Judgment:
S.K. Dubey, J.
1. This is an appeal under Section 173 of the Motor Vehicles Act 1988 (for short the 'Act') for enhancement of the compensation awarded vide award dt. 2-12-1995 passed in M.C.C. No. 161/95 by VIth Addl. Motor Accidents' Claims Tribunal, Bhopal.
2. The appellant used to sell cloth by going round, from place to place. On 20-5-1994 at about 3.30 p.m. when the appellant as pillion under was going on Scooter No. MBD-516 driven by one Mohd. Faruk Khan towards Jahangirabad, Truck No. MKW-7855 cb'ming from opposite direction in high speed dashed the scooterist. As a result, the scooter driver died on the spot. The appellant's left shaft femur was fractured. The Scooter was badly damaged. The appellant was admitted in Gandhi Medical College and Hamidiya Hospital Bhopal. After treatment his leg was plastered. On 10-8-1994 skin grafting was done over granulating wound. On discharge on 26-8-1994, he was advised to attend OPD on Tuesday/Friday after two weeks. But he complained pain and swelling in left thigh and was again admitted on 10-1-1995 for refracture shaft femur for hailing operation. On 1-2-1995 operation was performed and 40 cm x 11 mm size nail was passed through Anterolate approach. He was discharged on I4-2-I995, and advised for follow up treatment for a month, Discharge ticket is Ex. P./125. The injury resulted in Post traumatic painful restriction of knee movement with shortening of left leg by one inch and disfigurement of left thigh. Extent of permanent disability was 50% in the lower limbs. Ex. P/132 is the certificate showing this physical handicap.
3. The appellant during his treatment as an indoor patient filed an application for compensation on .28-7-1994 through his counsel and claimed compensation of Rs. 3 lacs under various heads. The owner and driver :of the vehicle remained ex parte. The respondent No. 3 the insurer contested the claim. The Tribunal held that accident was caused due to sole negligence of the truck driver, and awarded Rs. 10,000/- for expenses incurred in, treatment, Rs. 2,000/,- for special diet, Rs. 12,000/- for loss of earning for a period of one year, Rs. 30,000/- for permanent disability and Rs. 5,000/- for pain and sufferings, total Rs.59,000/- with interest thereon at the rate of 12% per annum from the date of application till payment.
4. Smt. Shobha menon learned counsel for the appellant submitted that the appellant at the time of accident was aged 45 years and was earning his livelihood on an average Rs. 6,000/- per month. The injury caused due to the motor accident cannot be compensated in terms of money which cannot renew a broken and shattered physical frame. However, in personal injury actions a just compensation should be awarded. Though, the permanent disability is of 50%, but, there is unchallenged testimony of appellant that he now cannot carry on his business of sale of cloth by taking round from place to place. Therefore, considering the circumstances, the reasonable compensation would be as claimed. Counsel cited the case of R.D. Hattangadi v. M/s. Pest Control (India) Ltd., AIR 1995 SC 755.
5. Learned counsel for the respondent/ insurer supported the award of compensation and submitted that the just compensation has been awarded which is not inadequately low so as to call for enhancement. Counsel relied on the decisions in Jai Bhagwan v. Laxman Singh, (1994) 5 SCC 5 and comparable cases decided by this Court -- G.M. Madhya Pradesh State Road Transport Corporation v. Pushpa Devi, 1995 Acc CJ 208, Trilok Chand Anand v. Om Prakash, 1995 Ace CJ 1057, Mukesh v. Madhya Pradesh State Road Transport Corporation, 1995 Ace CJ 1683, Sajanbai v. Illias Mohd., 1995 ACC CJ 940 and Prem Narayan Bhatnagar v. GyarJ Prakash Bhardwaj, 1995 Ace CJ 816.
