V. MEKALA vs. M. MALATHI

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4880 OF 2014 (Arising out of SLP(C) No. 16561 of 2013) V. Mekala …Appellant Versus M. Malathi & Anr. … Respondents J U D G M E N T JUDGMENT V. Gopala Gowda, J. Leave granted. 2. This appeal is preferred by the injured- claimant as she was aggrieved by the impugned judgment and award dated 31.8.2012 passed by Page 1 C.A. @ S.L.P.(C) No. 16561 of 2013 2 the High Court of Judicature at Madras in C.M.A. No. 2131 of 2008 even though it has 6,46,000/- to

per annum from the date of filing the claim petition under various heads urging various facts and grounds in justification of her claim. 3. The claimant-appellant is aggrieved by the determination of monthly notional income of the deceased by the High Court by taking a meager sum of 6,000/- instead of 18,000/- per month th as she is a student studying in the 11 JUDGMENT Standard holding first rank in her school. She had an excellent career ahead of her but for the accident in which she has sustained grievous injuries and has become a permanently disabled. Both the Motor Accident Claim Tribunal, Poonamallee (for short “the Page 2 C.A. @ S.L.P.(C) No. 16561 of 2013 3 Tribunal”) as well as the High Court of Judicature at Madras failed to take into

conclusion that on account of permanent total disablement suffered by the claimant-appellant on account of injuries sustained in the accident her future loss of income should have been assessed taking into consideration, her age at the time of accident which was 16 and that she is a brilliant student and could have acquired professional degree and procured a well paid job either in public or private JUDGMENT sector thereby at least she would have earned a sum of 18,000/- per month. Also, the future prospects of revision of wages, dearness allowance, increments and promotional benefits could have been earned by her. However, because of the accident caused by rash and negligent act of the driver of the offending Page 3 C.A. @ S.L.P.(C) No. 16561 of 2013 4 vehicle of the owner- respondent she has been deprived of her potential income to eke out a

aspect has not been taken into consideration both by the Tribunal and the High Court. Therefore, she placed reliance upon the law laid down by this Court in the case of Santosh Devi v. National Insurance Company Ltd. & 1 Ors. , having regard to her age, 50% of the future prospects should have been added by both the Tribunal and Appellate Court to the notional monthly income that could be fixed for JUDGMENT determination of the loss of earning as she had lost her earning capacity as she has become permanently disabled. Therefore, the compensation under this head of loss of earnings is required to be enhanced considerably. 1 (2012) 6 SCC 421 Page 4 C.A. @ S.L.P.(C) No. 16561 of 2013 5 4. The second ground sought to be pressed into operation by the learned counsel on behalf of

finding of fact recorded by the High Court on the basis of evidence of Doctor-PW2, who has examined the appellant, who has made observations regarding the nature of her injuries which will be recorded in the later part of this judgment. 5. Upon examination of the claimant-appellant, the Doctor-PW2 opined that she is not able to squat, her disability is ascertained at 70%, JUDGMENT therefore, she is not able to sit with cross legged comfortably on the floor and the right range of movement (Gionimeter) – fixed flexim 0 deformity of 85 - ligament instability present on account of grievous injuries sustained by her in the unfortunate accident. Therefore, PW2 has assessed the permanent disability of the Page 5 C.A. @ S.L.P.(C) No. 16561 of 2013 6 claimant-appellant at 70% and to this effect he has issued Ex. P12-the Disability

awarding just and reasonable compensation under the loss of earning, pain and suffering, loss of amenities and mental agony. The above said substantial piece of evidence in the form of disability certificate on record has not been taken into consideration in the proper perspective by the High Court though it has concurred with the finding of fact recorded by the Tribunal in re-appreciating the evidence on JUDGMENT record. The legal aspect of the matter regarding the quantum of compensation is required to be dismissed and awarded to compensate for human pain and suffering and deprivation of happiness and enjoyment of personal life of the claimant. The compensation that would be awarded can not be equated with Page 6 C.A. @ S.L.P.(C) No. 16561 of 2013 7 the human sufferings or personal deprivation as observed by this Court in the case of R.D.

