Shashanka Choudhury vs Amal Bhattacharjee and Anr.

Having felt dissatisfied with the quantum of compensation, awarded by the Motor Accident Claims Tribunal (Court No.4), Agartala in Case No. T.S.(MAC) 428 of 1998 the appellantpetitioner preferred the appeal challenging the judgment and award passed by the Tribunal dated 20.4.2012.

Kiriti Choudhury, minor son of the appellantpetitioner, named above suffered severe fracture injury in his pelvis and rupture injury in his urethra as well as injuries in the lower abdomen including renal system due to a motor vehicle accident, occurred on 6.3.1998 at about 133C hours on AssamAgartala road near Longthrai Temple under Ambassa Police Station involving vehicle No.TRT4066 (Jeep) with which Kiriti was travelling from Teliamura to Machmara.

The Tribunal has decided the issues that the accident occurred for rash and negligent driving of the vehicle and because of the accident Kiriti suffered the injury as stated above. The Tribunal also held that the vehicle belonged to respondent No.1 was insured respondent No.''2, the Oriental Insurance Company Ltd. covering the risk on the date ol accident. Since the finding of the Tribunal, as aforesaid, has not been challenged, for brevity, reproduction of factual detail is carefully avoided.

The Tribunal awarded a total compensation of Rs. 1,10,000 with 9% interest thereon from the date of filing of the claim petition, i.e., 10.12.1998 on following head :

(i) Medical expenses incurred Rs. 10,000

(ii) Future medical expenditure Rs. 10,000

(iii) Pain and sufferings Rs. 15,000

(iv) Loss of income Rs.75,000

Total Rs. 1,10,000.

It is contended by the appellantpetitioner that the award made by the Tribunal is grossly inadequate and contrary to the law, settled by this court and the Apex Court.

Heard learned counsel, Mr. S K Datta, for the appellant and learned counsel, Mr. K Bhattacharjee for the respondent No.2, Oriental Insurance Company Limited.

Respondent No. 1 has chosen to remain absent.

Let us first have a glimpse to the evidence and materials on record in respect of the incident of injury and nature of treatment undergone by the minor boy Kiriti.

According to the petitioner, on the date of accident the victim was first taken, to the Dharmanagar Hospital and on the following day, he was taken to Silchar Medical College Hospital, where he was treated as an indoor patient from 7.3.1998 to 3.7.1998.

The discharge certificate of Silchar Medical College Hospital is proved as Exbt.l, which shows that Kiriti Choudhury was admitted in the said hospital in the Department of Surgery, Units III and II on 7.3.1998 and he was discharged on 3.7.1998. He was treated for ruptured urethra with fracture of pelvis. Operation of suprapulse with puncture done on 7.3.1998 under G/A and rail road technique done on 18.6.1998 under G/A. He was discharged with an advice to report again after one month. The advice recorded on the back of the discharged certificate, apart from medicine, was to drink plenty of water and fluids.

Exbt.2 series consists of 5 discharge certificates of Sundari Mohan Seva Bhawan, another prominent hospital in Silchar and it shows that for the second time Kiriti was admitted in the said hospital on 14.9.1998 and was discharged on 18.9.1998. He was treated for stricture urethra following fracture of pelvis, previous rail road repair. Urethroscopy and rail road insertion of foleys, catheter under S/A done on 15.9.1998. He was advised to report after one month.

For the third time, Kiriti was admitted in the said Sundari Mohan Seva Bhawan on 28.10.1998 and was discharged on 24.11.1998 suffering from stricture urethra and urethroplasty 1st Stage, 2nd Stage scorbal flap urethroplasty done on 5.11.1998 and he was discharged with an advice to report after 7 days.

The fourth discharge certificate of the said hospital shows that he was again admitted on 23.12.2000 and was discharged on 11.1.2001 and was treated for stricture urethra, i.e., 1st stage scorbal urethroplasty done. He was advised to have hip bath daily.

The next discharge certificate of the said hospital shows that he was admitted on 9.3.2001 and was discharged on 29.3.2001 suffering from postoperation case of urethral injury and urethroplasty done on 15.3.2001. He was discharged with an advice to report after one month.

The last discharge certificate of Ext.2 series shows that he was admitted on 17.5.2001 and was discharged on 22.5.2001 and was treated for previsous urethroplasty with stricture perineal stoma. Refreshing of the stoma was done. He was advised to report after three month.

The above discharge certificates of the hospital make it abundantly clear that injuredKiriti has been under continuous treatment from the date of accident at least till 22.5.2001. What tremendous pain and suffering the boy has suffered in his tender age can be easily imagined.

