Ss. 166 and 168 - Compensation - Just compensation - Future treatment and pain and suffering - Held, said two heads
are different and cannot be clubbed together while computing compensation - High Court erred in clubbing them together
and quantifying compensation under these heads at Rs 50,000 - As far as future treatment is concerned, it depends on
the facts of each case - In present case, it is definite that claimant would be required to undertake future treatment even
to maintain his present state of health - Hence, Rs 3,00,000 as claimed granted under head of future treatment - As far
as pain, suffering and mental agony is concerned, considering injuries sustained by claimant which had left him
paralysed for life and evidence of PW 1 doctor to the effect that claimant was likely to suffer considerable pain throughout
his life, claimant awarded Rs 3,00,000 acknowledging that monetary compensation for pain and suffering at best was
palliative which had to be determined on a case-to-case basis,
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5256 OF 2008
SANJAY VERMA
VERSUS
HARYANA ROADWAYS
RANJAN GOGOI, J.
Citation;(2014) 3 SCC 210
1.
This quantum appeal is by the claimant seeking
further enhancement of the compensation awarded by the
High Court of Uttaranchal at Nainital by its Order dated
27.03.2006.
2.
The facts relevant for the purpose of the present
adjudication may be noticed at the outset.
On 12.08.1998 the appellant-claimant was travelling
from Ambala to Kurukshetra in a bus belonging to the
Haryana Roadways and bearing registration No. HR-07PA-
0197. On the way the driver of the bus lost control over the
vehicle resulting in an accident in the course of which the
claimant suffered multiple injuries. He was initially treated in
the civil hospital Pehwa and thereafter transferred to the
PGIMER,
Chandigarh
on
14.08.1998.
The
appellant
underwent surgery on 16.09.1998 and eventually he was
released from the hospital and referred to the Rehabilitation
Centre, Jawaharlal Nehru Hospital, Aligarh. According to the
claimant, apart from other injuries, he had suffered a
fracture of the spinal cord resulting in paralysis of his whole
body.
In these circumstances the claimant filed an
application
before
the
Motor
Accident
Claim
Tribunal
claiming compensation of a total sum of Rs.53,00,000/- under
different heads enumerated below:
(i) Pecuniary loss Rs. 24,00,000.00
(ii) Expenditure incurred in Rs. 2,00,000.00
treatment till now
(iii) Expenses which shall be Rs. 3,00,000.00
incurred in future in treatment
(iv) Cost of attendant from the Rs. 2,00,000.00
date of accident till he remains
alive
(v) Passage and diet money Rs. 2,00,000.00
(vi) Pain and suffering and Rs. 20,00,000.00
mental agony
Total Rs.53,00,000.0
0
3.
The learned Tribunal by its Award dated 12.06.2000
held that the accident occurred due to the rash and
negligent driving of the bus and that the claimant is entitled
to compensation. The total amount due to the claimant was
quantified at Rs. 3,00,000/- under the heads “Loss of
Income”, “reimbursement of medical expenses” and “pain
and suffering”. The learned Tribunal also awarded interest at
the rate of 9% from 24.08.1999 i.e. the date of filing of the
claim application till date of payment.
4. Aggrieved, the claimant filed an appeal before the
High Court
which
enhanced
the
compensation
to
Rs.8,08,052/-. The High Court quantified the amount due to
the claimant towards “loss of income” at Rs.6,19,500/-;
Rs.1,38,552/- on account of “medical expenses” and an
amount of Rs.50,000/- “for future treatment” and “pain and
suffering”.
The High Court, however, reduced the interest
payable to 6% per annum from the date of the filing of the
application. Aggrieved, this appeal has been filed.
5.
We have heard Dr. Manish Singhvi, learned counsel
for the appellant-claimant and Dr. Monika Gusain, learned
counsel for the respondent.
6.
Learned counsel for the appellant has contended that
in computing the amount due to the appellant on account of
loss of income, future prospects of increase of income had
not been taken into account by the High Court; the multiplier
adopted by the courts below is 15 whereas the correct
multiplier should have been 18.
awarded
In so far as the amount
for “future treatment” and “pain and suffering”
is concerned, learned counsel has submitted that not only
the amount of Rs.50,000/- is grossly inadequate but High
Court has committed an error in clubbing the two heads
together for award of compensation.
