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PETITIONER: R.D. HATTANGADI

       Vs.

RESPONDENT: PEST CONTROL (INDIA) PVT. LTD.

DATE OF JUDGMENT06/01/1995

BENCH: SINGH N.P. (J) BENCH: SINGH N.P. (J) AHMADI A.M. (CJ)

CITATION:  1995 AIR  755            1995 SCC  (1) 551  JT 1995 (1)   304        1995 SCALE  (1)79

ACT:

HEADNOTE:

JUDGMENT: The Judgment of the Court was delivered by N.P  SINGH,  J.- The appellant met with  an  accident  while travelling in an Ambassador car (Registration No. MEQ  4583) on  20-5-1980  at  about 8.30 a.m.  near  Village  Sirur  on Karwar-Mangalore  Road (National Highway No. 17) within  the State  of Karnataka.  There was a head-on collision  between the car in which the appellant was travelling and the  motor lorry  (Registration  No. MYS 7218).  Because  of  the  said collision, the driver of the car in which the appellant  was travelling was thrown out and died on the spot, whereas  the appellant  was trapped between the dashboard and  the  seat. Mr Nagarkatti who was also travelling with the appellant  in the  car was thrown on the road.  The impact was  so  severe that  the front left side of the door of the car was  jammed and could not be opened.  Seeing the accident, the villagers gathered  and broke open the left side of the car  with  the help  of  crowbar  and the appellant  was  taken  out.   The appellant was removed to the Kasturba Hospital where he  was treated as indoor patient from 20-5-1980 to 27-5-1980.  When the  relations  of  the appellant reached  the  hospital,  a decision  was  taken to remove the appellant to  Bombay  and accordingly  on 27-5-1980 he was brought to Bombay  and  was admitted  in the Sion Hospital.  The appellant  remained  in the  said hospital as indoor patient from 27-5-1980 to  2-8- 1980.   Because  of  the accident,  the  appellant  suffered serious  injuries  resulting  into  100%  disability  and  a paraplegia below the waist. 2. The car was owned by M/s Pest Control (India) Pvt.  Ltd., Respondent 1   and  was  insured with  New  India  Assurance Company Limited, Respondent 2.     The motor lorry was owned by  one  Madhav  Bolar - Respondent 3  and  was  insured  by Oriental   Fire  and  General  Insurance  Company   Limited, Respondent 4. According to the appellant, the driver of  the car in which the appellant was sitting as well as the driver of  the lorry which was coming from the opposite side,  both

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were driving in a rash and negligent manner 554 which  resulted in a head-on collision.  On  11-10-1980  the appellant  gave  notice to the Insurance Company  and  other parties who were liable to pay compensation and called  upon them to pay compensation of Rs4,00,000.  Since there was  no response,  on  13-11-1980  the  appellant  filed  the  claim petition  under  Section 110 -A of the Motor  Vehicles  Act, 1939 (hereinafter referred to as the ’Act’).  Initially, the appellant  made  a  claim  for  compensation  amounting   to Rs4,00,000  but on 16-4-1984 he claimed Rs 35,00,000 as  the compensation  from  the respondents and claim  petition  was amended.   The age of the appellant at the time of  accident was 52 years. 3.The  appellant  was a practising  advocate  before  the accident.   He was also a Judge of the City Civil Court  for sometime until he resigned in the year 1964.  The  appellant used  to  appear in the various courts  including  the  High Court  and  the  Supreme Court of India.   Because  of  tile accident, the appellant became disabled and he was unable to resume his practice. 4.The claim made on behalf of the appellant was  resisted by  the  respondents  to  the  said  petition  on  different grounds.   The owner of the lorry resisted his liability  to pay  any amount of compensation on the ground that  although he was the owner of the said lorry but since it was  insured with  Respondent 4, the insurance company was liable to  pay compensation,  if any, to the appellant.  M/s  Pest  Control (India)  Pvt.  Ltd. who were the owners of the car  resisted the claim made on behalf of the appellant asserting that the driver  of the said car was driving the car very  cautiously and  carefully and the accident took place entirely  due  to the negligence on the part of the driver of the motor lorry. In   any  case,  according  to  the  said  respondent,   the compensation   claimed  on  behalf  of  the  appellant   was excessive,  imaginary  and  speculative  in  nature,   which according  to the said respondent was an attempt to make  "a fortune  out  of  misfortune".   Respondent  2,  New   India Assurance  Co.  Ltd,,  with whom the  car  in  question  was insured took a plea that their liability was limited to  the requirements  as  per law and terms and  conditions  of  the insurance  policy issued by them in favour of Respondent  1. The  Oriental Fire and General Insurance Co. Ltd.,  who  had insured  the  motor lorry of Respondent 3, their  stand  was also  the  same  that  they were  bound  by  the  terms  and conditions of the insurance policy. 5.The  Accidents Claim Tribunal on consideration  of  the materials  on record and the evidence adduced on  behalf  of the parties passed on Award directing Respondents 1 and 2 to pay  jointly and severally to the appellant compensation  of Rs  26,25,992 to-ether with interest at the rate of 12%  per annum from the rate of the application i.e. 13-11-1980  till payment  and  costs  of the said  application  within  three months.  The Tribunal was also of the view that Respondent 4 the insurer of the motor lorry belonging to Respondent 3 was liable  to pay the compensation to the extent of  Rs  50,000 and interest there on and proportionate costs.  In the award a  direction was given to Respondent 2, the insurer  of  the car  to  pay all the compensation along  with  interest  and costs on behalf of Respondent 1. 555 6.Against  the  Award aforesaid, two appeals  were  filed before  the High Court, one on behalf of the  appellant  for enhancement of the compensation awarded by the Tribunal  and the other on behalf of M/s Pest Control (India) Pvt.   Ltd.,

