Sometime a desparate patient suffering from incurable ailment like paraplegia would desparately try to find relief from all systems of medicines. Question is can such patient simultaneously go for such medical treatments and then claim compensation separately for such each treatment. One can understand if allopathy is not working therefore he may switch over to Ayurvedic and then to Homeopathic etc. but he cannot claim compensation in respect of overlapping treatments. Can such a claim for compensation be called fair and just? No. Secondly, even Ayurvedic treatments were overlapping. Assuming such a choice is open to the claimant but then he cannot have the same at the cost of the tortfeasors/insurers. Against such indiscreet and inflated claim the Court should put itself on guard while assessing the quantum of damages.Print Page
Bombay High Court
M/S. Pest Control (India) Pvt. ... vs Ramanand Devrao Hattangadi And ... on 3 November, 1988
Equivalent citations: I (1990) ACC 439, 1990 ACJ 130, AIR 1990 Bom 4, 1989 (2) BomCR 49
Bench: Mookerjee, S Kurdukar
1. These two first appeals are directed against an award dt. July 17, 1986 passed by the 3rd Addl. Motor Accidents Claims Tribunal for Greater Bombay. Both these appeals arise out of an application No. 2 of 1984 filed by Shri R. D. Hattangadi for compensation under S. 110-A of the Motor Vehicles Act, 1939 -- hereinafter referred to as "the Act". The applicant is Shri R. D. Hattangadi who is hereinafter referred to as 'the claimant'. On 4-11-1980 the claimant filed an application claiming compensation of Rs. 4,00,000/- and later on amended the claim petition claiming Rs. 35,00,000/-. Respondent 1 to the application was the owner of the motor lorry No. MYG 7218. Respondent 2, M/s. Pest Control, was the owner of the Ambassador car bearing registration No. MEQ 4583. Respondent 3, Oriental Fire and General Insurance Co. Ltd., was the insurer of the motor lorry whereas Respondent 4, New India Assurance Co. Ltd., was the insurer of the Ambassador car owned by the 2nd respondent. Both these appeals are filed against a common award and, therefore, they can be disposed of by this common judgment.
2. It is common ground that the Supreme Court had transferred this application to the Tribunal at Bombay and this is how the Tribunal at Bombay passed the impugned award. First Appeal No. 538 of 1986 is filed by the two appellants (1) M/s. Pest Control (India) Pvt. Ltd, (original respondent No. 2) and (2) New India Assurance Co. Ltd. (original respondent No. 4). The claimant is the respondent No. 1 in this appeal whereas the other two respondents are original respondents 2 and 3 respectively, viz. the owner of the motor lorry and the insurer. In this appeal the appellants are challenging the legality and correctness of the award including the quantum of damages awarded by the Tribunal. First Appeal No. 106 of 1987 is filed by the claimant against all the respondents. The grievance of the claimant in this appeal is that the Tribunal should have granted the entire claim of Rs. 35,00,000/-. Substantially the claim in the claimant's appeal is for the items which have been disallowed by the Tribunal.
3-4. Briefly stated the facts are as follows : The incident in question took place on 20th May 1980 at about 8-30 a.m. nearvillage Sirur on Karwar-Mangalore Road (National Highway No. 17). Sirur village is situated in Karnataka State. The applicant along with his two friends was travelling in an Ambassador car bearing registration No. MEQ 4583 hereinafter referred to as 'the car', towards Mangalore airport. This car was owned by M/s. Pest Control (India) Pvt. Ltd. -- the 1st appellant -- and was insured with New India Assurance Co. Ltd. -- the 2nd appellant. Both these appellants are hereinafter referred to as the "appellants'. The motor lorry bearing registration No. MYG 7218 was proceeding in the opposite direction and it was owned by one Madhav Bolar -- the 2nd respondent in this appeal (original respondent 1). This lorry was insured with Oriental Fire &. General Insurance Co. Ltd. -- the 3rd respondent in appeal (respondent 3 in the claim petition). The car was driven by Waheed. Claimant was sitting by the side of the driver on front seat. On the rear seat two fellow travellers Mr. Bijur and Mr. R. S. Nagarkatti were sitting Mr. Bijur was sitting behind the driver on rear seat. The tarred portion of the road was about 10 ft. wide. The kachha portion of the road on either side of the tar road was about 10 to 12 ft. wide. There was also another car in which Mr. N. S. Rao, the Chairman of the 1st appellant was travelling. Both these cars were proceeding to Mangalore airport. The other car of Mr. N. S. Rao proceeded ahead. The lorry was loaded with drums which appeared like tardrums. The road was straight at the place of accident. According to the claimant the drivers of both the vehicles were driving their vehicles on the tar portion. They were driving in a rash and negligent manner resulting into a head on collision and as a result thereof driver Waheed of the car was thrown out and sustained serious injuries. He died on the spot whereas the applicant was trapped between the dashboard and the seat. He fell near the clutch. Mr. Nagarkatti was thrown on the road because of the opening of the rear door and Mr. Bijur fell inside. The impact was so severe that the front side left door of the car was jammed and could not be opened. Seeing this accident some of the villagers gathered at the place of accident. According to the claimant the people broke open the left side door with the help of crowbar and he was taken out. According to the claimant he had no senses in his legs and had lot of pain in his body. A message was sent to Mr. N, S. Rao who had proceeded ahead and upon hearing the same he returned back to the place of accident. Mr. N. S. Rao took photographs. The claimant was then removed to the Kasturba hospital at Manipal where he was treated as indoor patient from 20-5-1980 to 27-5-1980. In the meantime a message was sent to the relations of the claimant at Bombay who rushed to Manipal. Dr. Laud was also called at Manipal, It was then decided to take the claimant to Bombay and accordingly on 27-5-1980 he was brought to Bombay and was admitted in the Sion hospital. The claimant was in the said hospital as indoor patient from 27-5-1980 to 2-8-1980. Because of this accident the claimant suffered serious injuries resulting into 100% disability and a paraplegia below the waist.
5. It is not disputed that the claimant was a practisirig advocate before the accident. He was also a Judge of the City Civil Court at Bombay for some time until he resigned in about 1964. According to the claimant he used to appear in various courts in Bombay as well as in other High Courts and Supreme Court. Since the claimant has become totally disabled and unable to resume his practice, on 11-10-1980 he gave notice to Insurance Company and other parties who were liable to pay compensation and called upon them to pay a compensation of Rs. 4,00,000/-. Since there was no response the claimant on 13-11-1980 filed the claim petition under S. 110-A of the Act. Initially the claimant asked for compensation of Rs. 4,00,000/-. On 16-4-1984 the claimant amended the claim petition and claimed Rs. 35,00,000/-.
6. The owner of the motor lorry (the 1st respondent in claim petition) filed the written statement and resisted the claim, He admitted the ownership of the lorry but denied his liability since it was insured with the Oriental Fire & General Insurance Co. Ltd. According to him the accident occurred due to rash and negligent driving of the driver of the car. The driver of the motor lorry was neither driving rashly nor negligently nor he was at fault and therefore he could not be held liable to pay any compensation. He denied the nature of injuries sustained by the claimant as also period of treatment and the amount spent thereon. He therefore prayed that the claim petition be dismissed. He also filed additional written statement to the amended claim and denied the liability.
7. The lstappellant(respondent No. 2 in the claim petition) -- the owner of the car, filed the written statement and resisted the claim of the claimant. He denied that the car was being driven in rash and negligent manner. He pleaded that the driver of the car was driving the car very cautiously and was observing all the rules, regulations and conventions of the road. The accident in question took place entirely due to the gross negligence on the part of the driver of the motor lorry alone. At the relevant time the motor lorry was driven on a totally wrong side which resulted into fatal accident. This . appellant denied the various factual and legal contentions raised by the claimant and put the claimant to strict proof thereof. He denied the claimant had suffered any disability, temporary or permanent, on account of the accident. The claim for damages put forth by the claimant is not only excessive imaginary but purely speculative in nature. It is filed to make "a fortune out of misfortune". This appellant therefore prayed that the claim of the claimant is wholly misconceived untenable and should be rejected. He also denied any liability, The claimant has failed to give the better particulars to justify the additional claim made by way of amendment and in view thereof the additional claim deserves to be rejected.
