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Judgment
B.K. Somasekhara, J.—The three appeals arise out of a common Award passed by the Motor Accidents Claims Tribunal, Vijayawada, in series of cases in M.V.O.P. Nos. 3, 5, 7, 110 and 112 of 1986 dated 5-5-1989. C.M.A.N0. 637/1990 concerns O.P.No. 3/1986, C.M.A.N0. 635/1990 concerns O.P.No. 5/1986 and C.M.A. No. 1008/1990 concerns O.P.No. 7/1986. All are injury claim cases. The appellants herein are the claimants. In O.P.No. 3/1986, Rs. 550/- were awarded. In O.P.No. 5/1986, Rs. 9,500/- were awarded, and in O.P. No. 7/1986, Rs. 14,950/- were awarded.
Mr. Prabhakar Reddy, learned advocate has contended that the amount of compensation awarded in each of these cases is inadequate. Mr. Krishna, learned Advocate has tried to support the award.
The cases arose out of a motor vehicle accident which occurred on 29-11-1985 at 10.00 A.M. near Anumachipalli village on Vijayawada-Hyderabad road when a lorry ABV 2302 and a Tractor AAW 5212 with Trailer ADB 6911 came into collusion and the claimants who were travelling in the trailer as coolies received the injuries. After an enquiry, the Tribunal found that the accident was due to the negligence of the driver of the lorry and thus awarded compensation as above with the joint and several liability on the part of the respondents, viz., the driver, owner and the insurer of the lorry. The appeals are confined only to the question whether the compensation awarded in each of the cases is inadequate.
Having heard both the sides and examined the material on record and the award of the Tribunal, this Court is not convinced that the amount of compensation so awarded is adequate and it requires enhancement.
In O.P.No. 3, the claimant pleaded that she sustained injuries on the forehead, chest and also lost the teeth in addition to bleeding in the mouth. Except Ex.A-2, the certified copy of the wound certificate, showing that the claimant suffered some minor injuries, there is no supporting material, particularly in regard to the loss of tooth. The Tribunal fixed Rs. 550/- by way of compensation arbitrarily without giving any reasons or applying mind. It cannot be forgotten that even simple injuries or minor injuries result in painful experience to the victim and it takes 3 to 4 weeks to completely cure them. It is true that there is no law of precedent for assessment of compensation since it depends upon the facts and circumstances of each case. But, it cannot be forgotten that the identical cases like precedents and compensation cases play very important role of having certainty and uniformity in rendering decision. Even for a simple or minor injury, Rs. 500/- to 1,000/- are being awarded by the precedents consistently. (In Daly''s case (1982) CLY 91), 1,500 Pounds were awarded for fractured rib with superficial wounds. For bruises and sprain of shoulders, 1,250 Pounds were awarded in Graten''s case (1982) CLY 881) and similar amount was awarded in Pardie (1982) SLT 303) and for a simple ankle sprain, 800 Pounds were awarded in Winkley''s case (1984) 5 CL 105) and even for an impairment of soft tissue in the leg, 350 Pounds were awarded in Mill''s case (1984) 5 CL 2). All these cases are noted in page 217 and 218 in Damages for Personal Injuries and Death'' by John Munkman (7th edition of 1985). In Bandayya v. Ningappa, 1985 ACJ 746, for simple bruises or contusions, Rs. 3,000/- were awarded. The testimony of the claimant, although not supported by medical evidence, cannot be lightly taken. The person who suffers the injury will be in a better position to say it particularly in regard to pain. Therefore Rs. 3,000/- deserve to be awarded to cover such injuries and accordingly it is awarded.
In O.P.No. 5/1986, it was established with positive evidence, supported by medical evidence, that the Claimant suffered the following injuries:
(1) Diffused swelling on right fore arm, 10 "x 4" red in colour.
(2) Contusion in the occipital bone mid-line 2" x 2" red in colour.
(3) Lacerated wound on the right cheek.
(4) Lacerated wound on the right nostril.
(5) Lacerated wound below the chin.
The Orthopaedic surgeon-P.W.2 has confirmed the same in addition to the X-ray (Ex.X-1) and Ex. X-2-case sheet confirming that the claimant had sustained bad fracture of both the bones of right fore arm (it must be radius and ulna). The Doctor also opined without any challenge that there was mal-union in both the bones resulting in disfigurement and limitation of supination and pronation and there is also limitation of movement of the limb and also in the rotation of the arm. The Doctor has opined that there is partial disability to the extent of 25%. The Tribunal has assessed the compensation merely based on the income of the deceased and the loss of income to the extent of 25% and added Rs. 1,000/- towards pain and suffering, Rs. 100/- towards mental and nervous shock and Rs. 500/- for loss of enjoyment of life. Neither there is any basis for arriving at the compensation in such a manner nor for fixing it. There is an utter ignorance exhibited by the Tribunal in this regard. There is no provision either in the Motor Vehicles Act or elsewhere in regard to the method of assessing the compensation. We are still to be governed by the fundamentals in Law of Torts dealing with compensation, called compensation law, with the aid of decided cases. In injury claim cases, the items of compensation are:
(1) Personal loss.