As it appears from claim petition and from the deposition of the petitioner, they are resident of Machmara, a remote village in north Tripura district and the petitioner, i.e., the father of the injured boy is a ''Barga cultivator''. He presented the petition for granting Rs.25,94,000 for the injury and disablement suffered by his son. In the claim petition as well as in the deposition the petitioner, Sashanka Choudhury, i.e., the father of injured Kiriti, stated that Kiriti has become permanently disabled and he is bedridden.

In his deposition the petitioner (PW1) stated, thus :

"Kiriti is till now ill. He passes urine through pipes, and bag is fitted to the pipe. As per doctor he needs further treatment. Kiriti has been lying on bed after the accident. He cannot walk. At the time of the accident Kiriti was reading in ClassX. He was a good student. He was studying in Rammura High School, Machmara at the time of the accident. He also used to help me in my work in cultivation. I am a Barga cultivator. He used to help me by contributing Rs. 1,500 per month approximately. For his future treatment I have to spend more. In my family I have four sons, two daughters and my wife. Kiriti was my second son. He is being looked after at present by my wife and other members of the family. If he is not cured in the long run a person, as an attendant, is to be employed for his nursing. His marriage prospect is meagre.

I am not in a position to bring Kiriti forgiving deposition and he is bedridden at our house at south Machmara. My house will be at a distance of 207 km from the court. The road is ZigZag one. His condition is being deteriorated day by day. His renal system has also been affected due to accident."

The above oral statement of the petitioner is substantially supplemented by the discharge certificates of the Silchar Medical College Hospital and Sundari Mohan Seva Bhawan, another renowned hospital of Silchar (Exts.l and 2 series). The Tribunal accepted the case of the petitioner that Kiriti is not in a position to move and he is in bed ridden condition and, therefore, taken into consideration the evidence, adduced by the father and awarded the compensation. The finding of the Tribunal, in respect of the injury and physical condition of Kiriti, has not been challenged by the respondent. Under such circumstances, it is not understood how the Tribunal awarded a meager amount of Rs. 10,000 towards expenses incurred during the period of treatment. Exbts.l and 2 series show that during the period from 7.3.1998 to 21.5.2001 Kiriti was hospitalized, as an indoor patient, under treatment, for 197 days. Admittedly, Silchar Medical College and Sundari Mohan Seva Bhawan hospital located at Silchar at Assam far away from the house of the petitioner at Machmara, North Tripura. Definitely, one attendant had to remain with the injured boy for his such continuous treatment in the Hospital. The petitioner, being the ''Barga cultivator'' (under Raiyat), residing in remote village cannot be expected to have retained all documents to prove the cost of treatment. The petitioner stated that he spent Rs. 1,50,000 for treatment. No document produced. No reason also given in the claim petition or in the deposition of the PW1 as to why no document produced regarding t''he cost of treatment.

The Supreme Court in the case of Govind Jadav v. New India Insurance Company Ltd., 2002 ACJ 28 (SC) in para 10 of the judgment stated, thus :

"10. The personal sufferings of the survivors and disabled persons are manifold. Some times they can be measured in terms of money but most of the times it is not possible to do so. If an individual is permanently disabled in an accident, the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term ''compensation'' used in section 166 of the Motor Vehicles Act, 1988 (''the Act'') would include not only the expenses incurred for immediate treatment, but also the amount likely to.be incurred for future medical treatment/care necessary for a particular injury or disability caused by an accident. A very large number of people involved in motor accidents are pedestrians, children, women and 7 illiterate persons. Majority of them cannot, due to sheer ignorance, poverty and other disabilities, engage competent lawyers for proving negligence of the wrongdoer in adequate measure. The insurance companies with whom the vehicles involved in the accident are insured usually have battery of lawyers on their panel. They contest the claim petitions by raising all possible technical objections for ensuring that their clients are either "completely absolved or their liabilities minimized. This results in prolonging the proceedings before ''the Tribunal. Sometimes the delay and litigation expenses make the award passed by the Tribunal and even by the High Court (in appeal) meaningless. It is, therefore, imperative that the officers, who preside over the Motor Accident Claims Tribunal adopt a proactive approach and ensure that the claims filed under sections 166 of the Act are disposed of with required urgency and compensation is awarded for the victims of the accident and/or their legal representatives in adequate measure. The amount of compensation in such cases should invariably include pecuniary and nonpecuniary damages."

The Tribunal, in my considered opinion, has failed to consider the case of the petitioner with all its seriousness and casually awarded the compensation towards cost of treatment. While the petitioner is a ''Barga cultivator'' and residing in remote village, he might not retain all the documents of treatment of his son but while conducting the case, in such situation, it was the duty of the conducting lawyer to place on record as to why no document, towards cost of treatment, produced by the petitioner. Under such circumstances of the case, the Tribunal/Court has got the responsibilities to have a guess work and to award reasonable compensation befitting to particular case.

