Smt. Neelam Anand Vs. Sardar Manmohan Singh and ors. - Court Judgment

Deepak Gupta, J.

1. Neelam Anand, the appellant, was a happily married woman. She had a husband and two sons. She worked as a Special Assistant in Canara Bank at Ambala Cantt. On 17.4.1999 she alongwith her husband was traveling from Delhi to Solan in a vehicle bearing No. HR-01F-3692. Then tragedy struck. Near Shahbad there was a collision between this vehicle and another vehicle bearing No. PB-08Q-7535. Neelam Anand lost her husband, K.K. Anand in the said accident and she herself was seriously injured.

2. The appellant suffered injury in the spine as a result of which her whole body below damages may vary according to the gravity of the injuries sustained by the claimant in an accident. On account of the injuries, the claimant may suffer consequential losses such as, (i) loss of earning; (ii) expenses on treatment which may include medical expenses, transportation, special diet, attendant charges etc., (iii) loss or diminution to the pleasures of life by loss of a particular part of the body, and (iv) loss of future earning capacity. The damages can be pecuniary as well as non-pecuniary, but all have to be assessed in Rupees and Paise. It is impossible to equate human suffering and personal deprivation with money. However, this is what the Motor Vehicles Act enjoins upon the Courts to do. The Court has to make a judicious attempt to award damages, so as to compensate the claimant for the loss suffered by him. Such compensation is what is termed as just compensation. On the one hand, the compensation should not be assessed very conservatively, but on the other hand, compensation should also not be assessed in so liberal a fashion so as to make it a bounty to the claimant. The Court while assessing the compensation should have regard to the degree of deprivation and the loss caused by such deprivation. The compensation or damages assessed for the personal injuries should be substantial damages to compensate the injured for the deprivation suffered by him throughout his life. They should not be just token damages.

3. There are numerous cases where the principles for grant of compensation have been enunciated. It would be relevant to quote pertinent observations from a few.

4. The following observations of Lord Morris in his speech in H. West & Son Ltd. v. Shephard 1958-65 ACJ 504 (HL, England), are very pertinent:

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.

5. Lord Denning while speaking for the Court of Appeal in the case of Ward v. James (1965) 1 All ER 563, laid down the following three basic principles to be followed in such like cases:

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.

6. The assessment of damages in personal injury cases raises great difficulties. It is not easy to convert the physical and mental loss into monetary terms. There has to be a measure of calculated guess work and conjecture. An assessment, as best as can, in the circumstances, should 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 recognizes that as a topic upon which damages may be given.

7. 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.

8. In Phillips v. 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.

9. Besides, the Tribunals should always 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 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', should be kept in mind by the Court in determining compensation in personal injury cases,

10. 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 sub-divided the non-pecuniary losses into three categories, viz., pain and suffering, loss of amenities of life and loss of expectation of life.

11. 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.

12. 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.

13. This Court in Brestu Ram v. Anant Ram and Ors. 1989 (2) Sim. L.C. 298, held :

It is pecuniary loss, i.e. capable of calculation in terms of money, and non-pecuniary loss i.e. loss that cannot be easily assessed with accuracy-Pecuniary loss is the loss suffered by the victim due to the loss of earnings or other profits which he had been earning and was to earn in future at the same rate or at same promoted scale. Non-pecuniary loss consists of damages awarded for pain and sufferings, loss of amenities and loss of enjoyment of life and prospects. Under non-pecuniary loss, for want of accurate assessment, a global figure could be arrived at and paid as compensation. Under pecuniary loss the assessment can be made easily by taking into consideration at least the monthly income actually earned by the victim and the difference between what he would be capable to earn on disablement.

It is well settled that in disablement cases compensation has always to be higher than even in cases of death since it is given to the living victim of the accident both for his personal loss and for economic loss. It can be said that the bodily injury is to be treated as a deprivation which entitled the victim to claim damages, which vary according to the gravity of the injury. Further, due to this injury, there can be loss of earnings, completely or partial due to the accident on his capacity to earn the same. Another consequence may be the loss he suffers on account of the enjoyment of life or full pleasures of living.

14. Applying the above principles it is clear that the award of the learned tribunal is not at all in consonance with the well settled principles with regard to the assessment of compensation in injury cases. The learned tribunal did not consider the magnitude and extent of injury of the claimant. The amount has to be awarded to her under various heads and before doing so, it would be pertinent to refer to some of the evidence.

