Judgment:
(Prayer: M.F.A. No.1188/2015 is filed under Section 173(1) of MV Act against the Judgment and Award Dated 13.06.2014 passed in MVC No.2850/2011 on the file of the VIII Additional SCJ and XXXIII ACMM, Member- MACT, Bengaluru (SCCH-5), awarding Compensation of Rs.17,99,000/- with Interest @ 8% P.A. from the date of petition till Realization.
M.F.A. No.6473/2014 is filed under Section 173(1) of MV Act against the Judgment and Award Dated 13.06.2014 passed in MVC No.2850/2011 on the file of the VIII Additional SCJ AND XXXIII ACMM, Member- MACT, Bengaluru (SCCH-5), awarding Compensation of Rs.17,99,000/- with Interest @ 8% P.A. from the date of petition till Realization of same from Respondents.
M.F.A. No.5874/2014 is filed under Section 173(1) of MV Act against the Judgment and Award Dated 13.06.2014 passed in MVC No.2850/2011 on the file of the VIII Additional SCJ and XXXIII ACMM, Member-MACT, Bengaluru (SCCH-5), partly allowing the claim Petition for Compensation and seeking Enhancement of Compensation.)
1. These appeals are directed against the judgment and award dated 13.06.2014 passed in MVC No.2850/2011 by the VIII Addl. Small Causes Judge and XXXIII ACMM, Member, MACT (SCCH-5), Bengaluru (for Short, Tribunal).
2. By the impugned the judgment and award, claim petition filed by the claimant/appellant of MFA No.5874/2014 in respect to the injuries suffered by him in the road traffic accident on 19.03.2011 was allowed by awarding compensation of Rs.17,99,000/- with interest at 8% per annum directing the Insurance Companies i.e. appellant of MFA Nos. 6473/2014 and 1188/2015 to deposit the compensation at 75% and 25% respectively with accrued interest. The claimant of MFA No.5874/2014 is dissatisfied with quantum of compensation, while the appellants of MFA Nos.6473/2014 and 1188/2015 are aggrieved by the liability fastened against them.
3. Succinctly stated, the appellant of MFA No.5874/2014 filed a claim petition under Section 166 of Motor Vehicles Act before the Tribunal, contending that he is employed in a mini lorry bearing registration No.KA-03-B-9931; while he was on duty in the mini lorry, on 19.03.2011 at about 11.30 p.m. on NH-4, near Gokul Weigh Bridge, at that time, a Lorry bearing registration No.KA-01-A-6467 which was moving ahead of the mini lorry, driven by its driver in a rash and negligent manner without giving any signals, turned to the right side of the road and abruptly stopped, thereby back portion of said lorry hit the left portion of the mini lorry. Due to the impact, the claimant fell down suffered multiple injuries; severe head injuries and suffered segmental fracture of left femur, fracture of shaft of right femur both bones of right leg, lacerated wounds on anterior and medial aspects of left knee, lateral aspect of thigh and left knee, contusions and abrasions. Immediately, he was shifted to Harsha Hospital, Nelamangala and from there to Victoria Hospital, Bangalore; from there he was shifted to NIMHANS and also Sreenivasa Hospital. He was treated as inpatient from 21.03.2011 till his discharge on 10.05.2011. He underwent surgery for removal of implant and he had to undergo series of surgeries with continuous treatment from 21.02.2012 to 25.02.2012. In view of the above, he claimed total compensation of Rs.28,00,000/-.
The claim was contested by the insurer of the offending lorry and insurer of the mini lorry. The owner of the mini lorry admitted that the claimant is employed under him for a monthly salary of Rs.5,000/-.
4. The Tribunal after completion of the pleadings, framed the following issues:
1. Whether the petitioners proves that the accident occurred on 19.03.2011 at about 11.30 p.m., NH-4, in front of Gokul Weigh Bridge, near Indira Colony, Thyamagondlu Police limits, Nelamangala Taluk while he was traveling as a cleaner in Mini Lorry bearing registration No.KA-03-B-9931,due to rash and negligent driving of lorry bearing No.KA-01-A-6467 driven by its driver?
2. Whether the petitioner is entitled for compensation as prayed?
3. What order or award?
5. The parties led in their respective evidence and rebuttal evidence; on consideration of oral and documentary evidence, the Tribunal allowed the petition in part by awarding a compensation of Rs.17,99,000/- with interest @ 8% per annum by apportioning the vicarious liability of indemnifying the risk of the owners of Lorry and Mini Lorry at the ratio of 75% and 25% respectively.