In the case of R.D. Hattangadi v. Pest Control, AIR 1995 SC 755 the Apex Court has held that in the very nature wherefrom a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guess work, 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 standard.

In the case at hand, while there is no definite evidence regarding cost of treatment but it is apparent that the injured boy was under treatment in the hospital at Silchar for about 197 days during the period from 6.3.1998 to 22.5.2001,1 think, a lumpsum compensation of Rs. 1,50,000 may be a reasonable compensation towards cost of treatment already incurred.

In injury cases, the claimants are entitled to get compensation for pecuniary as well as nonpecuniary damages. Pecuniary damages are also known as special damages and are generally designed to make good. The pecuniary loss may be calculated in terms of money. Nonpecuniary damages are those which are incapable of being assessed by arithmetical calculations.

We may refer here the observation of the Apex Court in the case of

R.D. Hattansddi (supra) wherein the Apex Court in para 9 observed, thus :

"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 is capable of being calculated in terms of morn: y: whereas rumpecuniary damages are those which arc incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary dazaagos 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 nonpecuniary 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 fur 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."

In the recent case of Govind Yadav v. New India Assurance Co. Lid., 2012 ACJ 28 (SC) the Apex Court directed all Tribunals and High Courts to follow the principles laid down in the cases of Arbind Kr. Misn v. New. India Assurance Co. Ltd., 2010 ACJ 2867 (SC) and Rajkumar v. Ajay Kumar, 2011 ACJ 1 (SC) while determining the quantum of compensation payable to the victims of accident who are disabled either permanently or temporarily.

In the case of Arvind Kr. Misra (supra) the Apex Court has observed, thus :

"We do not intend to review in detail state of authorities in relation to assessment of alldamages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong: he has suffered at the hands of the wrongdoer and the court must take care to (five him full and fair compensation for that he had suffered."

In the case of Raj Kumar (supra) the Apex Court held, thus :

"The provision of the Motor Vehicles Act, 1988(1 he Act'' for short) makes it clear that the award must, be just, which means that compensation should; to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.......

(5) The heads under which compensation is awarded in personal injury cases are the following pecuniary damages (special damages).

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:

(a) loss of earnings during the period of treatment;

(b) loss of future earnings on account of permanent disability, (iii) Future medical expenses.

Nonpecuniary damages (general damage..,

(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life (shortening of normal longevity).

In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life."

In the case of Raj Kumar (supra) the Apex Court further held that the Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. What requires to be assessed by the Tribunal is the affect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity, in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earning by applying the standard multiplier method used to determine the loss of dependency.

In the case of Reshma Kumari v. Madan Mohan (2009) 13 SCC 422 the Apex Court held, thus :

The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This court cannot also lose sight of the fact that in given cases, as for example, death of the only son to a mother, she can never be compensated in monetary terms.

The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (situation) the nature of employment was such that he might not have continue in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses guesswork may be inevitable. That may be so.

In the Indian context several other factors should be taken into consideration including education of the dependents and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification: his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicant this court in Oriental Insurance Co. Ltd. v. Jashuben, 2008 ACJ 1097 (SC), held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration.

One of the incidental issues which has also to be taken into consideration in inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries, in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard and fast rule, however, can be laid down therefor."

In the case of Sayed Basheer Ahmed and Ors. v. Mohd. Zameel, AIR 2009 SCW 493 the Apex Court has held, thus :

"The expression "which appears to be just" vests a wide discretion in the Tribunal in the matter of determination of compensation. Nevertheless, the wide amplitude of such power does not empower the Tribunal to determine the compensation arbitrarily, or to ignore settled principles relating to determination of compensation. Similarly, although the Act is a beneficial legislation, it can neither be allowed to be used as a source of profit, nor as a windfall to the persons affected nor should it be punitive to the person(s) liable to pay compensation. The determination of compensation must be based on certain data, establishing reasonable nexus between the loss incurred by the dependents of the deceased and the compensation to be awarded to them. In nutshell, the amount of compensation determined to be payable to the claimant(s) has to be fair and reasonable by accepted legal standards."

In the case of Yadava Kumar v. Divisional Manager, National Insurance Company Ltd., (2010) SCC 341 the Apex Court observed that while assessing compensation in accident cases, the High Court or the Tribunal must take a reasonably compassionate view of things. It cannot be disputed that the appellant being a painter has to earn his livelihood by virtue of physical work. The nature of injuries, amply demonstrate that carrying those injuries he is bound to suffer loss of earning capacity as a painter and a consequential loss of income is the natural outcome. The courts are statutorily charged with a responsibility of fixing a ''just compensation''. It is obviously true that determination of a just compensation cannot be equated to a bonanza. At the same time the concept of just compensation'' obviously suggests application of fair and equitable principles and a reasonable approach on the part of the Tribunals and Courts. Both the courts and Tribunals in the matter of this exercise should be guided by principles of good conscience so that the ultimate result become just and equitable.

