JAKIR HUSSEIN Vs. SABIR & ORS
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 2006 of 2015, Judgment Date: Feb 18, 2015
With regard to the pain, suffering and trauma which have been caused to the
appellant due to his crushed hand, it is contended that the compensation
awarded by the Tribunal was meagre and insufficient. It is not in dispute
that the appellant had remained in the hospital for a period of over three
months. It is not possible for the courts to make a precise assessment of
the pain and trauma suffered by a person whose arm got crushed and has
suffered permanent disability due to the accident that occurred. The
appellant will have to struggle and face different challenges as being
handicapped permanently. Therefore, in all such cases, the Tribunals and
the courts should make a broad estimate for the purpose of determining the
amount of just and reasonable compensation under pecuniary loss.
|REPORTABLE|
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2006 OF 2015
(Arising out of SLP(C) NO. 981 OF 2014)
JAKIR HUSSEIN ... APPELLANT
VERSUS
SABIR & ORS. ... RESPONDENTS
J U D G M E N T
V. GOPALA GOWDA, J.
Leave granted.
2. This appeal has been filed by the appellant against the judgment and
order dated 24.01.2013 passed in M.A. No. 3414 of 2010 by the High Court of
Madhya Pradesh at Indore, wherein the High Court partly allowed the appeal
of the appellant by modifying the award passed by the MACT, Mandsor, M.P.,
in claim case No. 3 of 2009 dated 29.07.2010.
3. The relevant facts of the case are stated as under:
On 12.11.2008 at about 6.30 p.m., Jakir Hussein, the appellant herein,
was driving a Tempo bearing registration No. MP-14-G-0547 from Krishi Upaj
Mandi, Mandsor to Multanpura village, Madhya Pradesh. A few others were
also riding along with the appellant, namely, Santosh, Kumari Krishna, Smt.
Paipa Bai etc. While the appellant was on the way, a tractor bearing
registration No. MP 14-K- 4886 which was driven by Sabir-respondent no.1
herein, in rash and negligent manner hit the appellant's tempo which was
coming from the opposite direction with enormous force. Due to the impact
of the accident, the appellant sustained grievous injuries. The right arm
of the appellant had severe compound fractures preventing him from
performing his regular work as a driver hereafter. At the time of the said
accident, the appellant was earning Rs.4,500/- per month by working as a
driver.
4. The appellant filed Claim Petition No. 3 of 2009 under Section 166 of
the Motor Vehicles Act, 1988 before the Motor Accidents Claim
Tribunal/Additional First Member, Mandsor, Madhya Pradesh. The Tribunal
determined the permanent disability suffered by the appellant on account of
the motor vehicle accident at 30% and his monthly income was taken at
Rs.3,000/- for the purpose of assessing annual income of the appellant to
compute his loss of future earnings. On the basis of the annual income,
his future loss of income due to permanent disability suffered by him was
estimated at Rs.1,72,800/- and loss of income at Rs.51,000/-. Medical
expenses was estimated at Rs.1,80,000/-. The total compensation of
Rs.4,38,000/- with an interest at the rate of 7% p.a. was awarded to the
appellant by the Tribunal as against a claim of Rs.8,80,000/- made by him.
5. Aggrieved by the award of the Tribunal regarding inadequate
compensation, the appellant filed M.A. No. 3414 of 2010 before the High
Court of Madhya Pradesh at Indore. The High Court opined that the income of
appellant has been taken on the lower side by the Tribunal and determined
the same at Rs.4,000/- per month. The High Court after re-determination of
the compensation held that the appellant is entitled to an enhancement of
Rs.1,77,200/- towards permanent disability and addition of Rs.5,000/-
towards pain and suffering. In addition to that amount, a sum of Rs.20,000/-
was awarded towards medical expenses. The High Court has further awarded
Rs.40,000/- towards medical expenses during the pendency of the appeal.
Further, it has awarded interest at the rate of 8% p.a. on the enhanced
compensation. Being unsatisfied with the enhanced compensation by the High
Court, the appellant filed this appeal.
