S.R. Nayak, J.
1. In an injury case the claimant not being satisfied with the compensation awarded by the Claims Tribunal has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act') and claimed more compensation under various heads. The appeal is directed against the judgment and award dated 5.1.1999 passed in M.V.C. No. 350 of 1996 on the file of the Motor Accidents Claims Tribunal-IV at Bijapur (for short 'the MACT).
2. The facts of the case in brief are as follows:
The claimant oh 31.1.1996 sustained certain injuries in an accident involving motor vehicle (bus) owned by the respondent Corporation. The fact that the accident took place on account of rash and negligent driving of the driver of the Corporation's bus is not in controversy. Therefore, there is no need for us to review the factual finding recorded by MACT on actionable negligence attributed to the driver of the bus.
3. The claimant who was aged 38 years on the date of accident claims to be a businessman dealing in textiles and earning monthly income of Rs. 5,000. Appellant-claimant claimed total compensation of Rs. 11,25,000 on various heads.
4. The claim of appellant was opposed by the Corporation by filing a statement of objections denying the age, income and other claims made in the claim petition. The MACT having regard to the pleadings of the parties and having framed necessary issues for decision-making, ultimately, awarded Rs. 35,000 for pain and suffering, Rs. 20,000 towards medical and incidental expenses, Rs. 25,000 for loss of amenities of life, thus in total Rs. 80,000 is awarded with interest at 9 per cent per annum from the date of petition till realisation. Hence this appeal by the claimant contending that sum of Rs. 80,000 awarded by MACT is too meagre and inadequate.
5. We have heard Mr. B.S. Patil, learned counsel for the appellant and Mr. D. Vijayakumar, learned Standing Counsel for respondent Corporation.
6. Mr. B.S. Patil would contend that the impugned award bristles with number of errors apparent on its face. Elaborating the contention, Mr. Patil would point out that though claimant was inpatient in the hospital for more than one month and was not in a position to attend to his normal work for more than four months, the MACT has not awarded any compensation towards loss of income. Mr. Patil would also point out that a sum of Rs. 35,000 awarded by the MACT towards pain and suffering at the rate of Rs. 5,000 per fracture is very much on lower side and it could not be regarded as a just and reasonable compensation within the contemplation of the Act. Mr. B.S. Patil would also point out that the MACT is not justified in not awarding any compensation towards attendant charges, transportation charges, special nutrition and food. Mr. Patil would also draw our attention to the evidence of PW 1 and point out that claimant had to undertake journey with an attendant as many as seven times to Aurangabad to have medical treatment and had to spend considerable amount for transportation charges, but no compensation is awarded by the MACT.
7. Mr. Patil would next contend that though as per the evidence of doctor, PW 2, the claimant has sustained permanent disability to an extent of 25 per cent in the left lower limb and his physical frame is considerably deformed and he could not answer even nature-call without the use of commode, etc., quite curiously, the MACT has not awarded any compensation towards future loss of income. Mr. Patil would also point out that the evidence of PW 1 that after the accident he had engaged the services of two employees at the consolidated salary of Rs. 800 p.m. to attend to the same work which he used to attend before the accident, is completely ignored by the MACT in decision-making. Mr. B.S. Patil would also point out that no compensation is awarded by the MACT towards loss of expectation of life.
8. The learned Standing Counsel for the Corporation, on the other hand, would maintain that what has been awarded by the MACT is just and reasonable compensation having regard to the facts and circumstances of the case and the evidence on record and there is absolutely no case made out for interference by this court.
9. Having heard the learned counsel for the parties, the only point that arises for decision is, whether total compensation of Rs. 80,000 awarded by the MACT in the facts and circumstances of the case and having regard to the evidence on record could be regarded as just and reasonable compensation within the contemplation of the Act.
10. Before dealing with that question, it will be beneficial for us to keep in mind the principles governing determination of a just compensation contemplated under the Act. It is trite, bodily injury is to be treated as a deprivation, which entitles a claimant to damages. The amount of damages vary according to gravity of the injury sustained by a claimant in an accident. Deprivation on account of injuries sustained in an accident may bring with it the consequences such as, (i) loss of earnings and earning capacity, (ii) expenses to pay others for what otherwise he would do for himself and (iii) loss or diminution in full pleasures of living. Though it is impossible to equate money with human suffering or personal deprivation, the court has to make judicious attempt to award damages so far as money can compensate the loss. Such compensation is what is understood to be a just compensation. In that view of the matter, the court while considering deprivation sustained by a claimant on account of the accident should have regard to the gravity as well as degree of deprivation. The court should also have regard to the degree of awareness of the deprivation because the degree of awareness of deprivation would determine the degree of loss or diminution in full pleasures of living. It is well settled that in awarding damages in personal injury cases, the compensation awarded by the court should be substantial and it should not be merely token damages. Further, it is intended to compensate both personal loss and economic loss. Under the head of personal loss, damages for pain and suffering, loss of amenities, personal inconvenience and discomfiture, social discomfiture, as the case may be, having regard to the facts of individual case, have to be included. The pecuniary loss would include damages in respect of financial loss, past and future, such as loss of earnings, medical expenses and cost of nursing as also the loss of earning capacity where the injured is handicapped in the labour market. In addition, the damages could be recovered for loss of expectation of life where the injury is such which might result in cutting off the normal expectation of life of the injured. Since in bodily injury cases compensation goes to the injured living person, the courts have been liberal in relative terms in awarding compensation. One could clearly see from the judgments of the Apex Court and High Courts that the compensation awards are always higher than in cases of death. Redressal of deprivation in living person in terms of money to the extent possible seems to be the prime concern of the courts. The said concern is in conformity with compassion and humanity, which together constitute accountability of the civilised society.