2 Ors. . 6. Both the Tribunal and Appellate Court were required to consider the fall in the value of money which requires continuing reassessment of these awards and periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and are not subject to large variations in individual cases as held in the case of R.D. Hattangadi (supra). Therefore, the learned JUDGMENT counsel appearing on behalf of the claimant- appellant submits that pain and suffering, loss of amenities having lost both the limbs which are the relevant important material facts which have been completely ignored by both the Tribunal and the High Court while determining 2 (1995) 1 SCC 551 Page 7 C.A. @ S.L.P.(C) No. 16561 of 2013 8 the just and reasonable compensation under the aforesaid heads while awarding compensation in

for an award of just & reasonable compensation under the aforesaid heads by applying the legal principles laid down by this Court in the cases referred to supra. In support of his contention, the learned counsel has correctly relied upon the principle laid down in the case of R.D. Hattangadi (supra) which was reiterated in the case of Govind Yadav v. New India 3 Insurance Company Limited , it would be JUDGMENT appropriate to extract certain relevant paragraphs of R.D. Hattangadi case, which read as under:

3 (2011) 10 SCC 683 Page 8 C.A. @ S.L.P.(C) No. 16561 of 2013 9

Page 9 C.A. @ S.L.P.(C) No. 16561 of 2013 10 7. The learned counsel for the appellant further submitted that the claimant-appellant has been

finding recorded by the High Court in the impugned judgment shows that the appellant on account of the knee injuries and permanent disablement and mal-united knee bones, she is unable to walk without crutches and she is suffering from severe pain while walking and further the thickness of both the legs are also reduced due to the injuries sustained by her in accident and multiple surgeries were conducted JUDGMENT on her. This relevant aspect should have been taken into consideration both by the Tribunal and the High Court. Further, she has to use crutches throughout her life for mobility which she is required to periodically purchase, the cost of which has not been awarded either by the Tribunal or by the High Court. Therefore, Page 10 C.A. @ S.L.P.(C) No. 16561 of 2013 11 the learned counsel for the appellant has requested this Court to award suitable

8. On the other hand, Ms. Manjeet Chawla, the learned counsel on behalf of the respondent No. 2-Insurance Company sought to justify the impugned judgment and award contending that the High Court after re-appreciation of the pleadings and evidence on record has exorbitantly enhanced the compensation under the various heads mentioned in the impugned judgment such as pain and suffering, permanent JUDGMENT disablement, medical expenses, transport expenses, extra nourishment, loss of future career and loss of marriage prospects. Therefore, this is not a fit case for this Court to enhance the compensation as prayed in this case by the claimant-appellant. Page 11 C.A. @ S.L.P.(C) No. 16561 of 2013 12 9. Further, the learned counsel for the respondent No. 2 submits that the claimant-appellant can

college and get either the public employment or alternative private employment on completion of her studies. In such circumstances, seeking for enhancement of compensation either under the head of loss of earning or future prospects as claimed by the claimant-appellant, is not justifiable in law. Therefore, the learned counsel for the respondent No.2 has prayed for dismissal of the Civil Appeal. JUDGMENT 10. With reference to the above rival factual and legal contentions, this Court is required to examine:- 1) Whether the claimant-appellant is entitled to enhancement of compensation under the following heads namely, loss of earning, pain Page 12 C.A. @ S.L.P.(C) No. 16561 of 2013 13 and suffering, loss of amenities, loss of enjoyment of marriage prospects and the cost of crutches? 2) What award? 11. The first question is required to be answered in favour of the claimant-appellant for the following reasons :- Having regard to the nature of following injuries sustained by the appellant in the accident which is an undisputed fact :- “Right lower limb: Hypertrophic scar extending from distal thigh to distal rd 2/3 of right leg circumferentially. rd Decreased sensation over the M/3 of Right leg. JUDGMENT Left leg: Hypertrophic scar over rd rd middle 3 to distal 3 of left leg and with patchy areas decreased sensation over the scar. Muscle wasting of both the legs present. Right Ankle: Equinous deformity of st Right ankle of 1 present. Fixed Flexim deformity of II Joints of toes th about 10 present.” Page 13 C.A. @ S.L.P.(C) No. 16561 of 2013 14 12. The Doctor-PW 2, has stated in his evidence that the appellant has sustained fracture in

and the legs could not be stretched fully and the knee bones are mal-united and the appellant cannot walk without crutches. The doctor also stated that the appellant is suffering from severe pain while walking and further the thickness of the appellant’s both legs were reduced. 13. The aforesaid evidence of the Doctor-PW2 is accepted by the Tribunal and concurred by the JUDGMENT High Court, the High Court came to the right conclusion that the appellant has sustained permanent disablement, the same is in conformity with the principle laid down by this Court in the case of Raj Kumar v. Ajay Kumar 4 and Anr. at para 12, which reads thus : 4 (2011) 1 SCC 343 Page 14 C.A. @ S.L.P.(C) No. 16561 of 2013 15

