However, the Appellant is relying upon a large number of bills of medicines and other items which are produced on record. The Learned Member of the Tribunal has taken a technical view of the matter by holding that the Appellant has not proved the said bills. Considering the nature of injuries sustained by the Appellant, it was not expected of the Appellant to maintain account in minute details of the amounts spent on the purchase of medicines and other equipments. It is impossible to expect the Appellant to summon the owners of the medical shops to prove the bills. According to the case of the Appellant, the bills produced on record show that total amount spent by him in that behalf is Rs. 44,483.32 ps. Hence, a sum of Rs. 45,000/- can be straightway granted on the said count.
IN THE HIGH COURT OF BOMBAY
First Appeal No. 169 of 2009
Decided On: 07.03.2013
Farooq Mohammad Gaouse Vs. The Transport Manager
Hon'ble Judges/Coram:
Abhay Shreeniwas Oka and A.P. Bhangale, JJ.
Citation: 2013(2) TAC 404 Bom, MANU/MH/0217/2013.
1. The appeal was admitted by this Court on 24-02-2009 and as private paper book was submitted, the printing was dispensed with due to urgency to decide the appeal in motor accident claim. Hence, taken up for final hearing by consent of parties. Heard learned counsel for the parties and perused the record.
2. The appellant is aggrieved by the judgment and award dated 16.08.2008 passed by the Member, Motor Accident Claims Tribunal, Thane whereby respondents were held jointly and severally liable to pay sum of Rs. 10,61,000/- only as compensation inclusive of no fault liability (under Section 140 of the Motor Vehicles Act) with interest at the rate of 7.50% per annum from the date of petition till realization of payment.
3. Facts mentioned briefly are,
The appellant a young businessman running 'Alfa Electronics' at Mira Road, Thane with two employees for repairs of Mobile phones with acquired good will in the Market and business earnings of Rs. 15000/- per Month. He used to spend most of the business income for family members dependent on him and had also bought a Motor cycle for his business. On 02-05-2006 while the appellant-Claimant was travelling from Mira Road to Thane by the T.M.T. Bus bearing registration no. MH-04-G-2824, the driver was driving the Bus rashly and negligently in high and excessive speed. At about 12.20' noon time, the Bus had reached Cheina Bridge, Near Cheina village on Thane-Ghodbandar Road, when the driver lost control of the Bus due to its high speed and consequently it dashed against the parapet wall of the Bridge and thereafter fell down in the river and had submerged in the river-water. The appellant and others had sustained severe grievous injuries and some of the passengers had died. The Appellant was carried to the Civil Hospital, Thane and thereafter to the Sai Hospital, Shivaji Nagar, Thane (West) on the same day and thereafter the Paraplegic Foundation, Sion where he had received Medical treatment till 09-10-2006. The crime was registered against the Driver at Kashmira Police station. It is case of the appellant that at young age of 33 years, he had suffered multiple fractures to his ribs medically identified at location as D-7, D-9 at vertebra, Spinal Cord, burst compression and he is suffering from permanent disability, despite huge expenses towards medical treatment, medicines, attendant etc. Due to permanent disability resulted from the accident mentioned as above he is unable to perform his work to earn livelihood, losing the monthly average income of Rs. 15000/- from his business of repairing the Mobiles. The appellant had claimed Compensation in the sum of Rs. 65,28,975/- on all counts.
4. The respondent Thane Municipal Transport undertaking had resisted the claim denying the liability contending that due to the heavy load of passengers it was not possible to drive the Bus in high speed and the Bridge was old and under repairs the act occurred as the act of God.
5. The Tribunal by its impugned judgment and order held that the claimant (Appellant) suffered grievous injuries as result of the Motor vehicle accident caused by the Bus of T.M.T. Registration no. MH-04-G-2824 occurred on 02-05-2006 and entitled to claim the compensation. However the claim awarded was confined to the sum of Rs. 10,61,000/- only inclusive of the no fault liability.