8. The 2nd appellant, the insurer of the car of the 1st appellant filed their written statement and stated that their liability was limited to the requirements both at law and as per the terms and conditions of the Insurance Policy issued by them in favour of the 1st appellant. The 2nd appellant denied all the material averments and the claim set up by the claimant and virtually adopted the same written statement filed on behalf of the 1st appellant. The 2nd appellant prayed that the whole claim of the claimant is devoid of any merit and the same be dismissed.
9. The 3rd respondent in this appeal --The Oriental Fire & General Insurance Co. Ltd. (the insurer of the motor lorry) filed the written statement. They admitted that the motor lorry was insured with them, but according to them as per the terms and conditions of the insurance policy their liability could be subject to the maximum limit of Rs. 50,000/- for third party risks. They also denied the claim of the claimant in toto and prayed that the claim petition be rejected.
10. On these pleadings the Tribunal framed the necessary issues and concluded the trial. The Tribunal vide its impugned award directed original respondents 1 and 2 to the claim petition, viz. the 1st appellant and the 2nd respondent to pay jointly and severally to the claimant compensation of Rs. 26,25,992/- together with interest at the rate of 12 p.c.p.a. thereon from the date of the application i.e. 13-11-1980 till payment and costs of the application within three months. The Tribunal also held that the insurer of the motor lorry -- respondent 3 is liable to pay the compensation to the extent of Rs. 50,000/- and interest thereon and proportionate costs. The 2nd appellant (original respondent 4) the insurer of the car was held liable to pay all the compensation along with interest and costs for and on behalf of the 1 st appellant (original respondent 2). Certain other directions as regards the costs were also given in the award. It is this award which is the subject matter of challenge in both these appeals.
11. As stated earlier, the appellant in First Appeal No. 538 of 1986 are challenging the legality and correctness of the impugned award including the quantum of damages awarded by the Tribunal. The claimant in his First Appeal No. 106 of 1987 has claimed the balance of claim which was rejected by the Tribunal. In substance the claimant wants Rs. 35,00,000/-.
12. Before we deal with the contentions raised by the appellants in both these appeals, we may in brief indicate the findings recorded by the Tribunal. The Tribunal held that the accident occurred due to the composite negligence on the part of the drivers of both the vehicles and therefore the owners of the vehicles are liable to pay compensation to the claimant. Both the insurance companies were also held liable to pay the damages as indicated in the award. The Tribunal held that because of the accident the claimant has suffered serious bodily injuries. The Tribunal held that the accident has a casual connection with the bodily injuries sustained by the claimant. The disability is 100%. The claimant has suffered a paraplegia below waist due to injuries suffered in the accident, and, therefore, he is entitled to get damages. The Tribunal has assessed the special damages on various sub-heads to the tune of Rs. 20,00,000/- and odd. The Tribunal also awarded Rs. 6,00,000/- towards general damages. The total amount of compensation under the award works out to Rs. 26.25,992/-with interest at the rate of 12 p.c.p.a. thereon from the date of application till payment.
13. Mr. Mody the learned counsel appearing in support of the First Appeal No. 538 of 1986 at the first instance disputed the liability contending that there is no material on record to substantiate the finding of composite negligence. The driver of the motor lorry alone was at fault. Alternatively he urged that the impugned award is no,t only unconscionable but also astronomically high and thus oppressive. According to the learned counsel the Trubunal has totally disregarded the principles laid down by the Indian Courts as well as the English Courts in computing the damages. The comparable awards should have been taken into account while assessing the amount of damages. Counsel urged that the Tribunal has virtually awarded whatever was demanded by the claimant. The entire award is based on mere surmises and conjectures without any legal evidence or material on record. The impugned award is astronomically, high and first of its kind on quantum. He also urged that the additional claim made by the claimant ought to have been rejected in limine, for want of better particulars. The Tribunal has totally misread the rules of pleadings contained in Order VI of the Civil P. C. Counsel also assailed the award granting interest at 12 p.c.p.a, from the date of the application even on certain items of compensation which were to become due and payable 12 years hence, Mr. Mody therefore submitted that the appeal be allowed and the claim petition be dismissed and at any rate if it is held that the accident occurred due to the composite negligence award ,be suitably modified awarding fair, just and moderate compensation.
14. Controverting these contentions Mr. Hattangadi and Mr. Vaze urged that the Court should bear in mind the directive principles enshrined in the Constitution relating to the social and economical justice. The Tribunal has in letter and spirit followed these principles. Mr. Hattangadi supported all the findings including the quantum of damages and prayed for higher damages in his appeal to do social and economic justice. He also urged that the Appellate Court should be slow in interfering with the findings of facts unless the findings are found to have been based on no evidence and/or misreading of law and facts. Having regard to the cent percent disability suffered by the claimant and his paraplegia condition he deserves to be fully compensated. First Appeal No. 538 of 1986 is devoid of any merits and it be dismissed.
As far as First Appeal No. 106 of 1987 is concerned, Mr. Hattangadi urged that the Tribunal has assigned no cogent reasons while disallowing full compensation of Rs. 35,00,000/-. Having regard to the facts and circumstances of the case Mr. Hattangadi urged that First Appeal No. 106 of 1987 be allowed and he be awarded full compensation as prayed for in the claim petition.
15. Before we deal with these rival contentions it would be proper to dispose of the technical contentions raised by Mr. Mody as regards defective pleadings and non supply of better particulars. Mr. Mody drew our attention to the provisions contained in O.VI, Rr. 1 to 9 of the Civil P.C. and few decisions of the Privy Council and of this Court and urged that the amended claim of the claimant should be dismissed for want of better particulars. He further urged that for want of better particulars the appellants could neither file their proper written statement nor could they predict what evidence the claimant would produce; consequently they were handicapped in producing rebuttal evidence. We are not impressed by this submission. Except raising the plea in the written statement for better particulars they never called upon the claimant to furnish better particulars by following the prescribed procedure. No grievance appears to have been made before the Tribunal inasmuch as no issue in that behalf was sought at the trial. Both the parties proceeded on the basis of the issue framed by the Tribunal. Both the parties led evidence in support of their rival contentions. Mr. Mody was unable to point out any prejudice much less substantial one which would invalidate the award on that premise, This submission in our opinion has no substance and must be rejected.
16. The next important contention raised on behalf of the appellants is related to the accident. According to the learned counsel for the appellants the claimant has not pleaded that the Ambassador car swerved towards the right (wrong side) which caused the head-on collision. In the absence of such material pleadings the Tribunal ought to have ignored the evidence of the claimant in that behalf. As far as the accident is concerned, the evidence consisted of the claimant himself (AW 1), Mr. Bijur (AW 20) and the photographs at Exh. 23 Colly. The driver "Waheed of the car was dead and therefore his evidence could not be secured. The Tribunal has discussed the evidence of the claimant and Mr. Bijur in details in paragraphs 15 to 25. We were also taken through the evidence of these material witnesses. Mr. Mody also drew our attention to the photographs Exh. 23 Colly, taken by Mr. N. S. Rao within few minutes after the accident.