(2) Injury - loss of impairment of bodily integrity.
(3) Pain and suffering.
(4) Nervous shock and neurosis.
(5) Loss of the pleasure or amenities of life.
(6) Shortening of life.
(7) Discomfort and inconvenience.
(8) Disease or illness suffering from such injuries. (Chapter IV in ''Damages for Personal Injuries and Death'' by John Munkman)
Also Pages 10 to 17 chapter I in quantum of Compensation by Justice G.N. Subhash -1978 Edn. 1995 SC 755 and 1987 ACJ 1023 (Names of parties not clear). Such items of compensation are not exhaustive. It may depend upon the facts and circumstances of each case. There may be instances of total wreck of an individual due to the injuries suffered by him in an accident to lead the life of a piece of vegetable, wherein the items of compensation so awarded may vary to any number and to any extent. To the items of compensation stated supra, from the decided cases, the following items may be enumerated: (1) Shock, pain and suffering; (2) Loss of amenities of life; (3) Injury depending upon the disability - partial, full, temporary or permanent; (4) Loss of earning capacity; (5) Loss of present and future income; (6) Disfigurement of the parts of the body (popularly called as social disability); (7) Loss of prospects of marriage; (8) Shortened expectation of life, if any; (9) Loss of education; (10) Loss of profession; (11) Loss of opportunities - may be social, political, economical etc.
Items 1 to 4 and 6 to 11 are classified as general damages whereas the other items are classified as special damages. The former cannot be mathematically or arithmetically evaluated and requires to be determined with the experience, wisdom and the guidance to the Tribunal, with the aid of medical evidence and decided cases. The latter is capable of evaluation subject to the proof in any mode available in law. The Tribunal appears to be totally unmindful of these fundamentals and such Tribunals are to be guided with such fundamental principles in assessing the compensation.
The claimant in this case having suffered 2 fractures under injury No. 1 having undergone treatment as an in-patient for a period of 13 days and as an out-patient possibly for 3 to 4 months as any fracture requires at least 4 to 8 weeks to unite, in addition to 2 to 3 months for phisio-therapy to make the movement of the limb normal and useful. The shock and pain and suffering at the time of the accident and the pain and discomfort suffered during the period of treatment and due to the disability especially, such discomfort and loss of amenities of life during his remaining period of life need not be over emphasised. They are all the common human day-to-day experience. Therefore, the first item of compensation of shock, pain and suffering of Rs. 5,000/- should be awarded in this case.
Injuries 2 to 5 must be simple and must have been cured fully as there is no medical evidence contrary. Injury No. 2 being the contusion, Rs.1,000/- and for injuries 3 to 5 being lacerations, Rs. 2,000/- each has to be awarded. For the fracture of the two bones of the right fore arm leading to so much of disability, including mal-union etc., compensation should be quite reasonable, if not very high. It may not be inopportune to say that in injury cases, the compensation should be more than the death cases as an injured person with disability suffers during his remaining span of life more than the dead person who suffers once and for all, however, leaving the sufferance for the survivors, vide Gyan Prakash Bhargava v. Baboo Lal 1985 ACJ 661. For the fracture of major bones like bones of the fore-arm or the like, normally Rs. 15,000/- to 50,000/- may be awarded depending upon the nature of the injuries, the disability and the consequences thereof (vide Golu v. Jaswant Singh 1984 ACJ 155, Om Prakash Sekri v. Preetam Singh 1984 ACJ 345, Linkan Jivanji Vaghela v. Keshav Bhai 1984 ACJ 446, Suresh Kumar v. Pradeep Kumar 1984 ACJ 189, Cyan Prakash Bhargava v. Baboo Lal 1985 ACJ 661, M.S. Ratya v. Gourawwa Channabasappa 1987 ACJ 846, Basavaraj v. Sekhar 1987 ACJ 1022. Borrowing the principle as above, for the two fractures of the fore arm under injury No. 1 with disability, Rs. 25,000/- appears to be reasonable compensation.
The claimant as a labourer at the relevant time, earning Rs. 300/- per mensem. She was aged 32 years. By applying the multiplier method, the loss of income would be Rs. 3,600/- per annum and Rs. 50, 400/- towards her remaining span of life in the multiplier method. With the disability of 25% for an upper limb just one-sixth of the entire body, the loss of income has to be scaled down at Rs. 2,100/-. Since there is also disfigurement of the limb, for a lady suffering social disability, Rs. 5,000/- should be added. Having regard to the nature of the injuries suffered by the claimant and the nature of the treatment required - whether in Government hospital or elsewhere -she ought to have spent some amount, possibly not able to be accounted for, including the incidental expenses and the medical expenses and for want of actual proof, a fixed amount of Rs. 3,000/- are awarded. Thus, the claimant in O.P.No. 5/1986 will be entitled to recover the compensation as follows:
Rs. (1) Shock, pain and suffering and loss of amenities of life. 5,000/- (2) Injuries and the disability 32,500/- (3) Medical and incidental expenses 3,000/- (4) Loss of future income 2,100/- (5) Social disability 5,000 ________ 47,600/- --------- Rounded off to .... 48,000/- ----------
Now, coming to O.P.No. 7/1986, the Tribunal has awarded the compensation in a most arbitrary manner ignoring the fundamental principles of assessment of compensation as above. From the testimony of the Claimant in addition to the testimony of the Doctor -P.W.2, the injuries suffered by him with the disabilities were established as follows:
(1) Diffused swelling of left thigh 10" x 3".