6. The application for compensation was supported by the affidavit in support of the claim solemnly affirmed by the claimant who described the traumatic injuries sustained by the claimant in the Motor Vehicle accident. The injuries described as spinal cord oedema and paravertrebal oedema, Burst compression of D-8 and D-9 vertebral bodies, dislocations etc paraplegic condition of the patient who required the hospital treatment during the period between 02-05-2006 to 27-06-2006 at LTMG hospital and during the period between 09-08-2006 to 25-09-2006 and in paraplegic foundation with effect from 09-10-2006 lying on a bed like vegetable with 100% disability for any work. After the treatment also the claimant appellant is with his both lower limbs totally paralyzed is unable to follow his daily pursuits and depends upon the assistant for the help. The claimant claimed the Hospital expenses and the charges for the attendant, and physiotherapy charges as the claimant suffered from the absence of sensation below the abdomen to feet, requirement of water bed to prevent bed sores, involuntary natural calls and want of control over it. Inability to sit or lie down for long time due to pains all over the body, loss of vision of the left eye. The claimant claimed for the loss of growing business. The claimant stated that he had enjoyed comforts of all the amenities like T.V., Washing Machine, Mixer Grinder, Furniture, Fans out of his income and wanted to educate his children in good educational establishments. This evidence was not shaken in the cross examination. Suggestions put to the claimant were denied. The claimant produced 11 bill books (Ex. 49) showing the existence of his business prior to the accident and claimed that he used to earn 60 to 70% profit from the business. Dr. Pradeep Tripathi, M.S. (Gen Surgeon) deposed about the medical treatment the claimant took at Sai Hospital, Thane. The claimant was charged Rs. 3,46,089/- during 2-05-2006 to 27-06-2006 inclusive of medicines. Bills are at Ex. 41. The claimant was re-admitted in the Hospital with complaint of bedsores and fever and the expenses for the treatment were borne by the Thane Municipal Transport for treatment. The bill indicating that the claimant had to undergo operation, infusion was required. Discharge Card indicated that the claimant was admitted in re Head injury and spinal cord injury and later again for bed sores and fever. The claimant had also undergone left eye operation with assessed disability of 30% of left eye vision as per evidence of Dr R.R. Hargave, Eye Surgeon at Sai Hospital, Thane {Disability Certificate (Ex. 54)}. Doctor clarified in his evidence that the injury to the optic nerve can be possible due to head injury. Dr G.N. Gaikwad deposed about the injuries suffered by the claimant. He found the spinal injury@ fracture D-8, D-9, burst fracture which caused paraplegia and the patient remained paralyzed for both lower limbs. Doctor found grade zero power in both lower limbs from hip joint, knee joint, ankle joint and toes with loss of bladder and bowel control. Bedsore scar were observed on buttocks. Two rods were put inside the spine. Medical certificate (Ex. 56) As the patient was unable to walk, sit and stand, he was on wheel chair and put on cathedral. His permanent partial disability was assessed at 100%. The patient is advised regular physiotherapy, one or two attendants, medicines and continuous catherization, water bed to prevent bedsores and wheel chair life due to paraplegia.
7. Learned Counsel Mr. Chahal, on behalf of the appellant argued that Hon'ble Supreme Court in the ruling in Kavita Vs. Deepak and others. (Civil Appeal no. 5945 of 2012 decided on 22-08-2012) had modified the order to grant enhancement claim for medical treatment, expenses, attendant charges, future medical expenses, and special damages for the loss of earnings during the hospitalization and on account of the permanent disability, physical and mental pains, and loss of amenities and loss of expectations in life. Our attention is invited to the ruling of R.D. Hattangadi vs. Pest Control (India) Pvt. Ltd reported in MANU/SC/0146/1995 : 1995 AIR 755 : 1995 SCC (1) 551 the Apex Court observed thus:-
10. It cannot be disputed that because of the accident the appellant who was an active practicing lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a lifelong handicapped. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury "so far as money can compensate" because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame.
