M.V. Chowdappa Vs. Mohan Breweries and Distilleries Limited and anr. - Court Judgment

S.R. Nayak, J.

1. The injured person in a motor vehicle accident, being dissatisfied with the compensation of Rs. 2,94,100/- with interest at 6% per annum, has preferred this appeal under Section 173(1) of the Motor Vehicles Act, 1988 (for short, 'the Act').

2. The fact that the appellant sustained certain grievous injuries in the accident occurred on 27-3-1997 involving the motor vehicle owned by the 1st respondent and insured by the 2nd respondent-Insurance Company is not in dispute. The appellant was 28 years of age on the date of the accident and according to him, he was earning monthly income of Rs. 5,000/- out of agriculture/sericulture and also by milk-vending. As per the medical evidence, he sustained 90% of permanent disability to the whole body. In the premise of these facts, the appellant claimed compensation of Rs. 8,00,000/-.

3. The claim petition was contested by the 2nd respondent-Insurance Company by filing written statement. In support of the claim for compensation, the appellant examined himself as P.W. 1 and one Dr. Shanmugam as P.W. 3 and produced two wound certificates marked as Exs. P. 7 and P. 8, discharge summary marked as Ex. P. 11 and certain other documents marked as Exs. P. 12 to P. 24. On behalf of respondents, none was examined nor any document was produced.

4. The Tribunal taking the permanent disability sustained by the appellant to the whole body at 40%, monthly income at the rate of Rs. 2,000/- and applying multiple '18', awarded Rs. 1,72,800/- towards loss of future income. In addition, the Tribunal has awarded Rs. 74,300/-towards medical expenses; Rs. 10,000/- towards special food and nutrition; Rs. 5,000/- each towards transportation charges, pain and suffering and loss of marriage prospects; Rs. 12,000/- towards loss of earning during treatment period for a period of six months and Rs. 10,000/- towards future medical expenses. Thus, the Tribunal has awarded total compensation of Rs. 2,94,100/- with interest at 6% from the date of claim petition till payment.

5. We have heard learned Counsels for the parties and perused the impugned judgment. Sri Y.R. Sadashiva Reddy, learned Counsel for the appellant would first contend that on the face of evidence of P.W. 3 that the appellant sustained 90% of permanent disability to the whole body, the Tribunal was not justified in taking the permanent disability at 40% for the purpose of computing loss of future income and loss of income during laid off period. Sri Sadashiva Reddy would also contend that the compensation awarded under the remaining heads, in the facts and circumstances of the case and evidence on record is meagre and very much on lower side. Sri Sadashiva Reddy would further contend that the Tribunal is not justified in not awarding compensation towards loss of amenities of life and attendant charges. Sri Sadashiva Reddy would also contend that even the rate of interest awarded by the Tribunal is not in conformity with the trends reflected by the judgments of this Court in recent times.

6. Having heard the learned Counsels for the parties, the point that arises for decision making is whether the compensation of Rs. 2,94,100/-awarded by the Tribunal in the facts and circumstances of the case and evidence on record, could be regarded as just and reasonable compensation within the contemplation of the Act and if not, what is just and reasonable compensation?

7. The Apex Court and this Court repeatedly held and reiterated that the compensation to be awarded by the Tribunals under any head should not be a token compensation, but, it should be adequate and reasonable to achieve the statutory goal. The Tribunals are well-advised to take into account the facts and circumstances of individual case, the age of the injured or the deceased on the date of the accident, the social and economic status of the deceased or injured, the prospects of the deceased/injured earning more income, if the accident has not taken place.

8. The Courts and Tribunals, in bodily injury cases, while assessing compensation, should take into account all relevant circumstances, evidence, legal principles governing quantification of compensation. Further, they have to approach the issue of awarding compensation on the larger perspectives of justice, equity and good conscience and eschew technicalities in the decision making. There should be realisation on the part of the Tribunals and Courts that the possession of one's own body is the first and most valuable of all human rights, and that all possessions and ownership are extensions of this primary right, while awarding compensation or bodily injuries. Bodily injury is to be treated as a deprivation, which entitles a claimant to damages. The amount of damages varies according to gravity of injuries. Deprivation sustained as a consequence of bodily injuries may bring with it three consequences, namely, (i) loss of earning and earning capacity, (ii) expenses to pay others for what otherwise he would do for himself, and (iii) loss or diminution in full pleasures and joys of living. Though it is impossible to equate money with human suffering, agony and personal deprivation, the Tribunals and Courts should make an honest and serious attempt to award damages so far as money can compensate the loss. Loss of curing and earning should adequately be compensated. Therefore, while considering deprivation, the Tribunals and Courts should have due regard to the gravity and degree of deprivation as well as the degree of awareness of the deprivation. It is trite, in awarding damages in personal injury cases, the compensation awarded by the Court should be substantial, it should not be merely token damages.

