Sri. Basavaraj S/O Tippesh ... vs Sri. Umesh S/O. Ningappa ...
2022 Latest Caselaw 403 Kant

         IN THE HIGH COURT OF KARNATAKA,
                                                   R
                  DHARWAD BENCH

       DATED THIS THE 11TH DAY OF JANUARY 2022

                         PRESENT

        THE HON'BLE MR. JUSTICE S.G. PANDIT

                           AND

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

              M.F.A. No.103473/2017 (MV)

BETWEEN:

SRI.BASAVARAJ S/O TIPPESH CHAKRASALI
AGE:21 YEARS, OCC: NIL,
R/O: SANGAMESHWAR NAGAR,
NEAR KOTTURESHWARA MATH,
RANEBENNUR, DIST:HAVERI-581 115.
                                        ...APPELLANT
(BY SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE)

AND

1.    SRI.UMESH S/O. NINGAPPA SHETHSANADI
      AGE: MAJOR, OCC: OWNER OF THE LORRY,
      MH-12/Q-9760, MARATHAGALLI,
      R/O LINGADAHALLI, TQ:RANEBENNUR,
      DIST: HAVERI-581 115.

2.    SHRI RAM GENERAL
      INSURANCE CO.LTD
      E-8, EPIP, RIICO, INDUSTRIAL AREA,
      SITAPUR, JAIPUR,
      RAJASHTAN STATE-302022.
                                         ...RESPONDENTS
(BY SRI. SURESH S GUNDI, ADVOCATE FOR R2,
 NOTICE TO R1 IS DISPENSED WITH)
                                2



     THIS APPEAL IS FILED UNDER SECTION 173(1) OF
MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT AND
AWARD DATED 04.08.2016 PASSED IN MVC NO.49/2012 ON
THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND
MEMBER,   ADDITIONAL   MACT,  RANEBENNUR,    PARTLY
ALLOWING THE CLAIM PETITION FOR COMPENSATION AND
SEEKING ENHANCEMENT OF COMPENSATION.

    THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
ANANT RAMANATH HEGDE J., DELIVERED THE FOLLOWING:


                          JUDGEMENT

The task of adjudicating quantum of compensation

payable under the non-pecuniary heads like pain and

suffering, loss of amenities in life and loss of expectation of

life, is not easy though appears to be easy. The task gets

a bit more difficult if the claimant suffers a permanent

disability at a young age. While quantifying the

compensation under the non-pecuniary heads, the courts

need to pause and ponder, particularly in a situation when

the claimant suffers permanent disability.

2. Faced with a situation, where the claimant who

suffered 40% permanent disability around his pelvic

region, (on account of injuries which are referred later)

claimed compensation of Rs.11,75,000=00, the Tribunal

awarded a compensation of Rs.3,73,988=00. The doctor

who treated the claimant assessed permanent disability at

40%. The doctor has opined that the claimant is unable to

achieve a penile erection and nocturnal penile tumescence

and thereby unable to copulate. According to the doctor,

the condition is irreversible. Thus, the claimant who was

aged 14 at the time of the accident, is in appeal. The

insurer having admitted the liability has not questioned the

award. However, is opposing the appeal for enhancement

with all vehemence. Though, this appeal is listed for

admission, with the consent of learned counsel for both the

parties, the same is taken up for final disposal. The owner

has not contested the claim petition and this appeal.

3. The very object of awarding compensation

under non-pecuniary heads in a case relating to death or

permanent disability is to restore, as far as possible, the

position of the victim, to the situation that existed before

the accident. In case of death or case of permanent

disability, though the attempt is to restore the position of

the claimant before the accident, no amount of

compensation would restore the things as they stood

before the accident. Tribunals and Courts are entrusted

with the task of awarding compensation to mitigate the

suffering to the best possible extent. However, the object

of awarding compensation is not to confer a windfall on the

claimant. The court/tribunal has to balance the conflicting

claim of the victim and the tortfeasor. Bearing these

principles in mind, this Court heard the submissions made

by the learned counsel for contesting parties.

4. Relevant facts necessary for adjudication of

this appeal.

5. The petitioner who was walking on the road

along with his father, is the victim of the unfortunate

accident which occurred on 18.09.2011. The lorry bearing

Reg. No.MH-12/QA-9760 came from behind and dashed

against the petitioner. The petitioner sustained grievous

injuries and initially was shifted to OM Hospital,

Ranebennur then to S.S. Hospital, Davanagere and later to

Kasturba Hospital, Manipal. The petitioner underwent two

surgeries and was inpatient for 13 days.