The learned counsel on behalf of the appellant, Mr. Parameshwara, who is
appointed to assist this Court as amicus curiae has contended that the
compensation awarded by both the Tribunal and the High Court is wholly
inadequate. It is submitted by him that the High Court has committed a
serious error in law in not awarding just and reasonable compensation in
favour of the appellant by taking various factual aspects such as permanent
disability suffered by him, medical evidence and keeping in view the law on
the relevant aspects for quantifying just and reasonable compensation both
under the heads of pecuniary and non-pecuniary damages. It is further urged
by him that on the motor vehicle accident caused by the respondent-driver
on account of rash and negligent driving of the vehicle, the appellant has
become permanently disabled due to which he will not be able to get
suitable employment and lead a normal life in future. It is further
contended by him that the future medical treatment and care of the
appellant is very much necessary which will also be on the higher side. In
cases where the claimant suffering from either total or partial permanent
disablement, the term 'compensation' used under Section 166 of the Motor
Vehicles Act, 1988, would not only include the expenses incurred for
immediate treatment, but also the amount likely to be incurred by the
appellant for future medical treatment/care and necessary assistance on
account of permanent disablement caused to him on account of grievous
injury of loss of his right arm in the said accident. Reliance was placed
by the learned amicus curiae on the decision of this Court in the case of
R.D. Hattangadi v. Pest Control (India) Private Limited[1], 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."
It is further contended by him that the monthly income of the appellant
has been erroneously taken as Rs.3,000/- by the Tribunal and Rs.4,000/- by
the High Court when he was actually earning Rs.4,500/- per month while
working as the driver. The learned amicus curiae placed reliance upon the
case of Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka[2],
wherein, the three-Judge Bench of this Court while dealing with a case
arising out of the complaint filed under the Consumer Protection Act, 1986,
enhanced the compensation awarded by the National Consumer Disputes
Redressal Commission from Rs.1.5 lacs to Rs.1 crore. The observations made
by the Bench at para 39 can appropriately be applied to the case on hand,
wherein it is stated as under:-
"88. We must emphasize that the Court has to strike a balance between the
inflated and unreasonable demands of a victim and the equally untenable
claim of the opposite party saying that nothing is payable. Sympathy for
the victim does not, and should not, come in the way of making a correct
assessment, but if a case is made out, the Court must not be chary of
awarding adequate compensation. The "adequate compensation" that we speak
of, must to some extent, be a rule of the thumb measure, and as a balance
has to be struck, it would be difficult to satisfy all the parties
concerned.
89.It must also be borne in mind that life has its pitfalls and is not
smooth sailing all along the way (as a claimant would have us believe) as
the hiccups that invariably come about cannot be visualized. Life it is
said is akin to a ride on a roller coaster where a meteoric rise is often
followed by an equally spectacular fall, and the distance between the two
(as in this very case) is a minute or a yard.
90.At the same time we often find that a person injured in an accident
leaves his family in greater distress, vis- `-vis a family in a case of
death. In the latter case, the initial shock gives way to a feeling of
resignation and acceptance, and in time, compels the family to move on. The
case of an injured and disabled person is, however, more pitiable and the
feeling of hurt, helplessness, despair and often destitution enures every
day. The support that is needed by a severely handicapped person comes at
an enormous price, physical, financial and emotional, not only on the
victim but even more so on his family and attendants and the stress saps
their energy and destroys their equanimity."
(emphasis laid by this Court)
Further, with regard to award just and reasonable compensation both under
pecuniary and non-pecuniary damages to the victims of motor-vehicle
accidents, the learned counsel has placed reliance upon the decision of
this Court in the case of Raj Kumar v. Ajay Kumar & Anr. [3], 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 conjecture with reference to the nature
of disability and its consequences, is inevitable. A person is not only to
be compensated for the physical injury, but also for the loss which he
suffered as a result of such injury. This means that he is to be
compensated for his inability to lead a full life, his inability to enjoy
those normal amenities which he would have enjoyed but for the injuries,
and his inability to earn as much as he used to earn or could have earned."