17. The claimant in his evidence has stated that the driver Waheed was driving the car with excessive speed. He was also driving the car rashly and negligently despite his warning to the contrary. The claimant has stated that having regard to the width of the road at the place of accident, it was the duty of the driver Waheed to slow down the speed but he acted contrary resulting into head, on collision. The claimant has stated that both the vehicles got entangled with each other. The impact was so severe that driver Waheed was thrown out of the car on the road and he died on the spot. Mr. Nagarkatti was also thrown out of the car and he was lying injured on the road. The left front side door of the car was jam packed because of the impact and the people had to break open the left side door with the help of crow bar in order to take him out (claimant) from the car. The claimant has also stated that the injuries sustained by him were so severe that he had lost senses in his legs and had severe bodily pain. Mr. Bijur (AW 20) supported the claimant in all material particulars and it is needless to reproduce the evidence of this witness. He has also asserted that the driver was driving the car rashly and negligently and also in excessive speed. Both the witnesses denied the suggestion that the driver Waheed reduced his speed and asserted that he was driving the car with excessive speed. If one looks at the photographs Ex. 23 colly, it leaves no manner of doubt that the car was entangled with the lorry after the impact. The car was towards the right side which was obviously a wrong side for the ambassador car. Mr. Mody urged that the finding of the Tribunal that the ambassador car swerved towards right side of the road is totally illegal inasmuch as there was no pleading in that behalf in the claim petition. This finding is therefore illegal and cannot be sustained. The accident occurring in split seconds, it is not expected of an eye witness to give graphic description of such accident. The only safeguard that court must bear in mind is that such witness should be reliable and truthful witness inspiring the confidence of the court and his evidence can find the basis of legal inference as regards the manner of accident. On a road of 10 ft. wide it would be almost impossible for two vehicles to cross over each other on tar portion without accident and or head on collision. Mr. Mody tried to demonstrate from the claimant's evidence that he must not have seen the accident at all as he was talking with rear seat passengers by turning his neck. The claimant's evidence as regards accident is a mere conjectural one and it be rejected. Mr. Hattangadi supporting the findings of the Tribunal on the composite negligence urged that the Tribunal has very carefully scrutinized the oral and documentary evidence on record and, therefore, it would not be proper for the appeal court to take a contrary view. The finding is supported by evidence and. therefore, it is not a case of no evidence. He also urged that the oral and documentary evidence on record and in particular the photographs Exh. 23 colly, would leave no manner of doubt that the accident occurred due to composite negligence of both the drivers, In support of this contention he relied upon the decision of the Karnataka High Court in Karnataka State Road Corporation v. A. Satishchandra, 1981 ACJ 138 and urged that it is a case where principle of res ipsa loquitur must apply and the Tribunal has committed no error in holding that there was composite negligence on the part of drivers of both the vehicles. After going through the evidence of the witnesses and the circumstances placed before us we are 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.
18. It is not seriously disputed before us by Mr. Mody that the claimant has sustained the injuries on account of the accident. In view of our finding on composite negligence it must follow that the injuries sustained by the claimant have got causal connection with the accident. In these circumstances the claimant would be entitled for damages from the owners of both the vehicles and consequently the insurers also will be liable subject to the terms and conditions of their insurance policies.
19. As far as the liability of the owner of the motor lorry and the Oriental Fire & General Insurance Co. is concerned they have not preferred any appeal against the award.
20-21. In view of our foregoing conclusions the next important topic for our discussion would be the quantum of damages. It would be proper at this stage to have a brief resume of the law on this topic laid down by the various High Courts in India, the Supreme Court and the English Courts. Mr. Mody learned counsel for the appellants urged that the Tribunal has totally disregarded the law laid down by the Indian and English Courts and has committed a serious error while awarding the compensation. Mr. Mody urged that the Tribunal ought to have awarded a global figure or lump sum compensation which is the accepted rule. This global figure or lump sum amount of compensation must be determined with reference to the material produced before the Court. Comparable awards ought to have been considered by the Tribunal. Moderate, fair and just compensation must reflect in the award. If comparable awards are overlooked uniformity as regards quantum would be missed and there will be great dissatisfaction in the community. Learned counsel for the parties drew our attention to number of authorities of various High Courts in India, the Supreme Court as well as the English Courts. Reference to few well known decisions would serve the purpose.
22. It is not disputed and cannot be disputed that in view of our foregoing conclusions the claimant would be entitled for (1) special or pecuniary damages; and (2) general damages or non-pecuniary damages. What damages should be awarded to a claimant who has become paraplegic on account of injuries received in accident is a vexed question. It is really difficult to assess the exact amount of compensation which would be equivalent to the pain, suffering and the loss suffered by the claimant. It can never be full compensation but it must be fair and just. No amount of money can restore the physical frame of the claimant yet the Courts have to make an effort to assess compensation which may provide relief to the injured. In a well known decision of H. West & Sons Ltd. v. Shephard, (1958) 65 ACJ 504 Lord Morris has observed as follows :--
"My Lords, the damages which are to be awarded for a tort are those which 'so far as money can compensate', will give the injured party reparation for the wrongful act and for all the natural and direct consequences of the wrongful act.....The words 'so far as money can compensate' point to the impossibility of equating money with human suffering or personal deprivations. A money award can be calculated so as to make good a financial loss. Money may be awarded so that something tangible may be procured to replace something else of like nature which has been destroyed or lost. But money cannot renew a physical frame that has been battered and shattered. All that Judges and Court can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common assent awards must be reasonable and must be assgssed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent, conventional."
The same principle has been reiterated in Ward v. James, (1965) 1. All ER 568 and it reads thus : --
"While dealing with the question of awarding compensation in personal injury cases laid down three basic principles. First assessability. In cases of grave injury, where the body is wrecked or the brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Second, uniformity. There should be some measure of uniformity in awards so that similar decisions may be given in similar cases; otherwise there will be great dissatisfaction in the community and much criticism of the administration of justice. Thirdly, predictability. Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to Court, a thing very much to the public good."
23. These principles have been followed by the Courts in India in Vinod__Kumar Shrivastava v. Ved Mitra Vohra, , Prafulla Kumar v. .Suresh Kumar, and Mohomed Hanif Dallu v. Lunkaran Ganpatram Sharma, 1980 ACJ 333 : AIR 1980 NOC (Guj) 87.
24. In Warran v. King, (1963) 3 All ER 521, it is observed :
"With regard to moderation in awarding damages, the jury had not been directed that it was their duty to be moderate in awarding damages for personal injuries, nor that they should consider fairness to the injured person."
25. In Mckay v. Board of Govan School 1968 ACJ 342 (Canada); it is observed :
"Sympathy for the claimant should not be allowed to affect the calculation of damages. The award should not be punitive, exemplary nor extravagant and oppressive."
26. This principle is again followed in India and this Court in Maharashtra State Transport Corporation v. Rajrani, (1979) 81 Bom LR 24l has observed as follows :
"That the standard must be an objective standard, and although it may involve some guess work, hypothetical considerations speculations and conjectures and mere considerations of sympathy and solatium should not enter into assessment of damages appear to be relevant principles applicable to personal injuries."
27. The Supreme Court in C. K. Subramania Ayer v. T. K, Nair, "In assessing damages the Court must exclude all considerations of matters which rest in speculation or fancy though conjecture to some extent is inevitable."
28. In Vinod Kumar v. Ved Mitra, , the Division Bench of Madhya Pradesh High Court held fat p. 176) :
"Quantum -- Principles for assessment --Compensation must be reasonable :
It should be assessed with moderation. Regard must be had to comparable cases-
The sums awarded should be conventional-
These rules should be followed to achieve uniformity. It is only by adherence to these self-imposed rules that the courts can decide like cases in like manner and bring about a measure of predictability of their awards. These considerations are of great importance if administration of justice in this field is to command the respect of the community."
29. From these various authorities referred to hereinabove, it would be clear that the emphasis is on threefold principles (i) that the award should be moderate, just and fair and it should not be oppressive to the respondent; (ii) The award should not be punitive, exemplary and extravagant; (iii) As far as possible similar cases must be decided similarly. The community of public at large may not carry the grievance of discrimination.
30. The Allahabad High Court in Sushila Tandey v. New India Assurance Co. Ltd., 1983 ACJ 525 : (AIR 1983 All 69), has very aptly in a well considered judgment has laid down these principles after taking review of the English and Indian authorities. K. N. Singh, J. as he then was has succinctly set out these principles in this judgment. The learned Judge in paras 8 and 9 of his judgment has listed various sub-heads under pecuniary and non-pecuniary damages on which the Court can grant damages to the claimant. We are in agreement with this classification and we may briefly reproduce the same :
"Pecuniary damages are also known as special damages and are generally designed to make good the pecuniary loss which is capable of being calculated in terms of money, Non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. Pecuniary damages generally include four sub-heads (i) expenses incurred by the claimant in respect of injury which may include medical attendant; (ii) loss of earning or profit upto the date of trial; (iii) loss of earning capacity which may include incapability to earn in future years and also incapability in the Labour and Industrial market, loss of earning on account of termination of service or discontinuance of any trade, business or profession, and(iv) other material loss which may require any special treatment or aid to the injured or claimant for the rest of life. Non-pecuniary damages/general damages include number of sub-heads. Generally this includes four sub-heads: (i) damages for mental and physical shock, pain, suffering, already suffered by the claimant or likely to suffer in future; fii) damages to compensate for the loss of amenities of life which may include a variety of matters, e.g, on account of injury the claimant may not be able to walk, run, sit or loss of marriage prospects, sexual intercourse and loss of other amenities in life; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; and (iv) inconvenience, hardship, discomforts, disappointment, frustration and mental stress in life.