6. Sri. P.B. Raju, learned counsel for the appellant/New India Assurance Company Ltd. of M.F.A.1188/2015, the insurer of the mini lorry bearing registration No.KA-03-B-9931, submits that the jurisdictional police had charge sheeted the driver of the lorry bearing registration No.KA-01-A-6467. It was the case of the claimant that due to negligence of the driver of the lorry, accident took place. Despite the same, the Tribunal was not justified in fastening 25% of the liability on the part of the driver of the mini lorry. Hence, the judgment and award of the Tribunal so far fastening the liability at 25% may be set-aside.
7. Sri. H.N. Keshava Prashanth, learned counsel for the appellant/Shriram General Insurance Company Ltd. in MFA No.6473/2014 strongly attacks, the quantum of Rs.5,00,000/- awarded by the Tribunal in respect of pain and suffering as excessive and disproportionate to the nature of injuries suffered by the claimant. He is also questioning the mode of capitalization of compensation adopted by the Tribunal in adding the future prospects to the income of claimant in a case of injury. He also draws our attention to the evidence of the doctor that the injury is not completely cured and unless treatment is complete and healing process is reached to its maximum level, disability cannot be assessed as per medical guidelines. Taking us through the spot panchanama and IMV report, he submits that the driver of the mini lorry was driving the vehicle without maintaining safe distance from the lorry moving ahead and lost control over the vehicle, thereby hit hind portion of the lorry bearing registration No.KA- 01-A-6467 and thereby he only was completely responsible for cause of accident and liable to pay entire compensation amount.
8. Sri. T.C. Sathish Kumar, learned counsel for the appellant/claimant in MFA No.5874/2014 submits that compensation of Rs.5,00,000/- awarded towards pain and suffering is appropriate having regard to the nature of injuries sustained by the claimant and period of hospitalization i.e. 55 days and series of surgeries undergone by him. The Tribunal was not justified in ignoring the medical bills amounting to Rs.5,62,734/- and awarding only Rs.5,50,000/-. Loss of future income worked out at Rs.7,79,000/- is also too meager. No compensation has been awarded towards loss of earning during the laid-up period, though more than a year, he was laid-up for the injuries sustained. Rs.1,00,000/- towards loss of amenities and Rs.20,000/- towards marriage prospects do not commensurate with the nature of injuries and unhappiness suffered by him which will endure for the rest of his life. Hence, he submits that the impugned judgment and award of the Tribunal may be modified by enhancing compensation reasonably.
9. With the above submissions, we have perused the impugned judgment and award and also materials collected by the Tribunal. The points that arise for our consideration are:
1. Whether contributory negligence assessed by the Tribunal at 75% in respect of lorry bearing registration No.KA-01-A-6467 and 25% in respect of mini lorry bearing registration No.KA-03-B-9931 requires modification?
2. Whether the amount of compensation awarded by the Tribunal is inadequate?
10. It is an admitted fact between the parties that the claimant suffered multiple grievous injuries in the vehicular accident occurred on 19.03.2011 involving the mini lorry bearing registration No.KA-03-B-9931 on which he was on duty and also lorry bearing registration No.KA-01-A-6467. It is also established by way of evidence that he had sustained injuries, a) segmental fracture of left femur, b) fracture shaft of right femur
c) open fractures both bones of left leg, d) head injury (diffuse axonal injury) fat embolism, tenderness, contusions and abrasions on other parts of the body. He underwent following surgeries:
1) External fixator application for both femurs under SA on 22.03.2011
2) CRIF with interlocking nailing of left both bones under SA on 22.03.2011.
3) Tracheotomy was done on 25.03.2011.
4) External fixator removal in left femur and Thomas splint application on 21.04.2011
6) ORIF with interlocking nailing of left femur on 22.04.2011
7) CRIF with interlocking nailing of left femur on 22.04.2011.
On 22.02.2012, implant left femur was removed.
As per the evidence of the doctor, he has suffered 34.5% of permanent physical impairment to his both lower limb and the future medical expenses is assessed at Rs.30,000/-. The Tribunal has awarded a sum of Rs.5,00,000/- towards pain and suffering without discussing as to how that much amount is warranted in respect of the injuries noted supra. The compensation of Rs.5,00,000/- awarded by the Tribunal towards pain and suffering is exorbitant and it is not in accordance with the established method of capitalization of compensation adopted by this Court and Apex Court. Hence, Rs.2,00,000/- as against Rs.5,00,000/- would be adequate under the head pain and suffering. Towards Medical expenses a sum of Rs.4,50,000/- is awarded, on consideration of the medical bills produced by him to the tune of Rs.4,04,846/-. Considering the period of his treatment as inpatient was 51 days and also fact that he was still on follow-up treatment, we hold that the compensation awarded under the head medical expenses at Rs.4,50,000/- requires to be enhanced by Rs.5,00,000/-.
