Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4648 OF 2022
( ARISING OUT OF SLP (C) NO.18886 OF 2019 )
ABHIMANYU PARTAP SINGH ….APPELLANT(S)
VERSUS
NAMITA SEKHON & ANOTHER ….RESPONDENT(S)
J U D G M E N T
J.K. Maheshwari, J.
Leave granted.
2. The instant appeal arises out of the judgment dated
21.05.2019 passed by the Single Judge of the High Court of
Punjab and Haryana at Chandigarh in First Appeal Order
No.4829 of 2002 preferred by the claimant/appellant
(hereinafter to be referred to as “claimant”), whereby the said
appeal was partly allowed and the compensation granted to the
tune of Rs.9,00,000/ by the Motor Accident Claims Tribunal,
Chandigarh (hereinafter to be referred to as “MACT”) in MACT
Signature Not Verified
Case No. 29 of 1997 was enhanced to Rs. 23,20,000/.
Digitally signed by
Rachna
Date: 2022.07.06
16:48:33 IST
Reason:
3. The claimant filed a Claim Petition under Section 166 of the
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Motor Vehicles Act, 1988 (in short “M.V. Act”) asking
compensation to the tune of Rs. 200,000,00/ (two crores only)
in various heads on account of permanent disability caused to
him arising out of a road accident occurred on 10.11.1996, for
which FIR was lodged on 11.11.1996. At the time of accident,
claimant was five and half years of age and a student of UKG,
suffered multiple injuries like cerebral edema/brain edema,
fracture right part of temporal bone, spinal cord, lower limbs,
due to which he was having loss of speech, convulsions, injuries
on face. The lower limb of claimant was completely paralysed
resulted into 100% disability, his hope to live blissful life was
lost due to those injuries. It is said his father was a professor
and mother was an IAS officer, the claimant was having desire to
become Executive/IAS officer because of his background. On
account of head injuries including the fracture in temporal bone,
the development and capacity of the brain was not comparable
to a common man. Due to injuries in lower limbs, he lost the
senses for calls of nature and needs all time attendants for his
daily routine work. He cannot move without wheel chair or
motorized vehicle, thus his future is in complete jeopardy.
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4. The MACT while deciding the claim petition recorded the
finding of joint and several liability and the claimant has
suffered 100% disability. The Tribunal calculated the
compensation applying the multiplier of 16 and awarded
Rs.1,92,000/ in the head of attendant charges @ Rs.1,000/
per month, for physiotherapy Rs.2,88,000/ @ Rs.50 per day,
Rs.15,000/ has been awarded in transportation charges, and
Rs.5,000/ for use of diapers in future. The Tribunal granted
Rs.4,00,000/ in the head of loss of expectations of life, loss of
marital bliss, loss of enjoyment and amenities of life, permanent
disability, pain and sufferings, thus awarded total sum of
Rs.9,00,000/ with interest @ 9% per annum from the date of
filing of the claim petition till the date of payment.
5. The adequacy of the grant of compensation was assailed by
the claimant by filing an appeal before the High Court which was
allowed in part vide order dated 21.05.2019. The Court awarded
Rs.1,00,000/ for the motorized wheel chair. The future loss of
earning is awarded to the tune of Rs.6,00,000/ accepting the
loss of Rs.60,000/ per annum for 10 years only. The attendant
charges as granted by the claims Tribunal is enhanced to the
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tune of Rs.7,08,000/ @ Rs.3,500/ per month only for 20 years.
In appeal, in the head of medicines, physiotherapy and diapers
the High Court awarded Rs.8,00,000/ in lump sum enhancing
the amount as allowed by MACT. In the head of loss of amenities
of life, marital bliss Rs.3,00,000/ was allowed and
Rs.1,00,000/ for the special diet enhancing the total amount of
compensation to the tune of Rs.23,20,000/. The High Court
further directed to pay interest on the enhanced amount @
7.25% p.a. from the date of filing of Claim Petition till its
payment.