6. According to the petitioner, he was a student

and was also working as a supplier in a hotel. It is the case

of the claimant that he has suffered a fracture of pubic

rami, ruptured urethra, pelvic fracture and fracture of

inferior ramus of the right hip bone resulting in permanent

disability. The compensation awarded by the Tribunal is as

under:

     Sl.No                 Heads                 Amount(in Rs)
     1        Pain and Suffering                          50,000.00
     2        Medical expenses                          1,04,988.00
     3        Towards     diet,    food   and             50,000.00
              nourishment charges, attendant
              charges and conveyance
     4        Loss of income during the laid                    Nil
              up period
     5        Towards loss of future prospects            54,000.00
     6        Loss    of     amenities    and             50,000.00
              enjoyment of life
     7        Towards loss of education                   35,000.00
     8        Towards      future      medical            30,000.00
              expenses
              Total                                     3,73,988.00

7. Learned counsel for the claimant inviting the

attention of the Court to Ex.P.13-disability certificate

issued by the doctor, would urge that given the fact that

the claimant has suffered permanent disability, the

compensation awarded by the Tribunal is on the lower

side.

8. Placing reliance on the above-said certificate

and the evidence of three doctors, the learned counsel for

the claimant would submit that, the marriage prospect of

the petitioner is severely jeopardized and he cannot marry

and have a family. According to the learned counsel, the

disability sustained by the petitioner, being a permanent

disability, award of compensation of Rs.50,000/- for loss of

amenities is extremely conservative and the compensation

requires to be enhanced substantially on the head of loss

of amenities and enjoyment of life. It is further urged that

given the nature of injuries sustained by the claimant and

the kind of trauma undergone by the claimant,

compensation of Rs.50,000/ awarded under the head of

pain and suffering is also grossly inadequate.

9. The learned counsel for the respondent-insurer

defending the impugned judgment and award would

contend that the compensation awarded by the Tribunal is

just and fair. It is further contended that the claimant was

not a student as claimed and it is urged that award of

Rs.35,000/- towards loss of education is unjustified.

10. This Court has perused the certificate dated

02.09.2013, marked as Ex.P13, issued by the Head of

Department of Urology, Kasturba Hospital, Manipal and

also his testimony before the Tribunal. The certificate

reveals that the petitioner has suffered a pelvic fracture,

urethral fracture and has undergone urethroplasty on

24.11.2011 and re-do urethroplasty on 18.06.2013. The

certificate further reveals that the claimant is unable to

achieve a penile erection and nocturnal penile tumescence.

The certificate further reveals that the petitioner is unable

to copulate in future. The doctor who issued the certificate

is examined as PW.4.

11. From the evidence placed before the Tribunal,

it can be safely concluded that the petitioner has suffered

permanent disability in respect of his sexual organ, as well

as around hip. The doctor has opined that the situation is

irreversible. There is no marriage prospect for the

petitioner. The loss of the petitioner, who is deprived of

marriage prospects and pleasure of marital life and having

children, cannot be adequately compensated in terms of

money. Nevertheless, to mitigate the pain and agony,

monetary compensation is to be awarded. The quantum of

compensation to be awarded by the Tribunal depends upon

the gravity of the injury, the pain and agony suffered by

the claimant. There should be some logical and rational

nexus between the compensation awarded and the pain

suffered by the claimant. The compensation should offer

solace to the victim of the accident. As observed above,

the petitioner who is aged 14 years has suffered an injury

to his sexual organ causing permanent disability. Ex.P14

is the disability certificate issued by the doctor and said

certificate reveals the petitioner has suffered 40%

permanent physical disability and loss of physical function

concerning the pelvic region. Under the circumstance, the

award of Rs.50,000/- on the head of loss of amenities and

enjoyment of life is extremely conservative, to say the

least. Award of Rs.54,000=00 under the head loss of

future earning capacity and award of Rs.50,000=00 under

the head loss of amenities and enjoyment of life are not in

sync with the settled principles governing compensation.

In fact, the award under these two heads cannot be

termed as compensation at all.

12. Before deciding on the quantum of

compensation payable under the non-pecuniary heads, it is

useful to refer to the decision of the Hon'ble Apex Court in

the matter of Rekha Jain Vs National Insurance

Company ( 2013 ) 8 SCC 389. The Hon'ble Apex Court

while dealing with the compensation payable to a victim of

a motor vehicle accident under the pecuniary and non-

pecuniary heads has referred to various judgments

rendered by the Apex Court, High Court as well as English

Courts. The Hon'ble Apex Court has held that, while

awarding compensation in case of personal injuries, the

court has to take into account the human rights angle. The

Apex court has said, possession of one's own body is the

first and most valuable of all human rights and bodily

injury should be equated with deprivation of basic human

rights which entitles compensation depending upon the

gravity of the injury. It is also useful to quote some of the

paragraphs of the above-said judgment, wherein the

Hon'ble Apex Court has referred to various authoritative

decisions and the texts.

