SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA INSURANCE CO. LTD. AND ANR.

A 15. In Arvind Kumar Mishra case [Arvind Kumar Mishra v. New India Assurance Co. Ltd., (2010) 10 SCC 254 : (2010) 4 SCC (Civ) 153 : (2010) 3 SCC (Cri) 1258], after following the judgment in Kerala SRTC v. Susamma Thomas [(1994) 2 SCC 176 : 1994 SCC (Cri) 335], the Court chose to apply multiplier of 18 keeping in view the age of the victim, who was 25 years at the time of the accident.

16. In the instant case, MACT had quantified the income of the appellant at Rs 10,000 i.e. Rs 1,20,000 per annum. Going by the age of the appellant at the time of the accident, multiplier of 17 would be admissible. Keeping in view that the permanent disability is 70%, the compensation under this head would be worked out at Rs 14,28,000. MACT had awarded compensation of Rs 70,000 for permanent disability, which stands enhanced to Rs 14,28,000. For mental and physical agony and frustration and disappointment towards life, MACT has awarded a sum of Rs 30,000, which we enhance to Rs 1,30,000……..”

46Copy pinpoint46. In the case of Arvind Kumar Mishra (supra), this Court observed as under: “9. We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered.

10. In some cases for personal injury, the claim could be in respect of lifetime’s earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The conventional basis of assessing compensation in personal H

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 449 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

injury cases—and that is now recognised mode as to the proper measure of compensation—is taking an appropriate multiplier of an appropriate multiplicand.”

47Copy pinpoint47. In Pappu Deo Yadav v. Naresh Kumar and Others, AIR 2020 SCC 4424, it was held that courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads. In this case, the loss of an arm, in the opinion of the court, resulted in severe income earning impairment upon the appellant. As a typist/data entry operator, full functioning of his hands was essential to his livelihood. The extent of his permanent disablement was assessed at 89%; however, the High Court halved it to C 45% on an entirely wrong application of some ‘proportionate’ principle, which was illogical and is unsupportable in law. What is to be seen, as emphasized by decision after decision, is the impact of the injury upon the income generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account is to be judged in relation to the D profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application.

48Copy pinpoint48. With the aforesaid broad principles in mind, we proceed to examine the appellant’s claim for enhancement of the compensation awarded to him by the High Court. E MEDICAL EVIDENCE ON RECORD

49Copy pinpoint49. Dr. Anil B. Patil (PW-2) who treated the appellant has issued a Disability Certificate (Ex. P-8) wherein the following has been stated: “This to certify that I have examined, Shri Sidram Raju Bhosle. F Age-19 yrs/M of Kulgod. OPD No-19441 Dated-18/07/2012 at Lakeview Hospital. He has come to me for assessment of permanent physical disability certificate as per the record shown by the patient, the injuries were noted. The patient had met with a road Traffic accident on 18/7/2012 time around 1:30 pm at near Laxmeshwar cross Gokak Dist-Belgaum. He G was admitted in my Lakeview Hospital, Belgaum, for the treatment on 4/5/09 MLC NO - outward no-BHSLVH/MRD MLC No. 229 Dated 18/07/12 H

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A Date of admission -18/7/2012 Date of discharged - 6/8/2012 - Diagnosis B Burst Fracture D 12 vertebra with paraplegia. Fracture 1 to 6 Ribs with Hydropneumothorax, surgical emphysema. X-Ray Report: C -Burst fracture D 12 vertebra. X-ray no.-9832 Dated on 23/ 07 /2012 -Fracture 1 to 6 ribs with Hydropneumothorax, surgical emphysema. X-ray no.- 753 dated 18/07/2012. CT CHEST(PLAIN): on 18/07/2012 D -Fracture of right 1st to 6th ribs along posterior/lateral aspect. -Gross hydropneumothorax/hemothorax on the right side with pneumomediastinum causing gross shift of mediastinum towards left side and partial collapse of right lung. E -Cystic lesions(two) in right upper lobe? post traumatic with fluid levels A/W patchy opacities in right lung S/o contusions. -burst anterior wedge compression fracture of D12 vertebral body involving both pedicles with retropulsion.

F Case Examination 1.History 2-On Clinical Examination

G 1-History At Present Patient Con1plaints -Pain and weakness in both legs and back. -lnability in squatting & sitting crossed leg. -Inability to stand and \Valle H

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 451 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

2-On. Clinical Examination . . A Inspection:-Linear Scar extending fron1 DS to L5 present over spine. -scar over anterior lateral aspect of right side of chest -Unable to squat and sit cross leg. B -Movements of Left knee Right knee grade 3-4 Flexion grade 2 Extension grade 3 Muscle wasting C Calf and thigh muscles ++ X-ray Shows- x-ray no. 2852 dated 29.07.2013 Old fracture D12 with implants in situ. Observed function disability D -Pain in the left knee & left leg and weakness in both the legs and inability to stand and walk. -Unable to squat and sit cross leg. Conclusion E I am of the opinion that considering the clinical signs & radiological findings the patient has got the total permanent physical disability of 45% to whole body in respect to D12 fracture and neurological weakness with inability to stand, sit & walk. F Place-Belgaum”