15. The statement of the claimant, Neelam Anand was recorded on commission since she was unable to attend the Court. She clearly states that she is totally paralysed below the shoulder and has no senses in the lower part of her body. She is totally dependant on others. Her disability certificate, Ex.PW-2/A shows that she has suffered 90% disability. She has undergone extensive medical treatment in private hospitals, but to no avail. She was first treated at P.G.I., Chandigarh where she remained admitted for a few days. Thereafter she was admitted at INSCOL. Tertiary Care Hospital where she remained admitted from 23.4.1999 to 17.7.1999. From there she was referred to the Indian Spinal Injury Centre, New Delhi. She remained admitted there from 18.7.1999 to 19.10.1999. Unfortunately, despite extensive treatment her condition did not improve. According to her she requires constant attendance and has employed, one lady, Anita as a whole time nurse. She further states that though she continues to be in job, she is not being paid any salary since she has not done any work and is on leave without pay. In cross-examination she has admitted that she is getting pension from her husband's employer. She also admits that out of the total expenses incurred by her of more than Rs. 3,00,000/- a sum of Rs. 1,15,000/- has been reimbursed to her by her employer.

16. PW-3 Dr. M.K. Tiwari has proved the disability suffered by the claimant as well as her treatment at P.G.I., Chandigarh.

PW-4 Anita is the nurse, who states that she is attending upon the claimant. According to her the claimant is unable to even perform her daily task and she passes urine and faeces in her clothes and cannot do anything without assistance.

17. PW-5 is the receptionist-cum-cashier from INSCOL Tertiary Care Hospital, Chandigarh who has proved the bills.

18. PW-6 Suraj Bhan is a Clerk from the office of Canara Bank, Ambala, who states that at the time of the accident the salary of the claimant was Rs. 12,700/- per month. He also states that only a sum of Rs. 1,15,000/- has been reimbursed to the claimant and the other amounts claimed by her have not been reimbursed. According to this witness since the time of the accident no pay has been given to the claimant.

19. PW-7 Manoj Kumar is Accountant from the office of the Indian Spinal Centre, Delhi, who has proved on record the expenses incurred by the claimant at Delhi.

20. First taking up the compensation payable to the claimant under the head of pecuniary losses. Under this head I am first considering the medical expenses of the claimant. From the evidence led on record it is clear that the claimant spent a sum of Rs. 1,27,140/- at INSCOL Tertiary Care Hospital, Chandigarh. She again spent a sum of Rs. 5,950/- for further treatment which she undertook there between 10.2.2000 and 11.2.2000, At the Indian Spinal Injury Centre the total bill was for Rs. 2,12,512/-. The claimant was, however, given discount of Rs. 28,690/- on room rent and, therefore, the total amount paid by her was Rs. 1,83,822/-. The total amount spent by her, as proved on record, works out to Rs. 3,16,863/- out of which only Rs. 1,15,000/- has been reimbursed to her, meaning thereby that she has spent Rs. 2,01,863/- out of her own pocket. The bills in this regard are Ex.P-4, P-7 (PW-7/B) and Ex.PW-5/B. From the documents Ex.PW-6/ C to Ex.PW-6/F it is apparent that the claimant had claimed reimbursement of an amount of Rs. 3,88,664/- against which an amount of only Rs. 1,15,000/- was reimbursed to her. Keeping in view the fact that the claimant is likely to require treatment throughout her life and her expenses may keep on increasing I feel that in addition to the amount already proved on record, she has to be awarded some reasonable amount for medical expenses in future also. Therefore, I hold that the claimant is entitled to Rs. 3,00,000/- on account of medical expenses, past, present and future.

21. From the evidence on record it is clear that the claimant remained admitted in hospital from the date of accident, i.e. 17.4.1999 till 19.10.1999, i.e. for more than six months. During this period her family members must have been attending on her. It is sellted law that the tort feasor has to compensate the victim even for the gratuitous services rendered by family and friends. This Court has to take note of the fact that she was being treated in private hospitals at Chandigarh and New Delhi which was not her place of residence. Therefore, the family members and friends per force must have had to arrange for their own boarding and lodging. Keeping in view the serious nature of injuries and the extensive treatment required I hold that at least two members of the family must have attended upon her during the period the claimant remained admitted in hospital for her treatment. Their boarding and lodging also has to be taken into account. Keeping in view the social background of the claimant it would not be unreasonable to assess the expenses on two attendants at Rs. 10,000/- per month and, therefore, the claimant is entitled to Rs. 60,000/- for cost of attendant charges during her hospitalization.

22. In addition thereto there is sufficient evidence on record to show that the claimant is totally unable to look after he own needs. She in fact cannot even do her daily chores without the active help of one other person. She states that she has employed Kumari Anita as her nurse. Her statement has been supported by Anita. The amount of Rs. 2,500/- per month claimed in this regard is absolutely just and reasonable. In fact these expenses may increase on account of inflationary trends. The claimant shall require this attendance throughout her life. Her age at the time of the accident was about 46 years. Hence it would not be unreasonable to apply multiplier of 13. Hence, the claimant is entitled to Rs. 3,90,000/- for cost of nursing for the rest of her life. The total amount payable to the claimant on account of attendant charges, therefore, works out to Rs. 4,50,000/-.

