ORDER : PRITINKER DIWAKER, J. 1. This appeal arises out of the award dated 7-10-2005 passed by II Additional Motor Accident Claims Tribunal, Raipur (hereinafter referred to as "the Tribunal") in claim case No. 40/05 awarding compensation of Rs. 2.25 lacs in favour of the injured-claimant. Facts of the case, in brief, are that on 21-2-2004 when injured appellant Devanand was riding his motorcycle Hero Honda and his friend Vipendra Upadhyaya was sitting as pillion rider, the said vehicle was dashed by truck bearing registration No. C.G. 07C-1854 (in short "the offending vehicle"), which was being driven by its driver rashly and negligently. In the said accident, the appellant suffered grievous injuries, he remained hospitalized in the Government Hospital and later on shifted to private hospital where he remained for about 20 days. In order to save life of the appellant, his right hand was amputated below the elbow in the hospital. 2. A claim case was filed by the injured-claimant before the Tribunal for compensation of Rs. 11.30 lacs, inter alia, pleading that before the accident he was working as Accountant with a private firm, drawing monthly salary of Rs. 2,500/- and at the time of accident, he was 25 years of age. 3. However, the Tribunal after appreciation of the evidence on record by the impugned award granted a total compensation of Rs. 2.25 lacs in favour of the claimant along with interest @ 6% p.a. from the date of application till realization on the following heads: In para-19, the Tribunal has though given a categorical finding that the appellant has spent Rs. 1,12,412/- on his medical treatment, but has not awarded any amount under this head. 4. Learned counsel for the appellant submits that the compensation awarded by the Tribunal is very much on the lower side and is required to be increased suitably for the following reasons: (i) that the Tribunal has passed the award in a mechanical manner without proper assessment of loss of future income of the appellant; (ii) that monthly income of the appellant was Rs. 2,500/- i.e. Rs. 30,000/- p.a., which was duly proved by him vide pay certificate Ex. P/84-and considering the age of the appellant i.e. 25 years at the relevant time, after applying the multiplier of 18, the Tribunal should have assessed the compensation; (iii) that though as per medical certificate Ex.
2,500/- i.e. Rs. 30,000/- p.a., which was duly proved by him vide pay certificate Ex. P/84-and considering the age of the appellant i.e. 25 years at the relevant time, after applying the multiplier of 18, the Tribunal should have assessed the compensation; (iii) that though as per medical certificate Ex. P/91 the appellant has suffered 70% permanent disability, but his loss of earning capacity is 100% because he was working as Accountant in a private firm, was a right handed person and on account of amputation of his right hand, he had to quit his job immediately, and therefore, considering all these things the Tribunal should have awarded a reasonable and just compensation under this head; (iv) the Tribunal has also committed an illegality in not awarding any amount for expenses incurred in medical treatment as well as for artificial limb; (v) that under the conventional heads also i.e. pain and suffering, discomfort and disfigurement, loss of expectation of life and enjoyment, the amount awarded by the Tribunal is on the lower side and needs suitable enhancement. 5. On the other hand, supporting the impugned award learned counsel appearing for the insurance company submits that though he has sympathy with the appellant, but looking to the nature of injuries sustained by the appellant and the evidence adduced by the parties on record, the compensation awarded by the Tribunal cannot be termed as "insufficient" or "inadequate", warranting interference by this Court. He submits that once the medical certificate showing 70% permanent disability suffered by the appellant has been issued, the loss of future earning would be based on this assessment i.e. 70% permanent disability and cannot be stretched to 100% as claimed. 6. Heard learned counsel for the parties and perused the material available on record. 7. The appellant has pleaded and proved his monthly income as Rs. 2,500/- and there is no reason to deduct any amount from this salary of the appellant. Thus taking his monthly salary as Rs. 2,500/-, the annual income comes to Rs. 30,000/- 8. While assessing compensation, especially under the Mother Vehicles Act, the Tribunals are statutorily responsible for fixing a compensation which should be just and proper, commensurate with the injury or loss, as the case may be, suffered by the claimants.
Thus taking his monthly salary as Rs. 2,500/-, the annual income comes to Rs. 30,000/- 8. While assessing compensation, especially under the Mother Vehicles Act, the Tribunals are statutorily responsible for fixing a compensation which should be just and proper, commensurate with the injury or loss, as the case may be, suffered by the claimants. Although compensation for loss of limbs or life cannot be weighed in golden scales, it has to be kept in mind that the compensation is not expected to be a windfall for the victim/claimant. It would be "just" and not a bonanza; not a source of profit, but at the same time, should not be a pittance. There can be no straight jacket formula governing all cases for measuring the value of human life or limbs in terms of money. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any, of each case. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though a wide discretion is vested in the Tribunal in respect of awarding compensation, but such assessment/determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non-arbitrariness. If it is not so, it cannot be just. 9. In the recent decision rendered in Rekha Jain Vs. National Insurance Company Ltd. and Others, (2013) 8 SCC 389 , after referring to the various judgments of the Apex Court and other Courts while summarizing the law in relation to grant of compensation in the cases of personal injury, it has been observed by the Apex Court as under: 14. Point No. (iii) is also required to be answered in favour of the appellant. We are of the view that the appellant is substantially entitled to enhancement of compensation under various heads of non-pecuniary damages having regard to the concurrent findings recorded on this aspect of the matter by the High Court.