50Copy pinpoint50. Dr. Patil (PW-2) in his oral evidence has deposed as under:- “I state that at present petitioner complains of pain and weakness in both legs and back. Inability in squatting and G sitting cross leg. Inability to stand and walk. And on clinical examination of the petitioner it reveals that inspection linear scar extending from D5 to L5 present over spine, there is scar over anterior lateral aspect of right side of chest, unable to squat and sit cross leg. H

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A I state that movements of left knee flexion grade-2, extension grade-3, right knee grade 3-4 and movements of left foot, plantar-grade -1 dorsiflexion-grade-3 and left foot grade 3-4 and muscle wasting calf and thigh muscle++ Further I state that X-ray taken on 29-07-2013 B reveals old fracture D12 with implants in situ, functional disability observed to the petitioner are:- pain in the left knee and left leg and weakness in both legs and inability to stand and walk, unable to squat and sit cross leg. Further I state that petitioner needs future medical expenses would be Rs. 2,50,000/-. After considering the clinical signs and radiological finding, the petitioner has got the total permanent physical disability of 45% to whole body in respect of D-12 fracture and neurological weakness with inability to stand, sit and walk. I have issued the disability certificate to the petitioner and it bears my signature and said disability certificate is already marked as Ex.P-8 and now my signature is marked as EX.P-8 (a), (b), (c) respectively.”

51Copy pinpoint51. In his cross-examination at the instance of the owner of the vehicle, he has deposed: - “It is true that the age of the petitioner is 19 years at the time of assessment. It is not true to suggest that heel process of the injuries is better than old age person. It is not true to suggest F that rib fractures 1 to 6 are not simple in nature. It is false to say that the petitioner is of young age and the heeling process is better improvement. It is false to say that disability given by me is on the higher side. It is false to say that after removing implant the petitioner will be able to walk and stand properly. It is false to say that future medical treatment expenses will G Rs. 2,50,000/-. It is false to say that the petitioner is able to walk, stand as earlier. It is false to say that to help the petitioner I am deposing falsely.”

52Copy pinpoint52. In the cross-examination at the instance of the insurance company, he has deposed: H

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 453 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

“It is true that I am orthopedic surgeon and I am not neuro surgeon. It is false to suggest that I am authorized to give disability certificate of paraplegia. It is true that I have not received any court summons for this case. I don’t know the avocation of the petitioner. It is true that the petitioner had met with a road traffic accident. It is false that by birth this petitioner is having this type of injury. It is true that the petitioner has taken proper treatment from our hospital. It is true that after well cured he was discharged from our hospital. It is true that I have advised him to take follow-up treatment. It is true that the petitioner has taken follow-up treatment. It is false to say that for not taking follow-up treatment by the petitioner this injury has worsened. It is false to say that from falling from the tree this type of injury may happen. It is false that due to rib fracture paraplegia cannot be caused. Burst fracture D-12 vertebra has caused paraplegia. It is false to say that this injury is not accidental injury. It is not true that to help the petitioner to get the compensation, I am deposing falsely. It is false that I have seen X-ray before discharge and after discharge. It is true that after seeing discharge X-ray there was improvement of the petitioner. It is false to say that the petitioner has acted as stated in your chief examination. It is true that basis of assessment I have referred ALIMCO. E It is false to say that petitioner is unable to walk, stand properly. It is false to say that I have given higher side medical bills to help the petitioner. It is false that injuries are simple in nature. It is true that I have given disability to the whole body and this is higher side. It is false that whole body disability F comes between 10% to 15% to help the petitioner. I am deposing false to get the compensation.” THE PECUNIARY EXPENSES (1) Loss of earning due to disability G

53Copy pinpoint53. The courts must apply the multiplier method, while ascertaining the compensation to be awarded to the victim. This was so held by this Court in Sarla Verma (Smt) and Others v. Delhi Transport Corporation and Another, (2009) 6 SCC 121. In Sarla Verma (supra), this Court quoted the following observations from Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176: H

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A “The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last. It is necessary to reiterate that the multiplier method is logically sound and legally well established. There are some cases which have proceeded to determine the compensation on the basis of aggregating the entire future earnings for over the period the life expectancy was lost, deducted a percentage therefrom towards uncertainties of future life and award the resulting sum as compensation. This is clearly unscientific. For instance, if the deceased was, say 25 years of age at the time of death and the life expectancy is 70 years, this method would multiply the loss of dependency for 45 years%virtually adopting a multiplier of 45%and even if one-third or one- fourth is deducted therefrom towards the uncertainties of future life and for immediate lump sum payment, the effective multiplier would be between 30 and 34. This is wholly impermissible.”