6. By filing this appeal, the inadequacy of grant of
compensation by MACT and also by the High Court has been
questioned seeking enhancement applying the just and
reasonable theory, looking to the nature of permanent disability,
the profession which he is doing, in pecuniary as well as in non
pecuniary heads. It is urged that the compensation granted by
the MACT and the High Court is unjust and unreasonable and
not commensurate to the nature of injuries, which caused 100%
permanent disability to the claimant. The enhancement has
also been prayed on various heads and on various grounds.
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7. The adequacy of the grant of compensation as allowed was
challenged in the head of future loss of earning suffered due to
permanent disability for the whole life. It is urged, the loss of
future earnings granted by the High Court @ Rs. 60,000/ p.a.
for 10 years only but on account of the disability caused, the
earning of claimant shall affect him for whole life, that too
cannot be comparable to an advocate doing profession having
normal capacity. The attendant charges @ Rs.3,500/ per month
granted by the High Court only for 20 years though the
appellant required attendant all the time, during lifetime. On
account of loss of senses, he is required to use diapers for whole
life. In the head of future treatment, medical expenses including
physiotherapy, the amount as awarded is inadequate. He is
required to purchase motorized wheel chair, time to time during
his life. In the head of pain and sufferings, loss of marital bliss,
loss of amenities of life, the agony which he shall face before the
society for whole life the adequate amount of compensation has
not been granted, however enhancement of compensation is
prayed. In support of the contentions, reliance has been placed
on the judgment of this Court in the case of Kajal vs. Jagdish
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Chand and others (2020) 4 SCC 413.
8. The record indicates that despite service, none present for
the respondent No.1. Mr. Kailash Prashad Pandey, advocate is
representing respondent No. 2 – United India Insurance
Company Limited and filed the counteraffidavit, inter alia,
contending that both courts have rightly decided the case on the
basis of admitted facts and documentary evidence on record and
the concurrent findings are in favour of respondent No. 2. It is
said the judgment passed by a 3Judge Bench of this Court in
(2018) 4 SCC 571 and the
Jagadish vs. Mohan and Others
case titled NIC Vs. Pranay Sethi and Others (2017) 16 SCC
decided by the Constitutional Bench of this Court are
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supporting the case of respondent No.2. It is further submitted
that High Court has rightly followed the law laid down by this
Court and there is no future scope for enhancement of
compensation.
9. After hearing learned counsel for the parties and looking to
the findings recorded by the MACT and High Court, it cannot be
doubted that the claimant has suffered 100% permanent
disability in a road accident and the liability is joint and several.
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For the purpose of understanding the nature of injuries and its
extent, the statement of PW1Dr. Sunil Katoch, Consultant,
Indian Spinal Injuries Centre, New Delhi is relevant. As per his
testimony, the claimant suffered the spinal injury at level C7,
C8 with complete bowel and bladder paralysis and is unable to
use his upper limbs (hands) with full strength. MRI suggests
extensive myelomalacia of spinal cord from C7 to D4 level, to
which optimize domiciliary care is required. Further, regular and
every year checkup is also required to him. Due to spinal
injury, he has suffered complete paralysis of both lower limbs
and partial involvement of hands along with bowel and bladder.
In consequence, he may suffer urinary complications throughout
his life to which adequate medical attention is required. He
cannot pursue a regular carrier having embarrassing situation.
The percentage of permanent disability is 100%. With the said
medical opinion and the findings, the issue of adequacy and to
grant the just and reasonable amount of compensation requires
consideration.
10. It is not out of place to state, by making the payment of
compensation for damages would not revive the claimant into
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his original position. The compensation towards wrongful act in
terms of money though cannot be decided by the Court but it
may be determined as per the recognized principles. In the said
context, some of the English judgments are relevant, which may
specify why the compensation be paid, what should be the basis
for determination and what may be the reason for awarding
such compensation, applying the uniform methodology for
determination of compensation, comparable to the injuries,
thereby a person can lead his life, though his physical frame
cannot be reversed.
