Deepak Gupta, J.
1. This appeal by the appellant - HRTC is directed against the award of the Motor Accident Claims Tribunal (2), Shimla in MAC Case No. 74-S/2 of 1997 decided on 1.8.2000 whereby he has awarded compensation of Rs. 2,87,000/- in favour of the claimant.
2. The claimant has also filed cross-objections and the delay in filing the cross-objections has been condoned vide separate order dated 25.11.2005. Both, the appeal and the cross-objections are now being disposed of by this judgment.
3. The brief facts necessary for decision of the case are that a claim petition filed by claimant Inder Singh alleging that he met with an accident while he was travelling in bus number HP07-1849 on 18.11.1996. According to the claimant, he is unable to do any work after the accident and is virtually bed ridden.
4. The HRTC contested the claim petition and one of the pleas taken was that the driver had unauthorisedly taken the bus. The learned Tribunal has passed the award as aforesaid in favour of the claimant.
5. I have heard Shri Ashok Sharma, learned Counsel for the HRTC and Shri G.D. Verma, learned senior Counsel for the respondent-claimant. In the present case, the only question to be decided is with regard to the amount of compensation.
6. At the very outset, it may be pointed out that the claim petition filed by Inder Singh was not signed by him and the same was signed by his wife Smt. Vidya Devi. In para 17 of the petition, it was mentioned that the petition on behalf of the claimant is being filed by his wife Vidya Devi since the claimant has not regained his senses and has considerably lost his memory and is unable to look-after his interests. In fact the proper course for the wife was to first seek the permission of the Tribunal to prosecute the case on behalf of the claimant. Even the Tribunal did not pass any order in this behalf and has just awarded the compensation without going into the question as to whether the petition could have been filed by Vidya Devi was maintainable or not. However, in the present appeal, a Division Bench of this Court passed an order dated 3.6.2002 in CMP No. 400 of 2002, whereby the application was allowed and Smt. Vidya Devi was appointed as guardian of claimant Inder Singh for the purpose of this appeal. Hence I am proceeding to hear the present appeal.
7. Dr. Kashmir Singh, Professor and Head, Department of Neuro-surgery, IGMC, Shimla appeared as PW1. According to him, the claimant had suffered compound commuted fracture left posterior parietal bone with minimal depression with compound fracture of right femur with hypovoluaemic shock. He treated the patient on regular basis from 19th November, 1996 till 15th January, 1997. The opinion of the doctor is that due to shock and on account of head injury, the claimant had difficulty in speech and his memory was impaired. According to him, the patient was unlikely to improve and was not in a position to live a normal human life.
8. PW2 Dr. Mukand Lal who is the Associate Professor in the Department of Orthopaedics, IGMC, Shimla has also treated the claimant. PW7 Dr. Ravinder Mokta was one of the members of the Committee which, issued the disability certificate Ex.PW7/A in favour of the claimant. The disability certificate shows that the claimant has suffered 41% disability on account of head injury and fracture of his leg.
9. Smt. Vidya Devi wife of the claimant Inder Singh appeared as PW6 and stated that the claimant after injury has become totally bed ridden. According to her, when the claimant was in hospital, he required 4/5 attendants and she has spent more than Rs. 1,50,000/- on his treatment. According to her before the accident, the claimant was earning about Rs. 5,000 to 10,000/- per month and thereafter he became bed ridden and is unable to earn any amount whatsoever. She has also stated that whenever she has to bring her husband to Shimla for treatment, they have to hire a taxi and the taxi charges for each visit are Rs. 1,200/-.
10. From the material and evidence placed on record, it is clear that immediately after the accident the claimant was brought to IGMC, Shimla where he remained admitted first in the General Ward and thereafter in Special Ward till 15.11.1997. Therefore, he has spent about two months as an indoor patient in the hospital. The case sheet summary of the claimant is Ex. P-1 which clearly shows that in addition to the physical injury in the leg., the claimant has suffered injury in the head which has damaged his brain to some extent. His memory has weakened and his speech is also affected.
11. The doctors have also mentioned that the patient cannot be operated upon under general anesthesia since there is a very high risk. The claimant has also placed on record the documents to show that about Rs. 16,420/- was spent on the medicines. There is other material on record such as Exts. P-4, P-5, P-6, P-7 and P-7 to show that the claimant has visited the hospital after discharge a number of times as an outdoor patient. According to the claimant, their son who was studying in Monal Public School, Sanjauli, Shimla had to be withdrawn from the school since he could not afford to keep him there.