54Copy pinpoint54. The Tribunal held that although the appellant herein had claimed that he was earning Rs. 9,000/- per month from his business of selling of utensils, yet the appellant was not in a position to adduce any documentary evidence in that regard. Although Dr. Anil B. Patil (PW-2) in his oral evidence has deposed that the appellant suffered a permanent disability G to the tune of 45%, yet the Tribunal held that the appellant had suffered a permanent disability of only 30%. The Tribunal applied the multiplier as explained in the case of Sarla Verma (supra). Accordingly, the compensation awarded for the loss of earning capacity was determined as follows:

H 5000 x 12 x 18 x 30% = INR 3,24,000/-

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 455 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

55Copy pinpoint55. The High Court enhanced the income to Rs. 7,000/- stating that the same was determined by the Tribunal on a lower side. Further, the High Court held that having regard to the evidence of the treating doctor, the permanent disability of the appellant should be determined at 40%. In such circumstances, the High Court while applying the multiplier, enhanced the compensation to be awarded under the head of loss of earning capacity to Rs. 7,000/-, as under: 7,000 x 12 x 18 x 40% = INR 6,04,800/-

56Copy pinpoint56. The evidence on record indicates that the appellant suffered paraplegia due to the accident. Paraplegia is a form of paralysis of lower body. It restricts everyday routine more particularly the physical activity and leads to (i) deprivation of simple pleasures and amenities of life, (ii) 100% loss of earning capacity, (iii) long term secondary complications requiring continuous care, medical treatment and hospitalization, (iv) feeling of helplessness, depression, anger, stress, anxiety, etc. In short, paraplegia impairs physical, mental and psychological health and has devastating impact on the social and financial well being of the victim. D

57Copy pinpoint57. In the case on hand, the appellant was in the business of selling utensils and used to travel to various villages to sell the same. With this disability in the form of paraplegia being suffered by the appellant, it is not possible for him now to walk a long distance or stand for a long period. His business could be said to have been gravely E impacted. Further, the appellant at the time of accident was just 19 years old. The High Court enhanced his notional income from Rs. 5,000/- to Rs. 7,000/- per month. The appellant claimed that his notional income be determined at Rs. 9,000/-.

58Copy pinpoint58. This Court in the case of Kirti and Another v. Oriental F Insurance Company Limited, (2021) 2 SCC 166, while discussing the issue of proving the income of the victim, held as under: “39. Taking the above rationale into account, the situation is quite clear with respect to notional income determined by a court in the first category of cases outlined earlier, those where G the victim is proved to be employed but claimants are unable to prove the income before the court. Once the victim has been proved to be employed at some venture, the necessary corollary is that they would be earning an income……” H

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59Copy pinpoint59. Thus, we are of the view, more particularly keeping in mind the dictum of this Court in the case of Kirti (supra) that it is not necessary to adduce any documentary evidence to prove the notional income of the victim and the Court can award the same even in the absence of any documentary evidence. In the case of Kirti (supra) it was stated that the Court should ensure while choosing the method and fixing the notional B income that the same is just in the facts and circumstances of the particular case, neither assessing the compensation too conservatively, nor too liberally.

60Copy pinpoint60. In the overall view of the matter, we are convinced that we should determine the notional income of the appellant herein at C Rs. 8,000/- per month. The same would result in the compensation being enhanced as under: 8000 × 12 × 18 × 45% = INR 7,77,600/- (2) Loss of earning for 6 months

61Copy pinpoint61. Compensation under the aforesaid head was awarded by the Tribunal and the High Court. The Tribunal awarded only Rs. 40,000/- under this head. The High Court enhanced it to Rs. 42,000/-.

62Copy pinpoint62. We uphold the payment towards loss of earning for six months as awarded by the High Court and applying the revised income, enhance E the same as under: 8000 × 6 = INR 48,000/- (3) Medical Expenses

63Copy pinpoint63. The appellant claims Rs. 2,00,000/- towards medical expenses. F In this regard, the appellant adduced documentary evidence in the form of medical bills/receipts to the tune of Rs.1,54,931/-, as stated in the order of the Tribunal.

64Copy pinpoint64. The Tribunal in its order dated 21.01.2014 held: “Medical Expenses: The claimant submitted that he has taken G treatment a Lake view hospital, Belgaum and was indoor patient. He has produced the hospital bill and medical bills to1 the tune of Rs.1,54,931/-. The same has been rounded to Rs.1,50,000/- and the petitioner is entitled to Rs.1,50,000/- under this head.” [Emphasis supplied] H

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 457 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

65Copy pinpoint65. The High Court in Para 11 of its impugned judgment, held: A “The compensation awarded under the head of pain and suffering, medical expenses, conveyance, special diet, etc., loss of amenities in life and marriage prospects is just and proper and same is not disturbed.”

66Copy pinpoint66. In view of the aforesaid, we grant compensation of B Rs. 1,55,000/- towards medical expenses. (4) Future Medical Expenses

67Copy pinpoint67. At the outset, we may state that the “Future Medical Expenses” and “Attendant Charges” would fall within the ambit of Pecuniary C Expenses. In Abhimanyu Partap Singh v. Namita Sekhon and Another, (2022) 8 SCC 489, this Court held: “19. In view of the said legal position, the compensation can be assessed in pecuniary heads i.e. the loss of future earning, medical expenses including future medical expenses, attendant charges and also in the head of transportation including future transportation. In the non-pecuniary heads, the compensation can be computed for the mental and physical pain and sufferings in the present and in future, loss of amenities of life including loss of marital bliss, loss of expectancy in life, inconvenience, hardship, discomfort, disappointment, frustration, mental agony in life, etc.”