9. In R.D. Hattangadi v. Pest Control (India) Private Limited and Ors., : [1995]1SCR75 speaking about the heads of compensation, the Apex Court 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 towards: (i) medical attendance; (ii) loss of earning 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 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 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'.

10. Viscound Dunedin in Admiralty Commissioners v. S.S. Valerla, (1992)2 AC 242 has observed thus:

'The true method of expression, I think, is that in calculating damages you are to consider what is the pecuniary consideration which will make good to the sufferer, as far as money can do so, the loss which he has suffered as the natural result of the wrong done to him'.

11. Lord Blackburn in Livingstone v. Rawyards Coal Company, (1880)5 AC 25 has held thus:

'Where any injury is to be compensated by damages, in settling the sum of money to be given. . . you should as nearly as possible get at that sum of money which will put the person who has been injured. . . . in the same position as he would have been in if he had not sustained the wrong'.

12. Of course, both the above cases were about damage to property. But we have referred to the above observations of Viscound Dunedin and Lord Blackburn to show that in a case where a property or a thing cannot be replaced or repaired or restored, the Court, at least, should make an attempt to give a fair equivalent in money, so far as the money can be an equivalent, and in that, 'make good' the damage. In applying the above observations of Viscound Dunedin and Lord Blackburn to personal injuries, it must be recognised that the primary rule is compensation. The rule 'Restitutio in integrum' which is a derivative of the main rule that compensation is measured by the cost of repair, or restoring the original position - applies only if and so far as the original position can be restored. If it cannot, the law must endeavor to give a fair equivalent in money.

13. Lord Morris in his memorable speech in H. West and Sons, (1963)2 All ER 625 pointed out this aspect in the following words:

'Money may be awarded so that something tangible may be procured to replace of like nature which has been destroyed or lost. But, the money cannot renew a physical frame that has been battered and shattered. All the Judges and Courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavor to secure some uniformity in the general method of approach. By common assent awards must be reasonable and must be assessed with moderation. Farther more, it is eminently desirable that so far as possible comparative injuries should be compensated by comparable awards'.

14. In the above case, their Lordships of the House of Lords, observed that the bodily injury is to be treated as a deprivation which entitles plaintiff to the damage and that the amount of damages varies according to the gravity of the injury. Their Lordships emphasised that in personal injury cases the Courts should not award merely token damages but they should grant substantial amount which could be regarded as adequate compensation.

15. In Ward v. James, (1965)1 All ER 563c speaking for the Court of Appeal in England, Lord Denning while dealing with the question of awarding compensation for personal injury laid down three basic principles:

'Firstly, assess ability: 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'.

16. In deciding on the quantum of damages to be paid to a person for the personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries, as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him.

17. In Basavaraj v. Shekar, : ILR1987KAR1399 (DB) a Division Bench of this Court held:

'If the original position cannot be restored -- As indeed in personal injury or fatal accident cases' it cannot obviously be --The law must endeavor to give a fair equivalent in money, so far as money can be an equivalent and so make good the damage'.

18. Therefore, the general principle which should govern the assessment of damages in personal injury cases is that the Court should award to injured person 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. But, it is manifest that no award of money can possible compensation an injured man and renew a shattered human frame.

19. Lord Morris of Borthy Gest in Parry v. Cleaver, 1970 AC 1 said:

'To compensate in money for pain and for physical consequence is invariably difficult but . . . . no other process can be devised than that of making a monetary assessment'.

