-(Rs. 6000 × 12 × 18). As pointed out
earlier, the entire body of the Appellant below waist
has become paralytic and he has no control over
bladder and bowel movement. He regularly requires
catheterisation. As stated by Dr. Joshi, he requires an
attendant for 24 hours. Even if the conservative
estimate of cost of one attendant is taken at Rs. 200/-
per day, the amount will be Rs. 6,000/- per month.
Adopting multiplier method, the total amount will
come to Rs. 12,96,000/-.
24. As far as claim of expenditure on medical
treatment is concerned, it is brought on record that the
Appellant was admitted in three different hospitals in
Pune and in hospitals at Karad and Satara. The
Appellant was also admitted to the institution at
Coimbatore for a period of more than two months. Lot
of expenditure must have been incurred on travelling
and residence of the relatives and friends of the
Appellant. The bills evidencing expenditure on
medicines, medical treatment, special diet, travelling
expenses and residence of the relatives and friends of
the Appellant have been produced on record. There
are four lists of documents marked as 85/1 to 85/4.
Along with the said four lists, voluminous original
documents such as bills, vouchers etc. have been
produced on record. As expected, none of the
documents were admitted by the Respondent No. 3.
Perhaps the Respondent No. 3 wanted that large
number of witnesses should be examined to prove the
documents. In the examination-in-chief, the Appellant
has made a reference to all the bills and vouchers. The
Tribunal constituted under the said Act is not bound
by strict rules of evidence. Therefore, the said bills
and vouchers ought to have been taken into
consideration by the Tribunal in absence of the
specific case made out that the documents were
fabricated. The total amount reflected from the said
bills and vouchers is Rs. 1,54,526/-, which can be
rounded off to Rs. 1,55,000/-. Therefore, no separate
amount can be awarded by the Tribunal for purchasing
equipment such as chair, water bed etc.
25. Evidence of Dr. Joshi indicates that the Appellant
will have to continuously remain under medication.
Dr. Joshi has stated that such patients who are
suffering from paraplegia can suffer many ailments. In
paragraph 5 above, the detailed version of Dr. Joshi on
the treatment required in future has been reproduced.
Dr. Joshi has said "The parapleagic patients are
known to go into severe depressions and sometimes
result is suicide. Parapleagic are known to have
severe rediating pain in both legs and back which
is neurological in origin. In addition to this, they
suffer from multiple bladder infections which may
led to superadded kidney infection and also
injuries to both legs due to loss of sensation.
Besides which a previously walking about patient
sees a futile future and this leads him to suicidal
tendency. The neuronal irritation gives rise to
severe burning pains in both the legs. All these
symptoms stated above were found in the said patient
Dr. Shide. For subsiding this pains, tablets like
Mazetol are given i.e. antiepileptic drug. The side
effect of this medicine is mainly drowziness, grastic
irritation, with reflex depression. It also affects
appetite with the loss of appetite with decrease in
multi-vitamins in the body. Such type of patient is
required supplementation of multi-vitamins along with
high protein diet. These patients require self
catheterisation to remove the urine from the
bladder from time to time. This could lead to
multiple episodes of infections which have to be
treated by higher antibiotics. Also these patients
are required to sleep on a water bed or aid-bed to
avoid pressure sores over the legs and buttocks. In
addition to that the patient requires high protein
diet along with multi-vitamin supplementation and
enema frequently to regularise the bowel
movements. They require passive physiotherapy
for both the lower limbs. Usually at night time,
tranquillizers are given to help the patient sleep. At
times, there is a reflex spasm of the lower limbs in
certain patients which usually develops between 4
to 6 years and for which tranquillizers is given. The
supplementary food contains high fiber and protein
contain." The Tribunal has granted only a sum of Rs.
1,00,000/- for future expenses on treatment. The
Appellant will require large amount in future on
medicines and equipment like wheelchairs, water bed,
catheters etc. Even by a conservative estimate, the said
amount cannot be less than Rs. 2,50,000/-.