68Copy pinpoint68. The Tribunal has observed that the doctor has deposed that the appellant is likely to incur expenses of Rs. 2,50,000/- towards future medical expenses. However, according to the Tribunal, there was no sufficient and cogent evidence in that regard under this head. Accordingly, F the Tribunal awarded Rs. 25,000/-. The High Court thought fit not to award any amount for future medical expenses as there was no evidence adduced by the appellant in regard to future treatment that may be required. The High Court however, thought fit to clarify that in the event if the appellant incurs any expenses towards any surgery or treatment in G future on account of the injury suffered and if he proves the same, then the insurer shall indemnify the same.

69Copy pinpoint69. Dr. Anil B. Patil (PW-2) has deposed categorically that the appellant would require future medical expenses to the tune of Rs. 2,50,000/-. We are of the view that having regard to the evidence on H

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A record that the appellant would be incurring costs towards medical expenses in future along with physiotherapy and nursing and considering that the appellant at the time of accident was 19 years old, today his age would be around 29 years, even if a bare minimum of Rs. 1000/- is spent per month, then it comes to: B 1000 × 12 × 18 = Rs. 2,16,000/-

70Copy pinpoint70. In Vijaykumar Babulal Modi v. State of Gujarat (Deleted) & Gujarat State Road Transport Corporation, 2011 SCC OnLine Guj 7349, the High Court of Gujarat had the occasion to consider this aspect. The High Court held: C “So far as future medical expenses are concerned, the amount claimed in the petition was to the tune of Rs. 2 lac, whereas the Tribunal has thought fit to award Rs. 25,000=00. We have noticed that the injured as on today is 100% disabled due to paraplegia. He has no control over his bowels or bladder. In such type of cases, treatment like physiotherapy, etc. needs to be given for a very very long period of time. The importance of physiotherapy for persons injured in road accidents has been elaborately stressed upon by the Supreme Court in the case of R.D. Hattangadi (supra). It is hence important to account for all expenses incurred and likely to be incurred and award reasonable sum for each head. It is also important to remember the decreasing money value. The life expectancy of the injured is also to be kept in mind. We feel that life expectancy of the victim in such a case can reasonably be assumed to be atleast 55 years, given the advancement in medical science, etc. The claimant’s age on the date of the accident was 17 years, which means that the remaining period of life expectancy from that date of accident would be 38 years i.e. 1991 to 2029. We, therefore, propose to assess future medical expenses at about Rs. 1,000=00 per month. In that case, the adequate amount which can be awarded for future medical expenses would be Rs. 1 lac. We, therefore, enhance the amount of Rs. 25,000=00 awarded towards future medical expenses to Rs. 1 lac.”

71Copy pinpoint71. In Sanjay Verma v. Haryana Roadways, (2014) 3 SCC 210, the claimant was 25-years-old and suffered from total disability. This H Court accordingly held:

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 459 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

“20. Insofar 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 Apollo Hospital at Delhi. Though it is not beyond our powers to award compensation beyond what has been claimed (Nagappa v. Gurudayal Singh [(2003) 2 SCC 274 : 2003 SCC (Cri) 523]), 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.” C

72Copy pinpoint72. In view of the aforesaid, we award Rs. 2,16,000/- towards future medical expenses. (5) Attendant Charges

73Copy pinpoint73. So far as this head is concerned, neither the Tribunal nor the D High Court thought fit to award anything. The evidence on record indicates that the appellant is unable to stand, walk, sit or bend his body or lift anything heavy. It is not in dispute that the appellant will not be able to work in the same manner as he used to prior to the accident. Indisputably, the appellant has suffered from paraplegia on account of the accident and requires an attendant throughout the day. According to E the claimant, the cost of keeping the attendant would be Rs. 4,500/- per month. We fix it at Rs. 2,000/- per month. As a result, we award the attendant charges as under: 2,000 × 12 × 18 = Rs. 4,32,000/- F

74Copy pinpoint74. In Abhimanyu Partap Singh (supra), the Claimant was suffering from 100% disability and this Court held: “16. The High Court in the impugned order [Abhimanyu Partap Singh v. Namita Sekhon, 2019 SCC OnLine P&H 6271] observed that the claimant has now started practice as G an advocate, therefore, future loss of earning has been calculated only for 10 years, applying the multiplier of 16, without looking to the facts that the claimant cannot perform the work of advocacy similar to the other advocates by attending the cases in different courts. The attendant charges have been allowed only for 20 years with one attendant. In H

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A fact, not only for determination of future loss of earning but for attendant charges also the multiplier method should be followed.

