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Judgment
J.P. Singh, J.—Mukhteshwar Chib had gone to attend a marriage function at Karan Palace, Patoli, Jammu on 6.12.2001. He was standing
near Karan Palace, when a motor vehicle Tata Mobile bearing Registration No. JK02P-893, which was being driven rashly and negligently by
Pushpat, its driver, firstly hit a Maruti Car bearing registration No. JK02G-1198, thereafter a Tata Sumo bearing registration No. JK02C-383
which stood parked in front of Karan Palace and finally Mukhteshwar Chib thereby causing him severe injuries. He was brought to Government
Medical College and Hospital, Jammu in a cri tical condition where he remained admitted till December 10, 2001 when he had to be shifted to
Christian Medical College, Ludhiana for further treatment. He suffered multiple grievous injuries in the accident and his left leg was crushed to such
an extent that to save his life it had to be ultimately amputated below the Knee.
He, accordingly, lodged a claim for an amount of Rs. 30.00 lac along with interest at the rate of 18% per annum as compensation, inter alia, for
the medical and other expenses which he had incurred and would have to incur in future, for pain, agony and torture he had suffered and had to
suffer throughout his life, and for being deprived of the amenities of life and his bright career ahead.
His claim was contested by the Oriental Insurance Company Limited, the insurer of vehicle No. JK02P-893. The Claims Tribunal, accordingly,
put the parties to issues which read as follows:
Whether an accident took place on 6.12.2001 at Patoli near Karan Palace, Jammu due to rash and negligent driving of offending vehicle No.
JK02P/893 by its driver in which petitioner sustained injuries; if so of what nature? OPP
If Issue No. 1 is proved in affirmative whether petitioner is entitled to the compensation, if so of what amount and from whom? OPP
Whether driver of offending vehicle was not holding a valid driving licence at the time of accident? OPP
Relief. O. P. Parties.
The claimant, besides appearing himself, examined Vikram Singh, Yashpal Gupta and Dr. M. K. Mam, Artho Surgeon of Christian Medical
College, Ludhiana in support of his claim. The insurer, however, opted not to lead any evidence in the case.
Allowing the claim petition on the basis of its findings on the issues framed in the case, the Tribunal awarded an amount of Rs. 16,03,200.00 as
compensation to the claimant, breakup whereof is as follows:
Cost of medicines. Rs. 2,48,700.00
Special diet. Rs. 18,000.00
Transportation charges. Rs. 80,000.00
Boarding and Lodging. Rs. 3,500.00
Artificial Limb Rs. 10,00,000.00
Plastic surgery Rs. 1,00,000.00
Three Tyres Scooter Rs. 88,000.00
Pain and sufferings Rs. 25,000.00
Loss of amenities and Pleasures of Rs. 40,000.00
life.
Total Rs. 16,03,200.00
Aggrieved by the award of the Tribunal made on 10.11.2004, the Oriental Insurance Company Limited has come up in appeal to this Court in
CIMA No. 21/2005. Dissatisfied with the quantum of compensation awarded by the Tribunal, Mukhteshwar Chib too has filed his cross appeal
No. 2/2005.
At the time of hearing of this appeal, appellant's Counsel, Mr. Vishnu Gupta restricted his challenge to the award insofar as it pertained to
awarding of Rs. 10,00,000.00 for purchase of artificial limbs and an amount of Rs. 1,00,000.00 to be incurred for plastic surgery. He submitted
that the claimant had not laid any claim on account of plastic surgery in the claim petition, the Tribunal had therefore erred in awarding Rs. 1.00 lac
as compensation for plastic surgery.
Mr. R.K. Bhatia, Learned Counsel appearing for the claimant, on the other hand, submitted that the Tribunal had not awarded any amount by
way of compensation for the loss of claimant's future career and the amount of Rs. 25,000.00 awarded for pain, suffering and agony was too less
an amount in the facts and circumstances of the case. Learned Counsel urged that the claimant has to remain a disabled person, all through his life,
and would have to depend on others to manage his affairs, the compensation awarded by the Tribunal was thus required to be suitably raised so
that the claimant receives just compensation as contemplated by Section 168 of the Motor Vehicles Act, 1988.
Justifying rest of the amount of compensation awarded by the Tribunal, Learned Counsel urged that the amount awarded by the Tribunal for
purchase of artificial limbs and undergoing plastic surgery, was justified on the basis of the uncontroverted evidence which the claimant had led in
the case.
I have heard Learned Counsel for the parties, gone through the evidence and documents placed on records, and the pleadings of the parties.
The claimant has proved by leading cogent evidence, that he was about 20 years of age at the time of the accident and had been studying in
B.A. part-I. He was desirous of joining Army through National Defence Academy and had filled up requisite form too for the purpose before the
accident.