11. In the case of
Philipps vs. London & South Western
Railway Co. (1879) LR 5 QBD 78 , it was held that by making
a payment of compensation for the damages, the Court cannot
put back again the claimant into his original position. On the
date of determination of the compensation, he is being
compensated but he cannot sue again, therefore, the
compensation must be full and final while determining the same.
In Mediana, In re 1900 AC 113 (HL) , it is said that the
determination for an amount of compensation to the damages is
an extreme task. What may be adequate amount for a wrongful
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act and can it be compensated by money, particularly towards
pain and suffering. By an arithmetical calculation, it cannot be
decided what may be the exact amount of money which would
represent the pain and suffering to a person, but as per
recognized principles, damages must be paid. In
H. West & Son
Ltd. vs. Shephard 1964 AC 326 , it was held that payment of
compensation in terms of money may be awarded so that
something tangible may be procured to replace something else of
the like nature which has been destroyed or lost. But money
cannot renew a physical frame that has been battered and
shattered, however the courts must consider to award sums,
which may be a reasonable. Simultaneously, uniformity in the
general method of approach is also required. Thereby, possible
comparable injuries can be compensated by comparable awards.
Lord Denning, while speaking for the Court of Appeal in
Ward
vs. James (1966) 1 QB 273 has specified three basic
principles i.e. accessibility, uniformity and predictability to be
followed in the like cases.
12. In the perspective of Indian law, in the case of
R.D.
Hattangadi vs. Pest Control (India) (P) Ltd. (1995) 1 SCC
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551 , this Court has specified that while determining the
compensation for physical injuries, the heads on which the
amount of compensation is to be determined, may be of two
types, one is of pecuniary damages and another is of non
pecuniary damages. Pecuniary damages include the loss of
earning, medical attendance, transport charges and other
material loss. The nonpecuniary damages include the
expenses for mental and physical shock, pain and suffering
already suffered or likely to be suffered in the future, loss of
amenities of life, loss of expectation of life, inconvenience,
hardship, discomfort, disappointment, frustration and mental
stress in life which has been followed in the case of Raj Kumar
.
vs. Ajay Kumar and another (2011) 1 SCC 343
13. In the case of (supra) , this Court in case of
Kajal
permanent disability, to decide the just compensation, the
principles have been summarized, whereby the compensation
may be awarded in the heads of ‘loss of earning’, ‘medical
expenses, transportation, special diet, attendant charges’, ‘loss
or diminution to the pleasures of life by loss of a particular part
of the body’ and ‘loss of future earning capacity’, damages,
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pecuniary as well as nonpecuniary have to be assessed while it
is impossible to equate human sufferings and personal
deprivation with money. This Court said attendant charges @
Rs.2,500/ p.m. awarded by the High Court is inadequate,
however enhanced to Rs. 5,000/ with two attendants, total
Rs.10,000/ p.m. for whole life and calculated the compensation
applying the multiplier of 18. The Court further said
compensation may also be awarded for nonpecuniary damages
including pain, suffering, loss of amenities, loss of marriage
prospects. Therefore, the compensation on account of injuries,
causing 100% disability, looking to the facts of the case at hand,
is required to be determined, applying the ratio of the said
judgment.
14. The High Court in the impugned order observed that the
claimant has now started practice as an advocate, therefore,
future loss of earning has been calculated only for 10 years,
applying the multiplier of 16, without looking to the facts that
claimant cannot perform the work of advocacy similar to the
other advocates by attending the cases in different Courts. The
attendant charges have been allowed only for 20 years with one
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attendant. In fact, not only for determination of future loss of
earning but for attendant charges also the multiplier method
should be followed. The multiplier method has been recognized
as most realistic and reasonable because it has been decided
looking to the age, inflation rate, uncertainty of life and other
realistic needs. Thus, for determination of just compensation to
ensure justice with the family of deceased or the injured as the
case may be the compensation can be determined applying said
method. Therefore, in our view the Tribunal while granting the
compensation of future loss as well as earning only for 10 years
and attendant charges only for 20 years was not justified. In
fact, the said amount should be determined applying the
multiplier method.