17. The multiplier method has been recognised as most realistic and reasonable because it has been decided looking to the age, inflation rate, uncertainty of life and other realistic needs. Thus, for determination of just compensation to ensure justice with the family of the deceased or the injured as the case may be the compensation can be determined applying the said method. Therefore, in our view the Tribunal while granting the compensation of future loss as well as earning only for 10 years and attendant charges only for 20 years was not justified. In fact, the said amount should be determined applying the multiplier method. ********* ********* *********

D 23. In the head of medical expenses, the MACT or the High Court has not awarded any compensation presumably because the mother of the claimant, who was minor at the time of accident, may have claimed the amount of medical expenses being an IAS officer. But now the claimant has become major, and looking to the nature of injuries, future medical expenses that includes the attendant charges, use of diapers due to loss of urination senses is required to be calculated including future medical expenses. The Tribunal awarded Rs 1,92,000 in the head of attendant charges @ Rs 1000 p.m. While the High Court proceeded on the premises that the rate of the attendant charges is variable after every five years, however, the Court calculated the amount @ Rs 2000 thereafter @ Rs 4000 p.m. for a period of 20 years and accordingly determined Rs 9,00,000 making enhancement of Rs 7,08,000 in the said head. As discussed, if we apply the multiplier method and in view of the judgment of Kajal [Kajal v. Jagdish Chand, G (2020) 4 SCC 413 : (2020) 3 SCC (Civ) 27 : (2020) 2 SCC (Cri) 577], we accept the rate of attendant charges at Rs 5000 p.m. for 12 hours, looking to the nature of injuries and disability the claimant is required two attendants at least within 24 hours then the expenses in the head of attendant charges H

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 461 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

comes to Rs 10,000 p.m. If we apply the multiplier of 18, the amount comes to Rs 21,60,000.”

75Copy pinpoint75. In Vijaykumar Babulal Modi (supra), the Gujarat High Court had held: “It is clear that the appellant will require an attendant to assist him in his daily activities. However, we cannot accept the submission of the learned counsel for the appellant who stated that this will require an expenditure of Rs. 3,000=00 per month. The Tribunal has awarded a sum of Rs. 15,000=00, whereas the claim of the claimant is Rs. 4 lac. As held in the case of R.D. Hattangadi (supra), the Court need not be mathematical in calculating expenses on home attendant but ought to look upon the circumstances prevailing in the society to decide the amount. The Supreme Court in R.D. Hattangadi’s case (supra) held as under:- “9. xxx xxx D

10. xxx xxx

11. 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 back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good for 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.” H

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A 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 guess work, 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.” B

12. The Supreme Court in the case of C.K. Subramonia Iyer v. T. Kunhikuttan Nair, AIR 1970 SC 376, in connection with the Fatal Accidents Act has observed: “In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable.”

13. In Halsbury’s Laws of England, 4 th Edition, Vol. 12 regarding non-pecuniary loss at page 446 it has been said:- “Non-pecuniary loss: the pattern: Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award.

F The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases.” We feel that the average cost of keeping a home attendant would be around Rs. 1,000=00 per month for the period of life expectancy. Accordingly, the annual expenses on an attendant works out to Rs. 12,000=00. We, therefore, propose to enhance the sum awarded for attendant to Rs. 1 lac.”

76Copy pinpoint76. Thus, we award an amount of Rs. 4,32,000/- towards the attendant charges.

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 463 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

(6) Litigation Expenses A

77Copy pinpoint77. The Tribunal thought fit not to award anything towards the litigation expenses. The High Court took the view that the appellant is entitled to the amount of Rs. 20,000/- towards the litigation expenses. The appellant claims Rs. 50,000/- towards the litigation expenses.

78Copy pinpoint78. We take notice of the fact that the accident took place on B 18.07.2012. The appellant is pursuing this litigation for the past almost 10 years. The SLP before this Court was filed in 2018. It has been four years since then.

79Copy pinpoint79. In Govind Yadav (supra), this Court held: C “12. ……Sometimes the delay and litigation expenses make the award passed by the Tribunal and even by the High Court (in appeal) meaningless…..”

80Copy pinpoint80. In New India Assurance Company Limited v. Gopali and Others, (2012) 12 SCC 198, this Court held: D “1. …India is acclaimed for achieving a flourishing constitutional order, an inventive and activist judiciary, aided by a proficient Bar and supported by the State. However, the courts and tribunals, which the citizens are expected to approach for redressal of their grievance and protection of their fundamental, constitutional and legal rights, are beset with the problems of delays and costs. In a country where 36% of the population lives below the poverty line, these deficiencies in the justice-delivery system prevent a large segment of the population from availing legal remedies. The disadvantaged and the poor are deprived of access to justice because of the costs of litigation, both in terms of actual expenses and lost opportunities, and the laudable goal of securing justice—social, economic and political enshrined in the Preamble to the Constitution of India remains an illusion for them. G

2. The infrastructure of courts and the processes which govern them are simply inaccessible to the poor. The State, which has been mandated by Article 39-A of the Constitution to ensure that the operation of the legal system promotes justice by providing free legal aid and that opportunities for securing H

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A justice are not denied to any citizen by reason of economic or other disabilities, has not been able to create an effective mechanism for making justice accessible to the poor, downtrodden and disadvantaged. In the last two-and-a-half decades the institution of the Legal Services Authorities has rendered yeoman’s service in the field of providing legal aid B to the poor but a lot is required to be done for ensuring justice to economically deprived section of the society and those who suffer from other disabilities like illiteracy and ignorance.