8. In the case Ward v. James (1965) 1 All ER 563 it was said "Although you cannot give a man so gravely injured much for his 'lost years', you can, however, compensate him for his loss during his shortened span, that is, during his expected 'years of survival'. You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to a back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet judges and juries have to do the best they can and give him what they think is fair. No wonder they find it well nigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The judges have worked out a pattern, and they keep it in line with the changes in the value of money."
9. In its very nature whenever a Tribunal or a Court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards.
10. After making reference to the judicial precedents including the ruling in R.D. Hattangadi Vs M/s. Pest control Pvt. Ltd. and others, the Apex Court observed thus:-
18. In light of the principles laid down in the aforementioned cases, it is suffice to say that in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident. The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses.
11. In Raj Kumar v. Ajay Kumar MANU/SC/1018/2010 : (2011) 1 SCC 343, the Apex Court considered large number of judicial precedents and laid down the following propositions:
The provision of the Motor Vehicles Act, 1988 ('the 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 the 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.
The heads under which compensation is awarded in personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.
12. In Baby Radhika Gupta Vs Oriental Insurance Company, reported in MANU/SC/1840/2009 : (2009) 17 SCC 627, considering young age of the victim of the accident the Apex Court considered it appropriate to award compensation on account of future prospects also.
13. In Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka MANU/SC/0803/2009 : (2009) 6 SCC 1, Hon'ble Supreme Court observed thus:-
39. 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. 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. At the same time we often find that a person injured in an accident leaves his family in greater distress, vis-a-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. We can also visualize the anxiety of the complainant and his parents for the future after the latter, as must all of us, inevitably fade away. We, have, therefore computed the compensation keeping in mind that his brilliant career has been cut short and there is, as of now, no possibility of improvement in his condition, the compensation will ensure a steady and reasonable income to him for a time when he is unable to earn for himself.
14. One of us (Justice Shri Abhay Oka) had occasion to consider the identical case of paraplegia suffered by an young Doctor as a result of the motor vehicle accident in the ruling in Dr. Dattatraya Laxman Shinde Vs Nana Raghunath Hire and others in F.A. no. 717 of 1999 decided on 08-08-2011 in which this Court had enhanced the compensation amount by the sum of Rs. 25,65,000/- after considering the number of judicial precedents. This Court had fixed and awarded the additional amount of compensation which was based on the following heads -
a) Loss of income.
b) Cost of attendant.
c) Expenditure on medicines, treatment, conveyance.
d) Compensation on account of pain and suffering.
e) Compensation on account of loss of prospects of the marriage.
f) Compensation on account of medical expenditure in future.
15. Shri Chahal argued that the claimant would require electric wheelchair, water bed to prevent bedsores, continuing catheter, diaper, medicines and regular physiotherapy with at least two attendants. He claims enhanced compensation to the tune of Rs. 1,11,86016/- under different heads inclusive of pains and sufferings and loss of amenities.
16. Learned Advocate Shri Limaye appearing for the respondent contended that the amount of compensation awarded by the impugned Judgment and Award was just and reasonable and needs no enhancement. Shri Limaye argued that the award for the compensation cannot be so exorbitant amounting to a unwarranted bonanza for the claimant. According to him claim was not legally proved. He prayed for dismissal of appeal.