6. The task of assessment of damages in personal injury actions is a difficult one. Money cannot renew a broken and shattered physical frame. However, in personal injury actions the award of compensation is made under two heads, i.e. pecuniary and non-pecuniary loss resulting from the injury. Award of pecuniary loss is not difficult one, but, the award of non-pecuniary damages i.e. general damages resulting from the injury is difficult for human suffering resulting from any serious bodily injury cannot be valued in terms of money, for that the Courts make an endeavour as best as they can to quantify non-pecuniary damages in terms of money having regard to the injury and the damage resulting from it. In process of application, the wide discretion that the Courts exercise in making awards of compensation, like any other judicial discretion, has canalized itself into sets of rules. These rules are the amount of compensation awarded must be reasonable, must be assessed with moderation having regard to the awards made in comparable cases; the sums awarded should to a considerable extent be conventional keeping in line with the changes in the value of money. It is only by adherence to these self-imposed rules that the Courts can decide like cases in like manner and bring about a measure of predictability of their awards. These considerations are of great importance if administration of justice in this field is to command the respect of community.
7. In case of Jai Bhagwan, (1994 (5) SCC 5) (supra), the Supreme Court, where, the injured was 22 years of age at the time of accident where left leg was amputated, enhanced compensation of Rs.45,000/- to Rs, 80,000/- and observed in paras 9 and 10 thus:
'9. In the matter of assessment of damages in personal-injury-actions, the approach of the Court, as indicated by the House of Lords in H. West and Son. Ltd. v. Shephard, (1993) 2 All ER 625 is guided by these considerations :
'My Lords, the damages which are to be awarded for a tort are those which 'so far as money can compensate, will give the injured party reparation for the wrongful act and for all the natural and direct consequence of the wrongful Act' (Admiralty Comrs. v. Susquehanna (Owners), The Susquehanna) 1926 All ER 124 : 1926 AC 655. The words 'so far as money can compensate' point to the impossibility of equating money with human suffering or personal deprivation. A money award can be calculated so as to make good a financial loss. Money may be awarded so that something tangible may be procured to replace something else of 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. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.' '10. In Clerk and Lindsell on Torts (16th Edn.), referring to damages for personal injuries, it is stated:
'In all but a few exceptional cases the victim of personal injury suffers two distinct kinds of damage which may be classed respectively as pecuniary and non-pecuniary. By pecuniary damage is meant that which is susceptible of direct translation into money terms and includes such matters as loss of earnings, actual and prospective, and out-of-pocket expenses, while non-pecuniary damage includes such immeasurable elements as pain and suffering and loss of amenity or enjoyment of life. In respect of the former, it is submitted, the Court should and usually does seek to achieve restitutio in integrum in the sense described above, while for the latter is seeks to award 'fair compensation'. This distinction between pecuniary and non-pecuniary damage by no means corresponds to the traditional pleading distinction between 'special' and 'general' damages, for while the former is necessarily concerned solely with pecuniary losses -- notably accrued loss of earnings and out-of-pocket expenses -- the latter comprises not only non-pecuniary losses but also prospective loss of earnings and other future pecuniary damage.' As to awards for non-pecuniary losses, the learned authors say : 'Non-pecuniary losses are different from pecuniary losses in that the restituio in integrum objective cannot be applied literally to them -- damages cannot restore a lost limb or happiness. While there is some disagreement as to the function of non-pecuniary damages, many would agree with the Royal Commission's suggestions that they serve as a palliative, or provide the plaintiff with the means to purchase alternative forms of happiness, or help to meet hidden expenses caused by injury. While the practice of the Courts is not to subdivide non-pecuniary damages under specific heads, nevertheless proper consideration cannot be given to the plaintiffs claim without taking into account the various types of loss he has suffered.'
8. In R.D. Hattangadi's case, (AIR 1995 SC 755) (supra) a case of practicing advocate, who became paraplegic due to injuries in a motor accident, the Supreme Court laid down the principles for assessment of damages. Relevant paras - 7, 9, 11, 12, 13 and 14 from the report we quote:
'7. During the last few decades question of payment of compensation for accidents has assumed great importance, which is correlated with the accidents which have touched a new height not only in India but in different parts of the world. Initially, the theory of payment of compensation was primarily linked with tort compensation -- only if the injury or damage was caused by someone's fault. Of late of injury or damage being caused by someone's fault is being read as because of someone's negligence or carelessness. That is why any damage caused by negligent conduct is generally actionable irrespective of the kind of activity out of which the damage arose. Even in an action based on the tort, the applicant has to show that the defendant was negligent, i.e. there was failure on his part to take that degree of care which was reasonable in the circumstances of the case. There has never been any doubt that those using the highways are under a duty to be careful and the legal position today is quite plain that any person using the road as a motorist will be liable, if by his action he negligently causes physical injuries to anybody else.'
