Deepak Gupta, J.@mdashBy means of this appeal, the appellant (hereinafter referred to as ''the claimant'') has prayed that the award of the learned Motor Accidents Claims Tribunal awarding compensation of Rs. 1,10,000 to her be enhanced. Briefly stated, the facts of the case are that the appellant suffered injuries in an accident involving bus No. HP 42-0768 belonging to HRTC. Since the only question involved is with regard to the compensation, only the evidence relevant in this regard is being referred to.
2. The evidence on record reveals that the claimant had met with an accident on 21.10.2006 and she was admitted to Civil Hospital at Rohru. Since her condition was critical she was discharged on 22.10.2006 and referred to IGMC, Shimla where she remained admitted for 9 days and according to her she had to repeatedly go back to Shimla for treatment. She claims to have spent Rs. 3,500 towards transportation for coming in a taxi from Rohru to Shimla and claims that she spent Rs. 25,000 on her treatment. She also claims that she was unable to do any work at home and, therefore, she has employed one Sita Devi at a monthly salary of Rs. 1,000. The petitioner claims that she was earlier doing tailoring work and also helping in the agriculture work. According to her she was earning Rs. 8,000 per month from these two vocations and her permanent disability has been assessed at 50 per cent.
3. Sita Devi was examined as PW 4. She states that she is looking after the petitioner but in cross-examination admitted that she was working in the orchard of the petitioner for the last two years.
4. PW 1, Dr. Ravinder Mokta, was a member of the Board which assessed the disability of the petitioner. According to him, the petitioner has suffered 50 per cent permanent disability in respect of her whole body. He has further stated that the petitioner is bound to take her medicines and undergo physiotherapy throughout her life.
5. The learned Tribunal found that the medical bills, cash memos and receipts of payment have not been proved in accordance with law. Other than making such bald assertion the Tribunal has not given any reason to show why the medical bills and cash memos have not been proved in accordance with law. He has awarded Rs. 15,000 towards medical expenses, past, present and future, Rs. 5,000 for transportation expenses, Rs. 5,000 for attendant expenses, Rs. 5,000 for special diet and nutrition, Rs. 10,000 for pain and suffering, Rs. 20,000 for loss of amenities of life and Rs. 50,000 towards actual loss of income and estimated future loss of income and awarded a total sum of Rs. 1,10,000.
6. I am constrained to observe that the Tribunal has just awarded compensation under the various heads but no reasoning has been given by the learned Tribunal to show how this amount has been calculated. Therefore, the duty has fallen upon this court to do the same.
7. It is well settled that in a personal injury case, the injured has to be compensated under the heads: (1) pain and suffering; (2) 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 like transportation or travelling expenses, nutrition and food, etc. While determining compensation under the above heads, the two main elements to be borne in mind are: personal loss and the pecuniary loss. Chief Justice Cookburn in Fair v. London and North Western Railway Co., (1869) 21 LT 326, distinguished the above two aspects thus:
In assessing (the compensation) the jury should take into account two things, first the pecuniary loss (the plaintiff) sustains by accident, and secondly, the injury he sustains in his person, or his physical capacity of enjoying life. When they come to the consideration of the pecuniary loss they have to take into account not only his present loss, but his incapacity to earn a future improved income.
8. McGregor on Damages, 14th Edn., para 1157, referring to heads of damages in personal injury actions states:
The person physically injured may recover both for his pecuniary losses and his non-pecuniary losses. Of these the pecuniary losses themselves comprise two separate items, viz., the loss of earnings and other gains which the plaintiff would have made had he not been injured and the medical and other expenses to which he is put as a result of the injury, and the courts have sub-divided the non-pecuniary losses into three categories, viz., pain and suffering, loss of amenities of life and loss of expectation of life.
9. Besides, the court is well advised to remember that the measures of damages in all these cases "should be such as to enable even a tortfeasor to say that he had amply atoned for his misadventure". The observation of Lord Devlin that the proper approach to the problem or to adopt a test as to what contemporary society would deem to be a fair sum, such as would allow the wrongdoer to "hold up his head among his neighbours and say with their approval that he has done the fair thing", is quite apposite to be kept in mind by the court in determining compensation in personal injury cases.
10. In Concord of India Insurance Co. Ltd. v. Nirmala Devi, 1980 ACJ 55 (SC), the Apex Court held:
The determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales.