(i) whether the disablement is permanent or temporary; (ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement; (iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person. JUDGMENT If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such Page 15 C.A. @ S.L.P.(C) No. 16561 of 2013 16 permanent disability has affected or will affect his earning capacity.”

by the appellant to both the legs, rightly arrived at the conclusion that she has suffered 70% of permanent disablement and therefore she was awarded the compensation under the head of loss of earning in the impugned judgment taking into account monthly notional income of 6,000/- in the absence of any document on record as she was a student. This assumption of the courts below is on the lower side in view of the observations made by this Court JUDGMENT in R.D. Hattangadi (supra). The said principle is reiterated in Govind Yadav (supra). The relevant para from R.D. Hattangadi is extracted below : “14. In Halsbury's Laws of England, 4th Edition, Vol. 12 regarding non-pecuniary loss at page 446 it has been said: Non-pecuniary loss; the pattern. Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems Page 16 C.A. @ S.L.P.(C) No. 16561 of 2013 17

15. In view of the aforesaid judgments of this Court and the fact that the appellant is a JUDGMENT brilliant student as she has secured first rank in th the 10 Standard, she would have had a better future in terms of educational career to acquire basic or master degrees in the professional courses and she could have got a suitable either public or private employment but on account of permanent Page 17 C.A. @ S.L.P.(C) No. 16561 of 2013 18 disablement she suffered due to injuries sustained by her in the accident, that opportunity is lost to

Raj Kumar, R.D. Hattangadi and Govind Yadav (supra). 16. Further, having regard to the undisputed fact that there has been inflation of money in the country since the occurrence of the accident, the same has to be taken into account by the Tribunal and Appellate Court while awarding compensation to the claimant-appellant as per the principle laid down by this court in the case of Govind Yadav JUDGMENT which has reiterated the position of Reshma Kumari 5 v. Madan Mohan case, the relevant paragraph of which reads as under: “46. In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, 5 (2009) 13 SCC 422 Page 18 C.A. @ S.L.P.(C) No. 16561 of 2013 19

17. The fact that the appellant was a brilliant student at the time of the accident should also be taken into consideration while awarding compensation to her. Therefore, taking 6,000/- as monthly notional income by the Tribunal for the JUDGMENT purpose of awarding compensation under this head is too meager an amount. The learned counsel appearing for the respondent No.2 contended that the appellant can still finish her education and find employment and therefore, there is no necessity to enhance the amount of compensation under the head Page 19 C.A. @ S.L.P.(C) No. 16561 of 2013 20 of ‘loss of income’ and ‘future prospects’. It is pertinent to reiterate here that the claimant/

rendered both her legs dysfunctional. This has reduced the scope of her future prospects including her marriage substantially. Moreover, a tortfeasor is not entitled to dictate the terms of the claimants-appellants career as has been held by the Karnataka High Court in the case of K. Narsimha Murthy v. The Manager, Oriental Insurance Company Ltd and Anr. ILR 2004 KARNATAKA 2471, the relevant paragraph of which reads as under:

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proper for this Court, and keeping in mind her past results we take 10,000/- as her monthly notional income for computation of just and reasonable compensation under the head of loss of income. Further, the High Court has failed to take into consideration the future prospects of income based on the principles laid down by this Court in catena of cases referred to supra. Therefore, the appellant is justified in seeking for JUDGMENT re-enhancement under this head as well and we hold that the claimant-appellant is entitled to 50% increase under this head as per the principle laid down by this Court in the case of Santosh Devi (supra). The relevant paragraph reads as under: “13. In Sarla Verma's case (supra), another two Judge Bench considered various factors relevant for determining Page 23 C.A. @ S.L.P.(C) No. 16561 of 2013 24

