Anamika Mondal vs United India Insurance Co. Ltd. and Another

Bhaskar Bhattacharya, J.—This appeal is at the instance of a claimant in a proceeding u/s 166 of the Motor Vehicles Act, 1988 and is directed against an award dated 7.6.2006 passed by the Motor Accidents Claims Tribunal, District 24 Parganas (South) and Fast Track Court-Ill, Alipore in M.A.C. Case No. 171 of 2006 thereby disposing of the proceeding by awarding a sum of Rs. 3,50,000 as compensation for the injury caused to the appellant. The insurance company was directed to pay the said amount within two months with the stipulation that in default of such payment within the said period, the amount would carry simple interest at the rate of 6 per cent per annum from the date of filing of the application (7.1.2003) till realization in full.

Being dissatisfied, the claimant has come up with the present appeal.

There is no dispute as regards the involvement of the offending vehicle in the accident resulting in the injury to the claimant and the fact that due to fault on the part of driver of the offending vehicle, the accident occurred. It is an admitted fact that the offending vehicle was insured by United India Insurance Co. Ltd.

According to the claimant, she was an assistant teacher of a secondary school having qualification of M.A. (Bengali) with B.Ed. and was aged 28 years at the time of accident. Her net salary at the time of accident was Rs. 9,327 a month. In the application, she claimed a total amount of Rs. 11,00,000 as compensation including the amount spent for medical treatment.

It appears from the medical certificate issued by the doctor that due to accident she became permanent disabled to the extent of 50 per cent.

Learned Tribunal below on consideration of the materials on record awarded total amount of Rs. 3,50,000 as detailed below:

(1) Pecuniary damages: Medical expenses Rs. 1,29,630 Loss of present earnings Rs. 11,200 Loss of future earnings Nil Loss of earning capacity Rs. 40,000 Nursing charges Rs. 84,080 Conveyance charges Rs. 30,000 (2) Non-pecuniary damages: Pain and suffering Rs. 40,000 Loss of amenities of life Rs. 40,000 ------------ Rs. 3,74,910 Less: Under Section 140 of the Motor Vehicles Act Rs. 25,000 ------------ Total Rs. 3,49,910 ------------ In round figure Rs. 3,50,000 ------------

Being dissatisfied, the claimant has come up with the present appeal.

Mr. Banik, learned advocate appearing on behalf of the appellant, vehemently contended before us that out of the amount of Rs. 3,74,900, a sum of Rs. 2,43,370 had already been spent by the claimant towards medical expenses, nursing charges and conveyance charges. According to Mr. Banik, the Tribunal has really awarded a sum of Rs. 1,31,630 as compensation if we deduct the aforesaid amount of Rs. 2,43,370 from the total amount. Mr. Banik contends that the appellant having been found to be permanently disabled to the extent of 50 per cent and due to such disablement, she being even unable to perform her marital obligations towards her husband, Tribunal below should have awarded the claim made by the appellant. Mr. Banik, contends that in view of the permanent disability, the span of her life has also been reduced and at the same time, for this disability, she is even unable to go for a better job. He, therefore, prays for enhancement of the amount.

Mr. Pahari, learned advocate appearing on behalf of the insurance company, on the other hand, opposes the aforesaid prayer and submits that even after the accident, the appellant is doing the same job of assistant teacher of the school and it appears that there has been further increment of her salary. In other words, Mr. Pahari contends that for the accident, the appellant has not financially suffered in anyway and her actual expenditure towards medical treatment has already been paid through the award. Mr. Pahari submits that in the facts of the present case there is no just cause for enhancement of the amount towards the alleged claim for better prospects in life and in fact, the learned Tribunal below erroneously awarded a sum of Rs. 40,000 for loss of earning capacity. In support of his contentions, Mr. Pahari placed before us the following decisions:

(1) Rajesh Kumar @ Raju Vs. Yudhvir Singh and Another,

(2) Ramprasad Balmiki Vs. Anil Kumar Jain and Others,

(3) Barun Kumar Das Vs. New India Assurance Co. Ltd. and Another,

(4) The New India Assurance Co. Ltd. Vs. Amitava Das and Another,

(5) Mukti Majumder Vs. National Insurance Co. Ltd. and Another,

(6) Atanu Kumar Ghosal Vs. National Insurance Co. Ltd. and Others, and

(7) Md. Salauddin Vs. National Insurance Co. Ltd. and Another, .