11. Taking into consideration the law laid down by the Hon''ble Apex Court, this court in
It is pecuniary loss, i.e., capable of calculation in terms of money, and non-pecuniary loss, i.e., loss that cannot be easily assessed with accuracy--Pecuniary loss is the loss suffered by the victim due to the loss of earnings or other profits which he had been earning and was to earn in future at the same rate or at same promoted scale. Non-pecuniary loss consists of damages awarded for pain and suffering, loss of amenities and loss of enjoyment of life and prospects. Under the non-pecuniary loss, for want of accurate assessment, a global figure could be arrived at and paid as compensation. Under pecuniary loss the assessment can be made easily by taking into consideration at least the monthly income actually earned by the victim and the difference between what he would be capable to earn on disablement.
12. It is well settled that in disablement cases, the compensation has always to be higher than in cases of death since it is given to the living victim of the accident both for his personal loss and for economic loss. It can be said that the bodily injury is to be treated as a deprivation which entitles the victim to claim damages, which vary according to the gravity of the injury. Further, due to this injury, there can be loss of earnings, complete or partial, due to the accident on his capacity to earn the same. Another consequence may be the loss he suffers on account of the enjoyment of life or full pleasures of living.
13. On the basis of the above legal position, the damages under various heads are assessed as follows:
Medical expenses:
14. The claimant remained in hospital for about 10 days, out of which one day was in Rohru and 9 days at IGMC, Shimla.
She has produced certain receipts on record which show that she had already spent about Rs. 10,000 on her treatment. In addition thereto, Dr. Mokta has clearly stated that the petitioner has to undergo physiotherapy and take medicines for the rest of her life. The learned Tribunal, in my view, did not take this aspect of the matter into consideration. Keeping in view the nature of injuries and long period of treatment it would be prudent to award her a sum of Rs. 30,000 in addition to Rs. 10,000 which she has already spent, i.e., Rs. 40,000 in all. However, the medical expenses shall cover the amount of Rs. 5,000 awarded under the head special diet and nutrition and no special award is being made under this head.
15. The amount of Rs. 5,000 awarded under the head transportation expenses and Rs. 5,000 for attendant expenses appear to be reasonable.
16. The claim of the petitioner that she is being attended to by one Sita Devi for the rest of her life does not appear to be correct. Dr. Mokta while appearing in the witness-box has not stated that petitioner is unable to look after herself or requires an attendant for the rest of her life.
Loss of income:
17. Coming to the question of actual loss of income and estimated future loss of income though the petitioner claimed that she was doing tailoring work, this was not stated in the claim petition and no evidence in this behalf has been produced except for the bald statement of the petitioner herself. Therefore, it cannot be believed that she was working as a tailor. However, even if she is taken to be a homemaker, she belongs to an agrarian background and would have been helping her family in the agricultural pursuits also. The Apex Court in
(31) Just because she is a homemaker is no reason why the courts should be miserly in fixing compensation for her. A Bench of this court in
(32) It is an accepted principle that compensation may be so assessed that the interest accruing therefrom will be sufficient for the maintenance of the family of the victim and the concept of compensation is wider than mere damages.
18. Assuming that the petitioner was just doing household work, even if minimum wages are taken into consideration the same have to be valued at Rs. 3,000 per month in the year 2007. The petitioner has suffered 50 per cent disability, that too in the spinal cord. Therefore, the loss of dependency in this case can be assessed at Rs. 1,500 per month or Rs. 18,000 per annum and applying a multiplier of 12 the same works out to Rs. 2,16,000 which is rounded off to Rs. 2,20,000.
Pain and suffering:
19. The learned Tribunal has awarded only Rs. 10,000 for pain and suffering. In my view this amount is not only highly conservative but shows total lack of sensitivity. We are dealing here with a lady who was not only admitted in hospital for 10 days but will have to undergo pain and suffering throughout her life as is apparent from the statement of Dr. Mokta. Therefore, she is awarded Rs. 50,000 under this head.
Loss of amenities and future disability:
20. Dr. Mokta has stated that the disability of the petitioner is 50 per cent in respect of her whole body. She will live like a cripple and has to undergo the discomfort of being a cripple for the rest of her life. She cannot walk or work normally. She may have to undergo physiotherapy and take medicines for the rest of her life which will also cause her some discomfort. Taking all these factors into consideration, it would be reasonable to award Rs. 1,00,000 as compensation for future discomfort and loss of amenities of life. In view of the above discussion, the appeal is allowed and the award of the learned Tribunal is modified and the compensation is enhanced from Rs. 1,10,000 to Rs. 4,20,000. The petitioner shall also be entitled to interest on the entire amount of compensation at the rate of 9 per cent per annum w.e.f. 24.5.2007 till the date of payment/deposit of the amount. HRTC is directed to deposit the enhanced amount along with interest in the Registry of this court on or before 31.8.2011.