Page 24 C.A. @ S.L.P.(C) No. 16561 of 2013 25 Though the evidence may indicate a different percentage of increase, it is necessary to standardise the addition to avoid different yardsticks being applied or different methods of calculation being adopted. Where the deceased was self- employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances. Therefore, taking both the aspects into account, the total amount of compensation under this head is calculated as Rs.22,68,000/- [( 10,000/-x 70/100 + 10,000 x 70/100 x 50/100) x 12 x 18] 20. The compensation under the head pain & JUDGMENT suffering and mental agony was awarded by the High Court after recording concurrent finding with the award passed by the Tribunal. However, the courts below have not recorded the nature of the permanent disablement sustained by the appellant, while awarding 1,00,000/- under this head which is too meager an amount and is contrary to the judgment of Page 25 C.A. @ S.L.P.(C) No. 16561 of 2013 26 R.D. Hattangadi and Govind Yadav cases (supra). The relevant paragraphs of Govind Yadav case read as under:

26. Admittedly, at the time of accident, the appellant was a young man of 24 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, we feel that ends of justice will be met by awarding him a sum of Rs 1,50,000 in lieu of pain, suffering and trauma caused due to the amputation of leg.” JUDGMENT Therefore, under this head the amount awarded should be enhanced to 2,00,000/- as the Doctor-PW2 Page 26 C.A. @ S.L.P.(C) No. 16561 of 2013 27 has opined that at the time of walking with support of crutches, the claimant-appellant will be

1,00,000/- to 2,00,000/-. 21. The loss of amenity and attendant charges awarded by the courts below at 1,00,000/- is also too meager an amount as the appellant has permanently lost her amenity of both the legs. For the purpose of walking, squatting, running and also studying throughout her life and particularly, at the advanced age, she will be requiring the attendant for giving assistance to attend the JUDGMENT nature’s call and also at the time of sitting or moving around. Therefore, the compensation at this head is required to be enhanced from 1,00,000/- to 2,00,000/- based upon the principle laid down by this court in Govind Yadav case (supra), the relevant paragraph of which reads as under: Page 27 C.A. @ S.L.P.(C) No. 16561 of 2013 28

22. The amount of compensation awarded under the head of ‘Loss of enjoyment of life and marriage prospects’ at 2,00,000/- is totally inadequate since her marriage prospect has substantially reduced and on account of permanent disablement she will be deprived of enjoyment of life. Therefore, JUDGMENT it would be just and proper to enhance the compensation from 2,00,000/- to 3,00,000/-. In so far as, purchase of crutches periodically, it would be just and proper to award a sum of 50,000/-. 23. Further, the accident had taken place on 11.4.2005 and the claimant- appellant, since then Page 28 C.A. @ S.L.P.(C) No. 16561 of 2013 29 has been fighting for justice, first, in the Motor Accident Claim Tribunal, then the High Court and

per the principle laid down by this Court in the 6 case of Balram Prasad v. Kunal Saha & Ors . Therefore, we award a sum of 25000/- under the head of ‘cost of litigation’. 24. Thus, the claimant-appellant in this appeal is entitled to a total amount of 30,93,000/- as compensation with an interest @ 9% per annum based on the principle laid down by this Court in Municipal Corporation of Delhi, Delhi v. Uphaar JUDGMENT 7 Tragedy Victims Association & Ors. from the date of filing of the application till the date of payment. 25.The Insurance Company is directed to deposit 50% of the awarded amount with proportionate 6 (2014) 1 SCC 384 7 (2011) 14 SCC 481 Page 29 C.A. @ S.L.P.(C) No. 16561 of 2013 30 interest within four weeks from the date of receipt of a copy of this order, after deducting

appellant, for a period of 3 years. During the said period, if she wants to withdraw a portion or entire deposited amount for her personal or any other expenses, including development of her asset, then she is at liberty to file application before the Tribunal for release of the deposited amount, which may be considered by it and pass appropriate order in this regard. The rest of 50% amount awarded with JUDGMENT proportionate interest shall be paid to the appellant/claimant by way of a demand draft within four weeks from the date of receipt of the copy of this judgment. The Insurance Company is further directed to submit compliance report before this court within five weeks thereafter. Page 30 C.A. @ S.L.P.(C) No. 16561 of 2013 31 26. The appeal is allowed accordingly. No costs.

………………………………………………………………………J. [V. GOPALA GOWDA] New Delhi, April 25, 2014 JUDGMENT Page 31