Point No. (iii) is also required to be answered in favour of the appellant. We are of the view that the appellant is substantially entitled to enhancement of compensation under various heads of non-pecuniary damages having regard to the concurrent findings recorded on this aspect of the matter by the High Court. Both the Tribunal and the High Court have accepted the nature of injuries sustained by her and the percentage of permanent partial disablement suffered by her due to the Motor Vehicle Accident as per the Disability Certificate No. 943 dated 24-2-2006 issued by the Chief Medical Officer of the District Medical Board of Sambalpur, This aspect of the matter is very relevant for the purpose of examining the claim of the appellant and also to find out as to whether the Tribunal and the High Court were justified in. not awarding just and reasonable compensation in favour of the appellant under the various heads of non-pecuniary damages. This Court is required to keep in mind justice, equity and good conscience which must be the primary, relevant and important aspects for awarding just and reasonable compensation to an unfortunate victim, the appellant herein who has sustained grievous injuries to her body and whose future prospects are completely doomed. Further, the Tribunal and courts while awarding compensation for bodily injuries, must realise that the possession of one's own body is the first and most valuable of all human rights and that all other possessions and ownership are the extensions of the basic right. Bodily injuries should be equated with the depravation which entitles a claimant to damages and the amount of damages varies in accordance with the gravity of injuries. In this regard, it is worthwhile to refer to certain paragraphs which have been referred to by the Karnataka High Court in the case of K. Narasimha Murthy v. The Manager, Oriental Insurance Company Limited and another, ILR 2004 Karnataka 2471, wherein the Division Bench of the Karnataka High Court has considered the relevant important aspects from the judgment of this Court and the House of Lords and different learned scholars and authors of books on awarding pecuniary and non-pecuniary damages. The above mentioned decision states about the approach of the Motor Accidents Claim Tribunals and Courts for awarding just and reasonable compensation in favour of the claimants in relation to the bodily injuries suffered by them.
The above mentioned decision states about the approach of the Motor Accidents Claim Tribunals and Courts for awarding just and reasonable compensation in favour of the claimants in relation to the bodily injuries suffered by them. It is worthwhile to extract Paragraph 16 from K. Narasimha Murthy case (supra), which reads as under: "16. The Courts and Tribunals, in bodily injury cases, while assessing compensation, should take into account all relevant circumstances, evidence, legal principles governing quantification of compensation. Further, they have to approach the issue of awarding compensation on the larger perspectives of justice, equity and good conscience and eschew technicalities in the decision-making. There should be realisation on the part of the Tribunals and Courts that the possession of one's own body is the first and most valuable of all human rights, and that all possessions and ownership are extensions of this primary right, while awarding compensation for bodily injuries. Bodily injury is to be treated as a deprivation which entitles a claimant to damages. The amount of damages varies according to gravity of injuries." 25. It is well-settled principle that in granting compensation for personal injury, the injured has to be compensated (1) for pain and suffering; (2) for 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. In personal injury cases the two main elements are the personal loss and pecuniary loss. Chief Justice Cockburn in Fair's case, supra, 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 the accident: 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." 26. McGregor on Damages (14th Edition) at paragraph No. 1157, referring to the heads of damages in personal injury actions, states as under: "The person physically injured may recover both for his pecuniary losses and his non-pecuniary losses.
McGregor on Damages (14th Edition) at paragraph No. 1157, referring to the heads of damages in personal injury actions, states as under: "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." 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 should deem to be 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 assessing compensation in personal injury cases." (Emphasis laid by the Court) 27. In R. Venkatesh Vs. P. Saravanan and Others, (2002) ACJ 1743, the High Court of Karnataka while dealing with a personal injury case wherein the claimant sustained certain crushing injuries due to which his left lower limb was amputated, held that in terms of functional disability, the disability sustained by the claimant is total and 100% though only the claimant's left lower limb was amputated. In paragraph 9 of the judgment, the Court held as under: "9. As a result of the amputation, the claimant had been rendered a cripple. He requires the help of crutches even for walking. He has become unfit for any kind of manual work. As he was earlier a loader doing manual work, the amputation of his left leg below knee, has rendered him unfit for any kind of manual work. He has no education. In such cases, it is well-settled that the economic and functional disability will have to be treated as total, even though the physical disability is not 100 per cent." 28.