15. It is also relevant to observe that in the judgment of Sarla
Verma (Smt.) & Others vs. Delhi Transport Corporation and
Another (2009) 6 SCC 121 and National Insurance
Company Limited vs. Pranay Sethi & Others (2017) 16 SCC
680 , while replacing the schedule of Motor Vehicle Act, it is not
made clear what multiplier would be applicable below the age of
15. In the case of , the injured was 12 years of the
Kajal (supra)
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age, however, the multiplier of 18 has been applied. Therefore,
taking guidance from the judgment of , for
Kajal (supra)
determination of the compensation in the present case, the
multiplier of 18 shall be applicable.
16. In view of the said legal position, the compensation can be
assessed in pecuniary heads i.e. the loss of future earning,
medical expenses including future medical expenses, attendant
charges and also in the head of transportation including future
transportation. In the nonpecuniary heads, the compensation
can be computed for the mental and physical pain and
sufferings present and in future, loss of amenities of life
including loss of marital bliss, loss of expectancy in life,
inconvenience, hardship, discomfort, disappointment,
frustration, mental agony in life etc.
17. On perusal of the record out of the pecuniary heads MACT
has not awarded any amount in future loss of earning even
having 100% permanent disability while the High Court granted
Rs.6,00,000/ only for 10 years because the appellant is now
practicing as an advocate in the Court accepting his earning
Rs.60,000/ per annum. From the pleadings and evidence
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brought, it is clear that the father of the appellant was a
Professor and the mother was an IAS officer. The claimant has
been nurtured and brought up in a status enjoyed by his
parents. He was planning to become an Executive or IAS officer.
On account of the injuries in temporal region and the permanent
disability suffered, he was unable to do his studies as expected
or planned. After sincere efforts he could have passed the LL. B
and started the advocate profession. A judicial notice can be
taken of the fact that for a proficient advocate the person must
be physically fit as he is required to move frequently to attend
the professional work reaching from one Court to other, and for
movements to complete other professional commitments.
Looking to the nature of injuries and the permanent disablement
which the claimant has suffered, i.e., lower limb is completely
paralyzed while his upper limb is partially paralyzed having
100% permanent disability resulting in bodily movements being
hampered. The capacity of the claimant being an advocate
cannot be equated with other practicing advocate having no
deformity in the same profession. The claimant is required to
make extraordinary efforts to attend the proceedings in the
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Court and to come up to the expectations of the client. The
disablement suffered to the claimant is for whole life and in the
said fact, in our considered view, the future loss of earning
calculated by the High Court only for 10 years is not justified. If
we accept the future loss of earning Rs.5,000/ per month as
decided by the High Court which annually comes to Rs.60,000/
and apply the multiplier of 18 as applicable looking to the age,
then the sum comes to Rs.10,80,000/, in the said head.
18. In the head of medical expenses, the MACT or the High
Court has not awarded any compensation presumably because
the mother of the claimant who was minor at the time of
accident may have claimed the amount of medical expenses
being an IAS officer. But now the claimant has become major,
and looking to the nature of injuries, future medical expenses
that includes the attendant charges, use of diapers due to loss of
urination senses is required to be calculated including future
medical expenses. The Tribunal awarded Rs.1,92,000/ in the
head of attendant charges @ 1,000/ per month. While the High
Court proceeded on the premises that the rate of the attendant
charges is variable after every five years, however, the Court
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calculated the amount @ Rs.2,000/ thereafter @ Rs.4,000/ per
month for a period of 20 years and accordingly determined
Rs.9,00,000/ making enhancement of Rs.7,08,000/ in the said
head. As discussed, if we apply the multiplier method and in
view of the judgment of Kajal (supra) , we accept the rate of
attendant charges Rs.5000/ per month for 12 hours, looking to
the nature of injuries and disability the claimant is required two
attendants at least within 24 hours then the expenses in the
head of attendant charges comes to Rs.10,000/ per month. If
we apply the multiplier of 18, the amount comes to
Rs.21,60,000/.