'9. 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 is 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; (in) other material loss. So far non-pecuniary damages are concerned, they may include; (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future;
(ii) damages to compoensale 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 of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened;
(iv) inconvenience, hardship, dis-comfort, disappointment, frustration and mental stressin life.'
'11. In the case Ward v. James, 1965 (1) All ER 563, it was said :
Although you cannot give a man so gravely injured much for his 'lost years', you can, however, compensate him for his loss during his shortened span, that is, during the expected 'years of survival'. You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet Judges and Juries have to do the best they can and give him what they think is fair. No wonder they find it well-nigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The Judges have worked out a pattern, and they keep it in line with the changes in the value of money.' '12. In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some gues work, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards.'
'13. This Court in the case of C.K. Subramonia lyer v. T. Kunhikuttan Nair, AIR 1970 SC 376 in connection with the Fatal Accidents Act has observed (at p. 380) : 'In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable.'
'14. In Halsbury's Laws of England, 4th Edition, Vol. 12 regarding non-pecuniary loss at page 446 it has been said:--
Non-pecuniary loss : the pattern, damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award.
The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessment of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases.'
9. In the background of law laying down the principles for assessment of damages, in the present case, looking to the nature of the injuries, fifty percent permanent disability and shortening of leg by one inch, the appellant is not in a position to carry on his business of sale of cloth by taking round from place to place as he was doing efficiently prior to accident, inconvenience, hardship, discomfort, frustration, and mental distress, we have to award compensation under the head of general damages, considering the comparable cases. In case of Jai Bhagwan, ((1994) 5 SCC 5) (supra), for the accident occured on 2-1-1981 the left leg of injured aged 22 years was amputated, the compensation was enhanced. from Rs. 45,000/- to Rs. 80,000/-. In case of Puspa Thakur v. Union of India, (AIR 1986 SC 1199). for the amputation of right leg of unmarried girl aged 23 years, the Supreme Court awarded compensation of Rs. one lac. Therefore, having regard to the circumstances of the case, we are of the view that the award of Rs.50,000/- under the head of general damages would be proper instead of Rs. 30,000/- and Rs. 10,000/- under the head of pain and suffering instead of Rs. 5,000/-plus the amount awarded by the Tribunal under the head of pecuniary damages. Thus, the appellant would be entitled to Rs. 84,000/-. Looking to the nature of injury, duration of treatment and 50% permanent disability the total award of Rs. 84,000/-would be 'just' compensation.
10. The cases cited by the counsel for the respondent No. 3 are distinguishable on facts and cannot be a guide not being comparable cases for assessng the compensation for the like injury, disability and sufference, except the decision in Sajan Bai's case (1995 Ace CJ 940) (MP) (supra) where because of injury to a house wife on 9-11-1985 the injured suffered a fracture of femure and right patella bone which was removed resulting in shortening of leg by 2', permanent disability was 30% where The Court awarded Rs. 25,000/- for general damages; Rs. 15,000/- for pain and suffering arid Rs. 6,000/- towards expenses in treatment, total Rs. 46.000/-. Even if this case is taken as a comparable case, looking to the nature of injuries to the appellant, duration of treatment and 50% permanent disability and the fall of money value, the total award of Rs. 84,000/-, in our opinion is reasonable and moderate.
11. As a result of the above discussion, the appellant would be entitled to enhanced amount of Rs. 84,000/- with interest thereon at the rate of 12% per annum from the date of application till deposit, which the respondent/insurer shall deposit less the amount already deposited by it within a period of two months from the date of supply of certified copy, else the interest shall be payable at the rate of 15% per annum. The enhanced amount, together with accrued interest Shall be invested by the Tribunal in a Nationalised Bank of the choice of the appellant for a period of five years and the appellant shall be entitled only to the payment of the periodic accrued interest. The Bank shall not permit any loans on the security of the deposit or any premature withdrawal for a period of five years. The appellant shall be entitled to the proceeds of deposit at the end of five years.
12. Accordingly, the appeal is allowed with costs. The award passed by the Tribunal shall stand modified as indicated herein-above. Counsel's fee Rs. 1,000/- if pre-certified.