United India Insurance Company Limited v. Veer Bhan & Ors.

Judgment

1. The Insurance Company is in appeal, having been permitted to defend the case on all grounds under Section 170 of the Motor Vehicles Act (hereinafter referred to as the 'Act') that the compensation awarded to the claimant is high. He points out that the claimant was reported to have suffered fracture of 5th, 8th and 10th rib, fracture of shaft femur in the right thigh with dislocation of left knee. He had undergone treatment in several hospitals as in-patient for 62 days. He had produced under four F.A.O.NO. 245 OF 2009 2 different heads. The Tribunal had granted the following amounts:- a) b) c) Pain and suffering: Rs. 31,000/- Permanent disability: Rs. 2,34,000/- Amount spent on medicines & treatment: Rs. 3,74,795/- d) Loss of future income and expectation of life: Rs.1,00,000/- Total: Rs. 7,39,795/-

2. Learned counsel has objection to the permanent disability assessed at Rs. 2,34,000/- and the assessment was that the insured had suffered 78% permanent disability and 10% temporary disability on account of fracture. It is his further contention that when permanent disability had been assessed for compensation, the Court could not have also granted compensation for loss of future income and expectation of life.

Learned counsel refers to decision of Full Bench of Madras High Court in Cholan Roadways Corporation Ltd. Vs. Ahmed Thambi and others (2007) 1 RCR(Civil) 602.

3. As regards the claim that the assessment of disability at Rs. 2,34,000/- as high, I have no difficulty in accepting the contention for the amount awarded seems arbitrary. While assessing compensation for injuries, some approximation is bound to happen but there is no basis for determining Rs. 2,34,000/- for 78% permanent disability. Various courts have F.A.O.NO. 245 OF 2009 3 adopted various procedures and this Court has adopted a practice that has assumed the status of stare decisis that for every percentage of disability, the compensation shall be Rs. 2,000/-. The learned counsel for the respondents also refers to the judgment of this Court titled as Ram Kiran Goyal Vs. Sub Divisional Engineer 2008(2) RCR(Civil) 103 which has adopted the formula of providing Rs.2,000/- for every percentage of disability to set a formula in. I am bound by the reason of Division Bench and I hold that the determination of compensation at Rs. 2,34,000/- is unsustainable and it shall stand scaled down to Rs. 1,56,000/-. There is also 10% temporary disability and I would at another Rs. 4,000/- pay to it and make it Rs. 1,60,000/-.

4. As regards the learned counsel's contention that there could be no assessment for future income while providing for a permanent disability, I am of the view that the reliance placed on the Full Bench judgment of the Madras High Court is not appropriate. The Full Bench had held while trying to resolve a controversy of varying opinions from the same Court of different benches, when the Court has said that loss of earning capacity if it is compensated under the pecuniary loss of clause (a) to (d) permanent disability need not be separately itemised. It is one thing to assess the loss of earning capacity and providing for how the income would have fallen by a loss of such capacity but another to ascertain the loss of future income. The assessment of a compensation for loss that may be occasioned in future on F.A.O.NO. 245 OF 2009 4 account of injuries is a separate head of claims which is provided under the Motor Vehicle Act itself. Even the Hon'ble Full Bench did not go as far as to say that there had been any difference of opinion between several judgments that provide for compensation for disability as well as the loss of income that could be occasioned in future on account of injuries. The relevant part of the judgments reads as follows:- “In K.Sapana v.B.Appa Rao,(1988) 1 ACJ 113(A.P.) and Rattal Lal Mehta v. Rajinder Kapoor,(1996) 2 TAC (Del), M. Jaganadha Rao, C.J. as he then was, on consideration of common law principles and Indian case law, distilled the following principles relating to the assessment of non-pecuniary damages in cases of personal injury:-

1. Damages are liable to be awarded for loss of expectation of life and loss of amenities or enjoyment of life, to plaintiffs who become unconscious as a result of the injury.

2. An objective approach must be adopted for the assessment of non- pecuniary damages.

3. Comparison should not be made with the total awards given in earlier F.A.O.NO. 245 OF 2009 5 cases as those awards include both pecuniary and non-pecuniary losses. Comparison must be limited to no- pecuniary losses because pecuniary losses are not comparable as they depend upon the earning capacity of the injured person.

