(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Appellant-
original claimant has challenged the judgment and award dated
31.3.2011 passed by the Motor Accident Claims Tribunal (Auxiliary),
Ahmedabad in Motor Accident Claim Petition No.487of 2002 insofar as
the same is adverse to the appellant.
2. The
appellant was travelling from Ahmedabad to Bhavnagar on 13.10.2001
in a Maruti Fronti car along with other family members. The vehicle,
on account of rash and negligent driving by the driver, overturned
on the side of the road, resulting in serious injuries to the
claimant. She received medical treatment at different places. She was
initially admitted in the hospital on the same day, but thereafter
discharged on 25.10.2001. She was once again admitted in the
hospital as an indoor patient from 5.11.2001 to 7.11.2001.
3. Because
of the injuries, the claimant has become totally paraplegic. She is
unable to move and is rendered 100% disabled.
4. It
is the case of the claimant that the treatment in the form of
Physiotherapy and other exercise would continue lifelong, resulting
into recurring expenditure for her. She is also required to take
medicines permanently. The case of the appellant is that she was a
Life Insurance Agent, earning regular income at the time of the
accident. She was a regular tax payer. Besides her income from
insurance business, she was also giving tuitions to young children
and thereby earning additional income of Rs.5,000/- per month.
5. With
such facts, the claimant filed claim petition before the Tribunal,
seeking compensation of Rs.50 lacs from the owner and the Insurance
Company of the vehicle involved in the accident.
6. The
Claims Tribunal, by the impugned judgment and award, granted
compensation of Rs.20,66,300/-, to be recovered from the opponents,
with interest at the rate 9% per annum from the date of the claim
petition till payment. To come to such a figure, the Claims Tribunal
granted different amounts under the following separate heads:-
Head
Amount
(Rs.)
Actual
amount spent by claimant as per bills
74,900/-
Inevitable
Expenses
10,24,000/-
Pain,
Shock and Suffering
2,75,000/-
Amenities
of Life
1,50,000/-
Loss
of Future Income
5,42,400/-
TOTAL
20,66,300/-
It
is this award which the claimant has challenged seeking further
enhancement of compensation awarded by the Claims Tribunal.
7. Appearing
for the appellant-claimant, learned advocate Shri Shah submitted
that the Claims Tribunal committed error in not granting adequate
compensation for pain, shock and suffering and also for loss of
future income. He submitted that the claimant was aged about 32
years on the date of accident. She was already married and had two
children. She had long married life head of her. The tragic
accident cut short her enjoyment of life. She is rendered
completely bedridden. She needs continuous attention. She is unable
to pursue even simple day-to-day activities.
8. On
the other hand, learned counsel Shri Nanavati for the Insurance
Company submitted that the Claims Tribunal erred in awarding the
interest on the future expenditure. He, however, was not able to
contest seriously the case of the claimant that there was some scope
for enhancing the compensation towards pain, shock and suffering and
loss of amenities of life.
9. This
appeal was admitted by the Division Bench of this Court on
25.11.2011. Subsequently, on 13.1.2012, the Division Bench passed the
following order:-
It
appears that on the point involved in this appeal, this very Court
has already disposed of an appeal being First Appeal No. 2071 of 2005
on December 23, 2011. We, therefore, propose to hear out this appeal
after a fortnight. We, however, dispense with the necessity of filing
formal paper book. Learned advocate for the appellant is directed to
prepare informal paper book containing relevant papers used in the
trial court and serve the same upon Mr. Nanavati, learned advocate
appearing on behalf of the respondent Insurance Company by a week
from today. Let the appeal appear on January 27, 2012.
10. It
is pursuant to this order that we have heard the learned counsel for
the parties for final disposal of the appeal. We notice that a
Division Bench of this Court had an occasion to deal with the claim
of a young boy, aged about 17 years, who was rendered paraplegia on
account of bodily injuries received in vehicular accident. His
appeal for enhancement, being First Appeal No.2071 of 2005, came to
be disposed of by judgment dated 23.12.2011. Division Bench taking
note of the relevant factors and the judgments on the points, was
pleased to enhance compensation already awarded by the Claims
Tribunal. In particular, Rs.4 lacs was awarded for pain, shock and
suffering, making following observations:
"(7) Pain,
shock and suffering :-
The
Tribunal has awarded a sum of Rs.1 lac as against the claim of Rs.4
lac so far as pain, shock and suffering is concerned.
As
regards the enhancement of the amount of Rs.1 lac awarded under the
head 'physical pain and mental shock' is concerned, we would like to
be guided by the dictum as explained by the Supreme Court in the the
case of Mahadeva Shetty (supra). In Mahadeva Shetty's case (supra):
A
person not only suffers injuries on account of accident but also
suffers in mind and body on account of the accident through his life
and a feeling is developed that he is no more a normal man and cannot
enjoy the amenities of life as another normal person can. While
fixing compensation for pain and suffering as also for loss of
amenities of life the features like his age, marital status and
unusual deprivation he has undertaken in his life has to be
reckoned.
