Prabha Sridevan, J.@mdashThe claimant has filed this appeal for enhancement of compensation awarded by the Tribunal. In the accident that took place on 23.S.1991 at about 10.30 a.m. at Tiruchy -Tanjore road, the claimant/ appellant herein suffered grievous injury and in spite of medical treatment, he had sustained permanent disability. The injury sustained by him is mentioned in para 3, which reads as follows:-
...He has sustained rupture of urinary track and has been passing urine through catheter. He has sustained fracture of infra public ramus and supra public ramus where the sexual impulse nerves join. As the result, he has become permanently sterile and impotent. Further he has sustained loss of some portions of his intestines. Consequently, he has been suffering acute colic pain frequently. The petitioner is aged 26 years and a bachelor. He has completely lost the prospectus of happy married life and chances of progeny. The manifold injuries have reduced him to a miserable state. He is doomed to be a defunct life, like an empty egg shall with its contents taken out. With a shattered and battered body he is seldom blessed with the pleasures of life. He is distained to live a solitary, for lone and sordid life.
2. According to the claimant/ appellant, the accident took place on account of rash and negligent driving of the bus belonging to the first respondent and insured by the second respondent. Due to the impact, the motor cycle was thrown away and the appellant, who was a pillion rider sustained injuries as mentioned above. At that time, he was employed as a Business Executive. Because of the disability sustained, he is unable to continue his employment and he is not able to attend to his personal needs, he must have an attendant and he needs constant medical care for the rest of his life.
3. On the basis of the above pleadings, he made a claim for a sum of Rs. 4,00,000/-. The respondents disclaimed their liability. The Tribunal found that there was negligence was on the part of the bus insured by the second respondent and but there was contributory negligence on the part of the driver of the scooter, on which the appellant rode on the pillion. The Tribunal, apportioned the negligence of the driver of the two wheeler at 25% and of the driver of the bus at 75%. Against this finding, no appeal has been filed and hence, the same has become final.
4. As regards, disability that the appellant suffered, the Tribunal found that the permanent disability is 95% and under this claim, it awarded a sum of Rs. 1,00,000/-. For pain and suffering, the Tribunal awarded a sum of Rs. 10,000/- and for transport, a sum of Rs. 1000/- was awarded and for extra nourishment a sum of Rs. 1500/- was awarded. As regards the income, the Tribunal was not inclined to accept that the claimant was earning a sum of Rs. 1750/- per month and fixed Rs. 1000/- as the possible monthly income and therefore, for loss of earning for the three months period, when he was in the hospital, the Tribunal awarded a sum of Rs. 3000/-. The Tribunal however found that there was no loss of income since the injuries suffered do not indicate that he would be incapable of going to work. As regards the medical expenses, it awarded a sum of Rs. 1,28,510/-. Totally, the Tribunal awarded a sum of Rs. 2,44,010/- towards contribution. As against the same, the present appeal has been filed by the claimant. Neither the insurer nor the insured has appealed against the award.
5. The appellant herein was examined as P.W.2. In the chief examination, he has stated that he is unable to walk and that he had become impotent and that his marital prospects have been affected. He had also stated that after the accident, he has been terminated from his service. The medical certificate, Ex.A3, shows two injuries which are grievous in nature, which reads as follows:-
(1) Extensive Abrasion of the skin of the abdomen from the Xiphi sterneem to pubis left lumbar region to right lumber region.
(2) Extensive Laceration of the external genitalia, the perineum. Annuls ion of the skin gypoius.
Both the testis (L) testing annulsed, the whole of the shaft of the penis, extending towards the perineum and thigh left side.
(3) Abrasion left knee 5 cm x 3 cm
(4) Abrasion right leg below the knee 8 cm x 5 cm x 1 cm.
6. The disability certificate, Ex.A8 shows that,
Left hip : Flexion at the last 10 degree present
Right leg : Shortening of 1 cm present Right hip : Fixed flexion deformity of 10 degree present.
1. He walks with lumping
2. Cannot sleeping supine position
3. Difficulty to cross leg or squat.
4. Difficulty in climb stairs. No eviction of penis and no ejaculation, he is impotant. Stomach pain on and off due to lot of adhesion. His disabilities are permanently and it is for deformity of genitalia 60%, for absence of both testis 5% and deformity in both hip 20%.
7. The evidence clearly shows that the appellant has sustained irreparable damage.
8. The question is what is the reasonable compensation. In 1998 ACJ 113 (K. Sapana v. B. Appa Rao), M. Jagannadha Rao, J (as he then was), considered the case of girl who had suffered serious damage and made claim for loss of prospects of marriage and loss of future earnings. The learned Judge dealt with ''Loss of Amenities of Life''.
