Ajit J. Gunjal, J.@mdashPersonal injuries maybe inflicted by means of a large number of very different torts. The tort of negligence qualifies to take easily the larger share. An unfortunate victim of an accident is in appeal. His right leg has been amputated.
2. In an accident which occurred on 09.04.1993 at about 11.45 p.m., the claimant-appellant was going to his house by the side of the road. At that point of time, a tractor being driven with high speed came from Manajari side and hit the petitioner. Due to the said impact, the claimant-appellant fell down and sustained severe injuries to his both legs. Immediately after the accident the claimant-appellant was shifted to the Hospital. Thereafter, for a better and further treatment he was taken to Wanless Hospital at Miraj. According to the claimant-appellant, even as on the date of the filing of the claim petition, he was undergoing treatment. Prior to the accident, the claimant was serving as a supplier in Nand Govind Hotel at Ankali. Due to the injuries suffered and the impact thereof, the right leg of the claimant appellant has been amputated and he has become permanently disabled causing him severe suffering, both mentally and physically.
3. The said claim petition was contested by the owner as well as the insurer by filing statement of objections. They have denied the entire claim and the injuries suffered by the claimant-appellant and sought for dismissal of the claim.
4. Before the Tribunal, the claimant examined himself as P.W.1 and the Doctor as P.W.2. In support of his claim regarding compensation, he has marked as many as 100 documents at Ex.P1 to Ex.P100. The learned member of Tribunal, on consideration of the materials on record, was of the opinion that the accident had occurred solely on account of the negligent driving of the driver of the tractor. He has relied on Ex.P1-complaint, Ex.P2-FIR and Ex.P4-spot panchanama. In so far as the actionable negligence is concerned, there is no challenge either by the owner of the vehicle or the insurer. Hence, it has attained finality.
5. The only question, which arises for consideration in this appeal is quantum. The Tribunal while awarding a sum of Rs. 1,10,000/- pertaining to the injuries suffered, was of the opinion that the injuries suffered are grievous in nature. He has relied on Ex.P9, Ex.P11 and Ex.P12 to come to the conclusion that the claimant-appellant was treated as an inpatient from 10.04.1993 to 17.05.1993. The Tribunal has awarded a sum of Rs. 72,000/-towards loss of future earnings and a sum of Rs. 7,500/-, Rs. 10,000, Rs. 5,000/-, Rs. 1,500/-, Rs. 616/- and Rs. 13,703.97 under various heads and has awarded a total compensation of Rs. 1,10,319.97 which is rounded off to 1,10,000/- (Rupees One lakh Ten thousand).
6. The claimant-appellant dissatisfied with the amount awarded by the Tribunal is seeking enhancement. Mr. Yogesh appearing for Mr. Prasad Hegde, learned Counsel for the appellant would submit that the Tribunal has awarded a meager sum of Rs. 1,10,000/- for the injuries suffered by the claimant, he would submit that the right leg of the claimant has been amputated, which has resulted in permanent disability, and he will not be in a position to pursue any rigorous and vigorous avocation. He would further submit that the Tribunal has not awarded adequate damages towards loss of future earnings, pain and suffering, loss of amenities and for hospitalisation. In these circumstances, he would commend that the enhancement is permissible under all the heads.
7. Mr. K.N. Srinivas, learned Counsel appearing for the insurer would support the Judgment and award passed by the Tribunal.
