K.R. CHIKKARANGAIAH vs. KEMPARANGAIAH

NON REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.8632 OF 2014 (Arising out of SLP(C) NO. 21666 OF 2013) KUMARI KIRAN THR. HER FATHER HARINARAYAN … APPELLANT Vs. SAJJAN SINGH & ORS. … RESPONDENTS WITH CIVIL APPEAL NO.8633 OF 2014 (Arising out of SLP(C) NO. 21670 OF 2013) AND CIVIL APPEAL NO.8634 OF 2014 (Arising out of SLP(C) NO. 21671 OF 2013) JUDGMENT J U D G M E N T V. GOPALA GOWDA, J. Leave granted in all the special leave petitions. 1 Page 1 2. These appeals have been filed by the appellants against the common Judgment and order dated 06.11.2012 passed in Misc. Application Nos. 2575 of 2010, 2574 of 2010 and 2579

Appeals arising out of SLP(c) Nos. 21666 of 2013 and 21670 of 2013 have been filed by Kumari Kiran and Master Sachin respectively, through their father Harinarayan as they are minors, while Civil Appeal arising out of SLP(c) No. 21671 of 2013 has been filed by the appellant Harinarayan. 3. The necessary relevant facts are stated as under: On 04 . 06.2009, Kumari Kiran and her brother Master Sachin (the pillion riders, hereinafter referred to as the appellant-minors) were going on a motor cycle to their JUDGMENT village Shujalpur from Bhopal with their father Harinarayan, (rider of the motor cycle, hereinafter referred to as the appellant-father). While on their way, a tractor bearing No. MP13K1981 driven by Sajjan Singh (respondent No.1), collided with the motor cycle on which the appellants were riding. Due to the impact of this collision the appellants fell down and sustained grievous 2 Page 2 injuries. After medical examination, it was concluded that all the three appellants had fractured their femur, tibia and fibula bones on their right leg and had to undergo an

further medical examination, it was found that the right leg of all the three appellants had become one inch shorter due to the injuries caused to them in the accident. Therefore, the appellant-minor daughter and the appellant- father were determined with 30% permanent disability and the appellant-minor-son was determined with 20% permanent disability by the doctor who had treated them. 4. A First Information Report was lodged in Mandi Shujalpur Police Station against the driver (respondent No.1) of the JUDGMENT offending tractor under Sections 279, 337, and 338 of the Indian Penal Code (in short ‘I.P.C.’). 5. The appellants filed a claim petitions before the Motor Accident Claims Tribunal, Bhopal. The Tribunal after considering the facts, evidence produced on record and the circumstances of the case, apportioned contributory negligence at 50% on the part of the appellant-father who 3 Page 3 was riding the motorcycle on which the appellant-minors were the pillion riders and 50% on the driver of the offending tractor. 6. The Tribunal vide its award dated 19.03.2010 ascertained the

4 Page 4 The Tribunal awarded an interest at the rate of 6% p.a. on the total compensation. 7. Being aggrieved by the common award passed by the

Pradesh at Jabalpur. After considering the facts, evidence on record and circumstances of the case, the High Court held that the appellant-minors who were the pillion riders cannot be held for contributory negligence as apportioned by the Tribunal even if their appellant-father who was the motorcyclist was at fault. Therefore, the High Court set aside the deduction arising out of the contributory negligence from the compensation determined towards the permanent disability for the appellant-minors. The High JUDGMENT Court also reduced the contributory negligence on the part of appellant-father (motorcyclist) from 50% to 25%. Further, the High Court enhanced the compensation of the appellant-minor daughter by Rs. 30,000/-, the appellant- minor-son by Rs.25,000/- and the appellant-father by Rs.65,000/- (Rs.30,000/- lump sum and Rs.35,000/- towards medical expenses) to be paid with an interest @ Rs.7.5% per 5 Page 5 annum vide its impugned judgment and order dated 06.11.2012. Aggrieved by the impugned Judgment and order, the appellants filed these appeals.

the heads of loss of future income was inadequate by taking notional income as only Rs.15,000/- per annum for the appellant-minors and Rs.18,000/- per annum for the appellant- father; (ii) No compensation has been awarded towards the medical attendants who attended the appellants to take care of them for a period of 3 months treatment after the accident; (iii) Compensation for permanent disability should have been awarded after considering the enormity of suffering, pain and agony loss of enjoyment JUDGMENT of life of the appellants by relying on the principle laid down by this Court in Subulaxmi Vs. M.D., Tamil Nadu State Transport Corporation 1 and Anr. in which, this Court has held thus:- “5. At the outset, it is requisite to be stated that the facts as have been adumbrated are not in dispute. Therefore, first we shall advert to the issue whether 1 ( 2012)10 SCC 177 6 Page 6