31. Bearing in mind these two heads and sub-heads thereunder, we may advert to the various special heads of pecuniary damages which the claimant has put forth in his claim petition. It is not and cannot be disputed that the claimant due to injuries in the accident has suffered 100 per cent disability and paraplegia below the waist. The Tribunal has proceeded to award the compensation in the two sets of periods (1) 6 years preceding the date of award (20-5-1980 to 20-5-1986); and (2) for future applying 12 years multiplier except in regard to future pecuniary damages and non-pecuniary damages. We may also follow the same formula but uniformally in all respects.
1. This head includes variety of sub-heads and the Tribunal has awarded the compensation separately on each sub-head :
We may broadly indicate at this stage all these sub-heads and the compensation awarded by the Tribunal since we propose to discuss and determine the compensation accordingly.
1. Manipal Hospital ...
2. Sion Hospital ...
3. Drugs and Tablets(Allopathic) ...
4. Ayurvedic treatment by Dr. Bhole.
5. Homeopathic treatment by Dr. Paranjape ...
Rs. 200.00 6. Treatment by Kerala Vaids ... Rs. 3.218.00 7. Panchakarma treatment by Dr. Vijayan. ... Rs. 5.500.00 8. Ayurvedic treatment by Dr. Nambudri. ... Rs. 20,250.00 9. Five or six Homeopathic Doctors. ... Rs. 1,160.00 10. Magneto-therapy treatment ... Rs. 750.00 11. Acupuncture treatment by Dr. Mhatre. ... Rs. 5,720.00 12. Herbal treatment by Somukaka and another ... Rs. 3.000,00 13. Special Powder massage ... Rs. 750,00 14. Special Diet. ... Rs. 4,000.00 15. Special Nurse-Sion hospital ... Rs. 1,950.00 16. Hospital Attendant. ... Rs, 1,260.00 17. Home Attendants (Perumaland Rane.) ... Rs. 10.000.00 18. Home Attendant (Krishnan) ... Rs. 55,450.00 19. Washing charges. ... Rs. 12.745,00 20. Purchase of extra bedsheets. ... Rs. 6,000.00 21. Taxi fair of family members ... Rs. 1,000.00 22. Special belt or Corset. ... Rs. 150.00 23. Bed alteration. ... Rs. 500,00 24. Wooden wheel chair. ... Rs. 400.00 25. Alteration and paintingcharges at home. ... Rs. 950.00 26. Dunlop foam mattress. ... Rs. 350.00 27. Kidney tray ... Rs. 35.00 28. Steel foldingchair. ... Rs. 1,200.00 29. Anti-rodent treatment for entire house. ... Rs. 3,500.00 30. Carpenter's charges for fixing Sides to Bed. ... Rs. 400.00 31. Cost of Splinter supplied by Raheb Centre. ... Rs. 20.00 32. Dumbells, Ropes etc. ... Rs. 85.00 33. Imported Wheel chair. ... Rs. 10,000.00 34. Parallel Bars. ... Rs. 961.00 35. Lifting chair. ... Rs. 850.00 36. Rubber Foam Bed. ... Rs. 5.000.00 37. Fowlers' Bed ... Rs. 21.000.00 38. Electric Wheel chair. ... Rs. 50,000.00 39. Three-in-one Radio & Cassette Player. ... Rs. 4,300.00 40. Wrist watch. ... Rs. 300.00 41. Spectacles. ... Rs. 150.00 42. Fountain Pen. ... Rs. 150.00
The Tribunal has awarded Rs, 1,80,0007-towards loss of income for the 1st period calculating at the rate of Rs. 2500/- per month and at the same rate for future taking longevity of 70 years. The Tribunal has also awarded future pecuniary damages on various subheads which will be discussed little later. As far as non-pecuniary damages are concerned the Tribunal has awarded Rs. 3,00,000/- for pain and suffering at the rate of Rs. 1,000/-per month for 25 years from the date of accident (taking a longevity of 77 years) and another sum of Rs. 3,00,000/- being loss of amenities and expectation of life at the rate of Rs. 1,000/- per month for 25 years from the date of accident (taking a longevity of 77 years). The total sum awarded by the Tribunal comes to Rs. 26,25,992.53;
32. In the present case the claimant has chosen to claim compensation on each subhead separately. Amounts claimed are fairly large. In such cases, in our opinion, court must insist a strict proof thereof. But cases where lump sum damages are claimed and if they are moderate the Court may not insist such strict legal proof. The Court has to use its discretion, experience and common knowledge while making an award for global compensation but it must be fair and just and the injured must be justly compensated, It is needless to repeat that the compensation has to be fair and just and it can never be full. In the case before us the claimant has claimed a very large amount towards compensation on each sub-head and. therefore, the claimant will have to prove each item of damages in accordance with law. But. however, it does not mean that in the absence of such proof the court cannot grant fair compensation. In the present case, at the outset it must be stated that the Tribunal has accepted almost every word of the claimant as true while awarding compensation. In our opinion, Mr. Mody has rightly urged that impugned award suffers from vice of extravagance and astronomically high. Some of the items for instance expenses incurred by the claimant at Kasturba hospital at Manipal may be granted bearing in mind the emergency and exigency. There are some small items under pecuniary damages and we are inclined to grant the same without insisting strict proof thereof. These items are as follows :
(a) The claimant has claimed Rs. 10,375.25 towards hospital expenses at Manipal. This amount is consisted of to and fro air tickets of 4 persons to Manipal ambulance charges, taxicharges, medicine charges and professional fees of Dr. Loud. Mr. Mody disputed this item and urged that alleged payment to Dr. Laud in this connection is highly inflated inasmuch as except the bare word of Dr. Laud that he charges Rs. 2000/-to Rs. 2500/- per day for visits outside Bombay, there is no material to prove the same. Dr. Laud although asserted in his evidence about his visit charges outside Bombay, but, however he was unable to . produce any record in this behalf. The learned Trial Judge has awarded Rs. 2,000/- per day for two days on this sub-head and we may not disturb this part of the award. Dr. Laud is an Orthopaedic Surgeon attached to Sion hospital. It is not disputed that the claimant has not yet paid to Dr. Laud, but Dr. Laud in his evidence stated that he would claim from the claimant. We, therefore, award Rs. 10,375.25 towards hospital expenses at Manipal..
(b) The next item is of special diet on which the Tribunal has awarded Rs. 4,000/-. It is difficult to traci any basis for the same in the award. The evidence of the claimant is again general in nature but it cannot be overlooked that because of the serious injuries suffered by the claimant some special diet was necessary and we accordingly confirm Rs. 4,000/- towards special diet.
(c) The next item is payment to special Nurse engaged at the Sion Hospital when the claimant was indoor patient. The Tribunal has awarded Rs. 1950/-. We see no reason to interfere with the same. On same line we accept and confirm payment of Rs. 1260 for hospital attendant. Rs. 1,000/- have been awarded by the Tribunal towards taxi expenses of the family members. We are also not inclined to interfere with the said compensation. The Tribunal has awarded Rs. 750/- towards magneto therapy- The Tribunal has also awarded Rs. 750/- towards special powder massage. The amounts being small our interference may not be justified. There are so many other sub-heads which we have listed them in our statement. The compensation amount being small we do not interfere with the said part of the award as far as this case is concerned.
33. Now we propose to deal with disputed items. Before we proceed to assess the medical expenses consisting of allopathic medicines, Ayurvedic, Homeopathy, accupuncture, panchkarma, treatment, we must indicate that we are not inclined to accept the award in toto in this behalf for the reasons set out hereinafter.
34. Sometime a desparate patient suffering from incurable ailment like paraplegia would desparately try to find relief from all systems of medicines. Question is can such patient simultaneously go for such medical treatments and then claim compensation separately for such each treatment. One can understand if allopathy is not working therefore he may switch over to Ayurvedic and then to Homeopathic etc. but he cannot claim compensation in respect of overlapping treatments. Can such a claim for compensation be called fair and just? No. Secondly, even Ayurvedic treatments were overlapping. Assuming such a choice is open to the claimant but then he cannot have the same at the cost of the tortfeasors/insurers. Against such indiscreet and inflated claim the Court should put itself on guard while assessing the quantum of damages.