In this regard the
learned counsel has drawn the attention of the Court to the
amounts claimed in the claim petition under the aforesaid
two heads, as already noticed hereinabove. It is submitted
by the learned counsel that the amount of compensation is
liable to be enhanced.
7.
Controverting the submissions advanced on behalf of
the appellant, Dr. Monika Gusain learned counsel for the
respondent-Haryana
Roadways has submitted
that the
enhancement made by the High Court to the extent of over
Rs.5,00,000/- is more than an adequate measure of the “just
compensation”
that
the
Motor
Vehicles
Act,
1988
(hereinafter for short the “Act”) contemplate. It is also the
submission of the learned counsel for the respondent that in
awarding the enhanced amount the High Court has taken
into
account
all
the
relevant
circumstances
for
due
computation of the amount of compensation payable under
the Act.
8.
Before proceeding any further it would be appropriate
to take note of the evidence tendered by PW-1, Dr.
Shailendra Kumar Mishra, who was examined in the case on
behalf of the claimant. The relevant part of the evidence of
PW-1 is extracted below:
“...........Medical Board granted 80% disability of
Sanjay Verma during the course of examination.
Today I re-examined Mr. Sanjay Verma in the
Court, at the time of issuance of certificate, it was
the opinion that his condition may improve, but
even after such a long duration his condition has
deteriorated, in place of improvement.
Today he has become cent percent paralyzed.
Now Sanjay Verma is unable to perform his day to
day needs such as latrine and urination could not
be done of his own. A tube has been inserted into
his urinary tract along with a bag which he has to
use entire life. There will be no control over his
toilet and urine which he might have been doing
on his bed.
He will not be able to move throughout his life
due to the paralysis below waist and he is now not
been able to do any work. The Spinal chord will be
pressurized due to the facture of back bone and he
will have to bear the pain throughout his life.
Sanjay Verma will not be able to lead his normal
life and will have remain in the same condition
throughout his life. Due to his laying position he
will be effected by bed sores which will be
excessive painful. Due to lack of urination in
normal course his kidney may be damaged and
this possibility will always remain.”
“.........At the time of issuance of handicapped
certificate I had also given 100% disability
certificate but thinking that he might improve, I
had given a certificate 80% disability. The cutting
over the certificate No.16 G has been done by me
which bears my signature. This cutting was also
done at the time of issuance of the certificate. As
per the prescribed standard, at the time when
patient was examined by the medical board, he
was also suffering from the total paralysis and
100% disability but because patient’s toe was
having slight movement, therefore, it was
unanimously decided that for the time being his
disability is 80%.”
9.
It is also established by the materials on record that
the age of the claimant at the time of the accident was 25
years and he was married. The age of his wife was 22 years
and at the time of the accident the claimant had one son
who was 11⁄2 years of age. Apart from the above, from the
deposition of the claimant himself (PW-2) it transpires that
after the accident he is not able to do any work and “one
person is always needed to look after him”.
10.
Having noticed the evidence of PW-1 Dr. Shailendra
Kumar Mishra and the other facts and circumstances of the
case we may now proceed to determine as to whether the
compensation awarded by the High Court under the different
heads noticed above is just and fair compensation within the
meaning of Section 168 of the Act.
11.
The appellant was a self employed person. Though he
had claimed a monthly income of Rs.5,000/-, the Income Tax
Returns filed by him demonstrate that he had paid income
tax on an annual income of Rs.41,300/-. No fault, therefore,
can be found in the order of the High Court which proceeds
on the basis that the annual income of the claimant at the
time of the accident was Rs.41,300/-.
Verma
(Smt.)
and
Others
vs.