8. I have been taken through the impugned judgment. It is noticed that the compensation claimed in the claim petition is only 1,50,000/-. The question would be, when the compensation claimed is confined to a particular amount in the claim petition whether the tribunal or this Court can travel beyond the claim made in the said claim petition and award just, reasonable and proper compensation? What is contemplated under the Motor Vehicles Act and also under the Law of torts is that, the person who has suffered, should be legitimately and adequately compensated and such compensation should be just and reasonable, which should always be commensurate with the nature of injuries. This question regarding grant of compensation over and above what has been claimed is no longer res integra and has been set at rest by Apex Court and this Court. It is not the requirement of law under the Motor Vehicles Act for the claimants to specify the amount of compensation in their claim petition. A duty is cast on the Tribunal and Courts to assess and award just compensation. This view of mine is supported by the decision of Apex Court in the case of
9. Admittedly, in the said accident, the claimant has suffered serious injuries which has resulted in the amputation of his right leg from the thigh portion, which would practically mean that the right leg has vanished. It has also come in evidence and also in the medical reports that the right thigh was also crushed under the wheel. In the said accident, the claimant-appellant had to loose his entire right leg. This has been clearly spoken to by the claimant himself. The doctor also, who was examined as P.W.2, would reiterate what has been stated by the claimant-P.W. 1 and also substantiate his oral evidence with documentary evidence. As noticed by the tribunal, the claimant-appellant was hospitalised from 10.04.1993 to 17.05.1993 in different departments of Wanless hospital at Miraj. Eventually, the claimant-appellant was discharged from the hospital on 17.05.1993. The recitals in Ex.P9 to Ex.P12 would go to show that there was crush injuries to the right thigh of the claimant, coupled with vascular deficit. It is also noticed that thereafter the claimant was transferred from Orthopaedic Department to the management of raw area over amputation stump. Ex.P9 is the medical certificate issued by the Wanless hospital dated 20th February 2000. Ex.P16, which is the original document issued on 17.05.1993, would clearly indicate that the affected limb at high joint was only movable to the extent of 5 degrees. It has also come in evidence that P.W.2-doctor is a qualified orthopaedic surgeon and has studied post graduation course of surgery and he was taught radiography for a period of three years. The Doctor has opined that the extent of disability is 80%. The Doctor has also further opined that in case of amputation of leg, the disability of the affected part of the body and the disability of the whole body could be one and the same. In fact, there is no cross-examination either by the owner or by the insurer on this aspect. If one were to look at the injuries suffered by the claimant-appellant, the question is, what would be the just compensation in the case of loss of entire right leg. One will have to assess the damages under various heads, including pain and suffering, medical expenses during hospitalisation, loss of earning during the laid up period, loss of future earnings, loss of marriage prospects, shortening of life span on account of injuries and loss of an academic year.
10. The person physically injured may recover both for his pecuniary losses and his non-pecuniary losses. Pecuniary losses consists of loss of earnings and the medical and other expenses to which he is put to as a result of the injury. The non-pecuniary damages would consist of pain and suffering, loss of amenities of life.
11. The Courts have evolved a particular method for assessing loss of earning capacity, for arriving at the amount which the plaintiff has been prevented by the injury from earning in future. Normally, the compensation is determined on the loss of earning of the injured on account of disability suffered by him due to the accident. In the case on hand the injured has suffered permanent disability and therefore the question is, what should be the damages payable to him. The claimant-appellant has been a victim of traumatic accident in which his right leg has been amputated, due to the said accident the physical frame has shattered. He has to put up with deformity with the rest of life. It cannot be denied that there would not be normal enthusiasm for the victim in social and other gathering without any reservation. The Courts have to eventually keep these factors in mind before assessing the damages. But, at the same time it cannot be lost sight of that the damages cannot be high and ridiculously low nor niggardly or windfall. The damages will have to be assessed on the basis of earnings and earning capacity at the time of accident. Some element of conjecture is inevitable in assessing damages. LORD PEARCE IN MALLET v. MEMONAGLE 1969 ACJ 312 (H.R. England ) calls it "reasonable prophecy".
12. In a serious injury of this nature all these relevant factors will have to be taken into consideration, while awarding damages. While dealing with loss of earning capacity, the Tribunal has taken the annual income of the claimant at Rs. 6,000/- and has multiplied it by the multiplier 15 and has arrived at a future loss of income at Rs. 72,000/- which according to me is wholly inadequate, when compared to the nature of injuries suffered by the claimant, which has resulted in amputation of his entire right leg. It is noticed that the claimant-appellant was working as a supplier in the hotel and pursuing his studies. Hence, some leniency will have to be shown regarding the income. Taking into consideration the nature of injuries and the mental status of the claimant when the evidence was led, in these circumstances, it can be safely said that the claimant-appellant was earning or would have earned in future a sum of Rs. 1,500/- per month i.e., Rs. 18,000/-per year. If the disability as stated by the Doctor or even if a judicial notice is taken it would be 90%. Even under the Workmen''s Compensation Act, when there is an amputation of leg, which is right up to the waist, the loss of earning capacity would be 90%, as has been in the present case which would be 90%. If the income of the claimant-appellant is to be modestly determined at Rs. 18,000/- per year, 90% of it would work out to Rs. 16,200/- if multiplied by appropriate multiplier of 18, taking into consideration the age of the claimant, would work out to Rs. 2,91,600/-, under the head of future loss of earning.