26. The real problem is in determining non-pecuniary
loss because there are no fix standards for assessing
the non-pecuniary loss. In a case like this where the
victims suffer from paraplegia, the non-pecuniary
loss will be basically under the following headings.
i. pain and suffering;
ii. loss of amenities of the life; and
iii. loss or destruction for prospects of
marriage.
As far as first two items are concerned, in cases of
a child or young person, who suffers paraplegia,
the amount will be much higher than the
entitlement of a person who suffers paraplegia at a
comparatively late age. Therefore, there is variance
in the amounts fixed by this Court as well as the Apex
Court in such cases. The Apex Court and this Court in
its various decisions has granted amounts ranging
from Rs. 1,00,000/- together under the first two
headings to a very high amount. In the case of Nizam's
Institute of Medical Sciences (supra), where the Apex
Court was dealing with a case arising out of an order
passed by the Consumer Redressal Forum, a very high
amount of Rs. 10,00,000/- has been granted on
account of the pain and suffering. That was a case of
engineering student aged 20 years, who was a victim
of medical negligence. The case before the Apex
Court was of a young student who being the victim of
paraplegia was confined to wheelchair, and who
pursued career in education and ultimately got
employed as I.T. engineer at a handsome salary.
Reliance was placed on the judgment of the Division
Bench in the case of The New India Assurance Co.
Ltd. v. Shweta Dilip Mehta (supra). This Court dealt
with the injury sustained by a minor child aged 11
years, who became paraplegic as a result of
accidental injuries. In the facts of the case, this
Court granted total amount of Rs. 4,00,000/- on
account of pain and suffering. In the present case the
compensation cannot be granted on account of loss of
amenities of life in view of what is held by the Apex
Court in the case of Raj Kumar. In paragraph 15 of the
decision, the Apex Court held that:
"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."
(emphasis supplied)
27. In the case of Divisional Controller, Karnataka
State Road Transport Corporation v. Mahadeva
Shetty (supra), the Apex Court granted a sum of
Rs. 1,00,000/- in case of similar injuries. Ultimately,
the amount will depend on facts of each case. It will
depend upon the age of the victim, his social status,
his marital status, his family background etc. It
cannot be overlooked that a young person like the
Appellant who suffers from paraplegia, also suffers
in mind and in the given case, such a person may
become a patient of a psychological disorder.
Paraplegia can have devastating effect on the mind
of a person like the Appellant, who had a brilliant
academic career and who was aiming to pursue
post graduate studies in Ayurvedic Medicine. It
must be borne in mind that the accident occurred
in the year 1993. The Appellant was unmarried at
the time of the accident. The Appellant had
responsibility of family consisting mother and two
younger brothers. The impact of all these factors
will have to be considered. The amount granted on
this count by the Apex Court and Division Bench
of this Court is in the range of Rs. 1,00,000/- to Rs.
4,00,000/-. Considering the facts of this case,
compensation on account of pain and suffering
deserves to be fixed at Rs. 3,75,000/-. As the
compensation has been granted on account of
100% loss of earning capacity, separate amount
cannot be granted on account of loss of amenities
of life. In the case of Divisional Controller,
Karnataka State Road Transport
Corporation v. Mahadeva Shetty (supra), the Apex
Court approved compensation of Rs. 75,000/-
granted by the Tribunal on account of complete
loss of prospects of marriage. The same amount
deserves to be granted in this case.
28. With this Judgment a long drawn litigation has
come to an end as far as this Court is concerned. Costs
of the appeal will have to be quantified at Rs. 20,000/-
29. Thus, the entitlement of the Appellant to
compensation is as under:
a. Loss of income Rs. 12,96,000/-;
b. Cost of attendant Rs. 12,96,000/-;
c. Expenditure on medicines, treatment,
conveyance Rs. 1,55,000/-;
d. Compensation on account of pain and
suffering Rs. 3,75,000/-;
e. Compensation on account of loss of
prospects of the marriage Rs. 75,000/;
f. Compensation on account of medical
expenditure in future Rs. 2,50,000/-;
Thus, the total compensation should be
Rs. 34,47,000/-. This figure can be
rounded off to Rs. 34,50,000/-.