Though in Sarla
Delhi
Transport
Corporation and Another1 this Court had held that in case
of a self employed person, unless there are special and
exceptional circumstances, the annual income at the time of
death is to be taken into account, a Coordinate Bench in
Santosh Devi vs. National Insurance Company Ltd.
and Others2 has taken a different view which is to the
following effect:
“14. We find it extremely difficult to fathom any
rationale for the observation made in para 24 of
the judgment in Sarla Verma case that where
the deceased was self-employed or was on a
fixed salary without provision for annual
1
2
(2009) 6 SCC 121
(2012) 6 SCC 421
increment, etc., the courts will usually take only
the actual income at the time of death and a
departure from this rule should be made only in
rare and exceptional cases involving special
circumstances. In our view, it will be naïve to
say that the wages or total emoluments/income
of a person who is self-employed or who is
employed on a fixed salary without provision for
annual increment, etc., would remain the same
throughout his life.”
12.
The view taken in Santosh Devi (supra) has been
reiterated by a Bench of three Judges in Rajesh and Others
vs. Rajbir Singh and Others3 by holding as follows :
“8. Since, the Court in Santosh Devi case
actually intended to follow the principle in the
case of salaried persons as laid down in Sarla
Verma case and to make it applicable also to
the self-employed and persons on fixed wages,
it is clarified that the increase in the case of
those groups is not 30% always; it will also have
a reference to the age. In other words, in the
case of self-employed or persons with fixed
wages, in case, the deceased victim was below
40 years, there must be an addition of 50% to
the actual income of the deceased while
computing future prospects. Needless to say
that the actual income should be income after
paying the tax, if any. Addition should be 30% in
case the deceased was in the age group of 40 to
50 years.
9. In Sarla Verma case, it has been stated that
in the case of those above 50 years, there shall
(2013) 9 SCC 54
be no addition. Having regard to the fact that in
the case of those self-employed or on fixed
wages, where there is normally no age of
superannuation, we are of the view that it will
only be just and equitable to provide an addition
of 15% in the case where the victim is between
the age group of 50 to 60 years so as to make
the compensation just, equitable, fair and
reasonable. There shall normally be no addition
thereafter.”
13.
Certain parallel developments will now have to be
taken note of. In Reshma Kumari and Others vs. Madan
Mohan and Another4, a two Judge Bench of this Court while
considering the following questions took the view that the
issue(s) needed resolution by a larger Bench
“(1) Whether the multiplier specified in the Second
Schedule appended to the Act should be
scrupulously applied in all the cases?
(2) Whether for determination of the multiplicand,
the Act provides for any criterion, particularly as
regards determination of future prospects?”
14.
Answering the above reference a three Judge Bench
of this Court in Reshma Kumari and Ors. vs. Madan
Mohan and Anr.5 reiterated the view taken in Sarla Verma
(2009) 13 SCC 422
(2013) 9 SCC 65 (para 36)
(supra) to the effect that in respect of a person who was on a
fixed salary without provision for annual increments or who
was self-employed the actual income at the time of death
should be taken into account for determining the loss of
income unless there are extraordinary and exceptional
circumstances.
Though the expression “exceptional and
extraordinary circumstances” is not capable of any precise
definition, in Shakti Devi vs. New India Insurance
Company Limited and Another6
there is a practical
application of the aforesaid principle. The near certainty of
the regular employment of the deceased in a government
department following the retirement of his father was held to
be a valid ground to compute the loss of income by taking
into account the possible future earnings. The said loss of
income, accordingly, was quantified at double the amount
that the deceased was earning at the time of his death.
15.
Undoubtedly,
the
same
principle
will
apply
for
determination of loss of income on account of an accident
resulting in the total disability of the victim as in the present
(2010) 14 SCC 575
case. Therefore, taking into account the age of the claimant
(25 years) and the fact that he had a steady income, as
evidenced by the income-tax returns, we are of the view that
an addition of 50% to the income that the claimant was
earning at the time of the accident would be justified.
16.
Insofar as the multiplier is concerned, as held in
Sarla Verma (supra) (para 42) or as prescribed under the
Second Schedule to the Act,
the correct multiplier in the
present case cannot be 15 as held by the High Court.