Dr. M.K. Mam, Professor and Head of the Department Orthopedics, Christian Medical College, Ludhiana had testified that claimant's left leg
below Knee had been amputated and he was suffering permanent disability of 80% of left lower limb according to the assessment made in terms of
Manual for doctors to evaluate permanent physical impairment based on expert group meeting on disability evaluation ind National seminar on
Disability Evaluation and Dis-semination-DGHS-AKMS, New Delhi-1981. According to the doctor, claimant had the history of road traffic
accident sustained on December 06, 2001 with compound grade HI fracture of the femur with vascular injury. He was initially treated at
Government Medical College, Jammu and there was evidence of impending gangrene, and sensation was absent below the middle of leg when he
was admitted in Christian Medical College, Ludhiana. There was no movement of toes and ankle. He had started treatment to save the limb of the
claimant, but it did not succeed, and the leg had to be amputated. Though initia discharged on January 08, 2002, he was subsequently admitted on
18.1.2002, 24.1.2002 and 8.2.2002. Wound was later closed by skin grafting and he was discharged from Hospital on 4.2.2002. According to
the doctor, he would need soft tissues/plastic surgery to cover the stump and the nail in the femur would also have to be removed by another
surgery. For plastic surgery, the claimant would have to spend about Rs. 1.00 lac. The artificial Limb which was required to be fixed would cost
about Rs. 1.00 lac and would have to be changed after about every 5/6 years. The claimant would not be able to do any active job or strenuous
work.
The evidence produced by the claimant remained uncontroverted as the appellant had opted not to lead any evidence in the case.
Submissions of Learned Counsel for the parties and the points in issue need to be examined in view of the facts and circumstances of the case
a id particularly in view of the above physical condition of the claimant as explained by Mr. M.K. Mam, the orthopedic Surgeon.
According to Dr. M. K. Mam, the claimant is required to change the artificial limb after every 5 to 6 years. Keeping in view his age and the
approximate and normal span of life of an average Indian, the laimant shall have to change the artificial limb for not less than ten times. On facts, the
Tribunal has found the cost of one artificial limb to be Rs. 1.56 lac and in that view of the matter, I do not find any error in Tribunal's awarding an
amount of Rs. 10.00 lac as compensation under this head to the claimant.
Plea of Learned Counsel for the appellant that the Tribunal had erred in allowing an amount of Rs. 1.00 lac which was required to be spent for
plastic surgery because it had not so been claimed in the claim petition, too is untenable because in terms of Section 168 of the Motor Vehicles
Act, the Tribunal is required to assess and award what is found to be just compensation on the basis of the evidence produced in the case
notwithstanding the omission of a claimant to lodge specific claim for such amount.
Rules of pleadings are not strictly applicable to proceedings under the Motor Vehicles Act, 1988. Order 7 Rule 8 of the CPC which requires a
plaintiff, seeking relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, to state them separately
and distinctively, has not been made applicable to the proceedings under the Motor Vehicles Act, and in that view of the matter, omission of the
claimant to specifically claim Rs. 1.00 lac for plastic surgery, may noi thus deprive turn to claim this amount which according to Dr. M. K. Mam
was required by the claimant for plastic surgery. I am supported in taking this view by APSRTC v. M. Ramadevi and Ors. reported as 2008 (1)
Supreme 566, in terms thereof, the provisions of the Motor Vehicles Act would not create any impediment in awarding compensation in excess of
the amount claimed, because the function of the Tribunal is to award just compensation which may be found reasonable on the basis of the
evidence produced on records.
Both the contentions raised by Learned Counsel for the Insurance Company, therefore, fail and are, accordingly, rejected.
I will now deal with the submissions raised by Learned Counsel for the claimant seeking enhancement of the amount of compensation awarded
by the Tribunal.
While awarding compensation to the claimant for loss of amenities and pleasures of life, the Tribunal does not appear to have kept in view the
long span of life, the claimant has to go through, as a disabled persdn, who will have to depend on others to maintain and sustain himself. Law laid
down by Hon'ble Supreme Court of India in R.D. Hattangadi Vs. M/s. Pest Control (India) Pvt. Ltd. and Others, was required to be kept in view
by the Tribunal in assessing compensation for loss of amenities and pleasures of life. It would be advantageous to refer to what was held by
Hon'ble Supreme Court of India in the aforesaid judgment. It reads as follows:
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. N
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 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.
It was further held by Hon'ble Supreme Court of India that whenever a Tribunal or a Court is to fix the amount of compensation in cases of
accident, it involves some guess work, some hypothetical consideration and some amount of sympathy linked with the nature of the disability
caused. All these elements are, however, required to be viewed with objective standards.
Keeping in view the long span of more than 50 years which the claimant is expected to pass through, amount of Rs. 40,000.00 awarded by the
Tribunal for loss of amenities and pleasures of life, appears to be penurious, for it would come to around Rs. 800/- per year, which cannot by any
stretch of reasoning be said to be just compensation for the loss of amenities and pleasures of life of a person who had bright future ahead.
Likewise, for the same reasoning, the amount awarded by the Tribunal for pain and suffering too is on the lesser side. In my opinion, an amount of
Rs. 2.00 lac for loss of amenities and pleasures of life and an amount of Rs. 1.00 lac for pain and sufferings would be just compensation to the
claimant.
For all what has been said above, Iwould, accordingly, while dismissing Insurance company's appeal and allowing the cross appeal of the
claimant, modify the Tribunal's award, as an award for an amount of Rs. 18,38,200.00. Award under item Nos. 8 & 9 shall, accordingly, stand
modified to Rs. 1.00 lac and Rs. 2.00 lac respectively. Rest of the terms of the award shall remain unaltered.
Amount deposited by the appellant in this Court shall be released in favour of the claimant with a direction to the Insurance Company to satisfy
the award by paying the remaining amount along with interest within six weeks.
Records of the Tribunal be sent back.