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Respondent 1 and New India Assurance Co. Ltd., Respondent  2 questioning  the  validity and correctness of the  award  in question.  The High Court by the impugned judgment  modified the award of the Tribunal and reduced the compensation  from Rs  26,25,992  to  Rs 8,57,352.  The  High  Court  has  also reduced the rate of interest from 12% per annum to the  rate of 6% per annum.  The award against the insurer of the lorry  Respondent 4  was affirmed and direction was given to  make payment   with   interest  at  the  rate  of  6%   and   the proportionate  costs.  It was further directed that  if  the respondents  failed and neglected to pay the amount in  full or part, such defaulted amount shall carry 12% interest  per annum from the date of default till its realisation.  On the aforesaid  finding  the  appeal  filed  on  behalf  of   the appellant was dismissed, whereas the appeal filed on  behalf of  Respondents  1 and 2 was allowed by the  High  Court  in part. 7.During  the  last few decades question  of  payment  of compensation  for  accidents has assumed  great  importance, which is correlated with the accidents which have touched  a new  height not only in India but in different parts of  the world.  Initially, the theory of payment of compensation was primarily linked with tort compensation- only if the  injury or damage was caused by someone’s fault.  Of late the injury or  damage being caused by someone’s fault is being read  as because  of someone’s negligence or carelessness.   That  is why  any  damage caused by negligent  conduct  is  generally actionable irrespective of the kind of activity out of which the damage arose.  Even in an action based on the tort,  the applicant has to show that the defendant was negligent  i.e. there was a failure on his part to take that degree of  care which  was  reasonable  in the circumstances  of  the  case. There has never been any doubt that those using the highways are under a duty to be careful and the legal position  today is quite plain that any person using the road as a  motorist will  be  liable,  if by his action  he  negligently  causes physical injuries to anybody else. 8.The Tribunal as well as the High Court has examined the evidence adduced on behalf of the parties and have  recorded clear  findings  that at the relevant time the car  and  the lorry  were  being driven in a rash  and  negligent  manner. Reference  has  been made to the evidence  adduced  on  that question.  The fact that the front left side of the car  was entangled  with the front middle of the lorry  speaks  about the rashness on the part of the drivers of the two vehicles. The  Tribunal  has also pointed out from  the  materials  on record that the motor car had gone to the wrong side of  the road  at  the time of the accident.  The  High  Court  after referring to the order of the Tribunal said that after going through the evidence of the witnesses and the  circumstances placed, it was of the opinion that the Tribunal was right in holding  that there was composite negligence on the part  of the  drivers  of  both  the vehicles  and  because  of  such negligence   the  appellant  had  sustained   such   serious injuries.   The  High  Court  also  said  that  in  view  of composite negligence, the appellant 556 was  entitled  for  damages  from the  owners  of  both  the vehicles  and consequently the insurers of the two  vehicles shall also be liable subject to the terms and conditions  of the  insurance policies.  The Tribunal as well as  the  High Court were satisfied that because of the accident aforesaid, the  appellant had become paraplegic and it was not easy  to assess the exact compensation which is payable to him. 9.Broadly speaking while fixing an amount of compensation