20. The necessity that the damages should be full and adequate was stressed by the Court of Queen's Bench in Fair V. London and North Western Railway Company, (1869)21 LT 326. In Rushtom v. National Coal Board, (1953)1 All ER 314 Singleton, L.J. said:

'Every member of this Court is anxious to do all he can to ensure that the damages are adequate for the injury suffered, so far as they can be compensation for an injury, and to help the parties and others to arrive at a fair and just figure'.

21. Field, J., said in Phillips v. South Western Railway Company, (1874)4 QBD 406 held:

'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'.

22. In Fowler v. Grace, (1970)114 Sol Jo 193 Edmund Daview, L.J., said that 'it is the manifest duty of the Tribunal to give as perfect a sum as was within its power'. There are many losses which cannot easily be expressed in terms of money. If a person, in an accident, loses his sight, hearing or smelling faculty or a limb, value of such deprivation cannot be assessed in terms of market value because there is no market value for the personal asset which has been lost in the accident, and there is no easy way of expressing its equivalent in terms of money. Nevertheless a valuation in terms 01' money must be made, because, otherwise, the law would be sterile and not able to give any remedy at all. Although accuracy and certainty were frequently unobtainable, a fair assessment must be made. Although undoubtedly there are difficulties and uncertainties in assessing damages in personal injury cases, that fact should not preclude an assessment as best as can, in the circumstances be made.

23. In The Mediana, 1900 AC 113 the plaintiffs were deprived by the use of lightship, but sustained no pecuniary loss as another lightship was kept in reserve. Yet it was held that the plaintiffs were entitled to substantial damages for the loss of the use of their ship for a period, and Lord Halsbury, L.C., answered the objection that assessment was too uncertain by observing that:

'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'.

24. In personal injury cases, the Court is constantly required to form an estimate of chances and risks which cannot be determined with precision. It is because, the law will disregard possibilities which are slight or chances which are nebulous; otherwise, all the circumstances of the situation must be taken into account, whether they relate to the future which the plaintiff would have enjoyed if the accident had not happened, or to the future of his injuries and his earning power after the accident. Damages are compensation for an injury or loss, that is to say, the full equivalent of money so far as the nature of money admits; and difficulty or uncertainty does not prevent an assessment.

25. 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 some cases for both; and (5) medical treatment and other special damages. In personal injury actions the two main elements are the personal loss and pecuniary loss. Chief Justice Cockburn in Fair's case, supra, distinguished the above two aspects have:

'In assessing the compensation the jury should take into account two things, first, the pecuniary loss the plaintiff 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'.

26. McGregor on Damages (14th Edition), para 1157, referring to the 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'.

27. 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 tort feasor to say that he had amply atoned for his mis-adventure'. 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 wrong-doer 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 assessing compensation in personal injury cases.

28. In the premise of the well-recognized principles which govern computation of compensation in bodily injury cases noticed above, when we look at the facts of this case, we are constrained to observe that the Tribunal has not at all adhered to the principles and norms evolved by the superior Courts. In the instant case, the injured is an agriculturist and he was earning bread to himself and his family by working on the field and doing milk-vending business. The evidence of P.W. 3 that the appellant has sustained 90% of permanent disability to the whole body is not seriously contested. In the accident, the appellant has sustained comminuted segmental fracture of both bones of the right leg and compound comminuted fracture of both bones of left leg. The injuries sustained by the appellant, in the accident, it is trite, has shattered and battered his physical frame. Strictly speaking, in terms of functional disability, the appellant has sustained 100% disability. The Tribunal without giving any reason, much less cogent and acceptable reasons, has taken the permanent disability at 40% and on that basis computed the compensation under various heads. There was no justification for the Tribunal to take the permanent disability at 40% ignoring the expert evidence of P.W. 3.

29. Although the appellant claimed monthly income at Rs. 5,000/-, in the absence of evidence adduced by the appellant in support of that claim, we may not be justified in taking the monthly of the appellant at the rate of Rs. 5,000/-. But, it is satisfactorily proved that the family of the appellant held agricultural lands and they were earning income from doing agriculture/sericulture. The claim of the appellant that he was also earning some income through milk-vending is not seriously disputed. Be that as it may, an agriculturist owning considerable extent of land and doing some side-business, like milk-vending, earning monthly income of Rs. 3,000/- cannot be regarded as something speculative or unusual at the time and place of the accident. Therefore, in our considered view, the monthly income of the appellant can be taken at the rate of Rs. 3,000/- per month, if not more, for the purpose of computing compensation, If we take the monthly income of the appellant at Rs. 3,000/- and permanent disability sustained by him at 90% to the whole body, he will be entitled to Rs. 5,18,400/-, being 90% of Rs. 5,76,000/- (3,000 x 12 x 16).