35. With this preface we may indicate how the claim made by the claimant in this behalf is to a great extent untenable and consequently the impugned award in this behalf will have to be suitably modified. To start with medical expenses, incurred by the claimant, he has produced bunch of vouchers and note books at Exhs. 43, 44, 51, 86 and 87 to support his claim. Even the Tribunal has observed in para 36. "However, it is clear from the same that these vouchers cover not only the medicines but also other materials, which come under other heads of treatment. Therefore, these vouchers by themselves are not sufficient to show the actual expenses for medicines incurred till May 1986. "Some of the vouchers have been accepted by the Tribunal (see Exhs. 43 and 44) and accordingly awarded Rs. 1897.28. This part, we are inclined to accept. But then what follows after the discharge from Sion Hospital and what medicines (allopathic) were purchased by the claimant is a matter of pure guess work without reliable evidence.
36. The claimant, his son Deepak and Dr. Laud made a general statement estimating medicines expenses at Rs. 200/- to Rs, 300/-per month. During the cross-examination Dr, Deepak admitted that the above medicinal costs would include even Vitamins and Minerals. Dr. Deepak during cross-examination had to admit that the expenses for medicines for the treatment for urinary infection such as anti-biofics. antiseptics, etc., would be around Rs. 70A per month and that the expenses on account of vitamins and minerals were on an average Rs. 12/- per month. The Tribunal on the basis of this evidence has concluded that the claimant deserves to be compensated for allopathic medicines to the tune of Rs. 82/- per month, Tp this rough figure, the Tribunal added Rs. 43/- per month towards the injections and some other medicines which were occasionally administered. The Tribunal observed: "On a liberal estimate the expenses for allopathic medicines can be safely taken at Rs. 125/-per month" and Rs. 1500/- per year. Such expenses for six years up td May 1986 would be Rs. 9,000/-. These calculations, in our opinion, except the bare word of the witnesses, are not supported by any other contemporaneous reliable documentary evidence on record. The evidence of the claimant as well as of his son Deepak Hattangadi is again based on rough estimate of Rs. 70 + Rs. 12, to which the Tribunal has added Rs. 43/- towards injections etc. This compensation of Rs. 125/- per month for allopathic treatment (medicines) appears to us very much inflated. Therefore, bearing in mind the evidence on record, we think Rs. 75/-per month would be fair and proper compensation for the allopathic treatment (medicines). At this rate, the figure works out to Rs. 75 X 12 = Rs. 900/- per year, and for the past six years it will work out to Rs. 3400/-On this footing applying multiplier of 12 years, provision for medicines for future will have to be made (i.e,900 X 12) = Rs. 10,800/-.and we accordingly award Rs. 10,800/-.
37. As far as Ayurvedic treatment is concerned the claimant has taken treatment from four sets of doctors (including Herbal treatment) (1) Dr. Bhole(2) Three Vaids from Kerala Village (3) Dr. Nambudri and (4) 2 Herbal Specialists. The Tribunal has awarded RS..7800/- for Dr. Bhole's treatment, Rs. 3218/- for Kerala Vaids treatment, Rs. 20.250/- towards Dr. Nambudri's treatment and Rs. 2,000/- for herbal treatment. As indicated earlier, some of these treatments were overlapping. The claimant in his evidence has asserted that he took treatment from these Vaids and they were paid for the same. Mr, Hattangadi during the course of his argument also asserted that the amount which has been granted by the Tribunal for these treatments is just and fair and no interference is called. The claimant has examined Dr. Nambudri and Dr. Bhole. No doctor from the batch of 3 Kerala Vaids has been examined, nor any person who gave Herbal treatment was examined. As stated, earlier, desparate patient may try from every source to get himself cured but that does not mean that such fanciful approach of taking ayurvedic treatment from all these Vaids would justify his claim. Dr. Bhole in his evidence has stated that he used to charge Rs. 30/-- for medicines and Rs. 30/- for the media per week. The claimant in his evidence has stated that in addition to the medicinal charges of Rs. 30/-, Rs. 30/- were required to be spent for media. Thus, Rs. 60/- per week has been granted by the Tribunal As far as evidence of Dr. Nambudri is concerned, we must at the outset observe that, his evidence does not inspire confidence at all. He himself has not supplied medicines. It is stated by the claimant that these medicines were purchased from the Kerala Samaj Dispensary. The medicines were either purchased by his w ife or his servant. The claimant's wife has not been examined. The servant -- Perumal although examined does not refer to this fact at all. Dr. Nambudri has not produced the price-list from the said Dispensary nor the claimant has got produced such price-list. In the absence of any reliable evidence, we do not think that claim of Rs. 20.250/- could have been granted by the Tribunal. As far as Herbal treatment is concerned, it is again a bare self-serving testimony of the claimant. Person who gave such Herbal treatment has not been examined. This claim, therefore, ought not to have been granted by the Tribunal. Mr. Mody. learned Counsel emphatically urged that neither Dr. Laud nor Dr. Deepak has stated in their evidence that they had suggested Ayurvedic treatment to the claimant. The claimant on his own appears to have decided to go for Ayurvedic treatment. In these circumstances, we are in agreement with this submission of Mr. Mody. but, however, the claim made by the claimant for Ayurvedic treatment cannot be wholly rejected. Taking into account the overall picture of this treatment and having regard to the physical and paraplegic condition of the claimant, if he chose Ayurvedic treatment, we think, he can be compensated only as regards Dr. Bhole's treatment. Rest of the claim on Ayurvedic treatment must be rejected. Mr. Mody pointed out serious infirmities in the evidence of Dr. Bhole. Despite this, we think that the claimant can be awarded a lump sum for Ayurvedic treatment at Rs. 240 - per month from Nov. 1983 to May 1986. it works out to Rs. 7200/-. At the same rate, a lump sum of Rs. 12.000/-for future can be awarded applying 12 years multiplier.
38. Coming to the claim towards Homeopathic treatment, the evidence of the claimant shows that he has taken Homeopathic treatment from 5 persons, viz. Dr. Gunvante. Dr. Gondlekar. Mr. Mankikar. Mr. Kalyanpur and Dr. Pathak. According to him, he has spent Rs. 1160/-. None of these doctors have been examined by the claimant that the Tribunal has observed :
"The evidence of the applicant deserves to be accepted."
The Tribunal accordingly on this sub-head of pecuniary damages awarded Rs. 1160/-. Since this is a different line of treatment and the amount being small, we do not wish to interfere with the same. We accordingly award Rs. 1160/- for Homeopathic treatment including the treatment given by Dr. Paranjape. for which the Tribunal has separately awarded Rs. 200/-.
39. As far as Pancha Karma treatment which was alleged to have been given by Dr. Vijayan (A.W. 13) is concerned, the Tribunal has awarded Rs. 5500/-. In addition to the evidence of the claimant, Mr. Vijayan gave his evidence in support of this claim. According to the claimant he took Panch Karma treatment only for one course of 21 days. The expenses for one course were Rs. 2.000/-. Surprisingly, however, the Tribunal has awarded Rs. 5500/- on the footing that this treatment was continued for more than one course. There is no justification whatsoever to grant Rs. 5500/-. We accordingly reduce this amount from Rs. 5500/- to Rs. 2.000/-. The Tribunal has awarded Rs. 5720/- towards Acupuncture treatment given by Dr. Mhatre. Claimant made the payment by cheque. Dr. Mhatre did not encash in his account but endorsed it in favour of some other person. Claimant has not produced the pass-book to support this claim. In these circumstances, we award a lump sum of Rs. 2.000/-.