"32. Further, Lord Blackburn in Livingstone v. Rawyards Coal Co. [(1880) 5 App Cas 25 (HL)] has held as under (AC p.

39)"... where any injury is to be compensated by damages, in settling the sum of money to be given ... you should as nearly as possible get at that sum of money which will put the party who has been injured ... in the same position as he would have been in if he had not sustained the wrong... ."

"24. In deciding on the quantum of damages to be paid to a person for the personal injury suffered by him, the court is bound to ascertain all considerations which will make good to the sufferer of the injuries, as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him." (K.

Narasimha Murthy case [K. Narasimha

Murthy v. Oriental Insurance Co. Ltd., ILR 2004 KAR 2471], ILR pp. 2483-84, para 24)

35. Further, a Division Bench of the Karnataka High Court in Basavaraj v. Shekar [ILR 1987 KAR 1399] has held as under: (ILR pp. 1403-404, para 8)

"8. ... If the original position cannot be restored--as indeed in personal injury or fatal accident cases it cannot obviously be--the law must endeavour to give a fair equivalent in money, so far as money can be an equivalent and so 'make good' the damage."

"26. Therefore, the general principle which should govern the assessment of damages in personal injury cases is that the court should award to injured person such a sum of money as will put him in the same position as he would have been in if he had not sustained the injuries. But, it is manifest that no award of money can possibly compensate an injured man and renew a shattered human frame." (K. Narasimha Murthy case [K. Narasimha Murthy v. Oriental Insurance Co. Ltd., ILR 2004 KAR 2471] , ILR p. 2484, para 26)

(emphasis supplied)

36. Lord Morris of Borth-y-Gest in Parry v. Cleaver [1970 AC 1 : (1969) 2 WLR 821 : (1969) 1 All ER 555 (HL)] has said: (AC p. 22A)

"... To compensate in money for pain and for physical consequences is invariably difficult but ... no other process can be devised than that of making a monetary assessment."

(emphasis supplied)

37. The necessity that the damages should be full and adequate was stressed by the Court of Queen's Bench in Fair v. London and North Western Railway Co. [Fair v. London and North Western Railway Co., (1869) 21 LT (NS) 326 (QB)] In Rushton v. National Coal Board [(1953) 1 QB 495 : (1953) 1 WLR 292 : (1953) 1 All ER 314 (CA)] Singleton, L.J. has said that: (Rushton case [(1953) 1 QB 495 : (1953) 1 WLR 292 : (1953) 1 All ER 314 (CA)] , QB pp. 498-99)

"When damages have to be assessed in a case of this kind there are many elements for consideration: the pain and suffering undergone and that which may occur in the future; the loss of some of the amenities of life; the fact that a man with an injury of this kind will always require some measure of help, even though he may be able to earn considerable money. These are some of the matters which have to be taken into consideration, and another is the fact that his earnings will probably be less than they were before."

(emphasis supplied)

38. In Fowler v. Grace [(1970) 114 Sol Jo 193 (CA)] Edmund Davies, L.J. has said that:

"It is the manifest duty of the Tribunal to give as perfect a sum as was within its power'. There are many losses which cannot easily be expressed in terms of money. If a person, in an accident, loses his sight, hearing or smelling faculty or a limb, value of such deprivation cannot be assessed in terms of market value because there is no market value for the personal asset which has been lost in the accident, and there is no easy way of expressing its equivalent in terms of money. Nevertheless a valuation in terms of money must be made, because, otherwise, the law would be sterile and not able to give any remedy at all. Although accuracy and certainty were frequently unobtainable, a fair assessment must be made. Although undoubtedly there are difficulties and uncertainties in assessing damages in personal injury cases, that fact should not preclude an assessment as best as can, in the circumstances be made."

(emphasis supplied)

40. It is well-settled principle that in granting compensation for personal injury, the injured has to be compensated (1) for pain and suffering; (2) for loss of amenities; (3) shortened expectation of life, if any; (4) loss of earnings or loss of earning capacity or in some cases for both; and (5) medical treatment and other special damages. In personal injury cases the two main elements are the personal loss and pecuniary loss. Cockburn, C.J. in Fair case [Fair v. London and North

Western Railway Co., (1869) 21 LT (NS) 326 (QB)] , distinguished the above two aspects thus:

"In assessing the compensation the jury should take into account two things, first, the pecuniary loss the plaintiff sustains by the accident; secondly, the injury he sustains in his person, or his physical capacity of enjoying life. When they come to the consideration of the pecuniary loss they have to take into account not only his present loss, but his incapacity to earn a future improved income."