We
are of the view that the adoption of the multiplier of 17 would
be appropriate. Accordingly, taking into account the addition
to the income and the higher multiplier the total amount of
compensation payable to the claimant under the head “loss
of income” is Rs. 10,53,150/-
(Rs. 41300 + Rs. 20650= Rs.
61,950 x 17).
17.
In so far as the medical expenses is concerned as the
awarded amount of Rs.1,38,552/- has been found payable on
the basis of the bills/vouchers etc. brought on record by the
claimant we will have no occasion to cause any alteration of
the amount of compensation payable under the head
“medical expenses”.
Accordingly, the finding of the High
Court in this regard is maintained.
18.
This will bring us to the grievance of the appellant-
claimant
with
regard
to
award
of
compensation
of
Rs.50,000/- under the head “future treatment” and “pain and
suffering”. In view of the decisions of this Court in Raj
Kumar vs. Ajay Kumar and Another7
and
Sanjay
Batham vs. Munnalal Parihar and Others8 there can be
no
manner
of
doubt
that
the
above
two
heads
of
compensation are distinct and different and cannot be
clubbed together. We will, therefore, have to severe the two
heads which have been clubbed together by the High Court.
In so far as “future treatment” is concerned we have no
doubt that the claimant will be required to take treatment
from time to time even to maintain the present condition of
his health. In fact, the claimant in his deposition has stated
that he is undergoing treatment at the Apollo Hospital at
7
8
(2011) 1 SCC 343
(2011) 10 SCC 665
Delhi.
Though it is not beyond our powers to award
compensation beyond what has been claimed [Nagappa vs.
Gurudayal Singh and others9], in the facts of the present
case we are of the view that the grant of full compensation,
as claimed in the claim petition i.e. Rs.3,00,000/- under the
head “future treatment”, would meet the ends of justice.
We, therefore, order accordingly.
19.
The
claimant
had
claimed
an
amount
of
Rs.20,00,000/- under the head “pain and suffering and
mental agony”.
Considering the injuries sustained by the
claimant which had left him paralyzed for life and the
evidence of PW-1 to the effect that the claimant is likely to
suffer considerable pain throughout his life, we are of the
view that the claimant should be awarded a further sum of
Rs. 3,00,000/- on account of “pain and suffering”. We must,
however, acknowledge that monetary compensation for pain
and suffering is at best a palliative, the correct dose of which,
in the last analysis, will have to be determined on a case to
case basis.
9
(2003) 2 SCC 274
20.
In the claim petition filed before the Motor Accident
Claim Tribunal the claimant has prayed for an amount of
Rs.2,00,000/- being the cost of attendant from the date of
accident till he remains alive. The claimant in his deposition
had stated that “he needs one person to be with him all the
time”.
The aforesaid statement of the claimant is duly
supported by the evidence of PW-1 who has described the
medical condition of the claimant in detail.
From the
aforesaid materials, we are satisfied that the claim made on
this count is justified and the amount of Rs.2,00,000/-
claimed by the claimant under the aforesaid head should be
awarded in full. We order accordingly.
21.
In view of the discussions that have preceded, we
hold that the claimant is entitled to enhanced compensation
as set out in the table below:
Sl.
No.
Head
(i) Loss of Income
(ii) Medical Expenses
(iii) Amt. as per High Amt. as per this Court
Court (in Rs.)
(in Rs.)
6,19,500.00
1,38,552.00 1,38,552.00
Future Treatment
10,53,150.00
3,00,000.00
50,000.00
(iv) Pain and suffering and
mental agony
(v) Cost of attendant from the
date of accident till he
remains
alive
Total=
22.
2,00,000.00
8,08,052.00
19,91,702.00
In view of the enhancement made by us, we do not
consider it necessary to modify the rate of interest awarded
by the High Court i.e. 6% from the date of the application i.e.
24.08.1999 to the date of payment which will also be payable
on the enhanced amount of compensation.
23.
The appeal filed by the claimant is allowed as
indicated above.
.................................CJI.
[P. SATHASIVAM]
....................................J.
[RANJAN GOGOI]
.....................................J.
[SHIVA KIRTI SINGH]
NEW DELHI,
JANUARY 29, 2014.
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