The Apex Court further observed that the High Court and the Tribunal must realise that there is a distinction between compensation and damages. The expression compensation may include a claim for damage but compensation is more comprehensive. Normally damages are given for an injury which is suffered, whereas compensation stands on a slightly higher footing. It is given for the atonement of injury caused and the intention behind grant of compensation is to put back the injured party as far as possible in the same position, as if the injury has not taken place, by way of grant of pecuniary relief. Thus, in the matter of computation of compensation, the approach will be slightly more broad based than what is done in the matter of assessment of damages. At the same time, it is true that there cannot be any rigid or mathematical precision in the matter of determination of compensation.

The provision of Motor Vehicles Act, 1988, makes it clear that award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. That object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated, for the physical injury, but also for the loss which is suffered as a result of such injury. This means that he is to be compensated for his inability to lead a life with dignity and comfort, his ability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned.

Regarding the cost of future treatment the Tribunal awarded only a meagre amount of Rs. 10,000. The award by the Tribunal was made on 20.4.2002. The last discharge certificate placed in evidence is dated 22.5.2001. In that certificate also the injured was advised to attend hospital after three month, which means the injured had to attend the hospital even after the award was made. The amount of Rs. 10,000 can in no way be said a reasonable compensation for future treatment of the boy who is almost aged 30 years now. Considering the nature and gravity of the injuries and the continuity of the treatment, 1 think, an amount of Rs. 1,00,000 may be appropriate compensation.

The Tribunal has awarded a compensation of Rs.75,000 towards loss of income. The claimant stated that the injured boy was a student of ClassX and he used to help in the Barga cultivation of his father and thereby earned Rs. 1,500 per month. Learned counsel for the insurance company seriously opposed the contention stating that since the petitioner was minor boy and a student it cannot be believed that he used to earn Rs. 1,500 per month. A minor boy aged about 16 years, being a student, might have helped his parents in daytoday work but that does not necessarily mean that he had a definite income at the relevant point of time. The finding of the Tribunal, on that score, cannot be accepted and is liable to be set aside. It is to be presumed that school going boy had no independent income and, therefore, awarding compensation towards loss of income of school going boy aged 16 years was uncalled for.

The boy was aged 16 years and according to the petitioner, he was reading in ClassX. No document placed on record to that effect. It was the duty of the petitioner to place on record the school certificate, etc., of the injured boy to show that he was prosecuting the studios. Bo that as it may, he was or was not prosecuting studies, had he not suffered the injury due to the accident, on his attaining majority, he would definitely able to earn for his livelihood. Future prospect of the boy definitely seriously affected due to the injury suffered by him.

In the case of R K Malik v. Kiran Pal and Ors., 2007 ACJ 2161 the Apex Court considering several other previous judgments of the court, awarded compensation towards future prospect of the school going children.

In the present case also though no disablement certificate is placed on record, it is amply clear that the future prospect of the boy has been substantially affected because of the injury and, therefore, on the count of loss of future prospect a lumpsum compensation of Rs. 1,50,000 is awarded.

The boy Kiriti suffered tremendous pain and suffering and has to continue suffering for the rest of life. He may not get a suitable match in his life for his injury in pelvis. The petitioner stated that his marriage prospect is meagre. So, considering the pain and sufferings already suffered and considering the future inconvenience and hardship, discomfort, frustration and mental stress of future life, I further award a lumpsum compensation of Rs. 1,00,000 to the injured Kiriti. The injured Kiriti is entitled to get (Rs. 1,50,000 + 1,00,000 + 1,50,000 + 1,00,000) Rs.5,00,000 as compensation, in all, as determined above.

The insurance company, i.e., the respondent No.2 has already been held responsible by the Tribunal for payment of the compensation and that finding stands good. So, the insurance company is to make payment of the compensation, as determined by this court with 9% interest thereon from the date of filing of the petition, i.e., 10.12.1998 and the payment should be made within 60 days from today. 50% of the awarded amount should be kept in permanent fixed deposit in a nationalized bank to the choice of the injured and he will be entitled to withdraw the monthly interest therefrom. Pursuant to the award, made by the Tribunal, if any, payment has been made in the mean time, shall be excluded.

The appeal is accordingly stands allowed. Judgment and award made by the Tribunal to that extent is interfered and set aside.

Send back the LC record along with a copy of this judgment.