40. The next sub-head under pecuniary damages relates to compensation payable to home attendants. The Tribunal has awarded Rs. 10.000/- together to Perumal and Rane for the period from Aug. 1984 to May 1986 and Rs. 55.450/- for Krishnan for the period from August 1980 to May 1986. The claimant in his evidence has stated that he required' two attendants for all the 24 hours. The claimant has examined Krishnan (A.W. 25). According to the claimant, Krishnan has been in the service right from 2-8-1980. Mr. Rane was in service from Aug. 1984 to May 1985 and thereafter followed by Perumal (R.W. 39) who is continued till today. According to the claimant. Rane was paid Rs. 500/- per month. Perumal is being Rs. 500/- p.m. and Krishnan is paid Rs. 850/- p.m. Krishnan (A.W. 26) has supported the claimant. Krishnan in his evidence has stated that he works with Mr. Dharmaraj and after finishing his work there. he does work at the claimant's house. He then states that he used to do the massage. It cannot be denied that attendant was and is needed but the question is whether the claim for two attendants is fair and just. The Tribunal has accepted every word of the claimant and awarded compensation in that behalf. Mr. Mody took us through the evidence of this set of witnesses and in particular Krishnan's evidence. He pointed out several infirmities. He urged that having regard to Krishnan's time schedule, at the house of Mr. Dharamraj, it would be impossible to believe that he could work at the claimant's house as full time attendant. Evidence as regards payment of Rs. 850/-p.m. to Krishnan does not inspire confidence. Mr. Mody seriously disputed the claim of the claimant to have even one attendant but we are unable to accept this submission. Having regard to the evidence on record on this issue we are of the opinion that claimant may be compensated at Rs. 500/- per month, for one attendant. Thus compensation for past 6 years at the rate of Rs. 500/- per month works out to Rs. 36.000/-. On the same footing provision for future (12 years) will have to be made. The Tribunal's award in this behalf is substituted by Rs. 36,000/- plus Rs. 72,000/-. The claimant is, therefore, entitled to get compensation for one attendant only. The claim for remaining two attendants must be rejected.
41, The next sub-head of pecuniary damages relates to washing charges. The Tribunal has awarded Rs, 12,7457-. Evidence in this behalf again does not inspire confidence. The claimant in his evidence has stated that he has paid Rs. 395/- and obtained a receipt which is signed in his presence, In order to prove this receipt Sanjay K. Rajak (A.W.12) has been examined. Another washerman Rampiyari Bhagwaindin (A.W. 10) has also been examined. These witnesses stated that they were required to wash the soiled and blood stained clothes of the claimant including bed-sheets. They were washed and ironed. Receipt at Exh. 39 relates to payment of Rs. 395/- for the first two months. The claimant has stated that he was paying Rs. 350/- p.m. and thereafter claims to have made payment in the following manner. For the first month Rs. 350/- For next six months at Rs. 250/- p.m. For next 25 months at Rs. 200/- p.m. and thereafter at the rate of Rs. 150/- p.m. The Tribunal has accepted evidence of these witnesses and awarded Rs. 12,745/- towards washing charges. Sanjay who has passed receipt (Ex. 39) was 18 years of age in 1986 when he gave evidence and Mr. Mody rightly contended that when he passed the receipt (Ex. 39) he was hardly 12 years old. If this is the state of affairs. Counsel urged that the impugned award in this behalf is without any reliable and satisfactory evidence. He, however, could not contend total rejection of compensation on this item. Claimant's evidence is that he had no control on motions for first few months particularly during the night time. Having considered material on record we feel it just and fair to award Rs. 50/-per month towards washing charges. We accordingly award Rs. 50/- p. m. which works out to Rs. 3600/- for the first period of six years. On the same footing we award Rs. 7200/- for future (600 X 12) = 7200.
42. The next item of pecuniary damages is the purchase of extra bed-sheets. The Tribunal has awarded Rs. 6,000/-. Mr. Hattangadi urged that the Tribunal was justified in awarding Rs. 6.000/- and no interference is called for with this part of the award. In our opinion, this sum is again inflated one. Receipt-cum-cash memo of purchase of bed-sheets is produced on record. In our opinion, compensation of Rs. 6,000/-on this item is very much inflated and it should be scaled down to Rs. 1,000/-. We accordingly award a lump sum of Rs. 1,000/-towards purchase of extra bed-sheets.
43. The Tribunal has awarded Rs. 5,000/- for purchase of rubber foam bed. This claim is supported by the evidence of the claimant and another witness Ramrao N. Divagi (A.W.23). It must b'e noted that no documentary (evidence) has been produced in this behalf, but having regard to the physical condition of the claimant and since the air inflating foam bed was imported one of which price was said to be Rs. 3500/- plus additional charges of Rs. 1500/-, we accept the claim and confirm the finding of the Tribunal, The claimant is, therefore, entitled to receive Rs. 5.000/- for air inflating bed (Rubber foam bed).
44. The next item of pecuniary damages for which compensation is awarded is price of Fowlers' bed and electric whee! chair, the price of Fowlers' bed is said to be Rs. 21,000/- and that of electric wheel chair is Rs. 50,000/- The Tribunal has accepted the claim on both these items relying upon the evidence of the claimant supported by Dr. Laud. Both these items are not yet purchased. Question is whether compensation in this behalf is just and fair. The claimant in his evidence has stated that electrically operated wheel chair is necessary to lift him up to put in the van.
Mechanically operated Fowlers' bed would facilitate him in operating the same on his own in view of his physical disability. Mr. Mody seriously disputed this part of the award and urged that it is a fanciful and oppressive claim. It is neither fair nor just. He also urged that in one of the well equipped best hospitals we find such facility. He also urged that the object of purchasing electrically operated wheel chair is to facilitate the claimant to attend Courts with easy mobility. It is undisputed that the claimant has resumed practice in 1984. The claimant, Mr. Mody urged, cannot claim compensation both ways viz., (i) total loss of professional income; (ii) easy mobility to move in Courts. Mr. Hattangadi on the contrary urged that both these items are necessary and purchase of the same would be consistent with rehabilitation theory. In our opinion, compensation on both these items cannot be said to be. fair and just. We accordingly modify the award in this behalf and reject the claim of Rs. 71,000/-.
45, The next sub-head under pecuniary damages relates to the medical expenses allegedly incurred but admittedly not paid. Under this sub-head of pecuniary damages, the Tribunal has awarded Rs. 8,65,440/- and break up is as under :
a) Rs. 72,900/- bed sore dressing by the Claimant's son Deepak. b) Rs. 1,29,000/- Catheterization by the claimant's son Deepak Hattangadi. c) Rs. 4,320/- Bladder washing by his son Deepak Hattangadi. d) Rs. 3,120/- Enema charges by son Deepak. e) Rs. 20,100/- towards visits of Dr. Laud. f) Rs. 34,200/- towards Physiotherapy treatment.
The evidence in this behalf consists of claimant himself, Dr. Deepak R. Hattangadi (A.W. 37), Dr. N.S. Laud (A.W. 32) and Sohahlal Johari (A.W. 38). Mr. Mody urged that the impugned award in this behalf is not only inflated, bat no amounts have been paid to Dr. Deepak of to Dr. Laud. He also urged that Dr. Laud is a close relative of the claimant and assuming that Dr. Laud paid several visits they were not professional one, but because of his close relationship with the claimants family (Dr. Deepak's wife is daughter of maternal uncle of Dr. Laud). He also urged that it is something fantastic to award compensation to Dr. Deepak for his medical services when such treatment could have been given by a single trained Nurse who would be, less expensive. As against this, Mr. Hattangadi tried to justify this part Of the award and urged that the Tribunal has, after giving appropriate discount has awarded fair and just compensation and therefore, no interference is called for with this part of the award. Question is whether such treatment/ services could be given by a trained Nurse? Answer to this poser is obviously yes. If this be so, then compensation towards such services separately, in our opinion, can hardly be justified as fair and just, Dr. Deepak in his evidence has stated that catheterization is called a minor procedure in medical practice and trained nurse could do it and she would charge Rs. 30/- for this minor procedure. No documentary evidence from any hospital has beertproduced to justify this charge of Rs. 30/-Once it is held that such treatment could be given by a trained Nurse, it would be improper to grant compensation to the claimant on each of such items separately. It is totally unjust and unfair. The question, therefore, is -' as to what compensation should be awarded to the claimant in :respect of bed-sores dressing, bladder washing, catheterization and enema. Taking into account the turns of such treatment for past six years as deposed to by the claimant and Dr. Hattangadi, we are of the opinion that lump sum payment of Rs. 75,000/- for such treatment (items a to d) would be fair and just. We accordingly modify the impugned award in this behalf and award Rs. 75,000/-. Turns of such treatment are now reduced. Provision for future medical treatment is separately made in the category of future medical expenses (Rupees one Lakh). In addition to this, cost of catheter will have to be added. Cash memos of purchase of catheters at Ex. 87 (Collectively) show that 6 catheters were purchased at Rs. 2.85 each. We accordingly award a lump sum of Rs. 10,000/- for 1 st period of six years and additional sum of Rs, 5,000/- for future 12 years. As regards bed sore dressing the Tribunal has awarded Rs. 2,02,500/-. Breakup is Rs. 72,900/- up to May 1986 plus Rs. 1,29,600/- for future 12 years. Evidence in this behalf is again that of the claimant himself arid Dr. Deepak Hattangadi. Since, as discussed earlier, a trained Nurse could do this job and compensation in that respect is already awarded, no separate payment is called for. Now, what remains to be awarded is the cost of dressing material and medicines.