Therefore, the question that falls for determination in this appeal is whether in the facts of the present case the appellant is entitled to get further compensation than the amount awarded by the learned Tribunal?

At the very outset, we must remember that this appeal arises out of a proceeding u/s 166 of the Act and the appellant has proved rash and negligent driving on the part of the driver of the offending vehicle. We find that the victim, at the time of accident, was an M.A., B.Ed. aged 28 years and was employed as an assistant teacher in a secondary school. Her net salary was Rs. 9,327 a month and the permanent disability has been certified to be 50 per cent. It is true that in spite of her 50 per cent permanent disability she has not lost her job and is continuing with the same because the school authority is sympathetic towards her which might not be the position if she was employed in any private concern or in other capacity.

As pointed out by the Supreme Court in the case of R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, for assessing compensation due to injury arising out of the accident consequent to rash and negligent driving of the driver of the offending vehicle, the court should proceed in the following way:

(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 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; and (iii) other material loss. So far as non-pecuniary damages are concerned, they may include: (i) damages for mental and physical shock, pain and 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; and (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.

In the said decision, the Supreme Court felt that it was really difficult to assess the exact amount of compensation for the pain and agony suffered by the victim and for having become a lifelong handicapped. No amount of compensation, the Apex Court proceeded, could restore the physical frame of the appellant and for that reason, it has been said by the courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury ''so far as money can compensate'' because it is impossible to equate the money with the human suffering or personal deprivations and money cannot renew a broken and shattered physical frame.

In that connection, the Supreme Court relied upon the following observations in the case of Ward v. James (1965) 1 All ER 563, where 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 a 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.

The Apex Court also pointed out that 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 guesswork, 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. At that stage, the court, by relying upon its own decision in the case of C.K. Subramania Iyer and Others Vs. T. Kunhikuttan Nair and Others, decided-in connection with the Fatal Accidents Act, cautioned that in assessing damages, the court must exclude all considerations of matter which rested in speculation or fancy though conjecture to some extent was inevitable. The Supreme Court also relied upon the following observations of the Halsbury''s Laws of England, 4th Edn., Vol. 12, regarding non-pecuniary loss stated at page 446 of the volume:

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 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.

Bearing in mind the aforesaid principles, we now propose to consider what should be the amount of ''just compensation'' in the facts of the present case.

After hearing the learned Counsel for the parties and after going through the materials on record, we find that the involvement of the offending vehicle in the accident leading to the injury of the appellant is not in dispute. It is also admitted that the offending vehicle was insured with United India Insurance Co. Ltd.

The appellant sustained compound fracture Grade IIIB lower left arm with radial nerve paralysis. The doctor, PW 2, on consideration of all the medical papers and clinical examination of the appellant opined that she suffered 50 per cent permanent disability due to shortening of left arm length and painful stiffness of left shoulder and elbow joint radial nerve paralysis. It further appears from the evidence on record that she is unable to do any work by using the left arm and requires an aya for her nursing by spending Rs. 80 a day. She has proved the documentary evidence showing payment of the charges for the aya from the year 2003 till the date of giving evidence and the Tribunal being fully satisfied with such evidence has awarded a sum of Rs. 84,080 on such account. It further appears that without the aid of a rickshaw she cannot move and for that reason she was required to spend Rs. 30,000 till the date of hearing and payment of such amount having been proved, the Tribunal awarded such amount towards conveyance charge as if the accident did not occur, she was going to her school on foot and avoid such expenditure but such expenditure is now unavoidable. Thus, even after four years from the date of the accident, she had been spending everyday for her nursing and rickshaw fares. If we divide the total amount of Rs. 1,14,000, so spent for the above causes in course of last four years, by four, the yearly expenditure on those headings will come to Rs. 28,500 per annum and in view of her nature of injury, she is required to spend such amount for whole of her period of service and the amount will definitely increase day by day.