(emphasis laid by this Court)
It is further contended by the learned Amicus Curiae that the appellant was
working as a driver and getting salary of Rs.4,500/- per month. However,
the Tribunal proceeded to determine his income at Rs.36,000/- per annum
solely on the basis that there was no evidence on record to prove the claim
of the appellant that he was earning Rs. 4,500/- per month as a driver of
the motor vehicle. Therefore, in the absence of any cogent evidence, the
Tribunal and the High Court ought to have taken the appellant's annual
income at Rs.54,000/- as he was working as a driver of the motor vehicle
till the accident occurred for the purpose of determination of compensation
towards the loss of future earnings of the appellant, as he had 100%
permanent disablement having regard to the nature of work he was doing at
the time of the accident. Accordingly, it should be at Rs.54,000/- per
annum for proper quantification of future loss of earnings as he had
suffered 100% functional disability.
It is further contended by him that the award passed by the Tribunal for
future medical expenses was wholly inadequate. Reliance was placed on the
decision of this Court in the case of Nagappa v. Gurudayal Singh[4],
wherein this Court held that in a case where injury to a victim requires
periodical medical expenses, it is not possible for a fresh award to be
passed or to review a previous award when the medical expenses are incurred
after finalisation of the compensation proceedings. It was further held
that the only alternative is that at the time of passing of the final
award, the Tribunal/Court should consider such eventuality and fix the
compensation under the above said head accordingly. Therefore, it is
submitted by him that it will be just and reasonable for this Court to
award a further sum of Rs.2,00,000/- to the appellant for his future
treatment. If the said amount is deposited in fixed deposit, the interest
accruing on it will take care of future medical treatment and other
ancillary expenses.
With regard to the pain, suffering and trauma which have been caused to the
appellant due to his crushed hand, it is contended that the compensation
awarded by the Tribunal was meagre and insufficient. It is not in dispute
that the appellant had remained in the hospital for a period of over three
months. It is not possible for the courts to make a precise assessment of
the pain and trauma suffered by a person whose arm got crushed and has
suffered permanent disability due to the accident that occurred. The
appellant will have to struggle and face different challenges as being
handicapped permanently. Therefore, in all such cases, the Tribunals and
the courts should make a broad estimate for the purpose of determining the
amount of just and reasonable compensation under pecuniary loss.
Admittedly, at the time of accident, the appellant was a young man of 33
years. For the rest of his life, the appellant will suffer from the trauma
of not being able to do his normal work of his job as a driver. Therefore,
it is submitted that to meet the ends of justice it would be just and
proper to award him a sum of Rs.1,50,000/- towards pain, suffering and
trauma caused to him and a further amount of Rs.1,50,000/- for the loss of
amenities and enjoyment of life.
On the other hand, Dr. Meera Agarwal, the learned counsel for the
respondent no.3 - The New India Assurance Company Ltd herein contended that
this Court has held in a catena of cases that the percentage of loss of
earning capacity should correspond to the percentage of loss of
functional/physical disability, if the loss of functional disability is
55%, the loss of earning capacity should also be 55% of the income of the
injured/claimant. In support of the above contentions, reliance was placed
by her on the decision of this Court in the case of National Insurance
Company Ltd. v. Mubasir Ahmed[5].
It is further contended on behalf of the Insurance Company that the amount
of compensation awarded by the Tribunal was just and reasonable, still the
High Court in exercise of its appellate jurisdiction has erroneously taken
a generous view and enhanced the amount of compensation and therefore, does
not warrant interference for enhancement of compensation as claimed by the
appellant.
We have carefully examined the facts of the case and material evidence on
record in the light of the rival legal contentions urged before us by both
the learned counsel on behalf of the parties to find out as to whether the
appellant is entitled for further enhancement of compensation? We have
perused the impugned judgment and order of the High Court and the award of
the Tribunal. After careful examination of the facts and legal evidence on
record, it is not in dispute that the appellant was working as a driver at
the time of the accident and no doubt, he could be earning Rs.4,500/- per
month. As per the notification issued by the State Government of Madhya
Pradesh under Section 3 of the Minimum Wages Act, 1948, a person employed
as a driver earns Rs.128/- per day, however the wage rate as per the
minimum wage notification is only a yardstick and not an absolute factor to
be taken to determine the compensation under the future loss of income.