In
R.D.Hattangadi's case (supra), the Hon'ble Apex Court laid down that:
when
compensation is to be awarded for pain and suffering and loss of
amenities of life, the special circumstances of the claimant have to
be taken into account including his age, the unusual deprivation he
has suffered and the effect thereof on his future life.
In
the present case, the injured was only 17 years old at the time of
the accident. It needs no mention that on account of the accident the
injured has lost several pleasures of his childhood and adolescence,
including the ability to move, run and play freely as other children
do. It is on record that he was studying in Standard 10 (Commerce
Stream) and had an aptitude for studies. His condition has confined
him to the four walls of the house. Adding to this are the physical
and mental suffering caused by his medical condition itself, its
treatment and the knowledge that he will never be able to lead a
normal life. He has no control over his bowel movements and urinary
bladder. Even looking after personal hygiene has also become
difficult for the injured. There is also the loss of expectation of
life, i.e. the normal lifespan of the person being shortened due to
the injury, which causes disappointment and stress. As we have
discussed earlier that his life expectancy is now 55 years, we must
endure this inconvenience, disappointment and suffering for as much
as 18 years from now. Keeping in mind the awards under this head to
the claimants in the aforementioned cases by the Hon'ble Supreme
Court, we find it proper to enhance the compensation awarded towards
'physical pain and mental shock', to the appellant to Rs.4 lac."
11. In
the present case, we find that the appellant-claimant was a lady,
aged about 32 years on the date of accident. She had a family
to attend to and young children to look after. As a married woman,
she had a long and happy married life ahead of her. Due to the tragic
accident, which resulted into injuries, she has been rendered
completely dependent on help from others even to pursue her daily
routine. In addition to regular medicines and medical attention in
the form of physiotherapy and other treatments, she needs to be
looked after by others even for her daily routine activities.
12. Before
the accident, she was not only looking after her home, young
children and her husband, but she was also earning sizable income
through her insurance agency and also from some private tuitions.
Not only such income would discontinue, her help and support to the
family but would also come to an end. On the contrary, she would
need support.
13. Instead
of a healthy woman and active person, she has been rendered
completely dependent on others for her daily pursuits. Considering
all these factors, we are of the opinion that the Claims Tribunal
should have awarded higher amount than Rs.2,75,000/- towards pain,
shock and suffering.
14. In
a recent decision, the Apex Court in the case of Ibrahim Vs. Raju
and others reported in (2011)10
SCC 634, considerably
enhanced compensation granted by the Claims Tribunal and confirmed by
High Court in case of injuries to a young boy, aged 18 years,
resulting into permanent partial disablement. Due to the serious
injuries sustained, resulting in life-long treatment for recurrence
of urethral strictures and consequential dysfunction due to fracture
of pelvis bone, the Apex Court awarded compensation even higher
than what was claimed by the claimant before the Tribunal. The Court
was pleased to award sum of Rs.2 lacs under the head of future
enjoyment of life.
15. We
are of the opinion that instead of enhancing the amount of pain,
shock and suffering and future amenities of life and thereafter
awarding interest thereon from the date of accident, a lumpsum
increase in the compensation by Rs.5 lacs, in all, without any
further liability to pay costs or interest thereon, would meet the
ends of justice. Learned counsel for the appellant stated that the
appellant would be satisfied with such further increase in the
compensation awarded by the Claims Tribunal.
16. Before
closing, we may record that though learned counsel for the
Insurance Company did point out that the Claims Tribunal erred in
awarding interest on future expenses, in absence of any cross appeal
filed by the appellant, we are not inclined to vary such award of the
Claims Tribunal.
17. In
the result, the First Appeal is allowed in part. In peculiar facts of
the case, the respondents are jointly and severally liable to pay a
further sum of Rs.5,00,000/- (Rupees Five Lacs only) (without any
liability to pay costs or interest thereon) by way of lumpsum
increase in favour of the appellant-claimant. If such amount is paid
over latest by 31st March 2012, there shall be no interest
liability on such further compensation. However, to the extent, the
same is delayed beyond the said date, the appellant-claimant shall
be entitled to simple interest at the rate of 9% per annum from 1st
April 2012 till payment.
18. The
appeal is allowed to above limited extent. Parties shall bear their
own costs. The award of the Tribunal stands modified accordingly.
Record and Proceedings may be remitted to the Trial Court.
Sd/-
(AKIL
KURESHI, J.)
Sd/-
(C.L.
SONI, J.)
omkar