12. The principles with regard to determination of just compensation contemplated under the Motor Vehicles Act are well settled. Injuries cause deprivation to the body which entitles the claimant to claim the damages. The damages may vary according to the gravity of the injuries sustained by the claimant in the accident. On account of the injuries, the claimant may suffer consequential losses such as, (i) loss of earning; (ii) expenses on treatment which may include medical expenses, transportation, special diet, attendant charges etc., (iii) loss or diminution to the pleasures of life by loss of a particular part of the body, and (iv) loss of future earning capacity. The damages can be pecuniary as well as non-pecuniary, but all have to be assessed in rupees and paise. It is impossible to equate human suffering and personal deprivation with money. However, this is what the Motor Vehicles Act enjoins upon the Courts to do. The Court has to make a judicious attempt to award damages, so as to compensate the claimant for the loss suffered by him. Such compensation is what is termed as just compensation. On the one hand, the compensation should not be assessed very conservatively, but on the other hand, compensation should also not be assessed in so liberal a fashion so as to make it a bounty to the claimant. The Court while assessing the compensation should have regard to the degree of deprivation and the loss caused by such deprivation. The compensation or damages assessed for the personal injuries should be substantial damages to compensate the injured for the deprivation suffered by him throughout his life. They should not be only token damages.
13. There are numerous cases where the principles for grant of compensation have been enunciated. It would be relevant to quote pertinent observations from a few.
14. The following observations of Lord Morris in his speech in H. West & Son Ltd. v. Shephard 1958-65 ACJ 504 (HL, England), are very pertinent:
Money may be awarded so that something tangible may be procured to replace something else of the like nature which has been destroyed or lost. But money cannot renew a physical frame that has been battered and shattered. All that Judges and Courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common assent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards.
15. Lord Denning while speaking for the Court of Appeal in the case of Ward v. James (1965) 1 All ER 563, laid down the following three basic principles to be followed in such like cases:
Firstly, assessability: In cases of grave injury, where the body is wrecked or brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Secondly, uniformity: There should be some measure of uniformity in awards so that similar decisions may be given in similar cases; otherwise there will be great dis-satisfaction in the community and much criticism of the administration of justice. Thirdly, predictability: Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to Court, a thing very much to the public good.
16. The assessment of damages in personal injury cases raises great difficulties. It is not easy to convert the physical and mental loss into monetary terms. There has to be a measure of calculated guess work and conjecture. An assessment, as best as can, in the circumstances, should be made. In the case of Mediana, (1900) AC 113, Lord Halsbury held :
Of course the whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages; nevertheless, it is remitted to the jury, or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident. But, nevertheless, the law recognizes that as a topic upon which damages may be given.
17. In Perry v. Cleaver 1969 ACJ 363 (HL, England), Lord Morris of Borth-y-Gest held thus :
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.
18. In Phillips v. Western Railway Co. (1874) 4 QBD 406, Field, ]., while emphasizing that damages must be full and adequate, held thus :
You cannot put the plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and you must always recollect that this is the only occasion on which compensation can be given. The plaintiff can never sue again for it. You have, therefore, now to give him compensation once and for all. He has done no wrong, he has suffered a wrong at the hands of the defendants and you must take care to give him full fair compensation for that which he has suffered.
19. Besides, the Tribunals should always remember that the measures of damages in all these cases 'should be such as to enable even a tort feasor to say that he had amply atoned for his misadventure'. The observation of Lord Devlin that the proper approach to the problem or to adopt a test as to what contemporary society would deem to be a fair sum, such as would allow the wrongdoer to 'hold up his head among his neighbours and say with their approval that he has done the fair thing', should be kept in mind by the Court in determining compensation in personal injury cases.
20. McGregor on Damages, 14th Edn., para 1157, referring to heads of damages in personal injury actions states :
The person physically injured may recover both for his pecuniary losses and his non-pecuniary losses. Of these the pecuniary losses themselves comprise two separate items, viz., the loss of earnings and other gains which the plaintiff would have made had he not been injured and the medical and other expenses to which he is put as a result of the injury, and the courts have sub-divided the non-pecuniary losses into three categories, viz., pain and suffering, loss of amenities of life and loss of expectation of life.
21. In R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. : [1995]1SCR75 , speaking about the heads of compensation, the Apex Court held thus:
Broadly speaking, while fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred, and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far as non-pecuniary damages are concerned, they shall include: (i) damages for mental and physical shock, pain and suffering already suffered or likely 1 to be suffered in the future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.
22. In Concord of India Insurance Co. Ltd. v. Nirmala Devi 1980 ACJ 55 (SC), the Apex Court held:
The determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales.
23. This Court in Brestu Ram v. Anant Ram and Ors. 1989(2) Sim. L.C. 298, held:
It is pecuniary loss, i.e. capable of calculation in terms of money, and non-pecuniary loss i.e. loss that cannot be easily assessed with accuracy-Pecuniary loss is the loss suffered by the victim due to the loss of earnings or other profits which he had been earning and was to earn in future at the same rate or at same promoted scale. Non-pecuniary loss consists of damages awarded for pain and sufferings, loss of amenities and loss of enjoyment of life and prospects. Under non-pecuniary loss, for want of accurate assessment, a global figure could be arrived at and paid as compensation. Under pecuniary loss the assessment can be made easily by taking into consideration at least the monthly income actually earned by the victim and the difference between what he would be capable to earn on disablement.