''Loss of amenity'' is a broad and amorphous category, and embraces a hotchpotch of disabilities, such as the interference with or prevention of the pursuits of former activities and it goes further. This head of non-pecuniary damages embraces every thing which reduces the plaintiff''s enjoyment of life considered apart from any material or pecuniary loss which may be attendant upon the plaintiff''s injuries. The words ''loss of amenities'' have been explained in a vivid manner in the oft-quoted unreported case Manley v. Rugby Portland Cement Co. Ltd. C.A. No. 286 of 1952, referred to in Kemp & Kemp., 1982, para 3.001, page 3001 by Burkitt, L.J. as follows:
There is a head of damage which is sometimes called loss of amenities, the man made blind by the accident will no longer be able to see the familiar things he has seen all his life; the man who has had both legs removed and will never go upon his walking excursions - things of that kind -loss of amenities.
Several High courts in India have followed Manley''s case, C.A. No. 286 of 1952.
This head of damages can be understood better by reference to a few examples. Loss or impairment of any of the five senses arguably falls under this had of damage as does interference with the victim''s sex life; reduction in or loss of prospectus of marriage of a young woman, fall under this head; loss of the pleasure and price a craftsman takes in his work and particularly the loss of having to replace such craft by ''humdrum work'' is loss of an amenity....
9. In 2005(1) TN MAC 87, the claimant had sustained fracture on the right thigh, right knee and injuries all over the body. "He was unable to stand, walk freely, climbing stairs and not able to drive and his right leg shortened than that of the left leg''. The Division Bench felt that the award should be based on the larger perspectives of justice, equity and good conscience and technicalities in the decision-making must be eschewed and held as follows:-
...There should be realisation on the part of the Tribunals and Courts that the possession of one''s own body is the first and most valuable of all human rights, and that all possessions and ownerships are extensions of this primary right, while awarding compensation for bodily injuries. Bodily injury is to be treated as a deprivation which entitles a claimant to damages. The amount of damages varies according to gravity of injuries. Deprivation sustained as a consequence of bodily injuries may bring with it three consequences, namely (i) loss of earnings and earning capacity, (ii) expenses to pay others for what otherwise he would do for himself and (iii) loss or diminution in full pleasures and joys of living. Though it is impossible to equate money with human suffering, agony and personal deprivation, the Tribunals and Courts should make an honest and serious attempt to award damages so far as money can compensate the loss. Loss of curing and earning should adequately be compensated. Therefore, while considering deprivation, the Tribunal and Courts should have due regard to the gravity and degree of deprivation as well as the degree of deprivation as well as the degree of awareness of the deprivation. In awarding damages in personal injury cases, the compensation awarded by the Court should be substantial, it should not be merely token damages.
10. The injuries suffered by the claimant in this case is almost the same as the injuries in the above case. In addition to that, the appellant also suffered loss of manhood and perhaps, any hope of normal marital life had come to an end. The Division Bench further observed that, "Money cannot renew a physical frame that has been battered and shattered. All the Judges and Courts can do is to award sums which must be regarded as giving reasonable compensation. In the process, there must be the endeavour to secure some uniformity in the general method of approach. In personal injury cases the Courts should not award merely token damages but they should grant substantial amount which could be regarded as adequate compensation. The general principle which should govern the assessment of damages in personal injury cases is that the Court should award to injured person such a sum of money as will put him in the same position as he would have been in if he had not sustained the injuries. But, it is manifest that no award of money can possible compensate an injured man and renew a shattered human frame. It is well settled principle that in granting compensation for personal injury, the injured has to be compensated (1) for pain and suffering; (2) for loss of amenities; (3) shortened expectation of life, if any; (4) loss of earnings or loss of earning capacity or in some cases for both; and (5) medical treatment and other special damages."
11. In a case in
A. Pecuniary loss;
(1) expenses caused by the injuries;
(2) loss of earning or profits-
(a) from the date of accident till the date of trial;
(b) prospective loss;
(c) incidental expenses.
B. Non-pecuniary loss:
(1) pain and sufferings;
(2) loss of the amenities of life;
(3) loss of expectation of life.
12. The Full Bench further referred to K. Sapana v. B. Appa Rao (1988 (1) ACJ 113 (A.P.) (cited supra) and Rattan Lal Mehta v. Rajinder Kapoor 1996 (2) TAC 406 (Del.) M. Jagannadha 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, which reads as follows:-
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 cases as those awards include both pecuniary and non-pecuniary losses. Comparison must be limited to non-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 claimed.
5. Conventional figures adopted by the Courts for loss of particular limbs must be upgraded depending upon inflation.
6. There should be no discrimination between rich and poor in evaluating non-pecuniary losses.
6. 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 legal wrong but has also behaved in an outrages 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 outrages and insulting manner. Aggravated damages take into effect the motives or conduct of the defendant.