30. After taking into consideration a sum of Rs.
8,85,000/- granted by the Tribunal, the Appellant will
be entitled to enhancement of Rs. 25,65,000/-. As far
as amount of Rs. 2,50,000/- is concerned, the interest
will not be payable from the date of the accident and
the interest will be payable from the date of this
judgment. Interest on the remaining enhanced amount
of Rs. 23,15,000/- will have to be granted at the rate of
7.5% per annum."
(emphasis supplied)
11. Findings
11.1 Pain and Suffering
The appellant has suffered 80% permanent disability in respect of
the whole body due to complete paraplegia below chest level
including the bladder and bowel sphincters. There is no sensation
below the chest level and the appellant has no control over natural
calls. She is in total anguish, discomfort, disappointment and
frustration as the same is luminescent from her condition.
According to the medical opinion, the dense sensory loss and
bladder/bowel involvement is incurable; the injuries suffered by
the appellant are likely to affect the longevity of her life; the
disability of 80% could also increase in future and the appellant
could also develop many other complications because of the
involvement of bladder and bowel.
The appellant appeared before this Court on 25th May, 2012 and
her condition was seen. The appellant was brought on a
wheelchair by her parents and was unable to stand due to post
traumatic mylopathy (level T-6) with complete paraplegia (power
grade-0) with dense sensory loss and bladder and bowel
involvement with B/L ankle and right knee contracture. However,
she appeared to be very ambitious to continue her education.
In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka
(supra), the Supreme Court has awarded compensation of
`10,00,000/- towards pain and suffering whereas in the case of
Kavita v. Deepak (supra), the Supreme Court has awarded
compensation of `3,00,000/- towards pain and suffering. In New
India Assurance Co. Ltd. v. Shweta Dilip Mehta (supra), the
Division Bench of the Bombay High Court dealt with the injury
sustained by a minor child aged 11 years, who became paraplegic
as a result of accidental injuries. The Court granted total amount of
`4,00,000/- on account of pain and suffering.
The Claims Tribunal has awarded compensation of `75,000/-
towards pain and suffering which is inadequate. Following the
aforesaid judgments, the compensation for pain and suffering is
enhanced from `75,000/- to `3,00,000/-.
11.2. Loss of Amenities of Life
On account of the permanent disability, the appellant has lost out
on several pleasures of her childhood and adolescence, including
the ability to move, run and play freely, as other children do. She is
a bright and promising student, yet her condition is now an
impediment to not only her success, but also everyday ordinary
living. Added to this are the physical and mental suffering caused
by her medical condition itself, its treatment and the knowledge
that she will never be able to lead a normal life. Even looking after
personal hygiene has become difficult for her. There is also the loss
of expectation of life i.e. the normal lifespan of the person being
shortened due to the injury, which causes disappointment and
stress. Taking her life expectancy as 65 years as per the World
Bank Report of 2010, she has to endure this inconvenience,
disappointment and suffering for as much as 46 years from now.
The dream of the appellant of having a successful career was
shattered by the accident making it difficult to assess compensation
in such cases.
As held in R. D. Hattangadi's case (supra), the head of amenities of
life includes variety of matters such as the inability to walk, run or
sit etc. This head also includes the loss of childhood pleasures such
as the free ability to play, dance, the loss of ability to freely move
or travel without assistance, etc. In New India Assurance Co. Ltd.
v. Shweta Dilip Mehta (supra), the Bombay High Court awarded
compensation of `3,00,000/- towards loss of amenities of life.
The Claims Tribunal has awarded `50,000/- towards loss of
amenities of life, discomfort and inconvenience and `3,00,000/-
towards loss of expectation of life. The loss of expectation of life
is not a separate head. The compensation of `3,50,000/- is,
therefore, treated as under the head of loss of amenities of life
which takes into account all aspects of a normal life that have been
lost due to the injury caused and does not warrant any
enhancement.