11. The following observations of Lord Morris in his quite often-quoted speech in H. West and Son Ltd. v. Shephard, 1958-65 ACJ 504 (HL, England), are quite apposite:
'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.'
12. Lord Denning while speaking for the Court of Appeal in England in the case of Ward v. James, (1965) 1 All ER 563, laid down three basic principles. His Lordship observed:
'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 dissatisfaction 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.'
13. A Division Bench of this court in Basavaraj v. Shekhar, 1987 ACJ 1022 (Karnataka), held--
'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.'
14. 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 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.'
15. In Phillips v. South Western Railway Co., (1874) 4 QBD 406, Field, J., 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,'
16. Although, it is true that there are difficulties and uncertainties in assessing damages in personal injuries sustained by a person, that realism should not preclude an assessment as best as can, in the circumstances, 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 recognises 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. It is well settled that in a personal injury case, the injured has to be compensated under the heads (1) pain and suffering; (2) 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 like transportation or travelling expenses, nutrition and food, etc. While determining compensation under the above heads, the two main elements to be borne in mind are: personal loss and the pecuniary loss. Chief Justice Cookburn in Fair v. London and North Western Railway Co., (1869) 21 LT 326, 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 accident; and 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.'
19. 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 subdivided the non-pecuniary losses into three categories, viz., pain and suffering, loss of amenities of life and loss of expectation of life.'
20. 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 thing', is quite apposite to be kept in mind by the court in determining compensation in personal injury cases.
21. 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.'
22. In the premise of the above noticed norms and principles governing computation of compensation in personal injury cases, we are constrained to observe that learned Presiding Officer of the MACT in awarding total compensation of Rs. 80,000 has practised conservatism to the core in awarding the compensation under several heads. In addition, the MACT has not awarded compensation under the heads to which undoubtedly the claimant is entitled to claim compensation. It is quite often said and reiterated that no amount of compensation in personal injury cases would compensate the pain and suffering sustained by the injured. However, the only way an injured can be redressed is by way of awarding reasonable compensation. Therefore, the MACT is under a solemn legal obligation to award just, reasonable and adequate compensation to an injured. Of course, the adequacy of compensation is not in the perception of the injured, but, adequacy of compensation should be the outcome of the application of judicious mind of the court to the facts and circumstances of the case and evidence on record.
23. Now, let us turn to the facts of the case. It is established by medical evidence that the appellant has suffered as many as 7 fractures, the details of which are set out in the impugned award itself. They are grievous in nature. The total impact of the fractures on the body frame of the appellant cannot be oversimplified. Although those fractures are united by surgeries, it is trite, by medical treatment and surgery the original physical frame of the injured could not be restored. This is not what we say, this is what the expert doctor, PW 2, has stated in his testimony, the credibility of which could hardly be tested and doubted. The doctor in his evidence stated thus:
'(2) He was complaining difficulty in walking. On examination patient was walking with limp without any support. There was shortening of l 1/2 inches in his left lower limb. Left thigh muscles were wasted. There was 10 inch long operative scar on the left thigh. Movements of left hip joint were reduced in all directions. In the left knee joint, movement was restricted to 90 degree. In the left leg there was angulated deformity in the lower one-third. Movements of ankles were also restricted.
(3) I got X-ray of left femur and left leg. X-rays show fracture of left tibia and fibula being manumitted with overriding and angulation. The fractured left femur had united with plates and screws in position. I found permanent physical impairment to the extent of 25 per cent in the left lower limb. Out of which 10 per cent was due to shortening and remaining 15 per cent was due to stiffness, in the muscle/joint.
(4) I have produced 2 X-ray films with opinion in the form of notes, which are vide Exh. P-26. He cannot answer call of nature in ordinary course excepting use of commode.
(5) If the patient is to approach me for the removal of implants he might incur expenses of Rs. 3,000 to Rs. 4,000.
(6) Cross-examination by Mr. P.J.D., Advocate.
(7) What line of treatment the patient had received I was not given information. It is false to suggest that I have given false opinion about quantum of impairment. It is false to suggest that I have not examined the said patient.'