4. Sums higher than those claimed under particular heads of damages can be awarded, so long as the court does not exceed the total amount.

5. Conventional figures adopted by the courts for loss of particular limbs must be upgraded depending upon inflation.

6. There should be discrimination between rich and poor in evaluating non-pecuniary losses.

7. Each sub-head of non-pecuniary damages must be separately computed and added up. There must be no overlapping between the individual components.

8. Exemplary damages may be awarded in an action of tort where the defendant has not only committed a F.A.O.NO. 245 OF 2009 6 legal wrong but has also behaved in an outrageous and insulting manner.

9. Though the claimants have estimated different sums of damages under various heads, it is open to the court to award sums which are higher than those claimed under particular heads of damages, so long as the court does not exceed the total amount claimed.

10. The damages awarded for non- pecuniary damages for pain, suffering and loss of amenities cannot be reduced even if the quantum of pecuniary damages payable is high. Exemplary damages could be awarded in an action of tort where the defendant has not only committed a legal wrong but has also behaved in an outrageous and insulting manner. Aggravated damages take into effect the motives or conduct of the defendant.

17. It is necessary to mention at this stage that there is really no conflict between the two Division Bench decisions of F.A.O.NO. 245 OF 2009 7 this Court referred to earlier. In Managing Director, Tiruvalluvar Transport Corporation, Madras v. Thangavelu and another, 1995(II) MLJ 571 the loss of income was assessed at Rs. 112.50 per month and calculating the same for 25 years, the tribunal had fixed the compensation on this head at Rs. 33,750/-. However, since lump sum payment was directed to be paid the tribunal deducted 1/6th of the total amount arrived at viz; Rs. 5,625/- and ordered payment of Rs. 28,125/- under this head. For pain and suffering and mental agony the tribunal had awarded a sum of Rs. 10,000/- and for permanent disability, the tribunal had awarded Rs. 10,000/- to the first respondent. The Division Bench rejected the contention of the appellant that compensation cannot be awarded for permanent disability if compensation is awarded under the heading 'loss of earning power'. The Court observed that it is well known that permanent disability will have several consequences apart from inability to work F.A.O.NO. 245 OF 2009 8 or earn as before. To be specific, the victim of the accident who suffers from permanent disability will not be in a position to carry on his normal house-hold activities in his house. More than anything else, he will be brooding over the disability day after day till the end of his life and suffer untold mental agony. The compensation for pain and suffering is only for the pain and suffering undergone at the time of injury and the treatment which followed. Thus, compensation for permanent disability will cover the mental agony to be suffered by the injured in his future life and his inability to attend his normal house-hold activities. This reasoning of the Division Bench would clearly indicate that compensation was awarded taking into account the non- pecuniary loss under the head of loss of amenities of life, hardship, discomfort, mental stress, etc. Therefore, though the amount was awarded under the general head of 'permanent disability', it would clearly fall under non-pecuniary loss on account of loss of amenities of life, hardship and mental stress in life.” F.A.O.NO. 245 OF 2009 9

5. An expectation of amenities of life and its loss are definitely factored in permanent disability and the inclusion of the expectation of life along with loss of future income may not be correct but the loss of future income assessed at Rs. 1,00,000/- for a person who had been severely mauled and could not carry on with his work, I do not see that to be high.

5. The pain and suffering for a prolonged hospitalisation has been assessed at only Rs. 31,000/- which I shall increase to Rs. 50,000/-. The courts have with power to provide for appropriate compensation even in the absence of cross appeal. The amount of compensation payable under the heads shall therefore be :- a) b) c) Pain and suffering: Rs. 50,000/- Permanent disability: Rs. 1,56,000/- Amount spent on medicines & treatment: Rs. 3,74,795/- d) Loss of future income and expectation of life: Rs.1,00,000/- Total: Rs. 6,80,795/-

6. The award passed by the Tribunal shall stand modified and reduced to the above amount. The appeal is partly allowed to this extent. 15th July, 2010 Shivani Kaushik [K.KANNAN] JUDGE