11.3. Loss of Matrimonial Prospects
In Divisional Controller, KSRTC v. Mahadeva Shetty (supra), the
Apex Court had awarded `75,000/- towards loss of matrimonial
prospects. In Dr. Dattatraya Laxman Shinde v. Nana Raghunath
Hire (supra), the Bombay High Court awarded compensation of
`75,000/- towards loss of prospects of marriage relying on the
Mahadeva Shetty's case (supra).
The Claims Tribunal has awarded `50,000/- towards loss of
matrimonial prospects. Taking into consideration that there is the
virtual impossibility of marriage as well as a complete loss of the
ability to have sex and to have and nurture children, `75,000/- is
awarded to the appellant for loss of matrimonial prospects.
11.4. Loss of Earning Capacity
The Claims Tribunal has not awarded any compensation for loss of
earning capacity due to the permanent disability. Although the
permanent disability of the appellant is 80%, the functional
disability is held to be 100% as she has no sensation below chest
level and she is unable to do any work. The appellant is entitled to
compensation for loss of earning capacity due to 100% functional
disability. The appellant was a student of nursery standard at the
time of the accident and has somehow pursued her education
despite paraplegia and 80% permanent disability. She attends her
school on a wheelchair. This shows that the appellant is a bright
student and would have pursued good career in life.
In Municipal Corporation of Delhi v. Association of Victims of
Uphaar Tragedy , AIR 2012 SC 100, the Supreme Court has
awarded `10 lakhs to the victims aged more than 20 years and `7.5
lakhs to the victims aged less than 20 years. In that case, the
multiplier of 15 was applied and 1/3rd was deducted towards the
personal expenses which means that the Court has assumed the
income of the victims aged more than 20 years to be `8,333/- per
month and that of victims aged less than 20 years to be `6,249/-
per month.
The appellant would have started earning after attaining the age of
20 years. Following the aforesaid judgment of the Supreme Court
in Municipal Corporation of Delhi v. Association of Victims of
Uphaar Tragedy (supra) which relates to a case of 1997, this Court
is of the view that it can safely be assumed that the deceased would
have earned at least `8,333/- per month. In the present case, the
deduction is not permissible as the appellant is alive. Applying
multiplier of 18, the loss of earning capacity of the appellant is
computed to be `17,99,928/- (`8,333/- x 12 x 18).
11.5. Loss of Education
The appellant is claiming tuition fee of `2,000/- per month to
continue her studies. The appellant was aged 6 years at the time of
the accident and was studying in nursery class. She has somehow
completed her education on a wheelchair and is now 19 years old
studying in 12th standard. The appellant secured first position in 4th,
5th and 7th standard in her school and has been an exceptional and
hardworking student as per Exhibit AW-1/1(Colly).
The Claims Tribunal has awarded `2,00,000/- towards loss of
education which would cover this head and, therefore, no further
compensation is warranted.
11.6. Disfiguration
The appellant has been totally disfigured due to the accident.
However, the Claims Tribunal has not awarded any compensation
under this head. `50,000/- is awarded to the appellant under this
head.
11.7. Future Treatment
The appellant has claimed future treatment of `25,000/- per year on
the ground that she is unable to sense the nature call of urination,
frequently suffers infection and requires regular medical treatment.
`2,00,000/- is awarded towards future treatment on the ground that
the said amount is kept in fixed deposit and the interest thereon
should be sufficient to meet this expenditure.
11.8. Cost of Wheelchairs
The appellant has claimed `12,50,000/- towards cost of
wheelchairs for the next 15 years on the ground that the cost of
each wheelchair is `20,000/- and the life of wheelchair is about
two years. The appellant has been also advised to use the
motorized wheelchair which costs around `1,25,000/-. The amount
claimed by the appellant on this head appears to be exorbitant.
`1,00,000/- is awarded towards cost of wheelchairs.
The appellant has claimed `2,000/- towards the cost of special
wheelchair for bathing as she cannot walk. The amount is
reasonable and is so awarded.