Minimum wage, as per State Government Notification alone may at times fail
to meet the requirements that are needed to maintain the basic quality of
life since it is not inclusive of factors of cost of living index.
Therefore, we are of the view that it would be just and reasonable to
consider the appellant's daily wage at Rs.150/- per day (Rs.4,500/- per
month i.e. Rs.54,000/- per annum) as he was a driver of the motor vehicle
which is a skilled job. Further, the Tribunal has wrongly determined the
loss of income during the course of his treatment at Rs.51,000/- for a
period of one year and five months. We have to enhance the same to
Rs.76,500/- (Rs.4,500 X 17 months).
Further, with respect to the permanent disablement suffered by the
appellant, Mr. K. Parameshwar, the learned amicus curiae, has rightly
submitted that the appellant was examined by Dr. P.K. Upadhyay in order to
prove his medical condition and the percentage of permanent disability. The
doctor who has treated him stated that the appellant has one long injury
from his arm up to the wrist. Due to this injury, the doctor has stated
that the appellant had great difficulty to move his shoulder, wrist and
elbow and pus was coming out of the injury even two years after the
accident and the treatment taken by him. The doctor further stated in his
evidence that the appellant got delayed joined fracture in the humerus bone
of his right hand with wiring and nailing and that he had suffered 55%
disability and cannot drive any motor vehicle in future due to the same. He
was once again operated upon during the pendency of the appeal before the
High Court and he was hospitalised for 10 days. The appellant was present
in person in the High Court and it was observed and noticed by the High
Court that the right hand of the appellant was completely crushed and
deformed. In view of the doctor's evidence in this case, the Tribunal and
the High Court have erroneously taken the extent of permanent disability at
30% and 55% respectively for the calculation of amount towards the loss of
future earning capacity. No doubt, the doctor has assessed the permanent
disability of the appellant at 55%. However, it is important to consider
the relevant fact namely that the appellant is a driver and driving the
motor vehicle is the only means of livelihood for himself as well as the
members of his family. Further, it is very crucial to note that the High
Court has clearly observed that his right hand was completely crushed and
deformed. In the case of Raj Kumar v. Ajay Kumar (supra), this Court
specifically gave the illustration of a driver who has permanent
disablement of hand and stated that the loss of future earnings capacity
would be virtually 100%. Therefore, clearly when it comes to loss of
earning due to permanent disability, the same may be treated as 100% loss
caused to the appellant since he will never be able to work as a driver
again. The contention of the respondent Insurance Company that the
appellant could take up any other alternative employment is no
justification to avoid their vicarious liability. Hence, the loss of
earning is determined by us at Rs.54,000/- per annum. Thus, by applying the
appropriate multiplier as per the principles laid down by this Court in the
case of Sarla Verma & Ors. v. Delhi Transport Corporation & Anr.[6], the
total loss of future earnings of the appellant will be at Rs.54,000 X 16 =
Rs.8,64,000/-.
From the facts, circumstances and evidence on record it is clear that a
cost of Rs.2,00,000/- was incurred during medical treatment of the
appellant. Keeping in mind his medical condition and future medical needs
and requirements, we further award Rs.2,00,000/- towards future medical
treatment & incidental expenses in favour of the appellant by applying the
legal principles laid down by this Court in the case of Nagappa v.
Gurudayal Singh (supra).
Further, we refer to the case of Rekha Jain & Anr. v. National Insurance
Co. Ltd.[7], wherein this Court examined catena of cases and principles to
be borne in mind while granting compensation under the heads of (i) pain,
suffering and (ii) loss of amenities and so on. Therefore, as per the
principles laid down in the case of Rekha Jain & Anr. (supra) and
considering the suffering undergone by the appellant herein, and it will
persist in future also and therefore, we are of the view to grant
Rs.1,50,000/- towards the pain, suffering and trauma which will be
undergone by the appellant throughout his life. Further, as he is not in a
position to move freely, we additionally award Rs.1,50,000/- towards loss
of amenities & enjoyment of life and happiness.