Loss of future earning is worked out by the Tribunal by assuming his monthly income at Rs.5,000/-. At the relevant point of time, he was aged about 23 years, hence, suitable multiplier to work out his loss of future earning is 18, as per the judgment of the Apex Court in Sarla Verma and Others Vs. Delhi Transport Corporation and Another, 2009 ACJ 1298. The Tribunal has worked out loss of future income as if it is capitalizing the compensation towards loss of dependency in a death case, without considering the percentage of disability. Awarded a sum of Rs.7,29,000/- under this head (Rs.3,375/- x 12 x 18) is fallacious and cannot be sustained. Having regard to the date of accident and nature of his job, we re-assess the income of the claimant at Rs.6,000/- per month by multiplying his income per annum with multiplier of 18 and disability of 36% as assessed by the Tribunal, it works out to Rs.4,66,560/- (Rs.6,000/- x 12 x 36 x 18/100) as against Rs.7,29,000/-. He was a young man of 23 years at the relevant point of time, Rs.20,000/- awarded towards loss of marriage prospects will not compensate his deprival, hence, he is entitled for a sum of Rs.1,00,000/- under this head. No amount has been awarded by the Tribunal towards future medical expenses. Considering the evidence of the doctor, we hold that he is entitled for another sum of Rs.1,00,000/- under the head future medical expenses. No amount is awarded towards loss of earning during the laid-up period. In view of the disability, he must have been immobilized at least for six months. He is entitled for another sum of Rs.36,000/- (6 x Rs.6,000/-).
Towards loss of amenities, Rs.1,00,000/- is awarded. The doctor on clinical and radiological examination has found the following:
a) operated scars over right thigh
b) Antalgic gait in left lower limb
c) Arc of movement of right hip and left hip flexion/extension restricted by 100 and 300 respectively. Abduction/adduction restricted by 100 and rotation restricted by 100.
d) Arc of movement of right and left knee restricted by 100 and 300 respectively.
e) Difficulty in climbing stairs, squatting, sitting cross-legged and kneeling, stand for longer duration.
In all probabilities, much of these inconveniences are sure to ensue for sufficient length of his future life. Hence, in our considered opinion, Rs.1,00,000/- awarded towards loss of amenities is on a lower side and it requires to be enhanced to Rs.1,50,000/-.
Thus, he is entitled for total compensation of Rs.15,52,560/- as against Rs.17,99,000/- awarded by the Tribunal. Accordingly, there would be reduction of Rs.2,46,440/-.
The interest awarded @ 8% per annum is not in accordance with the rate of interest that is being awarded by this Court and Apex Court, hence, he is entitled for interest at 9% per annum on the entire compensation.
11. Now, coming to the question of apportionment of negligence, admittedly, it is an accident involving the mini lorry bearing registration No.KA-03-B-9931 and lorry bearing registration No. KA-01-A-6467. As per Ex.P5-IMV report, it is mini lorry which has suffered damages to front wind screen glass, headlight, bumper, both doors, dashboard radius assembly at the seats. Whereas, the lorry bearing registration No.KA-01-A-6457 has suffered damages to its rare door only. The driver of the lorry bearing registration No. KA-01-A-6467 was charge sheeted and he had pleaded guilty before the Court. Pleading guilty before the Criminal Court in as observed by us in catena cases is only a device to get away from the hazard attending the Court on all hereby dates with the uncertainty of time and result, which is why the accused charge sheeted in respect of road traffic accident would prefer pleading guilty to the accusation, and wash off their hands by paying penalty. Neither of the parties has examined any inpatient eye-witness nor evidence of the drivers involved in the accident. On perusal of the IMV report and also spot panchanama, we visualize that not maintaining safe distance between two vehicle was the major cause for the accident, and the Mini Lorry has to bear more liability rather than what is already fasted by the Tribunal. In that view of the matter, we are of the considered opinion that apportionment of the contributory negligence shall be equally distributed between two vehicles.
12. While holding thus, we feel it necessitated to place on record our dissatisfaction about the way the Tribunal capitalized the compensation amount. There is inconsistency on the part of the Tribunal in working out the reasonable compensation under different heads which is noted supra. The mode of assessment and fixing an amount of compensation came for consideration before the Apex Court in the matter of R.D. Hattangadi Vs. Pest Control(India) Private Limited, (1995) 1 SCC 551 where in it was held thus:
"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non- pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss 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."