24. The accident took place on 31.1.96. Having regard to the grievous nature of the fractures and the medical treatment received by the appellant, in our considered opinion, awarding a meagre sum of Rs. 5,000 towards each of the fractures is very much on lower side. Even keeping in mind the conservative norms of assessment of compensation, it cannot be less than Rs. 10,000 towards each of the fractures. Thus we award total sum of Rs. 70,000 towards pain and suffering.
25. Appellant had claimed a sum of Rs. 75,000 for medical expenses whereas the MACT has awarded only a sum of Rs. 11,235 towards medical expenses. The reasons stated by the MACT as reflected in the impugned judgment is that Exh. P-19 (25) receipt bears the date which is anterior to the date of accident; Exh. P-19 (26) pertains to M.V.C. No. 349 of 1996. Exhs. P-19 (34) and P-19 (35) are disallowed on the ground that no stamp duty and penalty is paid. Except the above reasons, nothing is stated in the impugned judgment as to why the compensation is restricted to a sum of Rs. 11,235 only. The MACT has also not stated the value of the total bills produced by the appellant. In the facts and circumstances of the case and since the reasons stated by the MACT to reject Exhs. P-19 (34) and P-19 (35) are technical, and having regard to the length of treatment the appellant had at Aurangabad and the possible expenditure incurred by him towards Medicare and treatment, we think that a global compensation of Rs. 50,000 would meet the ends of justice towards medical expenses. Accordingly, we award a sum of Rs, 50,000 towards medical expenses.
26. It is well settled that in addition to medical expenses in bodily injury cases, the claimants are also entitled to compensation towards attendant charges, transportation charges, special food and nutrition, etc. It has come in the evidence that the appellant had to undertake journey from Hospet to Aurangabad as many as 7 times and he had to take the help of others to accompany him. Even on a conservative estimate in 1996, the to and fro journey charges from Hospet to Aurangabad would have costed him not less than Rs. 6,000 for each round of journey. Therefore, we think that a sum of Rs. 42,000 towards transportation charges from Hospet to Aurangabad would meet the ends of justice. Accordingly, we award a sum of Rs. 42,000 under the said head.
27. We also award a sum of Rs. 5,000 towards attendant charges at the rate of Rs. 100 per day for 50 days. Further, we award a sum of Rs. 5,000 towards special food and nutrition.
28. It is a matter of record that appellant was inpatient in Aurangabad itself for more than one month. Even after his discharge having regard to the 7 fractures sustained by him he could not attend to his business work. It could safely be taken that on account of the accident and fractures sustained by him, the appellant had to suspend his normal work at least for a period of four months. Although the appellant claimed that his monthly income was Rs. 5,000 since that claim is not supported by any substantive legal evidence but having regard to the kind of business carried on by the appellant in textiles, we can reasonably take the income of appellant at the rate of Rs. 3,000 p.m. If it is so taken, the loss of income for a period of four months would be Rs. 12,000 and accordingly, we award Rs. 12,000 towards loss of income.
29. This takes us to the compensation to be awarded for loss of future income. PW 2 doctor has stated that the appellant has sustained permanent physical impairment to the extent of 25 per cent in the left lower limb, of which 10 per cent was due to shortening and remaining 15 per cent was due to stiffness in the muscle/joint. In addition to the evidence of PW 2, PW 1 in his evidence has stated that after the accident he had to engage the services of two employees on consolidated salary of Rs. 800 p.m. and that evidence is not seriously contested in the cross-examination. Be that as it may, if we go by only the medical evidence of PW 2 and do not give credence to the claim of the appellant with regard to his engaging services of two employees, it cannot be said that the appellant is not entitled to compensation at all towards future loss of income. The physical frame of the appellant has been shattered considerably. Therefore, taking all the facts and circumstances of the case and nature of the enterprise in which the appellant had been engaged before the accident, we think that a global compensation of Rs. 1,00,000 towards loss of future income would meet the ends of justice and, accordingly, we award Rs. 1,00,000 towards loss of future income. We also award a sum of Rs. 10,000 for loss of expectation of life.
30. PW 2 doctor stated in his evidence that if the implants which have been inserted in the body during surgeries have to be removed it would cost a sum of Rs. 3,000 to Rs. 4,000. We award a sum of Rs. 4,000 towards cost of removal of implants.
31. In the result and for the foregoing reasons, we allow the appeal in part with costs and in substitution of the award passed by the MACT we award total compensation of Rs. 2,98,000 under the following heads;
(1) Pain and suffering Rs. 70,000 (2) Medical expenses Rs. 50,000 (3) Travelling expenses from Hospet to Aurangabad Rs. 42,000 (4) Attendant charges Rs. 5,000 (5) Special food and nutrition Rs. 5,000 (6) Loss of income Rs. 12,000 (7) Loss of future income Rs. 1,00,000 (8) Loss of expectation of life Rs. 10,000 (9) Future medical expenses Rs. 4,000 -------------Total Rs. 2,98,000--------------
With interest at 9 per cent per annum from the date of claim petition till realisation. The advocate fee is fixed at Rs. 2,000. The Corporation shall deposit the compensation within four weeks from today. The compensation already paid to the appellant is required to be adjusted.