3. We have prefaced the disposal of this petition, filed against the order dated 22-3-2007 [New India Assurance Co. C Ltd. v. Sheo Chand, Special Appeal Civil (SAC) No. 49 of 2005, dated 22-3-2007 (Raj)] passed by the Division Bench of the Rajasthan High Court whereby the special appeal filed by the appellant against the judgment of the learned Single Judge was dismissed as not maintainable, by making the aforementioned observations because in last almost 20 years the claimants—the aged parents, wife and five children of Nanag Ram, who became a victim of road accident in 1992, must have exhausted all their resources in prosecuting and contesting the litigation till the stage of the High Court and they must not have been left with money sufficient for engaging an advocate in this Court and also because in last almost five years, during which the special leave petition remained pending in this Court, they must have lost all hopes to get justice.

4. The learned Single Judge of the High Court had allowed the appeal filed by the dependants of Nanag Ram under Section 173 of the Motor Vehicles Act, 1988 (for short “the Act”) and enhanced the compensation awarded by the Motor Accidents Claims Tribunal, Jaipur (for short “the Tribunal”) by an amount of Rs 4,85,000 and directed the appellant to pay the enhanced compensation with interest at the rate of 12% per annum from the date of filing the claim petition till 31-12-2000 and at the rate of 9% from 1-1-2001 till the payment thereof, but on account of ex parte interim order passed by this Court on 23-7-2007 [New India Assurance Co. Ltd. v. Sheo Chand, SLP (C) No. 11345 of 2007, order H

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 465 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

dated 23-7-2007 (SC)], the claimants could get only a paltry sum of Rs 2 lakhs and they perhaps thought that it will not be worthwhile to spend money for contesting the special leave petition filed by the appellant. This is perhaps the thinking of many thousands of poor litigants, who succeed in the courts below and the High Courts, but cannot afford the cost and expenses of contesting litigation in the highest court of the country and suffer silently in the name of the Almighty God by treating it as their destiny.”

81Copy pinpoint81. In Syed Sadiq v. Divisional Manager, United India Insurance Company Limited, (2014) 2 SCC 735, this Court held: C “14. Further, along with compensation under conventional heads, the appellant claimant is also entitled to the cost of litigation as per the legal principle laid down by this Court in Balram Prasad v. Kunal Saha [(2014) 1 SCC 384 : (2014) 1 SCC (Civ) 327]. Therefore, under this head, we find it just and proper to allow Rs 25,000.” D

82Copy pinpoint82. In view of the aforesaid, we award an amount of Rs. 50,000/ - towards litigation expenses. (7) Loss of Conveyance

83Copy pinpoint83. Under this head, the Tribunal vide order dated 21.01.2014, E held: “15. Conveyance, special diet etc: The claimant was admitted to the hospital and thereafter attended the hospital for further treatment. The claimant is also entitled for special diet and nutrition. Therefore, I award an amount of Rs.20,000/- under F this head.”

84Copy pinpoint84. The Tribunal awarded Rs. 20,000/- under this head. The High Court in Para 11 of its impugned judgment dated 25.04.2018, held: “The compensation awarded under the head of pain and suffering, medical expenses, conveyance, special diet, etc., G loss of amenities in life and marriage prospects is just and proper and same is not disturbed”

85Copy pinpoint85. The High Court thought fit to confirm Rs. 20,000/- as awarded by the Tribunal. H

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86Copy pinpoint86. However, the appellant has claimed Rs. 50,000/- towards loss of conveyance.

87Copy pinpoint87. This Court in Master Ayush (supra) held: “14. The determination of damages in personal injury cases is not easy. The mental and physical loss cannot be computed in terms of money but there is no other way to compensate the victim except by payment of just compensation. Therefore, we find that in view of the physical condition, the appellant is entitled to one attendant for the rest of his life though he may be able to walk with the help of assistant device. The device also requires to be replaced every 5 years. Therefore, it is reasonable to award cost of 2 devices i.e. Rs 10 lakhs. The appellant has not only lost his childhood but also adult life. Therefore, loss of marriage prospects would also be required to be awarded. The learned Tribunal has rejected the claim of taxi expenses for the reason that the taxi driver has not been produced. It is impossible to produce the numerous taxi drivers. Still further, the Tribunal should have realised the condition of the child who had complete sensory loss in the legs. Therefore, if the parents of the child have taken him in a taxi, probably that was the only option available to them. E Accordingly, we award a sum of Rs 2 lakhs as conveyance charges.”

88Copy pinpoint88. The High Court of Judicature at Allahabad in the New India Assurance Company Ltd. v. Amit Kumar Yadav and Another, F.A.O. Nos. 1285 & 1489 of 2008 decided on March 23, 2022, held as under: F “22. The question of determination of compensation directly came up before Supreme Court in Raj Kumar Vs. Ajay Kumar and another, 2011 (1) SCC 343. Therein, claimant sustained fracture of both bone of left leg and fracture of left radius in a motor accident on 01.10.1991. Tribunal awarded G compensation under the heads of loss of future earning, pain and sufferings, loss of earning during period of treatment, medical expenses, conveyance and special diet. He was awarded total compensation of Rs. 94,700/- and 9% interest. His appeal for enhancement was rejected by Tribunal and ultimately went in appeal to Supreme Court. It observed that H

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 467 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

scheme of Act, 1988 shows that award must be “just”, which means that compensation should, to the extent possible, fully and adequately restore 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. A person is not only to be compensated for physical injury, but also for the loss which he suffered as a result of such injury. It 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……” C

89Copy pinpoint89. Hence, we may grant the appellant loss of conveyance and special diet up to Rs 50,000/- considering that after the accident at Kulgod-Gokak Road, the appellant was shifted to Lakeview Hospital Belgaum wherein he was admitted as an indoor patient from 18.7.2012 to 6.8.2012 for 19 days, and took treatment for the injuries suffered by D him, and continued to take the treatment after getting discharged from the hospital as well.

