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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN WEDNESDAY, THE 31ST DAY OF JANUARY 2018 / 11TH MAGHA, 1939 MACA.No. 2312 of 2016 ---------------OPMV. NO. 815/2007 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR. ... APPELLANT/PETITIONER --------------------MINOR BASID, S/O MYMOONA, AGED 15 YEARS, RESIDING AT KARYADATH HOUSE, P.O AKALAD, CHAVAKKAD, THRISSUR DISTRICT, (THE MINOR APPELLANT REPRESENTED HEREIN BY HIS GUARDIAN MOTHER MYMOONA, M/O BASID, RESIDING AT KARYADATH HOUSE, P.O. AKALAD, CHAVAKKAD, THRISSUR DISTRICT). BY ADVS.SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD. RESPONDENTS/RESPONDENTS: -----------------------1.
K.C. SANU, S/O CHANDRAN, RESIDING AT KALATHINKAL HOUSE, P.O. ELAMKARA, THANICKAL, ERNAKULAM- 682 026.
2.
NATIONAL INSURANCE COMPANY LIMITED, BRANCH OFFICE, PARCO TOWERS, P.M. TAJ ROAD, KOZHIKODE- 673 001. R2 BY SRI.MATHEWS JACOB, SENIOR ADVOCATE. ADVS. SRI.P.JACOB MATHEW, SMT.PREETHY R. NAIR, SRI.M.A.GEORGE. SRI.RENJITH THAMBAN, ADDL. ADVOCATE GENERAL. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 13/12/2017, ALONG WITH MACA NO.2514 OF 2016, THE COURT ON 31/01/2018 THE SAME DAY DELIVERED THE FOLLOWING:
rs. 05/03/2018.
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CR P.N.Ravindran & Devan Ramachandran, JJ. ---------------------------------------------------------------M.A.C.A.Nos.2312 & 2514 of 2016 ---------------------------------------------------------------Dated this the 31st day of January, 2018 JUDGMENT Devan Ramachandran, J. There is nothing more tormenting and haunting than the sight of a tear in a mother's eye grieving for her child and there is nothing more daunting than being asked to estimate the value of such tear pecuniarily. 2. We are, in these proceedings, however, left with the most unhappy task of having to so estimate the unestimable. 3. Lest it be mistaken, by the prelude above, the mother- Mrs.Mymoona is not the claimant, but her young son, who was a mere six years of age at the time of the accident. However, by the passage of time of nearly 11½ years now, the mother who has been, for all these years, tending to and caring for her child, who is living in a vegetative state, comes through as the real victim of the terrific accident.
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4. On the fateful day of 24.10.2006, at about 8 p.m., the world of Mrs.Mymoona, the mother of her then 6 year old son, the claimant herein, turned on its head when her son Master Basid was knocked down by a speeding car, driven and owned by the first respondent, while he was innocently standing on the non-motorable area of the ChavakkadPuthuponnani Highway. 5. Every major accident inevitably leaves a legacy of grief. But the extent of grief that this accident gifted Mymoona is inexpressible and incapable of verbal description. It is sometimes said that there is no greater pain for a parent than the death of a child, but this is one case where this to be not so because here we see the unspeakable agony, anguish and undefinable pain of a mother forced to see her small son, full of life until then, being confined to a vegetative state, barely alive and struggling every moment of his life. This agony and pain has continued for the past nearly 11½ years and by the way, it looks now, for the rest of his life. 6. The minor claimant, Master Basid, sustained very serious fatal injuries but providence showed no mercy and he
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still lives with a severely contorted body, in a near comatose state, robbed of all his faculties, confined to the contours and constant care of his mother. 7. On 11.08.2017, Mrs.Mymoona, the mother of the claimant was personally present before us with I.A.No.2705 of 2017 praying inter alia for release of the balance amount of Rs.15,00,000/- deposited by the Insurance Company in Court under the interim orders of this Court issued while staying the execution of the award. We saw her anguish, which by no means has subsided, even to a degree, in the last eleven years but appears to have been aggravated on account of several other misfortunes she had to suffer. She told us that her husband, the father of the claimant, had been extremely diabetic and that the continuous stress that he was forced to endure because of this son's condition, exacerbated his disease, leading to various complications associated with diabetes, requiring amputation of his limbs and finally causing his untimely death a year ago. Her plight is heart wrenching and we are certain that we cannot be blind to it or pretend not to see it.
