Judgment:
Mansoor Ahmad Mir, J.
1. Mr. Manzoor has questioned the award passed by Motor Accident Claims Tribunal, Srinagar dated 28.04.2004 in case titled Awaleen v. United India Insurance Co. and Ors.
2. The back drops of the case are given as under:-
The appellant has filed a claim petition in the Tribunal with the averments that she became the victim of vehicular accident caused by respondent No. 3, while driving the vehicle TATA Load Carrier bearing registration No. 9906/JKS from Srinagar at Narabal crossing. The case of the appellant is that the driver of the respondent has driven the vehicle rashly and negligently and hit the petitioner/appellant, who sustained injuries and became permanently disabled and has claimed compensation to the tune of Rs. 28 lacs as per the break up given in the claim petition. The respondent 1 appeared and filed objections. Respondents 2 and 3 have been set exparte. Four issues have been framed vide order dated 26.10.2002. The petitioner and respondent No. 1 have examined the witnesses. And after hearing the parties present, the Tribunal has passed the impugned award.
3. The main grievance is that inadequate compensation has been awarded to the petitioner. Heard. Considered. The moot point for consideration is whether the compensation awarded is just or otherwise?
4. The amount of compensation is always higher in an injury case as compared what is gayable to the heirs in a case where accident proved to be fatal and this principle of law stands recognized by the judicial precedents.
5. It is worth while to note herein that the respondents i.e. owner, driver and insurer have not challenged the award. Thus the following facts are not in dispute:-
1. That accident did take place;
2. That the claimant suffered 100% disability and it is a case of Para pelgio;
3. That the injured is a minor girl of the age of 10 years.
6. It has been averred by the petitioner and held by the Presiding Officer vide impugned award that the accident has rendered the appellant permanently disabled. She is not in a position to attend natural call and have meals, drink etc and it has also affected his earning capacity. This finding has not been assailed by the respondents.
7. Dr. Altaf Kirmani, who is an expert and who has examined the petitioner in the open court while rendering statement has deposed that the petitioner is permanently disabled. The accident has rendered her legs motionless and impaired and a lower portion of petitioner stands completely paralyzed and her speech is dis-articulated which is not understandable. He has further stated that her intellectual capacity, mental faculty and power in the limbs especially in the lower limb may not show any remarkable improvement, though she is on follow-up treatment. The injured requires constant nursing, a lot of medicines and permanent attendant. He has further said that the injured is half dead and has no prospects of marriage. The learned Presiding Officer has awarded Rs. 3 lacs under (A), though the petitioner has claimed Rs. 19 lacs.
8. In terms of the impugned award only Rs. 50,000/- stands awarded under the head (B) for medicines and attendant and Rs. 20,000/- stands awarded under the head (C) i.e., for shock and pain.
9. It is beaten law of the land that while awarding compensation, the Tribunal has to exercise guess work while keeping in view all things.
10. The guess work involves some hypothetical considerations, some amount of sympathy linked with nature of disability caused while making award. This aspect should be viewed with objective standards. The money cannot relieve human sufferings or personal deprivations. It cannot restore the charm of injured.
In 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 his 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, he unable to rise from his bed. He has lost every thing 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-high 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.'
11. While assessing the compensation which is payable to the petitioner, the damages are to be assessed separately as pecuniary damages and non-pecuniary damages. Pecuniary damages are those which the injured has actually incurred and which is capable of being calculated in terms of money and; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations.
12. In order to appreciate these two concepts it is necessary to quote page 446 of Halsbury's Laws of England, 4th Edition:-
'Non-pecuniary loss: the pattern. Damages awarded for pain and sufferings 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 reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases.'
In this context it is profitable to reproduce Note 51 & 54 on page No. 514/515 of the Book 'How to Assess Compensation'.
'The broad general principle which should govern the assessment of damages in cases of bodily injuries is that the Tribunal should award to injured party 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. The principle is sometimes referred to as the principle of restitution in intergrum; but it is manifest that no award of money can possibly compensate a man and renew a shattered human frame. The principle therefore, affords a little guidance in the assessment of damages for the pain and suffering undergone and for the impairment which results from the injuries and in fixing such damages the judge can do more than an endeavor to arrive at a fair estimate taking into account all the relevant considerations.'
13. Now question is whether the compensation awarded is a just compensation in terms of provisions of law as discussed above and in view of the fact and circumstances of the case.
14. The respondents have not assailed, as discussed above, impugned award. I am of the consideration opinion that the learned Presiding Officer has not awarded the compensation rightly under the head (B) i.e. for attendant and medicines. The learned Presiding Officer has lost sight of the fact that the appellant/claimant has become permanently disabled and is virtually dead though alive and requires a permanent attendant, because the expert has deposed that injured requires constant nursing, a lot of. medicines and permanent attendant. Here a guess work was required that how much the petitioner has to spend in order to engage an attendant. A layman can say that the attendant cannot be available for less then Rs. 1000/- per month as wages. I wonder why the Presiding Officer has awarded only Rs. 50,000/- under the head expenses of medicines and attendant.
15. Thus I am of the considered opinion that it is not just compensation Rs. 50,000/- may be just compensation under the head for future expenses on medicine but not for attendant. The age of the victim/appellant is 10 years. The multiplier 15 has to be applied in order to work out what should be the just compensation under the head attendant.
16. It is not possible to engage attendant at Rs. 1000/- because a labourer is earning Rs. 100/- per day i.e., he earns Rs. 3000/- per month. Now a days, it is very difficult to arrange attendant on Rs, 1000/- per month. However, may be the appellant be in a position to have an attendant at Rs. 1000/- per month. Thus this means that appellant (claimant) has to pay Rs. 12000/- per annum.
17. Keeping in view the ratio of Apex Court judgments and schedule appended to Motor Vehicles Act, multiplier 15 is just multiplier in order to assess what should be awarded as just compensation under the head attendant. The petitioner is entitled to compensation at least Rs. 1000*12*15=1, 80, 000/-. The learned Presiding Officer has also lost sight of the fact that the petitioner has lost the chance of marriage and there are no prospects of her marriage and no amount has been awarded under the head prospects of marriage. But the learned Presiding Officer has awarded rupees three lacs under Head (A) in lump sum. Thus I deem it proper not to disturb the same.
18. Having glance of the above discussion, appeal merits to be allowed. Be it noted that respondents have not challenged the award. Thus the appellant is entitled to awarded amount i.e. Rs. 3.70 lacs with 9% interest from the date of application and is also entitled to Rs. 1,80,000/- under the head attendant, but without interest.
19. Viewed thus appeal is allowed, award is modified to the extent that petitioner is also entitled to Rs. 1.80 lacs as compensation under the head attendant. But the petitioner is not entitled to interest at this amount. Thus an award of, Rs. 3.70 lacs with interest at the rate of 9% from the date of claim petition till its realization and, Rs. 1.80 lacs, is hereby passed in favour of the appellant/claimant and against the respondents. The respondent No. 1 being insurer is saddled with the entire liability and is directed to satisfy the award within one month from today.
20. One half of the awarded amount shall be deposited in the name of the petitioner in fixed deposit for seven years. Accordingly, appeal is allowed and, impugned award is modified. Send down the record.