JUDGMENT 9. After considering the contentions of the learned counsel for both the parties, we are of the view that the courts below have failed to follow the principles as laid 7 Page 7 down by this Court in the case of Subulaxmi (supra) in awarding compensation under a singular head towards permanent disability and loss of future earning to the

and 15 years old at the time of the accident. They have undergone immense physical pain and suffering as well as mental shock and trauma at a very tender age. The trauma undergone by the appellant-minors due to the motor accident could have a severe and long-lasting effect. The appellant-minors and their parents will have to make arrangements to support their disability in the future. No amount of monetary benefit will compensate for the suffering and pain that the appellant-minors have to endure JUDGMENT to overcome the probable shackles of their disability in the future. The appellant-father suffers from 30% permanent disability due to the shortening of his right leg by one inch after injuries sustained by them in the motor vehicle accident. Both the children are suffering from permanent disability due to this motor vehicle accident. The appellant-father has and continues to undergo loss, pain 8 Page 8 and suffering in many ways due to this accident. Therefore, when the question of compensation arises in the case of permanent disablement suffered by the appellants due to a

2 (India) Pvt. Ltd , wherein it was held as under:- “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 are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages 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 non- pecuniary 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 for 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.” JUDGMENT 2 ( 1995) 1 SCC 551 9 Page 9 Therefore, quantification of damages divided under different heads as mentioned in the above case must be very carefully observed by the courts while awarding compensation to the victims of motor-vehicle accidents. It is extremely essential for the courts to consider the two main components of damages i.e. both pecuniary and non- pecuniary damages as per the guidelines laid down by this Court in the above case so that the just and reasonable compensation is awarded to the injured. 11. Further, with respect to just compensation to be awarded to the victims of motor-vehicle accidents, we refer to the decision of this Court in the case of Raj Kumar vs 3 Ajay Kumar & Anr . , wherein it was held as under:- “5. The provision of the Motor Vehicles Act, 1988 (`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 JUDGMENT 3 (2011)1 SCC 343 10 Page 10

Thus, the compensation should be reasonably sufficient so that it equips the victim to return to their normal life to the maximum possible extent. The Tribunal and the High Court have failed to show compassion to the appellant- minors and appellant-father by not examining the above relevant aspect of the case on hand and not following the guidelines as laid down by this Court to determine just and reasonable compensation in the cases referred to supra. JUDGMENT With regard to the appellant-minors 12. With respect to compensation towards future loss of income due to permanent disability for appellant-minors, we refer to the case of Master Mallikarjun v . Divisional 11 Page 11 4 Manager, the National Insurance Company Limited & Anr. , wherein this Court held as under:-

4 AIR 2014 SC 736 12 Page 12

(Emphasis laid by this Court) The Tribunal has calculated the future loss of income by taking the notional income of each the appellant-minor as Rs.15,000/- per annum. We are of the considered view that a child’s notional income cannot be ascertained as per the figure given for a non-earning individuals in the second schedule of the Motor Vehicles Act, 1988. As the Tribunal and the High Court have not followed the principles laid down by this Court in the above case by awarding loss of JUDGMENT future income due to permanent disability, therefore, we set aside the same. Further, reiterating the same principles as held in Master Mallikarjun’s case (supra), we award Rs.1,00,000/- each towards shock, pain and suffering (non-pecuniary head) in place of loss of future income due to permanent disability. Further, in Master Mallikarjun 13 Page 13 case (supra) with respect to compensation for permanent disability this Court held thus:-

Hence, this Court in accordance with the principles laid down by this Court in the above case (supra), and after examining the facts, evidence on record and circumstances of the case on hand, we deem it fit and proper to award JUDGMENT Rs.3,00,000/- towards permanent disability of the appellant-minors viz. Kumari Kiran and Master Sachin, since they have suffered 30% and 20% permanent disability respectively, due to the shortening of their right leg by one inch after the injuries sustained in the motor accident. Further, upon considering the age of appellant- 14 Page 14 minors, they have a long journey ahead of them in their lives, during which they along with their parents will have to endure an immeasurable amount of agony and uncertain

award Rs.25,000/- each towards agony to parents and Rs.25,000/- each towards future medical expenses. With regard to the appellant-father 13. With regard to the apportionment of contributory negligence at 25% on the part of the appellant-father and 75% on the driver of the offending tractor as determined by the High Court, we refer to the judgment of this Court in 5 Juju Kuruvila & Ors. v. Kunjujamma Mohan & Ors. as it is applicable to facts of the case on hand. In the above case, JUDGMENT Joy Kuruvila (the deceased) had a head-on collision with a bus approaching from the opposite side. Joy Kuruvila sustained serious injuries and died on the way to the hospital. The Tribunal found that the accident occurred due to the rash and negligent driving of the bus driver. It apportioned the contributory negligence between the driver 5 (2013)9 SCC 166 15 Page 15 and the deceased in the ratio of 75:25%. On the basis of the pleadings & evidence on record, in the above said case, this Court has held thus on the negligence of the driver of the bus:-