13. Bearing all these judgments in mind and the case on hand, I find that when the loss of earning capacity is compensated and also the non pecuniary losses as above then the permanent disability need not be separately itemized. On the basis of these cases, I must decide the just and reasonable compensation that can be awarded to this appellant, who was a young 26 years old man, when a life with normal expectations came to an end.
14. As regards medical bills, the claimant has been awarded a sum of Rs. 1,28,510/-, though he claimed only a sum of Rs. 75,000/-. The Tribunal has considered each and every bill, marked in Ex-A7 series. So it is confirmed. The award of Rs. 1500/- for nutritious food and a sum of Rs. 1000/- for transport requires no interference.
15. For pain and suffering, the appellant was in the hospital for two months. It is seen from the medical records that the testes have been removed which had become gangrenised and he had also suffered acute pain. In 2005 (1) TN MAC 87(DB) , the claimant had been in the hospital for a period of two months and silver rod and screw had been removed by way of surgery and was awarded a sum of Rs. 15,000/- for pain and suffering. On the same basis and on the evidence placed before me, a sum of Rs. 20,000/- can be awarded for pain and suffering.
16. As regards loss of amenities of life, the Tribunal was not willing to accept the appellant''s case that he was earning a sum of Rs. 1750/- per month. He had produced Ex.A6. The appellant had passed SSLC and claimed that he was working in Ambika Electronics. Even for a non earning member, a sum of Rs. 1250/- is fixed as monthly income. Therefore, there is no reason to reject the appellant''s monthly income at the rate of Rs. 1750/-, when even for a non earning member, a notional income of Rs. 1250/-is fixed as monthly income. Therefore, Rs. 1750/- is accepted as the monthly income. He was out of employment for a period of three months. So, Rs. 4250/- is awarded for loss of earning.
17. The disability, was fixed at 95%. I find that the percentage of disability for deformity of genital organs was fixed at 60% for absence of both testes, 5% and for deformity in both hips 20%. Therefore, it shows that he cannot stand for too long, which will affect his job prospect. He was very young at the time of the accident, and if he had 100% health his job prospect would have been definitely better. If his disability namely, shortening of hips will not make him incapable of working, definitely, his prospects of getting a job commensurate with his capacity prior to the accident would have reduced. This reduction and loss of prospects is fixed at 750/- per month. He was only 26 years old at the time of the accident and adopting multiplier of 18, the reduction in loss of earning capacity would be Rs. 1,62,000/-.
18. As regards the loss of amenities of life, no monetary award can compensate him for what he has suffered namely impotency as a result of the accident and lack of sense in his sexual organs. Under this head he is awarded a sum of Rs. 3,00,000/-.
19. The Tribunal had awarded a sum of Rs. 1,00,000/- for permanent disability. As per the Full Bench decision, the judgment referred to above, when loss of earning capacity is compensated, and non pecuniary losses under the various heads are also given, other permanent disability, need not be separately itemized.
20. Accordingly, the total award is, Rs. 5,17,260/- (1,28,510+ 1500+ 1000+ 20,000+ 4250+1,62,000+3,00,000), which may be rounded to Rs. 5,20,000/-.
21. In the claim petition the appellant had asked for a sum of Rs. 4,00,000/-as compensation. In the judgment of the Division Bench referred to above, the claimant had prayed only for a sum of Rs. 5,00,000/- and yet a sum of Rs. 7,00,000/- was awarded holding that it is the settled position of law that if there are materials it would be open to the Tribunal to award higher compensation than that of amount claimed. In this case also, the Tribunal had considered that the claimant had lost his amenities of life. There is nothing that the Court to grant as compensation, for what the appellant has lost to the accident. The second respondent is granted time for a period of eight weeks to deposit the balance award amount. The Tribunal had apportioned the liability between the driver of the bus and the two wheeler at 75% and 25%. That finding has not been challenged. Therefore, the respondent is liable to compensate the appellant only to the extent of 75% of the compensation fixed in this appeal. This 75% of 5,20,000 = 3,39,000. Since this is less than the amount claimed by the appellant, he is not liable to pay any additional Court-fee.
22. The learned counsel for the respondent requests 8 weeks'' time to make deposit. The amount so awarded will bear the interest at the rate of 12% from today till the date of payment, if it is not deposited. The appellant had claimed a sum of Rs. 4,00,000/- as compensation. If the same had been granted, the second respondent''s liability would be Rs. 3,00,000/-. Out of the same, the respondent has already deposited a sum of Rs. 1,83,018/- inclusive of interest. The second respondent is liable to pay interest at 12% on the sum of Rs. 3,00,000/-from the date of petition till date of payment. Out of this amount, the amount already deposited (principal + interest) shall be given credit too. For the amount of Rs. 9000/- awarded in excess the interest payable is 75% from the date of petition till the date of payment. The appeal is allowed. No costs.