17. In our view, it cannot be disputed that in case of this type of permanent disability resulted in medical condition known as 'Paraplegia' the Tribunal is bound to consider similar cases and entire evidence i.e. oral and documentary evidence. In a trial before the Tribunal, strict rules of evidence as in a criminal case are not applicable but test of proof is as in summary proceedings or proof as in a civil case as upon preponderance of probabilities. Strict proof is not required as the Act has beneficial and social object to compensate victims of motor vehicle accidents. That being so, no infirmity can be noticed which can dislodge the case of the Appellant-Claimant when Over-all effect of evidence led is considered carefully over a period of time. The Tribunal had considered the evidence of the claimant-appellant which was on high pedestal as an injured eye witness to the incident to hold that the motor vehicle accident was caused as a result of the rash and negligent driving by the Bus driver of the Bus no. MH-04-G-2824 and it resulted in the permanent disability to the claimant. The finding was recorded based on Medical evidence of Dr. R.R. Hargave (Ex. 53) and Dr. Pradeep Rampratap Tripathi and the case papers of the Sion Hospital. The evidence of Dr. R.R. Hargave established that the claimant herein had suffered permanent impairment of the visual status due to damage to the left eye described as 30% disability. Dr. Ghanashyam Gaikwad (Ex. 55) found grade Zero power in both the lower limbs of the Claimant from his hip joint, knee joint, ankle joint and toes and loss of sensation and power in the lower limbs as well as loss of bladder and bowel control. Inability to walk, sit and stand reduced the patient put on the cathedral to confine to the wheelchair. The disability was medically assessed as 100%. The medical evidence remained unshaken in the cross examination and was accepted by the Tribunal. The respondent did not challenge the finding. We must take judicial notice of the fact that the ailment 'Paraplegia' denotes a medical condition of paralysis characterized by motor or sensory loss in the lower limbs and trunk. Such injuries commonly result from automobile and motorcycle accidents. The signs and symptoms of paraplegia may develop immediately from trauma and include the loss of sensation, motion, and reflexes below the level of the lesion. Depending on the level of the lesion and whether damage to the spinal cord is complete or incomplete, the patient may lose bladder and bowel control, and sexual dysfunctions may develop. Patients may not be able to assist in their daily personal care, but as their condition improves and they are able to have more physical activity, they are encouraged to do as much as possible for themselves. As they learn to become less dependent on others, their attitude toward the future will improve. If it is anticipated that the patient will be confined to a wheelchair or will use crutches, transfer techniques for moving from bed to chair and from chair to other surfaces are taught. Wheelchairs and crutches are prescribed according to the individual patient's body build and weight, and the purpose for which they are to be used. They need expert medical treatment when the paraplegic patient progresses from bed rest to use of a wheelchair, the expert, experienced and alert nursing to any signs of orthostatic hypotension is necessary. Special binders and antiembolism hose are used to help the patient adjust to the transition from bed to wheelchair. Prevention of pressure sores is an important priority. Other treatment may include a high-bulk diet and the administration of suppositories to prevent constipation. The treatment of paraplegia seeks to restore proper spine alignment, stabilize the injured spinal area, decompress any involved neurologic structures, and rehabilitate the patient as quickly as possible. Such patient does require the assistance of at least two attendants for his daily routine as he is unable to move without help of others.
18. The right to life in Article 21 of the Constitution means something more than survival of animal existence. It would include within its ambit the right to live with human dignity, right to health, right to potable water, right to pollution free environment and right to education etc., which have been held to be part of right to life.
19. In order to appreciate the rival contentions with regard to the appellant's claim for enhancement of the compensation, it would be necessary to bear in mind the basic principles involved in computing the compensation in cases of permanent disablement. It is settled principle of law that the compensation to be awarded in cases of permanent disablement can be more than what can be awarded in cases of death, as in the case of death of the victim, the compensation after deducting one-third personal expenses which the deceased would have notionally spent for himself, rest of the estimated loss of earnings of the victim only goes to the dependent family members, of the deceased, whereas in the case of permanent disablement of the injured as in the present case of 100% permanent partial disability by which the patient is reduced to lead motionless life like vegetable, the compensation without the deduction as aforesaid should go to the injured-claimant, to enable him to maintain the dependent family members as well. A person injured in an accident leaves his family in greater distress, vis-à-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 with times. The case of an injured and permanently 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.