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payable  to a victim of an accident, the damages have to  be assessed   separately  as  pecuniary  damages  and   special damages.   Pecuniary damages are those which the victim  has actually incurred and which are capable of being  calculated in  terms of money; whereas non-pecuniary damages are  those which  are  incapable  of  being  assessed  by  arithmetical calculations.  In order to appreciate two concepts pecuniary damages  may include expenses incurred by the claimant:  (i) medical attendance; (ii) loss of earning of profit up to the date  of  trial;  (iii) other material loss.   So  far  non- pecuniary  damages  are  concerned,  they  may  include  (i) damages  for mental and physical shock, pain and  suffering, already  suffered or likely to be suffered in  future;  (ii) damages  to  compensate for the loss of  amenities  of  life which  may include a variety of matters i.e. on  account  of injury  the  claimant may not be able to walk, run  or  sit; (iii) damages for the loss of expectation of life, i.e.,  on account  of  injury  the  normal  longevity  of  the  person concerned   is  shortened;  (iv)  inconvenience,   hardship, discomfort, disappointment, frustration and mental stress in life. 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. No amount of compensation can restore the physical frame  of the appellant.  That is why it has been said by courts  that whenever  any  amount  is  determined  as  the  compensation payable  for  any injury suffered during  an  accident,  the object  is  to compensate such injury "so far as  money  can compensate"  because  it is impossible to equate  the  money with  the human sufferings or personal deprivations.   Money cannot renew a broken and shattered physical frame. 11. In the case Ward v. James1 it was said               "Although  you  cannot give a man  so  gravely               injured  much for his ’lost years’,  you  can,               however,  compensate him for his  loss  during               his  shortened  span,  that  is,  during   his               expected   ’years  of  survival’.    You   can               compensate him for his loss of earnings during               that  time,  and for the  cost  of  treatment,               nursing  and  attendance.   But  how  can  you               compensate  him for being rendered a  helpless               invalid?   He may, owing to brain  injury,  be               rendered unconscious for the rest of his days,               or, owing to a back injury, be unable to  rise               from  his  bed.  He has lost  everything  that               makes  life worthwhile.  Money is no  good  to               him.  Yet judges and juries have to do               1 (1965) 1 All ER 563               557               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."               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

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             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.               13.This  Court in the case of C.K.  Subramonia               Iyer v. T Kunhikuttan Nair2 inconnection  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."               14.   In Halsbury’s Laws of England, 4th Edn.,               Vol.  12 regarding nonpecuniary 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.               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." 15.  We are informed that during the pendency of the  appeal before  the High Court on basis of interim directions- Rs  3 lakhs  and  Rs  9  lakhs, in total Rs  12  lakhs  have  been directed  to be deposited.  However, in the final  decision, the  High  Court was of the opinion that the  appellant  was entitled to Rs 8,57,352 only as the compensation. 16.During  the hearing of the appeal a chart was  circulated showing the amountsclaimed on behalf of the appellant under different heads and the amountsallowed  or  rejected  by the  High  Court  under those heads.   So  far,  the  amount mentioned  against SI.  No. 1 is concerned, the  High  Court has  allowed  the whole claim of Rs 47,652 and there  is  no dispute  on  that  account.  Against SI.  Nos. 2  to  6  the appellant  had  claimed Rs 37,688  for  Ayurvedic  treatment against  which an amount of Rs 4000 has been allowed by  the High  Court.  According to us, this part of the judgment  of the  High Court does not require any interference.   Against SI.  No. 7 the appellant has 2 AIR 1970 SC 376: (1970) 2 SCR 688 558 claimed  for Fowler’s Bed, Rs 21,000 for the present and  Rs 21,000  for the future which has not been allowed.  Same  is the  position in respect of electric wheelchair against  SI. No.  8 which has been claimed at the rate of Rs  50,000  for the  present  and Rs 50,000 for the future  which  has  been rejected   by  the  High  Court.   According  to  us,   when admittedly  because  of  the injuries  suffered  during  the accident, the appellant has become paraplegic, the aforesaid amounts  should  have  been  allowed  by  the  High   Court. Accordingly,  we allow the said claim for Rs 1,42,000  under