90Copy pinpoint90. In view of the aforesaid, we may award Rs. 50,000/- towards loss of conveyance and special diet. NON-PECUNIARY EXPENSES E

(8) Pain and Suffering

91Copy pinpoint91. The High Court of Judicature at Allahabad in the case of Virendra Kumar v. Vijay Kumar and Others, (2021) ILR 3 All 272, while discussing the distinction between pecuniary and non-pecuniary damages held as under: “9. The law with respect to the grant of compensation in injury cases is well-settled. The injured is entitled to pecuniary as well as non-pecuniary damages. Pecuniary damages also known as special damages are generally designed to make good the pecuniary loss which is capable of being calculated in terms of money whereas non-pecuniary damages are incapable of being assessed by arithmetical calculations. The pecuniary or special damages, generally include the expenses incurred by the claimants on his treatment, special diet, H

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A conveyance, cost of nursing/attending, loss of income, loss of earning capacity and other material loss, which may require any special treatment or aid to the insured for the rest of his life. The general damages or the non-pecuniary loss include the compensation for mental or physical shock, pain, suffering, loss of amenities of life, disfiguration, loss of B marriage prospects, loss of expected or earning of life, inconvenience, hardship, disappointment, frustration, mental stress, dejectment and unhappiness in future life, etc.”

92Copy pinpoint92. The Tribunal awarded a sum of Rs. 40,000/- for the pain and suffering. The High Court affirmed the amount of Rs. 40,000/-. However, C the appellant is seeking enhancement of Rs. 40,000/- to make it Rs. 1,00,000/- towards compensation for the pain and sufferings.

93Copy pinpoint93. Pain and suffering would be categorized as a non-pecuniary loss as it is incapable of being arithmetically calculated. Therefore, when compensation is to be awarded for pain and suffering, special circumstances of the claimant have to be taken into account including the victim’s age, the unusual deprivation the victim has suffered, the effect thereof on his or her future life. This Court in the case of R.D. Hattangadi (supra), while discussing this aspect held that: “10. It cannot be disputed that because of the accident the appellant who was an active practising 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. F 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 G with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame. ********* ********* *********

17. …..When compensation is to be awarded for pain and suffering and loss of amenity of life, the special circumstances H

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 469 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

of the claimant have to be taken into account including his A age, the unusual deprivation he has suffered, the effect thereof on his future life. The amount of compensation for non- pecuniary loss is not easy to determine but the award must reflect that different circumstances have been taken into consideration…….” B

94Copy pinpoint94. This Court in the case of Mahadeva Shetty (supra), while discussing the factors to be taken into consideration while awarding compensation for pain and suffering held that: “18. A person not only suffers injuries on account of accident but also suffers in mind and body on account of the accident C throughout his life and a feeling is developed that he is no more a normal man and cannot enjoy the amenities of life as another normal person can. While fixing compensation for pain and suffering as also for loss of amenities of life, features like his age, marital status and unusual deprivation he has undertaken in his life have to be reckoned.” D

95Copy pinpoint95. In another case of this Court in Nizam’s Institute of Medical Sciences v. Prasanth S. Dhananka and Others, (2009) 6 SCC 1, this Court granted a very high amount of Rs. 10,00,000/- on account of the pain and suffering of the victim. That was a case of engineering student aged 20 years, who was a victim of medical negligence. The case before this Court was of a young student who being the victim of paraplegia was confined to wheelchair, and who pursued career in education and ultimately got employed as I.T. engineer at a handsome salary.

96Copy pinpoint96. This Court has awarded compensation for pain and suffering by looking into the circumstances of the case. Therefore, considering that the appellant was only 19 years at the time of the accident and suffered a permanent disability of 45%, he ought to be awarded compensation under this head.

97Copy pinpoint97. Furthermore, the decision of this Court in Nagappa (supra), holds that there is no embargo in awarding compensation more than that claimed by the Claimant.

98Copy pinpoint98. In view of the aforesaid, we award an amount of Rs. 1,00,000/- towards pain and suffering.

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A (9) Marriage Prospects

99Copy pinpoint99. The Tribunal held that the appellant was young, and due to the physical disability, his marriage prospects are now almost nil. The Tribunal awarded to Rs. 20,000/- under this head. The High Court upheld the amount of Rs. 20,000/-.