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8. We propose to dispose of both the above appeals together because both arise from the same award of the Motor Accident Claims Tribunal, one being at the hands of the Insurance Company, assailing the quantum of compensation awarded and the other being by the claimant, seeking enhancement of the compensation awarded by the Tribunal. 9. We have heard Sri.Nimod A.R., learned counsel appearing for the claimant and Sri.Mathews Jacob, learned Senior Counsel, assisted by Sri.Jacob Mathew, appearing for the Insurance Company in both the cases. 10. As we have said above, the aftermath of the accident has left a trail of unimaginable agony both for the victim and his parents. A wood cut of the horrendous accident and its indescribable consequences will have to be first narrated before the issues raised herein can be resolved. 11. The accident occurred on 28.10.2006 at about 8 p.m. while the victim, Master Basid, who was only six years of age at that time, was standing by the side of the ChavakkadPuthuponnani Highway beyond the tarred portion, when a car bearing
Reg.No.KL-7/AC
5558,
driven
by
a
certain
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Sri.K.C.Sanu, arrayed as the first respondent before the Motor Accidents Claims Tribunal, Thrissur and in M.A.C.A.No.2312 of 2016, knocked him down. Even though initially allegations were raised against the minor child and his parents for standing negligently on the road, all such contentions were found against and we notice that the Insurance Company has, in its appeal, namely M.A.C.A.No.2514 of 2016, not raised these issues for our consideration. We, therefore, do not deem it necessary to go into the details of the accident, its cause and the findings of culpability of rash and negligent driving of the vehicle as entered into by the learned Tribunal and we would be justified in concluding all these issues in the same manner as the learned Tribunal. The sole surviving question in these appeals is only as regards the measure and extent of the compensation awarded by the learned Tribunal and whether it requires any escalation or reduction at our hands. 12. An assessment of the award and the measurement of damages for compensation would obviously depend upon the aftermath of the accident on the victim and his family. The materials and evidence on record would show that Master
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Basid was very seriously injured with deep cerebral damage, pushing him into a comatose stage for a very prolonged time in hospitals. The medical reports on record, namely Exhibits A1 to A5, would show that the victim sustained head injury, brain stem injury, Hemorrhagic contusion
in
Subarachnoid
both
thalami
hemorrhage,
and
in
the
Intraventricular
brain bleed
stem, and
Extracranial soft tissue swelling in the left frontal and left parietal region. The effect of all these injuries was that the claimant went into a comatose state without any noticeable improvement thereafter, suffering from paraplegia and 100% physical impairment. The neurological disability was assessed at 100%, thus effectively the victim has remained all these years in a vegetative state. 13. On the basis of these proven medical records, the learned Tribunal granted an amount of Rs.31,05,765/as compensation against the claim for Rs.38,01,000/-. The split up amounts claimed and awarded are as under:
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7
Head of Claim
Amount Claimed (Rs.)
Amount Awarded (Rs.)
1
Loss of Studies
200000
250000
2
Transportation to hospital
100000
100000
3
Extra Nourishment
200000
100000
4
Damages to clothing & articles
1000
1000
5
Medical expenses
300000
288465
6
Personal attendants
300000
166300
7
Compensation for future treatment
300000
500000
8
Compensation for Pain & suffering
700000
250000
9
Compensation for continuing permanent disability
800000
600000
10 Compensation for loss of earning power
500000
300000
11 Compensation for loss of amenities of life
400000
250000
12 Compensation for shortened expectancy of life
-
300000
3801000
3105765
Total
14. Sri.Nimod.A.R., the learned counsel appearing for the claimant, submits that the minor child, who is now 16 or 17 years of age, continues in the same debilitating physical situation he was pushed into after the accident even today. The learned counsel says that the young boy has remained virtually lifeless for the last more than eleven years without being able to move any part of his body in a totally vegetative stage and that he is under the constant care of his loving family and particularly his mother, every moment of the day,
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since he requires assistance for every bodily and physical activity, being unable to do anything on his own. He impresses upon us the rather horrendous consequences of the accident by telling us that the child's body is severely contorted and that he is alive is only because his internal organs and vital metabolism are still functional in his neurologically destroyed body and thus his life still goes on. He even tells us that the sight of the child is intolerable to any sensitive mind and he says that his condition is as nothing else seen before. 15. Sri.Mathews Jacob, the learned Senior Counsel appearing for the Insurance Company, we must say, was very fair in his submissions. He has dealt with the issues in this case in a very sensitive manner and his submissions are laced with a great degree of sympathy and concern for the child. He does not contest any of the submissions of Sri.Nimod with respect to the present physical condition of the child but confines his submissions to the extent of compensation in such cases and the correctness of the award passed by the learned Tribunal on certain heads in the afore-extracted table.
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16. The normal and conventionally accepted concepts, norms and principles of reparation and compensation for tortuous liability seem enervated and gelded in the facts of this case. We are uncertain if any conventional yardstick in determining
the
compensation
would
obtain
sufficient
reparation to the claimant or his mother. Our endeavour, hence, within legal limits, is to make sure that the claimant is compensated in the most adequate manner so as to maintain his life with the maximum possible care, comfort and dignity. 17. In order to gauge the present physiological and psychological condition of the claimant, we had, by order dated 18.08.2017, requested Sri.Renjith Thampan, the learned Additional Advocate General, to assist us as amicus curiae, in constituting a competent team of doctors to visit the child at his residence. Sri.Renjith Thampan rose to the occasion admirably and was able to have a team of doctors from the Medical College Hospital, Thrissur, comprising of a competent Neurosurgeon, Orthopaedician, Paediatrician, Pulmonologist and a Physician to visit the child and to assess his present condition. A report dated 21.08.2017 has been placed on
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record and their opinion about the child's pathological, physiological and psychological conditions is horrendous to say the least. The report deserves full reading and we extract it as under: MEDICAL BOARD REPORT As per the direction of the Honorable High Court MACA 2312, 2514 of 2016 dated 18.08.2017 a Medical Board constituting of following specialist doctors visited the patient Basid, 16 yrs at his residence at Akalad, Chavakkad on 21.08.2017, 11.30 am. The Following Members were Present: 1. Dr.Biju Krishnan.R., Prof of Neurosurgery
: Chairman
2. Dr.Jacob P.J., Addl. Prof. of Orthopaedics
: Member
3. Dr.Muraly C.P., Assoc Prof of Pulmonology
: Member
4. Dr.Renny Isaac, Assoc Prof of General Medicine : Member 5. Dr.Lathika Nair, Asst Prof of Paediatric
: Member
As per the records available Master Basid had sustained the following injuries in an RTA on 24.10.2006 - Traumatic Brain injury, Brainstem injury, hemorrhagic contusion both thalami and brainstem, Subarachnoid hemorrhage, Intraventricular hemorrhage. He had prolonged treatment at various hospitals since then and is on continued treatment till date. ID Marks: 1. Black mole on left upper chest 2. Black mole on right upper anterior abdominal wall On clinical examination the child is seen to be ina minimally conscious state with roving eye movements, tachyphoea, chest crepitations, opipisthotonus posturing, completely bedridden
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with limb contractures and complete incontinence of bowel and bladder. He requires assistance for all daily activities, feeding, grooming, dressing and other activities. He needs full time nursing care, medication and physio therapy. Average monthly expenditure calculated is around Rs.25,000/-. He needs repeated hospital visit once in 2-3 months for recurrent respiratory infection and other illness. He suffers from 100% permanent whole body disability as a result of the accident. Possible treatment that can be given are 1. Regular physiotherapy 2. Nursing and supportive Care - round the clock 3. Hospitalization for recurrent respiratory infection 4. Antiepileptics and other medications.