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SI.  Nos. 7 and 8. So far claim for Air-Inflated Bed at  SI. No.  9 is concerned, the appellant has claimed Rs  5000  for the present and Rs 5000 for the future.  The High Court  has allowed only Rs 5000 for the present.  According to us,  the remaining amount of Rs 5000 also should have been allowed by the  High  Court.  Coming to the claim for  home  attendants against SI.  No. 9A, the appellant has claimed Rs 55,450 for the present and Rs 1,87,200 for the future.  The High  Court has  allowed Rs 36,000 and Rs 72,000 respectively.  We  feel that  there  was  no occasion for the High Court  to  be  so mathematical  on  this question.   Under  the  circumstances prevailing in the society in respect of home attendants, the High Court should have allowed the amount as claimed by  the appellant.   We accordingly allow the same.  For  Drugs  and Tablets  (Allopathic), claim has been made for Rs  9000  for the  present and Rs 18,000 for the future.  The  High  Court has  allowed Rs 5400 and Rs 10,800 respectively  under  that head as detailed against SI.  No. 10.  The claim under  this head appears to be reasonable and should have been  allowed, we  allow the same.  Against SI.  No. 11 the  appellant  has claimed for Ayurvedic treatment Rs 7800 for the present  and Rs  37,440  for the future.  The High Court has  allowed  Rs 7200 and Rs 12,000 respectively.  According to us this  part does  not require any interference.  Under SI.  No.  12  (i) bedsore  dressing  charges for the present and  future  have been  claimed  respectively  at Rs 72,900  and  Rs  1,29,600 against  which the High Court has allowed Rs 20,000  and  Rs 10,000 respectively.  In normal course for bedsore the claim for Rs 72,900 for the present and Rs 1,29,600 for the future appears  to  be  exorbitant.  The  High  Court  has  rightly directed  payment of Rs 20,000 and Rs 10,000.  As such  this part  of  the  finding of the High Court  does  not  require interference.   Under SI.  No. 12 (ii) claim has  been  made for  catheterization charges at Rs 1,29,600 for the  present and Rs 2,59,200 for the future.  The High Court has  allowed Rs  10,000 and Rs 5000 respectively.  We are of the  opinion that  the amount awarded by the High Court under  this  head does not require any interference.  So far the order of  the High  Court  in respect of bladder-wash  charges  and  enema charges   is  concerned,  it  also  does  not  require   any interference.  Under SI.  No. 13 Rs 20,100 has been  claimed as  charges for consulting surgeons for the present  and  Rs 14,400 has been claimed for the future.  The High Court  has allowed  Rs  5000 for the present and the  same  amount  for future.   We feel that this part of the finding of the  High Court does not require any interference.  For  physiotherapy under  SI.   No.  14, Rs 34,200 has  been  claimed  for  the present and Rs 1,87,200 for the future.  The High Court  has allowed  Rs  12,000 for the present and Rs  12,000  for  the future.   It  is  well  known  that  for  victims  of   road accidents, 559 physiotherapy  is one of the acknowledged mode of  treatment which requires to be pursued for a long duration.  The  High Court  should  have  allowed Rs 34,200  as  claimed  by  the appellant  for  the present and at least Rs 50,000  for  the future.   However we allow the same.  In respect of loss  of earnings  under  Si.   No. 15 claim has  been  made  for  Rs 1,80,000, the High Court has allowed Rs 1,44,000.  The  High Court  should  have allowed the whole claim.  We  allow  the same.   For loss of future earnings, claim has been made  at Rs  3,60,000.   The High Court has allowed  Rs  1,62,000  in respect of loss of future earnings.  This part of the  award does  not require any interference because an amount  of  Rs 1,62,000 can be held to be a reasonable amount to be awarded

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taking all facts and circumstances in respect of the  future earnings of the appellant. 17.  The claim under SI.  No. 16 for pain and suffering  and for loss of amenities of life under SI.  No. 17, are  claims for non-pecuniary loss.  The appellant has claimed lump  sum amount  of Rs 3,00,000 each under the two heads.   The  High Court  has  allowed  Rs 1,00,000 against the  claims  of  Rs 6,00,000.   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.   The  amount  of compensation for nonpecuniary loss is not easy to  determine but the award must reflect that different circumstances have been  taken  into consideration.  According to  us,  as  the appellant was an advocate having good practice in  different courts  and as because of the accident he has been  crippled and can move only on wheelchair, the High Court should  have allowed  an  amount of Rs 1,50,000 in respect of  claim  for pain  and  suffering and Rs 1,50,000 in respect of  loss  of amenities of life.  We direct payment of Rs 3,00,000 (Rupees three lakhs only) against the claim of Rs 6,00,000 under the heads "Pain and Suffering" and "Loss of amenities of life". 18.  So  far  the  direction of  the  High  Court  regarding payment of interest at the rate of 6% over the total  amount held to be payable to the appellant is concerned, it has  to be modified.  The High Court should have clarified that  the interest shall not be payable over the amount directed to be paid  to  the appellant in respect  of  future  expenditures under  different  heads.  It need not be  pointed  out  that interest  is  to be paid over the amount  which  has  become payable on the date of award and not which is to be paid for expenditures  to be incurred in future.  As such  we  direct that  appellant shall not be entitled to interest over  such amount. 19.  The appeals of the appellant are allowed to the  extent indicated above.  No costs. 562