20. The amount of Compensation is required to be determined on the basis of a pecuniary damages capable of being calculated in terms of money considering the expenses incurred for the necessary medical treatment and duration thereof, attendance of the patient, special food, medicines required by him, loss of earnings from the date of the accident caused by the accident of offending motor vehicle, special damages caused which although are not capable of assessment on the basis of sheer arithmetical calculations are arrived at by objectively considering the mental and physical shock, pain and sufferings likely to be suffered in future, loss of amenities in life, loss of expectations in life, inconvenience, hardship, disappointment, mental stress and the frustration caused. The amount of compensation is arrived at by use of the method involving some guesswork, some hypothetical consideration and some amount of sympathy linked with the nature of the disability caused. Grant of perfect compensation amount is seldom possible and award of money cannot renovate a body frame that has been tattered and traumatized. Justice requires that compensation sum should be so just and reasonable, as far as may be, equivalent in assessment of the loss in correlation to the injuries resulted from the accident, although not an exact figure. Object of providing compensation is to place the claimant as far as possible in the same position financially as he was in, earlier than accident. Broadly speaking, in the case of permanent disability basis of compensation is loss of pecuniary benefits to the injured and his dependents family members which includes pecuniary loss, medical and attendant's expenses, loss of enjoyment in life, pains and sufferings which injured will have to undergo, etc. and compensation for the special diet required. Object is to mitigate hardship that has been caused to the family of the injured as well as to the injured.
21. Thus the Compensation awarded should be just and reasonable i.e. it must not be inadequate and should neither be unreasonably excessive, nor deficient. There can be no precise uniform formulae for measuring value of loss caused to the victim or injured person. And measure of damage cannot be arrived at by adopting any meticulously accurate mathematical calculation; but the amount to be awarded depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is awarded nor it should be a bonanza for the person in whose favour it is awarded. If the medical records produced show that the appellant was under continuous medical treatment and he may also require continuous future medical treatment.
22. Considering the evidence of the present case, the appellant is on wheelchair he has suffered total loss of earning/earning capacity/enjoyment of amenities etc. Having regard to the nature of his job as a businessman in repairs of mobile phones, he cannot earn what he was capable of prior to the incident of motor vehicle accident while he will remain confined to the wheelchair or has to be on wheels. As he is suffering 'paraplegia', the loss of earning capacity is total and permanent.
23. However, before the Tribunal, it is stated that the Thane Municipal Transport had borne the Bill for the hospital charges of the appellant. We, therefore, keep the hospitalization charges paid by the respondent out of our calculations. Evidence is led to indicate the income or the occupation of the appellant. He was in the business of sales and services of the Mobile phones; the appellant was a skilled worker and had registered his business under the Shops and establishment Act. According to him he was earning monthly income of Rs. 15,000/- from the business. The Tribunal did not find the reliable documentary evidence to prove the net income. Therefore, the Tribunal came to the conclusion that the monthly income of the appellant could be taken as Rs. 6,000/-. But the Tribunal overlooked the vital fact that is claim is for personal injuries caused in the accident which led to medical condition known as 'paraplegia' which is permanent disability for the appellant and it is certain to continue for rest of his lifetime. In such case there is no scope for deduction of one-third amount towards personal expenses of the claimant, alike in death claim cases filed by the heirs/defendants/legal representatives of the deceased victim. The Tribunal fell in serious error to deduct the one-third amount towards the personal expenses of the injured claimant for the purpose of the calculations. We cannot, approve the method of deduction of one-third expenses adopted by the Tribunal in arriving at compensation figure to be awarded in the cases of permanent disability/personal injury claims in motor vehicle accidents. The person who is permanently disabled and grievously injured in continuous paraplegic condition is continuous financial liability for himself and his family members as well Medical expenses are bound to be persisting and become costly with growing inflation along with growing incidental and consequential expenses apart