The report also contains the present photographs of the child, which would shock the conscience of even the most battleweary minds. We deem it appropriate that those photographs also form part of this judgment and for such purpose they are scanned and attached herein as an appendix. 18. The medical opinion, as aforesaid, was framed by the experts after examining the victim on 21.08.2017, which is more than 11 years after the accident. The condition of the child has not improved one bit in all these years and on the contrary, the report would indicate that it has actually become
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worse. The medical report says that he requires assistance for every activity, including feeding, grooming and dressing and that he requires full time nursing care, medication and physio therapy along with hospital visits once in two or three months on account of respiratory and other illness. We notice that the medical report says that the present average monthly expenditure for his medical care would be Rs.25,000/-. 19. It is in the background of the factual situation as afore determined by us that we will now be required to consider the merits of these appeals. 20. As we have indicated above, the claimant has come up with the appeal seeking enhancement of compensation because the amounts awarded by the learned Tribunal, which had been fully released to the claimant as per order dated 11.08.2107, would not be sufficient to take care of his future treatment since even assuming that for the last eleven years an amount of Rs.20,000/- per month had been expended for his medical care, more or less the entire amount awarded by the learned Tribunal would have been wiped off leaving no provision for future care and protection of the child.
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21. The Insurance Company, on the other hand, contends that the compensation awarded by the learned Tribunal is excessive, since the learned Tribunal has awarded amounts under multiple heads, even though, as per them, all such heads should have been construed to be one and compensation
awarded
accordingly.
The
learned
Senior
Counsel says that since Rs.6,00,000/- was granted by the learned Tribunal as compensation for continued permanent disability, the additional amounts granted towards loss of earning power, loss of amenities of life and loss of studies is superfluous and unnecessary. In effect, the submission of the learned Senior Counsel is to the effect that even though the victim deserves to be compensated adequately, the amounts now granted under various heads cannot be allowed to sustain. 22. On the issues regarding proper compensation under the various heads, our path is guided by the several judgments of the Hon'ble Supreme Court. 23. The imperative requirement for just compensation and the considerations in arriving at such have been spoken to
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by the Hon'ble Supreme Court in K.Suresh v. New India Assurance Company Limited and Another ((2012) 12 SCC 274). The view of the Hon'ble Court is available in paragraphs 7 and 10 of the said judgment, which reads as under: “7. While assessing the damages there is a command to exclude considerations which are in the realm of speculation or fancy though some guesswork or some conjecture to a limited extent is inevitable. That is what has been stated in C.K.Subramania Iyer v. T. Kunhikuttan Nair ((1969) 3 SCC 64). Thus, some guess work, some hypothetical considerations and some sympathy come into play but, a significant one, the ultimate determination is to be viewed with some objective standards. To elaborate, neither the Tribunal nor a court can take a flight in fancy and award an exorbitant sum, for the concept of conventional sum, fall of money value and reasonableness are to be kept in view. Ergo, in conceptual eventuality “just compensation” plays a dominant role. 10. It is noteworthy to state that an adjudicating authority, while determining the quantum of compensation, has to keep in view the sufferings of the injured person which would include his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as much as he used to earn or could have earned. Hence, while computing compensation the approach of the Tribunal or a court has to be broad based. Needless to say, it would involve some guesswork as there cannot be any mathematical exactitude or a precise formula to determine the quantum of compensation. In determination of compensation the fundamental criterion of “just compensation” should be inhered.”
24.
Thus,
circumscribed
courts
perimeters
are of
to
act within its
powers
the
legally
to
award
compensation in such cases, which will have to be just and
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need based, as far as possible. 25.
In
the
case
at
hand,
the
assessment
of
compensation would, to a large extent, be underpinned on the various medical reports available as also on the medical opinion
dated
21.08.2017
obtained
by
this
Court
as
aforementioned. As we have seen above, the Tribunal has awarded an amount of Rs.31,05,765/-, out of which the learned Senior Counsel takes objection to the amounts granted under the heads of 'loss of studies', 'loss of earning power' and 'loss of amenities of life' because, according to him, the amounts awarded by the learned Tribunal under the head 'compensation for continued permanent disability' would subsume all these heads. This submission, we feel, should be tested on the standards enumerated by the Hon'ble Supreme Court in various judgments that were brought to our attention by both sides. 26. In Ramesh Chandra v. Randhir singh and Others ((1990) 3 SCC 723) the Hon'ble Supreme Court, while considering the disability to earn livelihood in future, held that the amounts under that head can be awarded notwithstanding
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the grant of compensation under the head pain and suffering and loss of enjoyment of life. Their Lordships clearly say that one head relates to impairment of a person's capacity to earn, while the other relates to pain and sufferings and loss of enjoyment of life. The view of the Hon'ble Court is available in paragraph 7 of the judgment, which is as under: “With regard to ground XIX covering the question that the sum awarded for pain, suffering and loss of enjoyment of life etc. termed as general damages should be taken to be covered by damages granted for loss of earnings is concerned that too is misplaced and without any basis. The pain and suffering and loss of enjoyment of life which is a resultant and permanent fact occasioned by the nature of injuries received by the claimant and the ordeal he had to undergo. If money be any solace, the grant of Rs.20,000 to the claimant represents that solace. Money solace is the answer discovered by the Law of Torts. No substitute has yet been found to replace the element of money. This, on the face of it appeals to us as a distinct head, quite apart from the inability to earn livelihood on the basis of incapacity or disability which is quite different. The incapacity or disability to earn a livelihood would have to be viewed not only in praesenti but in futuro on reasonable expectancies and taking into account deprival of earnings of a conceivable period. This head being totally different cannot in our view overlap the grant of compensation under the head of pain, suffering and loss of enjoyment of life. One head relates to the impairment of person’s capacity to earn, the other relates to the pain and suffering and loss of enjoyment of life by the person himself. For these reasons, we are of the considered view that the contentions raised by the truck owner appellant in that behalf must be negatived and we hereby negative them.”