19. Similarly for medical expenses in the head of physiotherapy
required to the claimant, the Tribunal awarded Rs.2,88,000/ @
Rs.50 per day. The High Court granted lumpsum amount of
Rs.8,00,000/ including the expenses for diapers. In our
considered opinion, the said amount is not adequate. In these
days the physiotherapist would charge at least Rs.150/ per day
to treat the patient for one hour which monthly comes to
Rs.4,500/ and annually 54,000/, applying the multiplier of 18,
the amount in the head of physiotherapy charges comes to
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Rs.9,72,000/. For the purpose of use of diapers, regular
medical checkup and medical expenses if we further add
Rs.2,00,000/ then in the head of future medical expenses the
amount comes to Rs.11,72,000/.
20. Under the head of transportation, the MACT awarded only
Rs.15,000/ for the visit Delhi to Chandigarh which is enhanced
by the High Court to the tune of Rs.50,000/. The High Court
further awarded Rs.1,00,000/ in the head of motorized wheel
chair. In our opinion, during the life span grant of amount for
motorized vehicle only for once is not just. Similarly, in the head
of transportation in future, therefore, we enhance the said
amount in lumpsum to Rs.2,50,000/ in place of Rs.1,00,000/
+ Rs.50,000/ as awarded by the High Court.
21. Under the head “nonpecuniary damages”, the claimant has
faced the pain, suffering and trauma as a consequence of
injuries. It is to observe that to award compensation under the
head “pain, shock and suffering”, multiple factors are required to
be considered from the date of accident, which include the
prolonged hospitalization and regular medical assistance, nature
of the injuries sustained, the operations underwent and the
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consequent pain, discomfort and suffering. Simultaneously, he
has to suffer postaccident agony for whole life, including the
amenities of life, which he can enjoy as a normal man but
unable to do so on account of permanent disability. In the era of
competition, he can perform better as a normal man but is
unable to compete with others. Therefore, under the head “pain,
shock and suffering”, amount of compensation deserves to be
granted.
22. The MACT awarded Rs.4,00,000/ in the head of loss of
expectation of life, loss of marital bliss, total loss of enjoyment of
life and amenities of life, permanent disability, pain and
sufferings while the High Court granted the same amount
bifurcating it in the head of loss of amenities in life and marital
bliss to Rs.3,00,000/ while special diet Rs.1,00,000/ making
the total Rs.4,00,000/.
23. Considering the facts and circumstances of the case and
nature of injuries in our considered opinion, the appellant is
entitled for a sum of Rs.4,00,000/ in the head of loss of
amenities of life and marital bliss, pain and sufferings, loss of
enjoyment and loss of expectancy, Rs.1,00,000/ as awarded by
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the High Court is maintained in the head of special diet. Thus,
in the nonpecuniary heads, the compensation as determined
comes to Rs.5,00,000/.
24. In view of the foregoing calculation, the amount determined
for payment of the compensation in pecuniary heads comes to
Rs.46,62,000/ and in nonpecuniary heads the sum comes to
Rs.5,00,000/. Thus, in our view, the total compensation comes
to Rs.51,62,000/. If we deduct the amount of Rs.23,20,000/
awarded by the High Court then the enhanced amount comes to
Rs.28,42,000/.
25. Resultantly, this appeal is allowed in part to the extent
indicated hereinabove. The enhanced amount shall carry
interest @ 6.5% p.a. from the date of filing the claim petition till
its realization.
………………………….J.
[ INDIRA BANERJEE ]
……………………………J.
[ J.K. MAHESHWARI ]
NEW DELHI;
JULY 06, 2022.
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