from the loss of earnings for the victim during the expected span of life. The Tribunal has committed a serious error of law in allowing only Rs. 48,000/- only towards the loss of yearly earnings, being the amount for twelve months and also erred further to unjustifiably deduct the one-third amount from the business earnings towards personal expenses, which is to be done and permissible only in cases of death in motor vehicle accident claims made by the dependents. The justification to deduct one-third or any such more or less amount in death claims made by dependents would be only on the notional ground that from his earnings the deceased-victim would have spent for himself also and he is no more living when the amount of compensation is determined. But there is no scope for such deduction to be made by the learned presiding officer of the Tribunal in the cases of accident claims on the basis of personal injuries as the victim of the accident is very much alive and would be required to spend more for himself as well as his dependents family members more so, when it is a case of the victim like appellant-claimant in the motor vehicle accident who has suffered from permanent and 100% disability resulting from paraplegia. We hope such error would be avoided in future. Considering the nature of prospering business of the appellant which had engaged two employees in the shop registered under the shop and establishment Act had suffered due to permanent disability of the appellant. The appellant, in such case, cannot avoid medical treatment on the ground that it has become expensive. The claim of Rs. 15,000/- as loss of earnings per month was no doubt considered excessive and not duly established but considering the increasing inflation we feel the claim for loss of earnings may be reasonably determined at Rs. 8,000/- per month as loss due to closure of the business of sales and service of Mobile phones shop in which one may easily earn Rs. 250/- to Rs. 300/- per day, in present day situation of growing numbers of mobile users. The oral evidence of the Appellant discloses the average monthly expenditure incurred by him on his family. Moreover, there is always a reasonable possibility of increase in the earnings in future. Hence, income of the Appellant can be reasonably taken at Rs. 8,000/- per month.
24. The first part of the compensation will be the loss of income. There is already a finding recorded by the Tribunal in Paragraph 20 of the impugned judgment that the Appellant has suffered 100% loss of earning capacity due to disability. The said finding has not been challenged by the Respondent. On the date of the accident, the age of the Appellant was 33 years. In terms of the decision of the Apex Court in the case of Sarla Verma (Smt) and Others v/s. Delhi Transport Corporation and Another [MANU/SC/0606/2009 : (2009) 3 SCC 121], the multiplier of 16 will have to be applied though earlier the loss of income can be taken at Rs. 96,000/- per year and, therefore, the total loss of income will be Rs. 96,000/- x 16 = Rs. 15,36,000/-. In the present case, no deduction is required to be made from the said amount as in case of fatal accident. As far as pain and suffering is concerned, at the age of 33, the Appellant has become completely disabled below the waist. He has stated in his evidence that he has lost the entire sensation of his body below the abdomen and he has no control over bladder and bowel. The Appellant was married on the date of the accident. Apart from the loss of 100% earning capacity and the permanent disability to the aforesaid extent, the Appellant will be deprived of pleasures of matrimonial life. In fact, the Appellant will have to lead a miserable life as there are no prospects of improvement. Considering the totality of the circumstances, this is a case where the Appellant will have to be granted a sum of Rs. 5,00,000/- on account of pain and suffering as well as on account of deprivation of pleasures of the life. In the Claim Petition, he has prayed for total amount of Rs. 5,00,000/- on this count under four different headings. As far as the hospitalization expenses are concerned, it is not in dispute that the expenditure was borne by the Respondent. However, the Appellant is relying upon a large number of bills of medicines and other items which are produced on record. The Learned Member of the Tribunal has taken a technical view of the matter by holding that the Appellant has not proved the said bills. Considering the nature of injuries sustained by the Appellant, it was not expected of the Appellant to maintain account in minute details of the amounts spent on the purchase of medicines and other equipments. It is impossible to expect the Appellant to summon the owners of the medical shops to prove the bills. According to the case of the Appellant, the bills produced on record show that total amount spent by him in that behalf is Rs. 44,483.32 ps. Hence, a sum of Rs. 45,000/- can be straightway granted on the said count. Considering the nature of injuries sustained, it is obvious that