27.
In
B.Kothandapani
v.
Tamil
Nadu
State
Transport Corporation Limited ((2011) 6 SCC 420), the
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Hon'ble Supreme Court held, following the view in Ramesh Chandra (supra), that the compensation for permanent disability cannot exclude compensation under other heads. This view was recorded in paragraph 15 of the said judgment, which is as under: “It is true that the compensation for loss of earning
power/capacity has to be determined based on various aspects including permanent injury/disability. At the same time, it cannot be construed that compensation cannot be granted for permanent disability of any nature. For example, take the case of a non-earning member of a family who has been injured in an accident and sustained permanent disability due to amputation of leg or hand, it cannot be construed that no amount needs to be granted for permanent disability. It cannot be disputed that apart from the fact that the permanent disability affects the earning capacity of the person concerned, undoubtedly, one has to forego other personal comforts and even for normal avocation they have to depend on others .”
28. A few months later, the Hon'ble Supreme Court again had an opportunity to consider these issues relating to award of compensation under separate heads towards future treatment, loss of studies, loss of earning capacity and even marriage prospects in Ibrahim v. Raju and Others ((2011) 10 SCC 634) and it was held as under: “One can reasonably expect that the appellant who was only
18 years old at the time of accident would live for at least next 50 years. The Tribunal awarded Rs.20,340 for expenses incurred by the appellant for treatment taken by him in the
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hospital. Although, Dr.Thomas did not indicate the approximate expenditure likely to be incurred by the appellant and his family for future treatment, keeping in view the nature of injuries and the fact that he will have to take treatment for the remaining life, it will be reasonable to infer that he will be required to spend a minimum of Rs. 1000/- per month for future treatment, which would necessarily include fees of the doctors, medicines, transportation, etc. In the absence of concrete evidence about the anticipated expenditure, we think that ends of justice will be met if the appellant is awarded a sum of Rs 2 lakhs which, if deposited in a fixed deposit, would earn an interest of Rs 14,000 to 16,000 per annum. 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 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. The compensation awarded for loss of future earning on account of permanent partial disablement is ex facie unreasonable. Respondent 3 did not produce any evidence to controvert the appellant's assertion that on account of the injuries suffered in the accident, he had to abandon his studies. The consequences which followed were extremely grave inasmuch as he lost all opportunities for making a career in future. The prospects of the appellant's marriage are extremely bleak. Therefore, a sum of Rs 2 lakhs deserves to be awarded under these heads .”
29. In Kavitha v. Deepak and Others ((2012) 8 SCC 604), the Hon'ble Supreme Court reminded the Tribunals and other
courts
that
while
determining
the
quantum
of
compensation, either for permanently or temporarily disabled
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persons, effort must be made to adequately compensate them not merely for physical injury and treatment but also for loss of earning, inability to lead a normal life and to enjoy life's amenities. This emphatic view is contained in paragraph 19, which reads as under: “In
the 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.”
30. A similar view has been taken by the Hon'ble Supreme Court in Subulaxmi v. Managing Director, Tamil Nadu State Transport Corporation and Another ((2012) 10 SCC 177), which is available in paragraphs 5, 6 and 9 of the said judgment, which, for ease of reference, is extracted as under: “5. At the outset, it is requisite to be stated that the facts as
have been adumbrated are not in dispute. Therefore, first we shall advert to the issue whether the High Court was justified in awarding compensation on a singular head relating to permanent disability and loss of future earning.
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In K. Suresh v. New India Assurance Co. Ltd., after referring to Ramesh Chandra v. Randhir Singh and B.Kothandapani v. T.N. State Transport Corpn. Ltd , this Court expressed the view that compensation can be granted towards permanent-disability as well as loss of future earnings, for one head relates to the impairment of person’s capacity and the other relates to the sphere of pain and suffering and loss of enjoyment of life by the person himself. The Bench also relied upon Laxman v. Oriental Insurance Co. Ltd, wherein it has been laid down thus: (SCC p. 762, para 15)
"15. The ratio of the above noted 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 normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.” 6. Be it noted, the High Court has granted Rs 20,000 for pain and suffering and Rs 10,000 for loss of amenities. In this context, we may profitably refer to Govind Yadav v. New India Insurance Co. Ltd, wherein this Court after referring to the pronouncements in R.D. Hattangadi v. Pest Control (India) (P) Ltd., Nizam’s Institute of Medical Sciences v. Prasanth S. Dhananka, Reshma Kumari v. Madan Mohan, Aravind Kumar Mishra v. New India Assurance Co. Ltd. and Raj Kumar v. Ajay Kumar has laid down as under: (Govind Yadav case, SCC p. 693, para 18)
”18. In our view, the principles laid down in Aravind Kumar Mishra v. New India Assurance Co. Ltd. and Raj Kumar v. Ajay Kumar must be followed by all the Tribunals and the High Courts in determining the quantum of compensation payable to the victims of accident, who arc disabled either permanently or temporarily. If the victim of the accident suffers permanent 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
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amenities, which he would have enjoyed but disability caused due to the accident ”
for the
9. In the case at hand, the Tribunal had awarded a sum of Rs.86,000 towards the permanent disability. The High Court has deleted it. The said deletion as per our above discussion is impermissible. In our considered opinion regard being had to the nature of injury suffered and further taking note of the date of accident, a sum of Rs.1,00,000 on this head would be appropriate and, accordingly, we so determine .”