(2) Lacerated wound on the forehead 2" x 1/2" x 1/2".
(3) Lacerated injury on the left middle of the leg 1" x 1".
There was a fracture of the femur bone in the right thigh regarding which operation was conducted and steel rods were inserted. There is shortening of the right leg by 3/4th of an inch. There is stiffness in the movement of the hip and knee joint and in the thigh muscles. The claimant is unable to sit and squat and there is limping. The Doctor has opined that such disabilities are permanent and the extent of disability is 20%. The Tribunal, adopting an easy and short-cut course, fixed the income of the claimant at Rs. 20/- per diem, allowed Rs. 750/- towards loss of income, Rs. 1,000/- towards medical expenses, Rs. 250/- towards transportation charges of hospital, Rs. 500/-towards nourishment and Rs. 4,000/- towards mental agony, grief and frustration and a sum of Rs. 100/- for limping and discomfort. The loss of income has been fixed at Rs. 7,200/- and as a whole, the Tribunal has awarded Rs. 14,950/-. Ignoring the imbecility in the method of assessing the compensation as above by the Tribunal, this Court is of the opinion that Rs. 5,000/- should be awarded towards pain, shock and loss of amenities of life. Injury No. 1 has been part of the fracture to the femur bone leading to disability. Injuries 2 and 3 must be simple injuries, and fully curable and Rs. 2,000/- each following the principle stated above are awarded. As already pointed out, for the fracture of major bone like femur bone, Rs. 15,000/- to Rs. 50,000/- are being awarded by the precedents depending upon the nature and extent of disability and other consequences. In Subramani v. Thomas Ross,1991 ACJ 97, Rs. 20,000/- were awarded by way of compensation and for the fracture of major bones like tibia and fibula (it cannot be different from a femur bone for the consequence of injury) from Rs. 20,000/- to 70,000/- are being awarded consistently by various High Courts including the Supreme Court, (vide M.P. State Road Transport Corporation v. Sudhakar 1977 ACJ 290, Bindu v. Chandrasekhar 1987 ACJ 1092, S.A. Ghani v. Ponnen 1981 ACJ 269, Huchappa v. Anantharaman 1981 ACJ 20 and Srinivasa v. Parasiva Murthy 1976 ACJ 45 . In view of the facts and circumstances of the present case and with the aid of the precedents supra, Rs. 25,000/- should be the reasonable compensation for the fracture of the femur bone and the disability. In other words, for injuries, it should be Rs. 29,000/-.
For medical and incidental expenses, with or without proof, some amount should be awarded as it may not be possible to prove all this. Rs. 3,000/- in a case like this would suffice the meets or justice and requirements to cover such expenses.
The claimant is a labourer whose income should be at least Rs.20/-per diem, Rs. 600/- per month or Rs. 7,000/- per annum. For his age at 35 years, applying the multiplier method and adopting 13 as the multiplier for his age, the loss of income should be Rs. 93,600/-. 20% of this would come to Rs. 18,640/-. The lower right limb being one-sixth of the whole body, the above amount would reduce itself to Rs. 2,106/- and to round it off, Rs. 3,000/- would be the proper amount towards loss of future income which could be compensated. Thus, the claimant in all shall be entitled to compensation as under:
Rs. (1) Shock and pain and suffering. 5,000/- (2) Injuries and disability 29,000/- (3) Medical and incidental expenses 3,000/- (4) Loss of future income. 3,000/- ------------ Total 40,000/- ------------
In the result, all the appeals are allowed and the award is set aside and modified as follows:-
In O.P.No. 3/1986, the claimant shall be entitled to recover compensation at Rs. 3,000/- with interest at 12% per annum from the date of the petition till the date of payment with costs throughout.
In O.P.No. 5/1986, the claimant shall be entitled to Rs. 48,000/- by way of compensation with interest at 12% per annum from the date of the petition till the date of payment with costs throughout.
In O.P.No. 7/1986, the claimant shall be entitled to Rs. 40,000/- by way of compensation with interest at 12% per annum from the date of petition till the date of payment with costs throughout.
This order shall be subject to depositing the amount in any nationalised Bank or Scheduled Bank in accordance with the terms in General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, .
If any amounts are already paid to the claimants, they shall be given a deduction out of the total amount.