the Appellant will require medical treatment and attendance throughout his life. The Appellant has claimed that he has been admitted in Paraplegic Foundation from 9th October 2006 and he is paying Rs. 4,000/- per month for Paraplegic Foundation. However, in the Claim Petition, he has claimed the amount at the rate of Rs. 2,800/- per month. The Appellant claimed that he is required to employ attendants. The Appellant will have to spend on medicines. On account of expenses on medicines and payment to paraplegia foundation, the appellant has claimed amounts of Rs. 4,32,000/- and Rs. 6,04,000/- respectively. Thus, on future expenditure on treatment, he can be safely granted total amount of Rs. 10,36,000/-. So long as amount exceeding the claim made in the Claim Petition is not granted, an amount which is not specifically claimed under a particular head can be granted. By taking attendant charges of Rs. 3,000/- per month, a sum of Rs. 5,76,000/- (Rs. 36,000/- x 16) will have to be granted. Apart from this, the Appellant will be required to incur recurring expenditure on items such as water bed, wheel chair, etc. Even for undertaking travelling for undergoing medical treatment, he will have to incur the expenditure on transport. On all the aforesaid counts, a sum of Rs. 1,50,000/- will have to be granted. Looking to the health condition of the Appellant, naturally he is required to take special diet. A sum of Rs. 1,500/- per month can be granted to him for a special diet. The said amount will have to be also capitalized by applying multiplier of 16. Hence, the said amount will be Rs. 2,88,000/- (Rs. 1,500 x 12 x 16). Substantial part of the compensation amount granted by this Court is payable in future. Therefore, interest on that amount cannot be granted from the date of filing of the Claim Petition. Hence, the interest will be payable on the enhanced amount from the date of the impugned Judgment and award. Thus, the amounts payable to the Appellant will be as under:-
We have considered just compensation/damages equivalent in money value for the actual pecuniary loss, past and prospective due to the injuries caused and suffered by the claimant in the motor vehicle accident, on the basis of fair estimate keeping in mind the prospective loss of business earnings due to loss of effective years of business, loss of amenities in life, discomforts and inconveniences caused, inclusive of prospective loss of his earnings due to physical disability in view of his serious handicap of paraplegia. We are aware that the claimant's medical condition may deteriorate in future and second application cannot be brought on the same cause of action. We have also to bear in mind the growing inflation and fall in the value of rupee. It is difficult to estimate pains and sufferings in terms of money and also the loss of enjoyment in life-prospective married life-which is irreparable in case of the claimant. Very slight chances of recovery may be disregarded when none of the Doctors were questioned about it in the Tribunal Hospital visits, nursing, special medical appliances, constant attendant for rest of the life due to physical disability balanced with imponderable that may enter in consideration such as possibility of pre-mature death, prospects of shortened life etc. We have borne in mind the relevant factors, while fixing the amounts of Compensation. Thus, in our view, a sum of Rs. 41,31,000/- would be just and reasonable compensation which will hopefully meet the ends of justice. Hence, order:-
ORDER
(a) The Appeal is partly allowed;
(b) The Respondent shall pay the total compensation of Rs. 41,31,000/- (inclusive of no fault liability amount) to the Appellant by way of compensation;
(c) Out of the said amount, on the sum of Rs. 10,61,000/-, interest shall be payable at the rate of 7.5% per annum from the date of filing of the Claim Petition till realization or payment;
(d) On the balance amount of Rs. 30,70,000/- interest shall be payable at the rate of 7.5% per annum from the date of the impugned Judgment and Award (i.e. 16th August 2008) till the date of realization or payment;
(e) The Appellant shall be entitled to the proportionate costs of the Claim Petition as well as the Appeal from the Respondent;
(f) The enhanced amount of compensation together with costs shall be deposited by the Respondent within a period of three months from today;
(g) Out of the total amount of compensation available for disbursement, 25% of the amount shall be paid to the Appellant by an Account Payee Cheque. The balance amount shall be equally divided and shall be invested in two separate fixed deposits with any nationalized bank; One deposit out of the two deposits shall be for a period of ten years and the other deposit shall be for a period of fifteen years;
(h) The Appellant shall be entitled to withdraw quarterly interest accrued on the fixed deposits; On maturity of the fixed deposits on completion of the aforesaid period, the aforesaid amount shall be payable to the Appellant.
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