30. There is no dispute between the parties that the appellant was in-patient for a period of six months. Therefore, he is entitled to a sum of Rs. 18,000/- towards loss of income during the laid-off period. Having regard to the nature and degree of permanent disability sustained by the appellant and length of treatment taken by him as in-patient, we think that Rs. 25,000/- would be a just compensation under the head 'pain and suffering'.

31. It has come in the evidence that the appellant had to come to Bangalore as many as ten times from Kolar by hiring a taxi for treatment and according to him, he spent Rs. 1,000/- towards to and fro journey on each occasion. Therefore, we award a sum of Rs. 10,000/-towards transportation charges. In addition, we award Rs. 10,000/-towards special food, nutrition etc.

32. The appellant has produced medical bills for Rs. 74,260/-. It is reasonable to assume that in addition to the actual bills, the appellant might have spent some more money towards medical expenses and medicare. Therefore, we award Rs. 80,000/- towards medical expenses.

33. It is trite that during his stay in the hospital and having regard to the grievous nature of injuries, he required unavoidably the services of an attendant towards nursing and care. Therefore, we award a sum of Rs. 18,000/- towards attendant charges at the rate of Rs. 100/- per day for 180 days.

34. It is well-settled that in bodily injury cases, the claimant is also entitled to receive compensation towards loss of amenities of life. Nothing is awarded under the said head though a petty sum of Rs. 5,000/- is awarded towards loss of marriage prospects. The appellant has sustained 90% of permanent disability to the whole body and his physical frame is completely shattered and battered. With this physical deformity and impairment, the appellant has to live for the rest of his life. It is needless for us to highlight the consequences of injuries sustained by him in his physical frame and accompanying frustration, disappointment. The appellant is denied normal pleasures and joys of human life including sex. Although such loss can never be compensated strictly in terms of money, the Court should make an honest attempt to award monetary compensation to the extent it can adequately meet the loss in terms of money. Keeping that principle in the back of our mind, we think that Rs. 50,000/- would be just and reasonable compensation towards 'loss of amenities of life inclusive of the marriage prospects'.

35. We do not find any justification to enhance compensation awarded by the Tribunal towards cost of future medical treatment. What is awarded is just and reasonable.

36. This Court in Smt. Sanjeevini Ananda Awate and Ors. v. The Managing Director, Hiranyakeshi Sahakari Sakkare Karkhane, Nippani, Belgaum District and Anr., 2003(2) Kar. L.J. 42 (DB) : ILR 2003 Kar. 571 (DB) has held that in compensation cases, both in fatal and bodily injuries, the appropriate rate of interest is 8% p.a. Therefore, we award interest at 8% from the date of petition till payment.

37. In the result and for the foregoing reasons, we allow the appeal, in part, with costs and in substitution of the impugned award, we award total compensation of Rs. 7,39,400/- under the following heads:

1. Loss of fixture income Rs. 5,18,400/-2. Loss of income during laidoff period for a period of sixmonths Rs. 18,000/-3. Pain and suffering Rs. 25,000/-4. Transportation charges Rs. 10,000/-5. Special food and nutrition etc. Rs. 10,000/-6. Loss of amenities of life,frustration, disappointment,inconvenience, loss of marriageprospects etc. Rs. 50,000/-7. Medical expenses Rs. 80,000/-8. Attendant charges Rs. 18,000/-9. Future medical expenses Rs. 10,000/------------- Total Rs. 7,39,400/-------------

with interest at 8% per annum from the date of claim petition till payment.

38. The Insurance Company, shall deposit the compensation amount minus the money already paid/deposited towards compensation before the Tribunal within one month from the date of receipt of a copy of this judgment. On such deposit being made, the Tribunal shall deposit 75% of compensation with proportionate interest in any Nationalised Bank in a term deposit initially for a period of five years. The appellant is entitled to withdraw interest accrued on the said deposit once in a year.