There is no clear evidence as regards cost of these medicines and materials. We accordingly award a lump sum of Rs. 10,000/-
towards 1st period of six years and additional sum of Rs. 10,000/- for future twelve years. This works out to Rs. 30,000/-.
46. The Tribunal has awarded Rs. 1200/-towards infra-red treatment. This amount being small, we do not wish to interfere with the same.
47. The next item relates to compensation of Rs. 20,100/- allegedly incurred but admittedly not paid to Dr. Laud towards his professional visits. This amount has been awarded till May !9S6. The Tribunal has proceeded to award Rs. 100/- per visit for 161 visits + Rs. 4,000/- for Manipal visit. We have already awarded Rs. 4,000/- to the claimant while accepting his full claim as regards medical expenses incurred at Manipal. This amount of Rs. 4,000/- therefore, will have to be reduced from the total amount of Rs. 20,100/-. . Mr. Mody has worked out the total visits on the basis of compensation awarded under the impugned award. This works out to 161 visits. In the first six weeks every day and thereafter twice in a week for the remaining period of six years. Assailing this finding of the Tribunal, Mr. Mody urged that it is true that Dr. Laud is a senior respected professional and incharge of the claimant as his patient, but after discharge from the Sion Hospital on 2nd Aug. 1980, Dr. Laud's visits to the claimant's house should not be .treated as professional visits but these visits must be because of his relation. He then urged that Dr. Laud never sent any bill to the claimant nor he kept any record to show as to how many visits he made to the claimant's house, except his bare assertion. Mr. Mody also urged that Dr. Laud was called upon to produce his diaries justifying his visits, and although he took time, did not choose to produce any record. He also urged that once claimant was diagnosed as paraplegic patient, no further treatment from Orthopaedic Surgeon was necessary nor such claim was made by Dr. Laud. He also pointed out various discrepancies in the evidence of the claimant and Dr. Laud. Compensation under award on account of Dr. Laud's visits during hospitalization period (in Sion Hospital) was wholly unjustified. Dr. Laud's evidence shows that he Has worked out these visits roughty by counting number of days. Claimant's evidence is equally vague and he has worked out from his memory. It cannot be disputed that even if a relative offers gratuitous services, it would not be just arid fair to reject the entire claim in this behalf. Taking into account all these circumstances including the fact that after 1984 claimant has started moving out of bis house and resumed legal profession, in our opinion, fair and just compensation on this item for past 6 years would be Rs. 5,000/-. We may also award a further sum of Rs. 5,000. - for future medical services of Dr. Laud (12 years multiplier).
48. The next item under this head relates to payment of Rs. 34.200/- by way of compensation to the claimant towards treatment given by Physiotherapist. The evidence in this behalf is consisted of claimant himself and Mr. Vijayan (A. W. 30). Mr. Mody learned Counsel took us through the evidence of the claimant as well as Vijayan and urged that this part of the award is again highly unjust and unfair. Vijayan in his evidence has stated that he has charged Rs. 60/- per turn for 5 days in a week from Feb. 1984 to May 1986. At this rate, the figure works out to Rs. 34.200/-. On the same basis, for future the Tribunal has awarded Rs. 15,600/- per yearX 12 = Rs. 1.87.200/-, total works out to Rs. 2.21.400/-, Mr. Mody urged that there is no medical evidence to show that Physiotherapy treatment was required throughout the life and what happens if physiotherapy treatment was not taken from Vijayan throughout the life. He also drew our attention to the definition of Physiotherapy given in Webster's medical Dictionary, 1987 Ed. P. 752, It defines "treatment of disease by use of natural forces, massage and therapeutic exercises." Mr. Mody urged that after training the patient, Physiotherapist would not be necessary throughout the life to attend the patient and the patient can do the necessary exercises on his own. The evidence of Vijayan does not inspire confidence at all when he.claims to have received Rs. 60/- per turn for 5 days in a week. Mr. Vijayan is not a qualified Physiotherapist but only a Massagist in Juhu Parle Gymnasiam. He does not even hold a diploma in Physiotherapy. He holds diploma only in Homeopathy/Massaging. He is employed at the Juhu Gymnasiam and gets Rs. 1500/- per month. Vijayan has admitted in his evidence that the claimant is the only petient and he has no other patient. Evidence of Vijayan appears to us to be wholly unnatural, when he claims Rs. 60A per turn. It cannot be disputed that Physiotherapy treatment was necessary and may be necessary in future intermittently and, therefore, some compensation will have to be awarded. We accordingly award compensation at the rate of Rs. 25/- per turn to the Physiotherapist for 5 days in a week, which will work out to Rs. 12.000/- up to May 1986 (for a period of two years). On the same footing same provision will have to be made for future for such intermittent treatment. We accordingly award Rs. 12,000/-. Total comes to Rs. 24,000/-.
49. The next sub-head under pecuniary damages relates to loss of income. The claimant has claimed Rs. 2600/- p.m. In order to support his claim, in addition to his own evidence, he has produced on record copies of his income-tax returns for the years 1975-76 to 1978-79 (Exh. 54 Collectively). The said income-tax returns show that the claimant had shown his net income of Rs. 24,000/- per year. This works out to Rs. 2,000/- per month. It was not disputed before us that prior to the accident, the claimant was not only practising in various High Courts but also in the Supreme Court and in lower Courts. After the accident, the claimant could not resume his practice till 1984. After 1984, the claimant has resumed his practice, and it cannot be disputed that his mobility is seriously affected. Claimant in his evidence has stated that he was earning Rs. 2500/- per month as his net income. The claimant has examined several practising Advocates as witnesses to testify his income. These witnesses have stated uniformly that claimant's income from the practice must be more than Rs. 10,000/- per month. What was the real income of the claimant at the relevant time was within his special knowledge and in our opinion, having regard to the income-tax returns on record and the evidence of the claimant himself, other evidence is hearsay and just speculative and cannot be accepted. The Tribunal, in our opinion, has rightly left out of consideration the said evidence. The Tribunal has, however, held that claimants income at the relevant time was Rs. 2500/-p.m. and on that basis it awarded Rs. 1,80,000/- for past six years i.e. up to May 1986. Mr. Mody seriously challenged this finding on the ground that the Tribunal could not have awarded more than Rs. 2,000/- p.m. He also urged that after 1984, the claimant has resumed legal profession and it was within his special knowledge as to what income he had earned after May 1984. He has suppressed his income from the Court, Mr. Mody therefore, urged that adverse inference must be drawn against the claimant and no compensation should be awarded to him under this sub-head after May 1984. Mr. Vaze, who assisted Mr. Hattangadi during the Course of arguments, urged that the Tribunal has taken very miserly attitude in granting Rs, 2500/- p. m. towards loss of income to the claimant. Mr. Vaze urged that but for the accident, the claimant would have earned much more income and for that purpose at least, evidence of other witnesses on the issue of loss of income of the claimant must be accepted. We have already rejected the evidence of other witnesses and we see, no justification to accept their evidence for computing future income. For the past 3 years, the income remained static. Claimant is nearing 60. No other reliable material is produced on record to justify any increase in the income. Any increase in his income, as suggested by Mr. Vaze would be purely conjectural and imaginary without any foundation. Therefore, the contention raised on behalf of the claimant must be rejected.