31. In the year 2013, a question arose before the Hon'ble Supreme Court, whether compensation in a motor vehicle accident can be paid to the claimant both under the heads loss of earning capacity as well as permanent disability. Their
Lordships
in
the
judgment
in
Manickam
v.
Metropolitan Transport corporation Ltd. (2013) (3) KLT 248) declared affirmatively that this can be done, which view is extracted below: “This Court, in Ramesh Chandra v. Randhir Singh & Ors. (1990 (2) KLT SN 6 (C.No.9) SC = (1990) 3 SCC 723), has categorically held that compensation can be payable both for loss of earning as well as disability suffered by the claimant.
In addition to the same, in B. Kothandapani v. Tamil Nadu State Transport Corporation Limited (2011 (3) KLT SN 31 (C.No. 32) SC = (2011) 6 SCC 420), this Court (speaking through one of us) after considering the Full Bench decision of the Madras High Court in Cholan Roadways (supra), disagreed with the said view and granted separate compensation under the head permanent disability even after grant of compensation under loss of earning/earning capacity.”
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32. The sum total of the ratio in all the above cases is obviously luculent that the courts are to abjure speculation and conjunctures while assessing damages, but that it can award amounts under multiple heads, as long as its endeavour is to ensure that just compensation is obtained to the victim. There is also an added obligation on the part of the courts, while assessing just compensation, to keep in mind that there is a distinction between pecuniary and non-pecuniary damages and compensation. The distinction of these two concepts was clearly stated by the Lordships of the Hon'ble Supreme Court in Jai Bhagwan v. Laxman Singh and Others ((1994) 5 SCC 5), wherein, in paragraph 10 thereof, reference was made to Clerk and Lindsell on Torts. The said paragraph, for ease of reading, is extracted ut infra: “In Clerk and Lindsell on Torts (16th Edn.), referring to damages for personal injuries, it is stated: “In all but a few exceptional cases the victim of personal injury suffers two distinct kinds of damage which may be classed respectively as pecuniary and non-pecuniary. Bu pecuniary damage is meant that which is susceptible of direct translation into money terms and includes such matters as loss of earnings, actual and prospective, and out-of-pocket expenses, while non-pecuniary damage includes such immeasurable elements as pain and suffering and loss of amenity or enjoyment of life. In respect of the
MACA 2312 &2514/16
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former, it is submitted, the court should and usually does seek to achieve restitutio in integrum in the sense described above, while for the latter it seeks to award 'fair compensation'. This distinction between pecuniary and non-pecuniary between 'special' and 'general' damages, for while the former is necessarily concerned solely with pecuniary losses - notably accrued loss of earnings and out-of-pocket expenses - the latter comprises not only non-pecuniary losses but also prospective loss of earnings and other future pecuniary damage.” As to awards for non-pecuniary losses, the learned authors say: “Non-pecuniary losses are different from pecuniary losses in that the restitutio in integrum objective cannot be applied liberally to them - damages cannot restore a lost limb or happiness. While there is some disagreement as to the function of non-pecuniary damages, many would agree with the royal Commission's suggestions that they serve as a palliative, or provide the plaintiff with the means to purchase alternative forms of happiness, or help to meet hidden expenses caused by injury. While the practice of the courts is not to subdivide non-pecuniary damages under specific heads, nevertheless proper consideration cannot be given to the plaintiff's claim without taking into account the various types of loss he has suffered.”