In our opinion, the Tribunal having awarded that amount of Rs. 1,14,000 already spent by the appellant till the date of giving evidence, should have also awarded some fixed amount for her future expenditure on those headings. Having regard to the present rate of bank interest, we assess a lump sum of Rs. 2,50,000 for the above additional expenditure which is necessitated due to accident for no fault on her part.

The Tribunal below has awarded a total sum of Rs. 80,000 under the heading ''non-pecuniary damages'' by awarding Rs. 40,000 towards ''pain and suffering'' and a further sum of Rs. 40,000 for ''loss of amenities of life''. In our view, having regard to nature of disability suffered by the victim, which is assessed as 50 per cent permanent disability and after taking into consideration her unchallenged testimony that at every step of her life she is required to take assistance of somebody else and she is unable to perform even her marital obligations towards her husband, we enhance the damages for ''pain and suffering'' to Rs. 1,00,000. We cannot lose sight of the fact that in view of her fairly high educational qualification and comparatively younger age at the time of the accident, there was still scope of better job prospects in different fields, but due to the accident, such avenue is now closed to the appellant forever. However, in the absence of any detailed evidence as regards her plan of taking other type of job, we are of the opinion that the Tribunal should not have awarded Rs. 40,000 under the category ''loss of earning capacity'' and that too, under the heading ''pecuniary loss'' when she had not proved sufferance of any such loss. We hold that on the basis of evidence on record, there is no scope of granting any further compensation for the loss of better prospects of job nor do we intend to maintain the amount of Rs. 40,000 granted by the Tribunal under the heading ''loss of earning capacity'' in this appeal preferred by the victim. We are quite conscious that the insurance company has not preferred any appeal or cross-objection against the award passed by the Tribunal but having regard to the fact that award is of a nature of money decree, even without filing any cross-objection, the insurance company has right to support the award up to the amount granted by the Tribunal and in this appeal if it is found that the appellant is entitled to get any additional amount under any heading, the respondent is entitled to maintain that a particular amount was wrongly given in the award and that amount should be adjusted from the amount this Court proposes to enhance. [See Shri Ravinder Kumar Sharma Vs. The State of Assam and Others, ].

We now intend to deal with the decisions cited by Mr. Pahari.

In the case of Rajesh Kumar @ Raju Vs. Yudhvir Singh and Another, , a medical certificate was produced certifying the disability to be 60 per cent. The Apex Court pointed out that the certificate in question was obtained after two years and it was not known as to whether the civil surgeon of the hospital treated the victim and on what basis, such certificate was issued. In that case, even the author of the said certificate had not been examined. In such circumstances, the Supreme Court was of the opinion that unless the author of the certificate was examined, it was not even admissible in evidence. In the case before us, the doctor who issued the certificate was examined who specifically stated that on the basis of all the papers relating to her injury and on clinical examination of the victim, he was of the view that the permanent disability was to the extent of 50 per cent. Except a vague suggestion in cross-examination to the said witness that his assessment was baseless and not correct and was on the higher side, the insurance company took no step to falsify such assessment. We, therefore, find that the said decision is of no assistance to the insurance company in the facts of the present case.

In the case of Ramprasad Balmiki Vs. Anil Kumar Jain and Others, , the appellant was working as a driver with the Cantonment Board, Gwalior. While he was riding on a two-wheeler, a Tempo, driven rashly and negligently by the respondent No. 1 collided with the two-wheeler of the appellant, as a result, he sustained a fracture in his right femur bone as also tibia bone of his right leg. He was hospitalised and underwent three operations. The right leg of the appellant had been shortened. He filed a claim petition before the Motor Accidents Claims Tribunal in terms of Section 166 of Motor Vehicles Act, 1988 claiming a sum of Rs. 17,94,000 for sustaining permanent disability in his right leg, loss of service, loss of leave, deficiency and expenses in treatment, etc. It was contended on behalf of the appellant that he being a driver, shortening of leg amounted to 100 per cent permanent disability. Such contention was turned down by the Apex Court holding that due to shortening of the leg, the applicant was, no doubt, not able to work in the post of driver, but the Apex Court proceeded it could not be held that he had become unfit for the work of a driver forever and it was not proved that because of sustaining injuries in accident, the same has caused him permanent disability. In the case before us, the appellant has not claimed to be 100 per cent permanently disabled but has contended that due to such accident, she is required to spend some additional expenditure for all times to come and at the same time, she has lost the chance of better prospects. Such a plea cannot be repelled by relying upon the decision in the case of Ramprasad Balmiki (supra). We, therefore, find that the said decision is of no avail to the insurance company.