JUDGMENT 20.6. The post mortem report, Ext. A-5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal and his stomach was half-full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. The aforesaid evidence, Ext.A-5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of the accident. The mere suspicion based on Ext. B-2 “scene mahazar” and 16 Page 16 Ext. A-5 post-mortem report cannot take the place of evidence, particularly, when the direct evidence like PW3 (independent eyewitness), Ext. B-1 (FI statement) are on record.” The observations made by this Court in the case of Juju

evidence on record in the present case, it cannot be said that the appellant-father was rash and negligent just on the assumption made by the Tribunal that the collision occurred in the middle of the road since the two vehicles were approaching from opposite directions of the road. However, the only aspect of the case on hand that we can reasonably assume is that the appellant-father would have taken sufficient caution while riding the motorcycle since he was travelling with his two minor children (appellant- JUDGMENT minors). Further, upon examining the evidence produced on record, there is no proof showing negligence on the part of the appellant-father. Thus in our view, the contributory negligence apportioned by the High Court at 25% on the appellant-father and 75% on the driver of the offending tractor is erroneous keeping in view the legal principles 17 Page 17 laid down by this Court on this aspect in the above referred case. Thus, we are of the firm conclusion that the negligence is wholly on the part of the driver of the

the part of the appellant-father as apportioned by the High Court. 14. Further, the courts below have erred in ascertaining the notional income of appellant-father at Rs.1,500/- per month i.e. Rs.18,000/- per annum. On examining the facts, evidence produced on record and circumstances of the case on hand, the appellant-father owns 30 bighas of irrigated land in which he was doing agricultural work as per Exhibit-79 Kishtban Khtoni. Keeping in mind the same, the JUDGMENT notional income ascertained by the courts below is too less. In our opinion, the appellant-father’s notional income must be at least Rs.5,000/- per month i.e. Rs.60,000/- per annum. Thus, his loss of future income due to 30% permanent disability suffered by him due to the injuries sustained in this accident, taking the appropriate 18 Page 18 multiplier of 15 (as per Sarla Verma & Ors. v . Delhi 6 Transport Corporation & Anr. ), would be Rs.2,70,000/- (15 X [30% of 60,000/-]).

Rs. 5000/- only towards pain and suffering caused to the appellant-father due to the motor-vehicle accident. The award towards non-pecuniary heads must be ascertained after careful reflection upon the facts and circumstances of the case on hand as opined by this Court in this aspect in R.D. Hattangadi’s case(supra). Therefore, keeping in mind the loss suffered by the appellant-father due to 30% permanent disability and circumstances of the case on hand and principles laid down by this Court in the above case, we JUDGMENT award Rs.50,000/- towards pain and suffering of the appellant-father. We further award Rs.50,000/- towards loss of amenities undergone by the appellant-father as per the

6 (2009)6 SCC 121 7 19 Page 19 With regard to all the appellant-claimants 16. We are of the opinion, that the appellants without doubt need sufficient nutrition in order to ensure their

and the High Court have erred in awarding a meagre amount of Rs.3,000/- to each one of the appellants towards special food and nutrition, instead we award Rs.10,000/- each towards the same. 17. In our considered view of the facts of the case, it is clear that medical attendants were taken for the appellants’ care for 3 months during their treatment and rest period. The Tribunal and the High Court have erred in not awarding compensation towards the same. Therefore, we JUDGMENT award Rs.9,000/- each towards attendant’s charges (Rs.3,000/- per month for each attendant) and Rs. 5,000/- each towards transportation charges. 18. The compensation awarded to the appellants towards medical expenses by the Tribunal and enhancement of the 20 Page 20 same by the High Court to the appellant-father is maintained. 19. Further, we are of the view that the Tribunal and the

amount instead of 9% p.a. by applying the decision of this

8 21 Page 21

to deposit a sum of Rs.4,00,000/- with JUDGMENT proportionate interest for a period of 3 years with the liberty to the appellant-minor, Kumari Kiran to withdraw the same by filing an application for her education, development and welfare; 22 Page 22 (b) The remaining amount of Rs.1,43,844/- with proportionate interest shall be paid to the appellant-minor through her father by way of

education, development and welfare; JUDGMENT (b) The remaining amount of Rs.1,58,876/- with proportionate interest shall be paid to him by way of either a demand draft or deposited with the Motor Accidents Claims Tribunal within six weeks from the date of receipt of the copy of this judgment. 23 Page 23 (iii) C.A.@SLP(c) no. 21671 of 2013 The respondent Insurance Company is directed to either pay Rs.5,80,154/- by way of demand

awarded, before the Motor Accidents Claims Tribunal after deducting the amount already paid, if any, to the appellant within six weeks from the date of receipt of the copy of this judgment. All the appeals are allowed in the terms as indicated in the table above with interest. No costs. …………………………………………………………J. [V.GOPALA GOWDA] JUDGMENT ………………………………………………………J. [ADARSH KUMAR GOEL] New Delhi, September 11, 2014 24 Page 24 C.A. @S.L.P ©. No. 21666 of 201 3 ITEM NO.1A-For Judgment COURT NO.12 SECTION IVA S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS CIVIL APPEAL NO.8632 OF 2014 (Arising out of SLP(C) NO. 21666 OF 2013)

JUDGMENT Hon'ble Mr. Justice V.Gopala Gowda pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice Adarsh Kumar Goel. Leave granted. The appeals are allowed in terms of the signed order. (VINOD KUMAR) (MALA KUMARI SHARMA) COURT MASTER COURT MASTER (Signed Non-Reportable judgment is placed on the file) 25 Page 25