33. From the touch stone of the ratio in the above judgments, we have examined the heads under which compensation was awarded by the learned Tribunal, which award is impugned herein by the Insurance Company in M.A.C.A.No.2514 of 2016. As is available from the aforeextracted
table,
the
learned
Tribunal
has
awarded
MACA 2312 &2514/16
24
Rs.2,50,000/- under the head 'loss of studies', Rs.3,00,000/- for 'loss of earning power' and Rs.2,50,000/- for 'loss of amenities of life'. In addition to this, an amount of Rs.3,00,000/- has been awarded, even without it being sought for in the claim petition, under the head 'shortened expectation of life'. These amounts were awarded by the learned Tribunal noticing the rather peculiar and singular condition of the victim, who was in a completely vegetative state even at that time and who unfortunately continues to be so even today. Even though an amount of Rs.6,00,000/- was awarded for 'continued physical disability', which disability now appears to be incapable of being ever remedied, going by the ratio of the various judgments above, the victim cannot be denied compensation for loss of amenities of life or for loss of earning power, since these are two different concepts, once relating to the disability and its agony while the other relates to loss of amenities and the attributes of a meaningful and happy life, which have now been lost for ever to the victim. In that perspective, even loss of studies is not merely a limb to be attached to the condition of permanent disability but one that has robbed the child of a
MACA 2312 &2514/16
25
worthy life, which he would have otherwise had, but for the accident. Similarly, the compensation awarded for shortened expectation of life also cannot be faulted since there is no guarantee now for the life expectancy of the child and it is nothing but a miracle that he has survived in spite of his extremely debilitating physical condition. 34. Notwithstanding our view above and in any event of the matter, the compensation under all these heads put together is only Rs.17,00,000/-. Even assessing the case of the Insurance Company to be justified that several heads would subsume to the head of 'permanent disability', we are certainly of the view that the sum of Rs.6,00,000/- awarded as compensation under the head permanent disability cannot be said to be just and fair compensation. This is because, even going by the latest medical report, more than Rs.25,000/- per month has to be spent to protect the child's life with apposite medical facilities. As we have already said above, since the victim has lived more than 11 years in the same condition, we cannot be blind to the situation that the entire amount of Rs.31,05,765/- awarded by the Tribunal would have been
MACA 2312 &2514/16
26
completely expended for his treatment for the last so many years, if not much more. This is also the specific plea of the victim, as voiced through his mother in M.A.C.A.No.2312 of 2016 and under the circumstances presented before us, it will lead us to fully endorse the credibility of these statements. 35. In such view of the matter, we cannot, in the rather peculiar circumstances of this case, find that the amounts awarded by the learned Tribunal under multiple heads to be improper because in any event, the compensation under the head permanent disability would by itself be woefully sufficient. Hence, even if we are to accept the submissions of the learned Senior Counsel that all these heads will subsume under the head 'permanent disability', the sum total of all the amounts now awarded under such multiple heads will still be insufficient. We, therefore, cannot find favour with the case of the Insurance Company against the amounts now awarded by the learned Tribunal. 36. That being said, we propose to now consider M.A.C.A.No.2312 of 2016 filed by the victim, represented by his mother (He was earlier represented by his father, who is
MACA 2312 &2514/16
27
now no more, as we have noticed earlier). We are aware that in
Master
Mallikarjun
v.
Divisional
Manager,
The
National Insurance Company Limited & Anr. (2013 (3) KLJ 815), the Hon'ble Supreme Court, while considering the question as to fair compensation to be awarded to a child, who suffered a disability in a motor accident, declared that the minimum compensation in such cases should be Rs.3,00,000/-, if the child suffers whole-body disability between 10% to 30%, Rs.4,00,000/- for disability up to 60%, Rs.5,00,000/- for disability up to 90% and Rs.6,00,000/-, if the disability is above 90%. It is pertinent that their Lordships did not fix this as an inviolable
standard
and
declared
that
in
exceptional
circumstances, the Tribunals and courts would be empowered to grant more as per the factual requirements to be assessed from case to case. The view of the Hon'ble Supreme Court in the said case, in fact, intended to help such children suffering from injury is available in paragraphs 8 and 12 thereof, which is as under: “The main elements of damage in the case of child victims
are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to
MACA 2312 &2514/16
28
acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. Appropriate compensation for disability should take care of all the non-pecuniary damages. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation, etc. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1lakh, unless there are exceptional circumstances to take different yardstick.”
37. The standards for determining the compensation in the case of children were also considered by the Hon'ble Supreme Court in Kumari Kiran Through Her Father Harinarayan v. Sajjan Singh and Others ((2015) 1 SCC 539). The views of the Hon'ble Court were of course with respect to a child who had sustained injuries but with prospect of a much better life in future. In the case at hand, the situation is completely different. There is no hope for this child, even as per the latest medical report, of attaining even a semblance of dignified life and his condition has worsened in the last 11 years. The judgment of the Hon'ble Supreme Court
MACA 2312 &2514/16
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in Kumari Kiran (supra) is also important because it takes note of the agony of the parents, forced to be endured by them, for no fault of theirs but on account of an accident, over which they had no control. A similar view was taken by the Hon'ble Supreme Court in M/s.Spring Meadows Hospital and another v. Harjol Ahluwalia through K.S.Ahluwalia and another (AIR 1998 SC 1801), wherein the orders of the Consumer Disputes Redressal Commission, in the case of compensation claimed by a minor child from a hospital on account of wrong treatment, was challenged. Their Lordships, after dealing with the requirements of just compensation, held that the agony of the parent should also be one of the factors, since their sorrow will continue for the whole life seeing their child in a vegetative state on account of the negligence of the hospital authorities. The observations of the Hon'ble Court in the said judgment are as under: “In the case in hand the Commission has awarded
compensation in favour of the minor child taking into account the cost of equipments and the recurring expenses that would be necessary for the said minor child who is merely having a vegetative life. The compensation awarded in favour of the parents of the minor child is for their acute mental agony and the life long care and attention which the parents would have to bestow on the minor child. The award of compensation in respect of respective consumers are on
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30
different head. We see no infirmity with the order of the Commission awarding different amount of compensation on different head, both being consumers under the Act. Accordingly, the Commission in our considered opinion rightly awarded compensation in favour of the parents in addition to the compensation in favour of the minor child. The learned counsel for the appellants in course of his argument has contended that not only the hospital authorities had immediately on their own taken the assistance of several specialists to treat the child but also even after the child was discharged from the All India Institute of Medical Sciences, humanitarian approach has been taken by the hospital authorities and child has been taken care of by the hospital even without charging any money for the services rendered and consequently in such a situation the award of damages for mental agony to the parents, is wholly unjustified. We, however, fail to appreciate this argument advanced on behalf of the learned counsel for the appellants inasmuch as the mental agony of the parent will not be dismissed in any manner merely seeing the only child living a vegetative state on account of negligence of the hospital authorities on a hospital bed. The agony of the parents would remain so long as they remain alive and the so-called humanitarian approach of the hospital authorities in no way can be considered to be a factor in denying the compensation for mental agony suffered by the parents.”