The Three Judges' Bench of the Apex Court in Nizam's Institute of Medical Sciences Vs. Prasanth S. Dhananka dealing with a matter under The Consumer Protection Act, 1986 observed at para-90 thus:
"90. At the same time, we often find that a person injured in an accident leaves his family in greater distress, vis-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures everyday. The support that is needed by a severally handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity."
13. Further, with regard to just and reasonable compensation both under pecuniary and non-pecuniary damages to the victims of motor vehicle accident, the Apex Court in the matter of Rajkumar Vs Ajay Kumar and Another held thus:
"5. 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 far, 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 the 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."
It is beneficial at this juncture to cite the judgment of Rekha Jain Vs. National Insurance Company Ltd. 2013 (8) SCC 389, the relevant paras-40 to 43 read thus:
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 come 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, distinguished the above two aspects thus:
"In assessing the compensation the jury should take into account two things, the pecuniary loss the plaintiffs sustains by the accident;
secondly, the injury he sustains in his person, or his physical capacity of enjoying life. When they come to the consideration of the pecuniary loss they have to take into account not only his present loss, but his incapacity to earn a future improved income".
41. Mc Gregor on Damages (14th Edition) at Para1157, referring to the heads of damages in personal injury actions, states as under:
"The person physically injured may recover both for his pecuniary losses and his non-pecuniary losses. Of these the pecuniary losses themselves comprise two separate items viz. the loss of earnings and other gains which the plaintiff would have made had he not been injured and the medical and other expenses to which he is put as a result of the injury, and the Courts have subdivided the non-pecuniary losses into three categories viz., pain and suffering, loss of amenities of life and loss of expectations of life.
Besides, the Court is well advised to remember that the measures of damages in all these cases 'should be such as to enable even a tortfeasor 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 thin', is quite apposite to be kept in mind by the Court in assessing compensation in personal injury cases."
42. In R. Venkatesh Vs. P. Saravanan 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 amputed. 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 per cent".
43. Lord Reid in Baker v. Willoughby[13], has said: "A man is not compensated for the physical injury; he is compensated for the loss which he suffers as a result of that injury. His loss is not in having a stiff leg; it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned.... ."
14. A perusal of impugned award in the light of the above, there is great imbalance and inconsistency while capitalizing the damages both under the non- pecuniary and pecuniary damages. Pain of an injured due to the injuries suffered by him though cannot be rated in terms of money still there must be a balance while awarding compensation under the heads of pecuniary and non-pecuniary damages. The Tribunal on one side awarded an exorbitant amount of Rs.5,00,000/- towards pain and suffering and only Rs.20,000/- towards marriage prospects ignoring the fact that he was a young man of 23 years only and skipped out the compensation under the head of loss of amenities and inconvenience. The loss of future earning is worked out in the pattern of a death case whereby 50% of his income was deducted towards his personal need and 50% towards his future prospects was added. It is an arbitrary mode of capitalization of the compensation in an injury case by deviating the procedure which is so far established and settled by the judicial pronouncements of this Court and the Apex Court. It may be one among many dockets on the file of the Tribunal, but at the same time, it is the one and the only forum for the injured claimant to get justice by way of reasonable compensation. Disposal of a case in a haphazard manner diminishes the confidence of the public with our justice delivery system. It is expected of the adjudicating authority to be cautious, alert and cognoscente of the matter it is dealing with.
For the foregoing reasons, the appeal filed by the claimant in MFA No.5874/2014 is disposed of. The appeals filed by the insurers in MFA Nos.6473/2014 and 1188/2015 are allowed in part.
The judgment and award dated 13.06.2014 passed in MVC No.2850/2011 by the VIII Addl. Small Causes Judge and XXXIII ACMM, Member, MACT (SCCH-5), is hereby modified. The claimant is entitled for compensation of Rs.15,52,560/- instead of Rs.17,99,000/- as awarded by the Tribunal. Thus, there would be reduction of Rs.2,46,440/-. However, the claimant would be entitled to 9% interest on the compensation awarded by this Court.
Contributory negligence apportioned at 75% and 25% against both vehicles is modified and fixed at 50% each on each of the vehicles.
Both insurers are directed to deposit their portion of compensation amount before the concerned Tribunal within three weeks from the date of receipt of certified copy of this judgment.
The amount in deposit by the insurers in MFA Nos.1188/2015 and 6473/2014 and also Lower Court Records shall be transmitted to the concerned Tribunal, forthwith.
The apportionment and the manner of disbursement shall be proportionately reduced to the extent of reduction of compensation made by this Court.