He has no education. In such cases, it is well-settled that the economic and functional disability will have to be treated as total, even though the physical disability is not 100 per cent." 28. Lord Reid in Baker v. Willoughby, (1969) 3 All ER 1528 at p. 1532, has said: "A man is not compensated for the physical injury; he is compensated for the loss which he suffers as a result of that injury. His loss is not in having a stiff leg; it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned......................" 10. So far as loss of earning capacity is concerned, the Tribunal in a mechanical manner has awarded a sum of Rs. 1 lac under this head. However, looking to the nature of injuries and the extent of disablement, the same appears to be inadequate and calls for reassessment. Though multiplier method cannot be mechanically applied to ascertain the future loss of income or earning power, however, depending on various factors such as nature and extent of disablement, avocation of the injured, whether it would affect his or her employment or earning power, the loss of income of earning may be ascertained by applying the same multiplier as provided under the second schedule to the Motor Vehicles Act, 1988 (in short "the Act"). In the case on hand, undisputedly, at the time of accident, the appellant was 25 years of age and employed as Accountant in a private firm, thereby getting salary of Rs. 2,500/-, he had to quit his job immediately after his disablement. Though as per medical certificate he has suffered 70% permanent disability, but on account of amputation of his right hand he is rendered unfit for the work of accountant which he was performing before the accident resulting in said disablement. Therefore, in the facts and circumstances of the case, keeping in view the principles of law expounded by the Apex Court on the issue in the matters Pratap Narain Singh Deo Vs. Srinivas Sabata and Another, (1976) 1 SCC 289 ; S. Suresh v. Oriental Insurance Co. Ltd. and another 2010 ACJ 487 and K. Janardhan Vs. United India Insurance Co.
Srinivas Sabata and Another, (1976) 1 SCC 289 ; S. Suresh v. Oriental Insurance Co. Ltd. and another 2010 ACJ 487 and K. Janardhan Vs. United India Insurance Co. Ltd. and Another, (2008) 8 SCC 518 : (2008) 2 SCC(L&S) 733, the loss of earning capacity of the injured claimant can safely be assessed as 100%. Since the claimant at the time of accident was 25 years of age and he suffered 100% loss of earning on account of his disablement in the accident, for the purpose of calculating total loss of future earning, the multiplier applicable in this case is 18 as provided in second schedule to the Act. After applying this multiplier, the total loss of future earning comes to Rs. 5,40,000/- (Rs. 30,000/- x 18.). 11. Since the appellant has suffered 70% permanent disability, apart from the amount awarded to him under the above head i.e. loss of future income or earning, he is entitled to Rs. 1 lac under the head of permanent disability instead of Rs. 50,000/- as awarded by the Tribunal. 12. The Tribunal has though recorded a finding that the appellant has spent Rs. 1,12,412/- but has not awarded any amount towards medical expenses. Accordingly, a sum of Rs. 1,12,412/- is awarded to the claimants towards medical expenses. The Tribunal has also not awarded any amount towards future medical treatment and artificial limb. Therefore, the appellant is awarded further sum of Rs. 25,000/- under this head. 13. As regards the amount awarded towards non-pecuniary damages i.e. damages for pain, suffering and trauma as a consequence of the injuries, loss of amenities and loss of expectation of life (shortening of normal longevity), considering the age of the claimant, his sufferings including his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries, the compensation awarded under the aforesaid non-pecuniary heads certainly appears to be on the lower side and calls for suitable enhancement. Accordingly, the amount of Rs. 40,000/- awarded under the head of damages for pain, suffering and trauma is enhanced to Rs. 1 lac; the amount awarded for loss of amenities is enhanced from Rs. 30,000/- to Rs. 1 lac and the amount of Rs. 5,000/- awarded towards loss of expectation of life is enhanced to Rs. 50,000/-. 14.
Accordingly, the amount of Rs. 40,000/- awarded under the head of damages for pain, suffering and trauma is enhanced to Rs. 1 lac; the amount awarded for loss of amenities is enhanced from Rs. 30,000/- to Rs. 1 lac and the amount of Rs. 5,000/- awarded towards loss of expectation of life is enhanced to Rs. 50,000/-. 14. For the sake of convenience, the amount awarded by this Court under various heads is particularized as under: 15. In view of what has been discussed above, the appellant is held entitled for a total compensation of Rs. 10,27,412/- (Rs. 7,77,412/- + Rs. 2,50,000/-) and since the Tribunal has already awarded Rs. 2.25 lacs, after deducting the same the appellant is entitled for enhancement of Rs. 8,02,412/-. This additional amount of compensation shall carry the interest @ 6% p.a. as awarded by the Tribunal from the date of filing of claim petition till realization. In the result, the appeal is allowed and the award impugned stands modified to the above extent.