38. We are also certainly aware that compensation cannot be awarded merely on grounds of sympathy and we are cognizant that it must be the duty of the Tribunal or the Court to assess just compensation not merely from the standards of subjective sympathy it may have for the victim, but only with the avowed intent of assessing the damages commensurate to the injury and the condition of the victim.
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31
39. In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka and Others ((2009) 6 SCC 1) the Hon'ble Supreme Court spoke on this issue as under: “We must emphasise 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 thumb measure, and as a balance has to be a 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 visualised. 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 visualise 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
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32
a steady and reasonable income to him for a time when he is unable to earn for himself .”
Pertinently, as is clear from the extracted portions of the said judgment, the Hon'ble Court also emphasised the need of the tribunals and courts to be cognizant of the distress of the family of the victim and, in fact, even said that such agony would be greater if the victim is completely confined to bed than in the case of death. Their Lordships held that when a victim is permanently confined to bed, the feeling of helplessness and even destitution inures every day. 40. The view in Nizam's Institute (supra) was referred to approvingly by the Hon'ble Supreme Court in many cases later and in particular, in Ibrahim (supra) and Kavitha (supra). Similar views were expressed by the Hon'ble Supreme Court in R.Ayyavu and Anr. v. Gopinathan Nair and Anr. (AIR 1991 ACJ 718), which are as follows: “A Division Bench of this Court, following the decisions in Taff Vale Railwayco. v. Jenkins 1913 AC 1, Blake v. Midland Rly. Co. (1852) 188 QB 93 and C.K.SubramaniaIyer v. T.Kunhikuttan Nair 1970 ACJ 119(SC), held that the mere fact that the children were not earning any money or money's worth would not disentitle their parents from claiming the full benefits under the Act. (It was a case under the Fatal Accidents Act, 1855). Of course, the court also observed that “In the absence of statutory guidelines, the court has to make an estimate of the pecuniary loss suffered
MACA 2312 &2514/16
33
by the members of the family of the deceased. Greater value is attributed to life while the purchasing power of the Rupee has considerably diminished. Sentiments indeed have no place, but the court has to evaluate the pecuniary loss resulting from death on the basis of a proper appreciation of the relevant circumstances and hard realities. In doing so, the court has to take into account all reasonable probabilities of future benefits, but exclude, from its consideration all fancied or bare possibilities or speculative conjectures.” In other words, the damages are to be based on the reasonable expectation of pecuniary benefit and on other non-pecuniary benefit. In the decision in Neelakantanachani Velayudhanachari v. Kerala State Road Transport corporation 1977 ACJ 474 (Kerala), the court said that non-pecuniary loss such as mental suffering and anguish on the eternal loss of a spouse or a child will be excluded from the computation of damages. What is payable under the section is not a solatium for injured feelings. The opinion expressed by the Division Bench, we feel, cannot be justified with the provision in the Motor Vehicles Act providing for no fault liability. If the victim was a person who is incapable of making any pecuniary gain or may be a person who was really a burden to the living relative or one who could have contributed to the financial needs of his family and parents, no distinction is seen made on the basis of the pecuniary capacity of the victim in making the payment to the legal representatives under the no fault liability. We are of opinion that the concept of no fault liability irrespective of the fact that the victim was a person who was not in a position to give any pecuniary contribution to the relatives points to the humane approach of the Indian law. We feel the Indian jurisprudence has taken into consideration the anguish, agony and the mental suffering of the living spouse and parents on the death of the victim by providing a provision for payment of compensation under no faulty liability.”
41. The facts of this case ineluctably lead us to an inference, which is not merely an inference but virtually a certainty that the victim in this case, Master Basid, may not be able to move his body again. It is more or less certain, as is
MACA 2312 &2514/16
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also confirmed by the medical report dated 21.08.2017, that he will continue to be in an minimally conscious state with roving
eye
moments,
tachypnoea,
chest
crepitations,
opisthotonos posturing and that he would be completely bed ridden for the rest of his life, without any control of his body, bowel or bladder. The medical board also says, as we have already seen earlier, that the average monthly expenditure in future would be about Rs.25,000/-. 42. The pleadings and materials on record would make it indubitable to us that the claimant's family does not have any other access to resource to generate this amount and it is needless to say that his mother would not be in a position to even leave the house, much less to find an employment, so as to provide for her family. We have already told that the father of the claimant is now no more, leaving the entire burden of taking care of him on his mother's exclusive shoulders. The learned counsel for the claimant affirms that the amount of Rs.31,00,000/- awarded by the learned Tribunal and already released to the mother, has been all used up to pay for the medical expenses and to repay the substantial loans and
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35
borrowings made by the parents in the past to finance his medical requirements. Sri.Nimod says that even though there is no guarantee as to the life expectancy of the victim, as long as he is alive the monthly expenses will have to be met, which, for the time being though assessed as Rs.25,000/-, would certainly escalate in future. 43. We find great force in the submissions of Sri.Nimod and we are of the view that necessary provisions will have to be made to ensure that a minimum of Rs.25,000/is received by the family to defray the medical expenses of the victim in future. Going by the present rates of interest offered by the Banks and other financial institutions in order to generate a minimum amount of Rs.25,000/- per month, it would certainly be necessary to have a corpus of at least Rs.35,00,000/- (Rupees thirty five lakhs only). This corpus will require to be invested in fixed deposits to generate the requisite amount and we are of the firm view that this Court will be justified, on account of the extremely singular and horrific physical condition of the claimant, to offer an additional amount of Rs.35,00,000/- as compensation under
MACA 2312 &2514/16
36
the head expenses for future treatment. In the award of the learned Tribunal, only an amount of Rs.5,00,000/- has been granted for future treatment, which, we think, is woefully insufficient. 44.