The appellant has claimed `5,000/- towards the special commode
chair as she is unable to use normal toilet. The amount claimed is
reasonable and is so awarded.
11.9. Future Attendant Charges
The appellant is seeking enhancement of compensation towards the
attendant charges @`4,000/- per month for next 15 years. The
appellant cannot stand or walk and she moves on a wheelchair
which requires a continuous attendant. The compensation of
`4,80,000/- awarded by the Claims Tribunal is fair and reasonable
and does not warrant any enhancement.
11.10. Conveyance and Future Conveyance
The Claims Tribunal has awarded `70,000/- towards conveyance
and `50,000/- towards future conveyance which appear to be
grossly inadequate. The appellant shall have to move on
wheelchair for the rest of her life. The appellant shall have to incur
huge expenditure on private transport for carrying the wheelchair.
The compensation of `1,50,000/- is awarded to the appellant
towards conveyance and future conveyance on the ground that the
said amount be kept in fixed deposit and the interest thereon should
be sufficient for the appellant to meet the conveyance charges.
11.11. Cost of Special Garments
The appellant has made a claim for special undergarments costing
`500/- each for the next 15 years. `50,000/- is awarded under this
head on the ground that the said amount be kept in fixed deposit
and the same should be sufficient to meet the expenses under this
head.
The appellant has also claimed the cost of the jacket to be worn on
a wheelchair. The appellant has been advised by a doctor to wear a
jacket to balance her body on a wheelchair which costs `35,000/-
and has a life of about one year. `50,000/- is fair and reasonable
under this head and is so awarded.
11.12. Physiotherapy
The appellant has claimed the cost of the physiotherapist @`500
per visit. `1,00,000/- is awarded under this head on the ground that
the said amount be kept in fixed deposit and the interest thereon
should be sufficient to meet the expenses under this head.
11.13.Interest
The Claims Tribunal has awarded interest @6% per annum which
is on a lower side. In Municipal Corporation of Delhi v.
Association of Victims of Uphaar Tragedy (supra) and Subulaxmi
v. Tamil Nadu State Transport Corporation, 2012 (10) SCALE
617, the Supreme Court has awarded interest @9% per annum
from the date of filing of claim petition. Following the aforesaid
judgments, the rate of interest is enhanced from 6% per annum to
9% per annum from the date of filing of claim petition.
11.14. The appellant is entitled to total compensation of
`41,19,928/- as per break-up given hereunder:-
Pain and suffering : `3,00,000/-
Loss of amenities of life : `3,50,000/-
Disfiguration : `50,000/-
Loss of matrimonial prospects : `75,000/-
Loss of Education : `2,00,000/-
Loss of earning capacity : `17,99,928/-
Compensation towards cost of treatment : `50,000/-
Future treatment : `2,00,000/-
Physiotherapy : `1,00,000/-
Conveyance and future conveyance : `1,50,000/-
Cost of attendant : `1,08,000/-
Future attendant charges : `4,80,000/-
Special diet : `50,000/-
Cost of wheelchairs : `1,00,000/-
Cost of special wheelchair for bathing : `2,000/-
Cost of special commode chair : `5,000/-
Cost of special undergarments : `50,000/-
Cost of jacket to be worn on wheelchair : `50,000/-
Total : `41,19,928/-
12. Conclusion
12.1. In the facts and circumstances of this case, the appeal is
allowed and the compensation is enhanced from `15,13,000/- to
`41,19,928/- along with interest @9% per annum from the date of
filing of the claim petition till realization.
12.2. The enhanced award amount along with up to date interest
be deposited by the respondent with the UCO Bank, Delhi High
Court Branch by means of a cheque drawn in the name of UCO
Bank A/c Ritu within 30 days. Upon the aforesaid amount being
deposited, UCO Bank shall keep the said amount in fixed deposit
till further orders.
12.3. The order of disbursement of the said amount shall be passed
after examining the appellant.
12.4. List for appearance of the appellant on 1st February, 2013.
12.5. Copy of this judgment be sent to the parties.
J.R. MIDHA, J
DECEMBER 07, 2012