42. In R. Venkatesh v. P. Saravanan [(2001) 1 Kant LJ 411] the High Court of Karnataka while dealing with a personal injury case wherein the claimant sustained certain crushing injuries due to which his left lower limb was amputated, held that in terms of functional disability, the disability sustained by the claimant is total and 100% though only the claimant's left lower limb was amputated. In para 9 of the judgment, the Court held as under: (Kant LJ p. 415)

"9. As a result of the amputation, the claimant had been rendered a cripple. He requires the help of crutches even for walking. He has become unfit for any kind of manual work. As he was earlier a loader doing manual work, the amputation of his left leg below the knee, has rendered him unfit for any kind of manual work. He has no education. In such cases, it is well settled that the economic and functional disability will have to be treated as total, even though the physical disability is not 100%."

13. Keeping in mind the above-said principles

governing the award of compensation on non-pecuniary

heads this court has to guestimate the compensation

payable to the claimant. As already noted above the

disability suffered by the claimant is irreversible which

destroyed his marriage prospect. Even if married, the

claimant is not in a position to perform certain conjugal

obligations. The claimant is deprived of conjugal bliss. The

claimant cannot have children of his own.

14. The concept of the institution of marriage is

one of the noblest concepts evolved by society. Marriage,

in addition to providing support, happiness, companion and

progeny will also confer purpose and meaning to life.

Married life opens up one of the most important facets of

life. After marriage, the married couple lives for one

another sharing the responsibility, pleasure and sorrow of

life. Children bring a source of joy and hope. Since the

marriage prospect of the claimant is wiped out, the

claimant is deprived of all the pleasure and benefits of

married life. The loss is so huge and is incapable of

evaluation in terms of money.

15. Given the kind of disability suffered by the

claimant, the mental trauma which the claimant has to

undergo for the rest of his life, is much more painful than

the physical pain that he has suffered immediately after

the accident. The mental trauma of having to remain

single, and answering the curious questions posed by the

people around throughout life, for not getting married, are

some of the things not easy to cope with. The trauma is

going to be perennial and unabated. Such being the

position, the duty is cast upon the Tribunals and Courts to

award just compensation to ensure that the unbearable

mental trauma is mitigated to the extent possible and the

claimant can live with some dignity and find some solace in

the monetary compensation awarded.

16. It is also important to note that the

compensation payable under the non-pecuniary heads is

not dependent on the social status, educational

qualification or income of the claimant. It affects the poor

and the rich alike. The rich may have some means of their

own to mitigate the pain. Unfortunately for the poor, they

need to depend on the compensation to be awarded to

trace the silver line around the dark cloud cast by the

permanent disability. The claimant, in this case, hails from

an impoverished background. Since the award is going to

be passed in respect of loss of amenities and enjoyment in

life, by taking into consideration the inflation and

constantly depreciating purchasing power of the rupee,

this court deems deem it appropriate and award

Rs.10,00,000=00 on this head.

17. It is also forthcoming from the evidence on

record, that the claimant has undergone two surgeries and

was inpatient in the hospital for 13 days from 23.11.2011

to 29.11.2011, 29.8.2012 to 30.8.2012 and 11.5.2013 to

14.5.2013. The petitioner has undergone repeated minor

surgical procedures. The petitioner has suffered a fracture

of pubic rami, ruptured urethra, pelvic fracture and

fracture of inferior ramus of the right hip bone.

18. In the backdrop of the above said fact situation

and keeping in mind the object of an award of

compensation under the non-pecuniary heads, award of

Rs.50,000/- on the head of pain and suffering is on the

lower side. The doctor has opined that the claimant will

have pain while passing urine. Thus the compensation

requires to be enhanced to Rs.1,00,000=00. The Tribunal

has awarded Rs.30,000/ towards future medical expenses.

The doctor has opined that future treatment is also

required for the petitioner. Given the nature of injuries

suffered and permanent disability incurred by the

petitioner, we deem it appropriate to award Rs.50,000/-

towards future medical expenses as against award of

Rs.30,000/- by the Tribunal.

19. It is also noticed that the Tribunal has awarded

only Rs.54,000/- towards loss of future earnings. The

claimant was aged 14 at the time of the accident. There is

no material to assess the income. In the absence of such

material, this Court while deciding the cases in Lok-Adalat

based on the chart prepared by the Karnataka Legal

Services Authority, is accepting Rs.6,000/- per month as a

notional income in respect of accidents for the year 2011.