We,
therefore,
award
a
further
sum
of
Rs.35,00,000/- (Rupees Thirty five lakhs only) under that head, to be deposited by the Insurance Company in a fixed deposit opened in the joint names of the claimant and his mother in a nationalised bank with a rider that except under the orders of this Court, the corpus of Rs.35,00,000/- or any part thereof will not be drawn even by the mother, however, entitling her to withdraw the interest portion of the deposit on a monthly or quarterly basis, as she may desire, so as to take care of the monthly expenses of the claimant Master Basid. A mother's lost life: 45. Before parting with these appeals, we think that this is a case wherein we cannot be purblind to the travails of a mother who has been living for the last more than 11 years in the unfathomable misery of watching her child living in a state worse than death. The suffering of this mother is not a
MACA 2312 &2514/16
37
singular event - it is a continuous loss that unfolds slowly over time. Every birthday, holiday and milestone presents her, not joy but agony and more agony. The school years, the wedding that will never be, grandchildren who will never be born - an entire generation is altered forever. The grief lasts for ever the ripple effect is unceasing. There is no moving on, no fix, no solution. There seems no end to the ache, no elixir for the pain and the grief and anguish for ever. A mother will, however, never fail her child unless her heart fails her first. We cannot even think of such a day - God forbid. 46. As we have already seen above, the Hon'ble Supreme Court has spoken about the inviolable need of considering the pitiable condition of parents in such situation and we are certainly of the view that this is a case where the mother will also have to be compensated for her unceasing agony. The excruciating misery that she is going through has already been noticed by us in paragraph 7 ut supra and we see that her family has been decimated by this one accident. She has lost her husband to diabetes, which was aggravated on account of continually seeing his child in misery, leading to his
MACA 2312 &2514/16
38
untimely death. We are told that she has a daughter, who is now stated to be married away and that she finds some solace only from her. However, the daughter cannot be expected to be in charge of Master Basid, she having her own personal and family commitments, thus constraining the mother Mrs.Mymoona virtually to a life of self imposed incarceration within the four walls of her house, tending to her precious son. 47. We made some effort to see whether we could locate
any
precedent
in
this
area
which
sanctions
compensation to parents in such cases and we notice that the Hon'ble Supreme Court has, in Raman v. Uttar Haryana Bijli Vitran Nigam Limited and Others ((2014) 15 SCC 1), after considering many of the judgments afore-cited, held that in cases like this, the parents would also be entitled to compensation, while approving the order of the High Court directing Rs.30,00,000/- to be deposited in the name of the claimant and his parents and entitling the parents to succeed to such money in the event they survive the victim.
MACA 2312 &2514/16
39
48. We are guided to consider award of compensation to Mrs.Mymoona in this case because, as we have said above, her life is virtually lost and she has been robbed of all happiness and peace in her life for over 11 years, which looks to certainly continue for the rest of her life, thus confining her in unending grief. She has lost her life without any hope for any difference in future and we believe that it is up to the respondents to compensate for her Lost Life. Even though no amount of money will be sufficient for this, we deem it apposite to award the sum of Rs.15,00,000/- to Mrs.Mymoona, in addition to the amounts awarded to the claimant. It is ordered
accordingly.
consequently
be
The
required
Insurance to
deposit
Company this
amount
will of
Rs.15,00,000/- in the name of Mrs.Mymoona for a period of five years and she would be entitled to withdraw the interest for this amount also without any reservation. Needless to say, after the said five year period is over, she would be entitled to the proceeds of the deposit. In the result, (a) M.A.C.A.No.2514 of 2016 filed by the Insurance
MACA 2312 &2514/16
40
Company is dismissed, upholding the award passed by the learned Tribunal under all the heads. (b) M.A.C.A.No.2312 of 2016 filed by the claimant is allowed enhancing the amount awarded under the head 'compensation for future treatment' by a further amount of Rs.35,00,000/-
(Rupees
Thirty
five
lakhs
only)
and
by
additionally awarding a sum of Rs.15,00,000/- (Rupees Fifteen lakhs only) to Mrs.Mymoona, the mother of the claimant. The Insurance Company will deposit the sum of Rs.35,00,000/- in a nationalsed bank under a fixed deposit in the joint names of Master Basid and Mrs.Mymoona. The mother, Mrs.Mymoona, will be entitled to draw the interest on this fixed deposit on a monthly or quarterly basis, as she may be advised, so as to defray the medical and living expenses of Master Basid. This fixed deposit will continue till such time as further orders are issued by this Court/Tribunal or till the life time of Master Basid. The Insurance Company is further directed to deposit the sum of Rs.15,00,000/-, that we have found to be eligible to Mrs.Mymoona, the mother of Master Basid, in addition to the amounts awarded to him afore, in a nationalised Bank in the
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name of Mrs.Mymoona for a period of five years. This deposit shall be made by the Insurance Company within a period of three months from the date of receipt of a copy of this judgment, failing which it will carry interest at the rate of 9% per
annum
from
that
date
until
it
is
so
deposited.
Mrs.Mymoona will be entitled to withdraw interest on such deposit on a monthly or quarterly basis, as she may be advised and after the term of the said fixed deposit expires, she will be entitled to appropriate the same to herself.
Sd/-
P.N.Ravindran, Judge
Sd/-
tkv
Devan Ramachandran, Judge