In the case of Barun Kumar Das Vs. New India Assurance Co. Ltd. and Another, a Division Bench of this Court was considering a case where the victim, a Senior Law Assistant in the West Bengal Industrial Development Corporation Ltd., due to accident sustained injury confined to the toes of his one leg for which there was loss of some sensation of the affected toes. The medical certificate described such injury as one of permanent partial disability to the extent of 65 per cent. The court in the facts of the said case refused to rely upon such certificate and was of the opinion that for such injury there was no loss of his earning capacity and enhanced the compensation by awarding further sum of Rs. 20,000 for future medical treatment. In the case before us, the permanent disability of the appellant to the extent of 50 per cent has not been disbelieved by the Tribunal and the insurance company has not adduced any evidence to disprove the medical certificate. Thus, the said decision does not help the insurance company in anyway and on the other hand supports our decision to give further compensation for future nursing and conveyance charges.

In the case of The New India Assurance Co. Ltd. Vs. Amitava Das and Another, two questions basically arrived for considerations: (1) what should be the principle for application of the structural formula u/s 163-A of the Act? and (2) whether Section 163A of the Act should be applicable in deciding the applications u/s 166 of the Act where the victim used to earn more than Rs. 40,000 per annum? We are not concerned with any of the aforesaid points involved in the present case. In that case, however, the Division Bench by relying upon an earlier decision of this Court held that the determination of loss of earning capacity depends upon two factors, namely, diminution or destruction of physical capacity due to accident and its effect on performing the duties which the victim ordinarily performed. We do not for a moment dispute the aforesaid proposition of law and at the same time, we propose to deduct the amount granted under the heading ''loss of earning capacity'' in this appeal by the victim.

In the case of Mukti Majumder Vs. National Insurance Co. Ltd. and Another, , the Division Bench, in the facts of the said case, held that there was no loss of earning capacity of the victim having regard to the nature of the job she used to perform. As we intend to deduct the amount of compensation granted by the Tribunal for the loss of earning capacity, we do not propose to deal with the said decision on other questions involved therein. The other two decisions, viz., Md. Salauddin Vs. National Insurance Co. Ltd. and Another, and Atanu Kumar Ghosal Vs. National Insurance Co. Ltd. and Others, , also deal with the question of grant of compensation for loss of earning capacity. For the selfsame reason indicated above, we refrain from dealing with those two decisions as we principally accept the proposition laid down therein.

We, therefore, enhance the compensation by a further sum of Rs. 2,70,000, out of which Rs. 2,50,000 is earmarked as one time payment for meeting the future nursing and conveyance charges the appellant will be required to meet for the whole of her life and a further sum of Rs. 60,000 in addition to Rs. 40,000 granted by the Tribunal below towards ''pain and suffering'' after taking into consideration the fact from the young age of 28 years the victim had to be dependent upon others for performing every type of manual work and that she is even unable to perform her marital obligations towards her husband. We, however, delete the amount of Rs. 40,000 granted by the Tribunal under the head ''loss of earning capacity'' and thus, make it Rs. 6,20,000 excluding the amount of Rs. 25,000 already paid to the appellant in the earlier proceedings u/s 140 of the Act. We also award interest on the above sum of Rs. 6,20,000 at the rate of 8 per cent per annum from the date of filing of the application (7.1.2003) till the date of deposit of the amount. It is needless to mention that the running of interest on the amount already paid by the insurance company pursuant to the award impugned will stop from the date of deposit of such amount in the Tribunal below.

Appeal is, thus, allowed. The award impugned is set aside and is enhanced to Rs. 6,20,000 excluding Rs. 25,000 already paid in the earlier proceedings u/s 140 of the Act. The insurance company is also directed to pay interest at the rate of 8 per cent per annum on the amount of Rs. 6,20,000 as indicated above from the date of filing of the application till actual payment.

In the facts and circumstances, there will be, however, no order as to costs.

Rudrendra Nath Banerjee, J.

I agree.