23. Next comes the question with regard to the loss of income which the claimant has suffered. The evidence on record including her salary certificate, Ex.PW-6/B clearly proves that the total salary of the claimant was Rs. 12,711.52 paise per month. There were deductions of Rs. 5,768.50 paise and she was getting a net salary of Rs. 6,943.02 paise.

24. While assessing the future loss of income one cannot be totally oblivious to the fact that the claimant might have earned some promotion in future. In any event, she would have earned increments every year and her salary at the time of her retirement, would have increased by a significant amount. Mr. Harish Bahal, learned Counsel for the claimant, has fairly stated at the Bar that now the claimant has retired and is getting pension.

25. Ms. Devyani Sharma, Advocate, urges that in view of the judgment of the Apex Court in Asha and Ors. v. United India Insurance Co. Ltd. and Anr. : (2008)2SCC774 , only the net income being drawn by the claimant should be taken into consideration. The Apex Court in this judgment was considering a case with regard to the loss to the dependency and came to the conclusion that the dependants would be receiving something less than the net amount being paid to the deceased. This is an injury case and the principles involved would be different. The amount being deducted on account of provident fund was the saving of the claimant and it cannot be said that this loss has not occurred to her. However, certain amounts payable on account of the income tax and on account of contribution to the employees union and welfare fund etc. are not to be taken into consideration. Another fact which has to be noticed is that the claimant would have worked for at least 12 years more. She would have earned increments over this period. After deducting certain amounts, it would be reasonable to assess the loss of income of the claimant at Rs. 10,000/- per month or Rs. 1,20,000/- per year. Admittedly the claimant is now getting pension and she will continue to get pension for the rest of her life. Therefore, the loss on account of loss of income is for about 12 years. However, this amount is being paid to her in lump sum. Therefore, in my opinion it would be appropriate to use the multiplier of 6 or to put it in another way to, reduce the amount so calculated by half. Using this method the loss to the claimant works out to Rs. 10,000 x 12 x 6, i.e. Rs. 7,20,000/-.

27. The claimant in my opinion is also entitled to some amount on account of transporation expenses. The evidence on record shows that the claimant has been taken from Ambala to Chandigarh and then to Delhi and now she is at Solan. Even from Solan she has gone to Chandigarh and Delhi for follow up treatment. Keeping in view all these factors, it would be reasonable to award her Rs. 15,000/- on account of transportation charges.

28. This will cover the various heads of damage under pecuniary losses.

29. Under non-pecuniary losess the claimant is entitled to damages for mental and physical shock, pain and suffering already suffered and likely to be suffered by her in future. She is also entitled to compensation for loss of amenities in life, inconvenience, hardship, discomfort, frustration etc. as well as for damages for loss of expectation of life. In the present case the agony and pain and suffering which the claimant has gone through cannot even be imagined. She has remained under treatment for six months. She has been confined to a wheel chair for life. She cannot walk, she cannot lift her hands, her body, except for face and head is totally paralyzed. She passes urine and defecates in her clothes. On the other hand, she is mentally alert. She knows her suffering, but cannot do anything about it. From being an educated employed person having a family, she has become a human dependant on others for her very basic needs and cannot even do the slightest work for herself. For the rest of her life, she will also consider herself to be a burden on others. Therefore, in my opinion it is a fit case where Rs. 2,00,000/- should be awarded to the claimant for mental and physical shock, pain and suffering and Rs. 2,00,000/- for loss of amenities of life, future discomfort, inconvenience, hardship, frustration etc. There is no evidence to show that her longevity of life has been adversely affected.

30. In view of the above discussion I hold that the claimant is entitled to a total compensation of Rs. 18,85,000/-. The claimant shall also be entitled to interest on this amount at the rate of 6% per annum w.e.f. the date of filing of the claim petition, i.e. 3.9.1999 till deposit of the amount. The claimant is being awarded interest at the lower rate of 6% per annum since a large portion of the compensation is on account of the future loss which is being paid to her in advance. Therefore, the appeal filed by the claimant is allowed and the award of the learned Tribunal is modified and the compensation is enhanced from Rs. 5,00,000/- to Rs. 18,85,000/- alongwith interest at the rate of 6% per annum w.e.f. 3.9.1999 till deposit. Since the liability to pay the compensation has been apportioned 50:50 between the two sets of owners, the Oriental Insurance Company and the National Insurance Company, with whom the vehicles are insured, are directed to deposit the enhanced amount in equal shares in the Registry of this Court within 12 weeks from today failing which they shall be liable to pay interest at the rate of 12% per annum w.e.f. today.