100Copy pinpoint100. In Sanjay Kumar (supra), this Court observed as under: “14… On the point of loss of marriage prospects, we feel that it is a major loss, keeping in mind the young age of the appellant and the High Court has gravely erred in not awarding adequate compensation separately under this head C and instead clubbed it under “loss of future enjoyment of life” and “pain and suffering”. We thereby award Rs 75,000 towards loss of marriage prospects…”

101Copy pinpoint101. In Ibrahim v. Raju and Others, (2011) 10 SCC 634, this Court held: D “19. On account of the injuries suffered by him, the prospects of the appellant’s marriage have considerably reduced. Rather, they are extremely bleak. In any case, on account of the fracture of pelvis, he will not be able to enjoy the matrimonial life. Therefore, the award of Rs 50,000 under E this head must be treated as wholly inadequate. In the facts and circumstances of the case, we feel that a sum of Rs 2 lakhs should be awarded to the appellant for loss of marriage prospects and enjoyment of life.”

102Copy pinpoint102. In Master Ayush (supra), this Court observed that the victim F (5-year-old, paraplegic) was entitled to Rs.3,00,000/-. “14.… The appellant has not only lost his childhood but also adult life. Therefore, loss of marriage prospects would also be required to be awarded…”

103Copy pinpoint103. In view of the aforesaid, we award a sum of Rs. 3,00,000/- G towards loss of marriage prospects. (10) Loss of Amenities

104Copy pinpoint104. The Tribunal held that an amount of Rs. 30,000/- should be awarded towards loss of amenities. The High Court upheld the amount H

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 471 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

of Rs. 30,000/- as awarded by the Tribunal. The claim of the appellant towards loss of amenities is Rs. 50,000/-.

105Copy pinpoint105. This Court in the case of Pappu Deo Yadav (supra), observed: “6. The principle consistently followed by this court in assessing motor vehicle compensation claims, is to place the victim in as near a position as she or he was in before the accident, with other compensatory directions for loss of amenities and other payments. These general principles have been stated and reiterated in several decisions. [Govind Yadav v. New India Insurance Co. Ltd. [Govind Yadav v. New India C Insurance Co. Ltd., (2011) 10 SCC 683 .….]”

106Copy pinpoint106. In R.D. Hattangadi (supra) it has been held: “12. 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 D 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. × × × × E

17. ……When compensation is to be awarded for pain and suffering and loss of amenity of life, the special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he has suffered, the effect thereof on his future life…..” F

107Copy pinpoint107. This Court in the case of Raj Kumar (supra) held: “5. ….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, G and his inability to earn as much as he used to earn or could have earned…..”

108Copy pinpoint108. In the case of Sri Laxman alias Laxman Mourya (supra), this Court observed: H

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A “15. The ratio of the abovenoted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to the accident, loss of earning and the victim’s inability to lead a B normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.”

109Copy pinpoint109. This Court in Govind Yadav (supra) held: “18. In our view, the principles laid down in Arvind Kumar C Mishra v. New India Assurance Co. Ltd. (2010) 10 SCC 254 and Raj Kumar v. Ajay Kumar (2011) 1 SCC 343 must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily. If the victim of the accident suffers permanent D disability, then 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 his inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.”

110Copy pinpoint110. Vijaykumar Babulal Modi (supra), the High Court of Gujarat observed as under: “It appears that the claim under this head is to the tune of Rs.3 lac. However, the Tribunal has not awarded any sum under the head ‘loss of amenities’. We are of the opinion that this head must take into account all aspects of a normal life that have been lost due to the injury caused. As per R.D. Hattangadi’s case (supra), this includes a variety of matters such as the inability to walk, run or sit, etc. We include here too the loss of childhood pleasure such as the ability to freely play, dance, run, etc., the loss of ability to freely move or travel without assistance. Then, there is the virtual impossibility of marriage as well as a complete loss of the ability to have sex and to have and nurture children.”

111Copy pinpoint111. In view of the aforesaid, we award an amount of Rs. 50,000/- for the loss of amenities taking into consideration the fact H

SIDRAM v. THE DIVISIONAL MANAGER, UNITED INDIA 473 INSURANCE CO. LTD. AND ANR. [J. B. PARDIWALA, J.]

that the appellant was 19 years old at the time of the accident, and also A considering the nature of injuries suffered by him and the extent of his disability.

112Copy pinpoint112. The total compensation awarded by us under different heads is as under: B

113Copy pinpoint113. Before we close this matter, it needs to be underlined, as observed in Pappu Deo Yadav (supra) that Courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victim’s having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the judge’s mind, whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right to life under Article 21) of the individual, thus depriving the person of the essence of the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit-pick and award niggardly amounts oblivious of these circumstances, there is resultant affront to the injured victim. [See: Pappu Deo Yadav (supra)]

114Copy pinpoint114. We, therefore, direct the respondent No. 1 herein – insurance company to pay the appellant-claimant the difference in the compensation H

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A awarded herein as against the amount of Rs. 9,26,800/- as awarded by the High Court. The amount awarded by this Court shall be deposited by the respondent No. 1 – insurance company within a period of eight weeks from today after adjusting the amount already deposited. The rate of interest at the enhanced amount is to be the same i.e., 6% per annum.

115Copy pinpoint115. In the result, the appeal is allowed to the aforesaid extent. There shall be no order as to costs.

116Copy pinpoint116. Pending application, if any, stands disposed of accordingly.

Nidhi Jain Appeal allowed. C (Assisted by : Neha Sharma, LCRA)