This takes us to the next question what would be the amount to be awarded under the heading of pain and suffering, loss amenities, medical expenses and all other allied heads relating to the damages. Mogregor on Damages (15th edition) has observed while dealing with non-pecuniary damage as follows;
"Non-pecuniary loss is a very different field. Little can be stated with certainty as to the amount of damages awardable for such loss caused by personal physical injury. Indeed full compensation cannot be given in the sense that no amount can fully compensate for a serious physical injury. Beyond this, no yardstick exists for measuring in money the compensation to be accorded a given amount of physical pain or mental suffering because, as far as money goes the loss is imponderable, and any amount awarded must be in the nature of a conventional sum. The difficulty then is in deciding what proportion the conventional sum should take. For there is no reason, in logic or in economics, why for specified period of suffering the award should be 10, rather than 1,000/- or indeed any other figure. Here a solution can only be found by taking as the test what our particular society would deem to be a fair sum, such as would, in the words of Lord Devlin in West v. Sheperd, allow the wrong doer to "hold up his head among his neighbours and say with their approval that he has done the fair thing".
"The term "pain and suffering" has been used so constantly by the Courts without any clear distinction between the two words that it is now a term of art. It has been suggested that "pain" is the immediately felt effect on the nerves and brain of some lesion or injury to a part of the body, while "suffering is distress which is not felt as being directly connected with any bodily condition. On this analysis pain needs no further elucidation; it may be noted that it will include for the purpose of damages, any pain caused by medical treatment or surgical operation rendered necessary by the injury inflicted by the defendant. As to suffering, this would seem to include fright at the time of the injury and fright reaction, fear of future incapacity, either as to health, sanity or the ability to make a living, and humiliation, sadness and embarrassment caused by disfigurement."
"This head of damage concentrates on the curtailment of the plaintiff''s enjoyment of life not by the positive unpleasantness of pain and suffering but, in a more negative way, by his inability to pursue the activities he pursued before hand, Birkett L.J., put is thus in Manlay v. Rugby Portland Cement Co. "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 again go upon his walking excursions - things of that kind - loss of amenities".
In the words of Lord Pearce "If the plaintiff has lost a leg, the Court approaches the matter on the basis that he has suffered a serious physical injury no matter what his condition of temperament or State of mind may be".
13. If one were to look at the nature of injuries and the resultant amputation, under the head of pain and suffering, a sum of Rs. 50,000/- would be just and reasonable. This pain and suffering, which the claimant has suffered due to the injuries is a life long suffering which he has to endure due to the amputation. In so far as loss of amenities is concerned, one will have to take note of the fact that his marriage prospects have diminished. This will have to be taken into consideration, while awarding damages under loss of amenities. A sum of Rs. 50,000/- under the head of loss of amenities would be appropriate. Now, coming to the question, what would be the medical expenses, it is noticed that the claimant has suffered the injuries, amputation and hospitalisation for a considerable period of time. Even though substantial documents are not produced to show what is the exact amount, which he has expended towards medical expenses, it can be safely quantified at Rs. 25,000/- under the heading of medical expenses. Thus, the total compensation, towards loss of future earning, towards pain and suffering, loss of amenities and medical expenses, would work out to Rs. 4,16,600/- which can be rounded off to Rs. 4,20,000/-. The appeal is allowed to the extent indicated above.
14. The claimant appellant is entitled to a sum of Rs. 4,20,000/- (Rupees Four lakhs, Twenty thousand) as compensation. The enhanced compensation of Rs. 3,10,000/- shall carry interest at the rate of 8% from the date of petition till the date of realisation. On such deposit, the entire amount i.e., the enhanced compensation with interest shall be invested by the Tribunal in a monthly income scheme in the nearest post office. The claimant - appellant is entitled to withdraw only the interest accrued thereon.
Appeal disposed of accordingly.