We further award an amount of Rs.20,000/- towards special diet, Rs.40,000/-
towards attendant expenses during the period of treatment and Rs.20,000/-
towards transportation.
Since, the claim of the appellant has been pending for several years before
the courts, we are of the view to award a sum of Rs.40,000/- towards costs
incurred during pendency of the appeal.
As regards the rate of interest to be awarded on the compensation awarded
in this appeal, we are of the view that the Tribunal and the High Court
have erred in granting interest rate at only 7% p.a. and 8% p.a.
respectively on the total compensation amount instead of 9% p.a. by
applying the decision of this Court in Municipal Corporation of Delhi v.
Association of Victims of Uphaar Tragedy[8]. Accordingly, we award the
interest @9% p.a. on the compensation determined in the present appeal.
In the result, the appellant shall be entitled to the compensation figured
out in the following table under different heads:
|SL.No |Particulars |Amount of compensation |
|1. |Loss of future income due | Rs.8,64,000/- |
| |to disability | |
|2. |Loss of income during | Rs.76,500/- |
| |period of treatment | |
|3. |Pain and suffering | Rs.1,50,000/- |
|4. |Medical Expenses | Rs.2,00,000/- |
|5. |Attendant charges during | Rs.40,000/- |
| |the period of treatment for| |
| |17 months | |
|6. |Transportation charges | Rs.20,000/- |
| |during the period of | |
| |treatment | |
|7. |Special diet and nutrition | Rs.20,000/- |
| |as advised by the doctor | |
| |during the period of | |
| |treatment | |
|8. |Permanent Disability/ |Rs.1,50,000/- |
| |loss of amenities, | |
| |happiness and enjoyment of | |
| |life | |
|9. |Future medical expenses |Rs.2,00,000/- |
|10. |Expenses during pendency of|Rs.40,000/- |
| |appeal | |
| |TOTAL |Rs.17,60,500/- |
Thus, the total compensation payable to the appellant by the respondent
Insurance Company will be Rs.17,60,500/- as per amount awarded against
different heads mentioned above in the table with interest @ 9% p.a. on the
compensation awarded by this Court from the date of filing of the claim
petition till the date of payment.
22. Since the claim petition has been pending in the courts for the last 6
years, we direct the Insurance Company to either pay the compensation
awarded in this appeal by way of demand draft or deposit the same before
the concerned MACT within four weeks from the date of receipt of the copy
of this Judgment and submit the compliance report for the perusal of this
Court.
23. When this matter was listed, neither the counsel on record nor the
arguing counsel on behalf of the appellant was present on a number of dates
of hearing despite granting several opportunities to him. Therefore,
keeping in view Article 39A of the Constitution of India, this Court vide
order dated 19.01.2015 appointed Mr. K. Parameshwara, as amicus curiae on
behalf of the appellant to assist us to determine just and reasonable
compensation. In pursuant to the same, the learned amicus curiae has given
his valuable assistance to this Court by addressing the arguments and
submitting the written submissions. Therefore, it is just and proper for
this Court to direct the Legal Services Authority, State of Madhya Pradesh
to pay a nominal fee of Rs.10,000/- to him by sending a demand draft in the
name of 'K. Parameshwar' within four weeks from the date of receipt of the
copy of this Judgment. The Registry is directed to send a copy of this
judgment to the Legal Services Authority, State of Madhya Pradesh to comply
with our order.
The appeal is allowed in the above said terms.
...............................................................J.
[V.GOPALA GOWDA]
...............................................................J.
[R. BANUMATHI]
New Delhi,
February 18, 2015
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[1] (1995) 1 SCC 551
[2] (2009) 6 SCC 1
[3] (2011)1 SCC 343
[4] (2003) 2 SCC 274
[5] (2007) 2 SCC 349
[6] (2009) 6 SCC 121
[7] (2013) 8 SCC 389
[8] (2011)14 SCC 481