And to this income, 40% is to be added towards future

prospects. Thus, Rs.8,400/- would be the notional income

per month to calculate compensation under the head of

loss of prospects. The Tribunal has taken Rs.30,000/- as

his income per annum and has not awarded anything

towards the prospect. Thus, the claimant is entitled to

income on the head of loss of future prospects as he has

suffered a permanent partial disability. The disability is

assessed by the doctor at 40%. Normally Court would

consider 1/3rd of the disability while calculating loss of

future earnings. However, the Tribunal has taken 10%

disability to calculate the loss of future earnings. The fact

of the matter is claimant has suffered a 40% disability in

his pelvic region. The doctor opined that the claimant is

not in a position to lift the weight and is having difficulty in

working. He has stiffness in hip joints and is having

difficulty passing urine. Thus, this Court can hold that

same would severely affect his ability to work in future.

This Court deems it appropriate to take 20% disability to

assess compensation. The compensation under the above

head would be Rs.8,400 X 12 (months)x18 (multiplier)x

20% (disability)=Rs.3,62,880=00.

20. This court has also noticed that no

compensation is awarded for the loss of expectancy of life.

Rs.50,000=00 is awarded on this head.

21. As far as the award of compensation in respect

of other heads awarded by the Tribunal is concerned, this

Court is not inclined to take a different view except in

respect award of Rs.35,000=00 which is awarded under

the head loss of education. Since no material is placed to

show that the claimant was attending college or in the

absence of proof of loss of the academic year, the award of

Rs.35,000=00 under head loss of education is not justified.

And accordingly, the award under the said head is set

aside. Accordingly, the appeal is allowed in part awarding

the modified compensation as under:

   SI.No                   Heads                    Amount(in Rs)
  1         Pain and Suffering                         1,50,000.00
  2         Medical expenses                           1,04,988.00
  3         Towards        diet,    food     and         50,000.00
            nourishment                  charges,
            attendant        charges         and
            conveyance
  4         Loss of income during the                           Nil
            laid up period
  5         Towards        loss     of     future      3,62,880.00
            prospects
  6         Loss      of    amenities        and      10,00,000.00
            enjoyment of life
  7         Towards loss of expectation                  50,000.00
            of life
  8         Towards        future        medical         50,000.00
            expenses
            Total                                     17,67,868.00
            Rounded Off                               17,68,000.00

22. As the compensation awarded by this court is

higher than what is claimed, the question naturally arises

whether this court is justified in doing so? The Motor

Vehicles Act, 1988, is benevolent legislation. The duty is

cast upon the Tribunal to award just and fair compensation

to the victim of a Motor Vehicle Accident. Though the claim

made in the petition is less than what the Tribunal or Court

finds as just and fair compensation, the power of the

Tribunal or the Court to award just and fair compensation

to the victim is not taken away because of prayer for a

lesser amount. This court is conscious of the fact that it is

difficult to assess the compensation under the non-

pecuniary heads as the compensation under the heads of

pain and suffering, loss of amenities in life and loss of

expectation of life would not come with a price label. It has

to be adjudicated in each case taking into consideration

several factors. Defective or inadequate prayer won't be a

hurdle to the Tribunal and Courts to assess and award just

compensation. The compensation to be awarded by the

Tribunal is not bogged down by the figure mentioned in

the prayer column of the claim petition. On the other hand,

Tribunals and courts are guided by the principles of law

and sense of justice while adjudicating the compensation

under the provisions of the Motor Vehicles Act. If relief is

not moulded by awarding higher compensation, we will be

failing in our duty.

23. Accordingly, the appeal succeeds and the

claimant is entitled to total compensation of

Rs.17,68,000=00.

24. Interest at the rate of 6% p.a. is payable on

the compensation awarded from the date of the petition till

the date of actual payment awarded except for the

compensation under the head of loss of future prospects

and loss of amenities in life.

25. The award under the head loss of prospects

and loss of amenities of life shall carry interest @6% p.a

from the date of the award till actual payment.

26. Consequently, the judgment and award dated

04.08.2016 passed in MVC No.49/2012 on the file of the

Principal Senior Civil Judge and AMACT, Ranebennur is

modified and compensation of Rs.17,68,000.00 is

awarded along with interest at the rate of 6% as observed

in paragraphs No.24 and 25 supra.

27. No order as to cost.

Sd/-

JUDGE

Sd/-

JUDGE Sh.