It is well settled that in disablement cases compensation has always to be higher than even in cases of death since it is given to the living victim of the accident both for his personal loss and for economic loss. It can be said that the bodily injury is to be treated as a deprivation which entitled the victim to claim damages, which vary according to the gravity of the injury. Further, due to this injury, there can be loss of earnings, completely or partial due to the accident on his capacity to earn the same. Another consequence may be the loss he suffers on account of the enjoyment of life or full pleasures of living.
24. Taking into consideration the law laid down by the Hon'ble Apex Court and this Court, I am constrained to observe that the award of the learned Motor Accident Claims Tribunal assessing the compensation at Rs. 2,87,000/- is low and not at all in consonance with the principles enunciated above. The Tribunal has been extremely conservative in awarding compensation. In addition, the learned Motor Accident Claims Tribunal has not awarded the compensation under the various heads to which undoubtedly the claimant was entitled to claim compensation.
25. In the present case though the disability of the injured has been assessed at 41%, there is sufficient evidence on record to show that he is unable to do his normal work and is virtually bed ridden. There is medical evidence on record to show that the patient suffers from loss of memory and Difficulty in speech. Therefore, his earning capacity has been affected by a greater percentage than his disability and in my opinion, it would not be unable reasonable to assess the loss of earning capacity of the claimant at about 60%.
26. Unfortunately, there is no cogent proof of the income of the claimant. It appears that the claimant was an agriculturist and was looking after his land in the village and also doing some other work of trading related to agriculture. Keeping all these factors into consideration, the services of the injured-claimant have to be replaced by assessing the income of the claimant at Rs. 3,000/- per month. The loss on account of dependency works out to Rs. 1,800/- per month or Rs. 21,600/- per annum. Since the claimant was aged 32 years at the time of the accident, the reasonable multiplier to be applied would be 17 and the compensation on account of loss of future income works out to Rs. 3,67,200/- which is rounded off to Rs. 3,67,000/-. The claimant remained hospitalized for about two months. The evidence placed on record shows that during his hospitalization about Rs. 20,000/- was spent on his treatment. Keeping in view the fact that the claimant had been coming to Shimla even after discharge from the hospital and will require treatment throughout his life, it would not be unreasonable to award him Rs. 35,000/- for medical expenses for past, present and future.
27. When the claimant was in hospital, he would have required at least two or three attendants who stayed with him for more than two months. He must have required attendants for at least four months thereafter. The boarding and lodging expenses of the attendants at Shimla have also to be considered while assessing the compensation. In my opinion, it would be reasonable to award him Rs. 15,000/- on account of cost of attendants. The claimant has made a number of visits to Shimla and each visit entails not only expenditure on taxi but also on attendant, boarding and lodging at Shimla. Therefore, he is held entitled to Rs. 10,000/- for transportation expenses.
28. Now coming to the compensation under the head non-pecuniary loss. The claimant remained in hospital for two months. The claimant is still under treatment and has suffered serious injuries. Keeping in view these facts, it would be just and reasonable to award him Rs. 40,000/- for pain and suffering.
29. The claimant as per medical evidence is virtually bed ridden. He is unable to speak properly. He has also lost his memory. According to the wife, he cannot do anything at home. His life is a vegetable existence. He is to undergo this trauma and indignity for the rest of his life. Therefore, in my opinion, it would be just and reasonable to award an amount of Rs. 1,00,000/- for loss of amenities, discomfort, loss of matrimonial pleasure etc. Therefore, the total amount of compensation works out to Rs. 5,67,000/- The claimant is also held entitled to interest @ 9% per annum on this amount from the date of filing of the claim petition i.e. 12.9.1997 till deposit of the same.
30. In view of the aforesaid discussion, the appeal filed by the appellant HRTC is dismissed and the cross-objections filed by the claimants are allowed and the amount of compensation awarded by the learned Tribunal below is enhanced from Rs. 2,87,000/- to Rs. 5,67,000/-.
31. The appellant-HRTC is directed to deposit the enhanced amount of compensation along with interest on this amount as aforesaid after adjusting the amount paid/deposited by it in the Registry of this Court within twelve weeks from today failing which it shall liable to pay interest at the rate of 12% per annum from today.
32. Keeping in view the fact that the claimant according to his wife is unable to look-after himself and is mentally weak, it is ordered that the entire amount shall be kept in fixed deposit initially for a period of five years and the interest accrued thereupon shall be paid to her on quarterly basis for upkeep and maintenance of the claimant.
33. The appeal and the cross-objections are disposed of in the aforesaid terms. No costs.