50. It is also not disputed before us that the claimant has been appointed as a Notary and he has notarised several documents. He has earned some income and likely to earn in future also. Mr. Mody was therefore, right in submitting that it is not a case where there is total loss of income to the claimant from 1984 and this fact has been totally overlooked by the Tribunal. Bearing in mind the physical condition of the claimant, it would be fair and just to compensate him at the rate of Rs. 2.000/- p.m. towards loss of income for the past years and it works out of Rs. 1,44,000/-. As far as future income is concerned, it cannot be said that there is total loss of income. Taking into account these circumstances, we think that it would be fair and just to compensate the claimant for future loss of income at the rate of Rs. 1500/-. Applying multiplier of 12 years, the claimant would be entitled to get Rs. 2,16,000/-. but taking into account the hazards in life and uncertainties of income in legal profession and also in view of the fact that a lump sum is being received in hand, deduction of 25% from the said amount would be proper. The claimant is. therefore, awarded Rs. 1,62,000/- towards future loss of income. The Tribunal has granted Rs. 3.60.000/- on the footing that there would be 100% loss of income and longevity at 70 years. The Tribunal has applied 12 years multiplier on other items, but in this behalf, it has taken life span up to 70 years. It is true that claimant has led evidence of himself and his sister to show that in their family longevity is up to 80 years. Documentary evidence in the form of death certificates of his father and Mrs. K. S. Shantabai were produced on record. Claimant has also led the evidence of his sister. The Tribunal has failed to take into account the uncertainties of life. Earning in the legal profession depends upon several factors. Multiplier of 12 years in our opinion, would be just and fair while granting compensation in this behalf.
51. The Tribunal has awarded Rs. 8,81,520/- for future medical expenses. This figure works out on the assumption that the claimant will be required to. spend Rs. 73.463/- per annum towards medical treatment. The Tribunal has accepted the longevity of 70 years and on that footing awarded Rs. 8.81,520/-. This finding is seriously challenged by Mr. Mody. Learned Counsel contended that there is no reason to apply multiplier of 18 years. No reasons have been recorded by the Tribunal as to why it has taken 18 years multiplier. It may also be noted that the claimant is a paraplegic patient and is susceptible and vulnerable to various infections inasmuch as catheterization is a life long problem. God forbid claimant may live the normal life, but at the same time, shortening of life especially of a paraplegic patient below waist, paralysis of the left hand and other health complications cannot be ruled out. We have already indicated that the claimant needs medical treatment throughout life. On the basis of our foregoing discussion. The compensation is worked out as per statement in para 60.
52. The Tribunal has awarded Rs. 76,000/- towards replacement of Fowlers' bed. electric chair and air inflated bed. Since who have already rejected the claim of the claimant on these items, we see no reason to make any provision for future in this behalf. Thus, this claim of Rs. 76.000/- is rejected.
53. Under this sub-head the Tribunal has awarded Rs. 3.00,000/- towards pain and suffering at the rate of Rs. 1,000/- per month for 25 years from the date of accident on the basis of life expectancy up to age of 77 years and further compensation of Rs. 3,00,000/-towards loss of amenities and expectations of life at the rate of Rs. 1,000/- per month for 25 years. Thus the total amount under this head of non-pecuniary damages comes to RS. 6,00,000/-.
54. In this behalf, we may usefully refer to a passage from Halsbury, 4th Edn. Vol. 12 at page 446 para 1147.
1147. Non-pecuniary loss : the pattern of 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 decision.
xx xx xx xx The age of the injured person may make a considerable difference, for example, an old lady with a broken and deformed leg will have fewer years to suffer than a young woman with a similar injury. The Courts are not astute to make any large differentiation in the lossof enjoyment of life according to the plaintiff s job, walk in life or interests, since the disability itself constitutes the bulk of the damages; so that a totally blinded dustman's damages for the injury itself will be in the same bracket as those of a blinded art-critic."
In the same edition; at page 448 para 1149, the statement of law is as follows :
1149. Overlapping of damages. If the plaintiff is awarded high damages in respect of pecuniary loss, such as future loss of earnings, his general damages for pain and suffering may be reduced. Similarly, if a plaintiff is compensated for loss of earnings, part of which he would have spent on an amenity or hobby which he can no longer enjoy, it seems that his general damages may be reduced.
55. Indian Courts followed these principles. The Allahabad High Court in Sushila Pandey v. New India Assurance Co. Ltd., AIR 1983 All 69 awarded Rs. 40.000/-as general damages. In this reported judgment! the claimant was paraplegic below waist and permanently crippled and required personal attendant throughout life. She has to. live a wheeled chair life. Catheterization for the rest of life. Claimant's longevity was affected. Total loss of marital prospects. Despite these factors, the Courts awarded Rs. 40,000/- as general damages.
56. In State of Punjab v. Lt. J.P.S. Kapoor 1973 ACJ 216 (Punj & Har), the claimant was a Lieutenant in Army aged 22 years, He remained bed-ridden for two yeas and seventy three days. Fracture of the left leg and head injury resulted in permanent disability. Physical deformity and paralytic conditions -- Claimant was declared unfit for future service. Claims Tribunal awarded' Rs. 2.80,000/- for loss of service career, Rs. 90.000/- for future pension, Rs. 20,000/- for loss of enjoyment of married life, Rs. 4,000/- for pains and suffering; and Rs. 2,000/- for travelling expenses incurred by the parents of the claimant. Total Rs. 3,96,000/- which award came to be upheld in appeal..
57. It is also well settled that comparable awards serve a guide to the Courts while assessing damages. This principle is healthy for more than several reasons to avoid heart. burning and discrimination amongst the class of sufferers of fatal accidents, Mr, Mody drew our attention to several decided cases to contend that general damages should be moderate and fair, even in eases of paraplegia. Suffice it to make reference to some decisions :
(1) Kerala Road Transport Corporation v. V.M. Thomas, 1980 ACJ 417 (Ker) (2) Ratanlal Kaur v. State of Haryana, .
(3) Union of India v. Marcia E Dutta, 1982 ACJ 31 (Gau)
4. A. S. Rajara v. Joitram Rawabhai Patal, (1982 (Supp) ACJ l (Guj)) (5) H West & Sons Ltd. v. Shephard. ( 1963) 2 All ER 625.
(6) Ward v. James. (1965) 1 All ER 568. .
(7) National Insurance Co. Ltd. v. Minor Ramambhai, 1983 ACJ 779 (Guj).
Mr. Mody also drew our attention to a passage at pages 20 and 21 from the Book Munkman on Damages' and it reads as under :
'I still think', he said that it is a most useful thing to look at comparable cases to see what other minds have done, and so together the general consensus of opinion as to the amount which a man in a certain state of society ought to be awarded."
In Fletcher v. Autocar and Transporters Ltd., (1968) 1 All ER 726 at p. 750, it is Held :--
"The damages awarded should be such that the ordinary sensible man would not instinctively regard them as either mean or extravagant, but would consider them to be sensible and fair."
Relying upon these judgments, Mr. Mody urged that conventional figure should be between Rs. 10,000/- to Rs. 15,000/-. He further urged that the age of the claimant at the time of accident was 52 years and this fact must be taken into account while awarding conventional damages. The Tribunal has given no reasons whatsoever while granting Rs. 6 Lakhs towards general damages. In our opinion, it would be just and fair to award Rs. 1,00,000/- towards this head of non-pecuniary damages in respect of both these sub-heads. We accordingly modify the award in this behalf and substitute Rs. 1,00,000/- for Rs. 6,00,000/- as awarded by the tribunal. Mr. Hattangadi urged that no reduction of compensation as regards non-pecuniary damages is called for especially in view of the inflationary tendency in India. He also urged that value of the rupee is going down consistently. He also urged that this inflationary factor should also be taken into account. Mr. Mody on the contrary submitted that inflation cannot be taken into account since it is likely to affect the claimant as well as any other citizen. He also submitted that it would be entering into realm of imagination to work out as to what would be the inflation in future. He, therefore, urged that this factor be totally ignored. We are in agreement with this submission of Mr. Mody. This principle finds support from the judgment of House of Lords in H. West v. Shephard f 1958) 65 ACJ 504 : (1963) 2 All ER 625 and Delhi Transport Corporation v. Kumari Lalita, 1983 ACJ 253 : (AIR 1982 Del 558).
58. It was then urged by Mr. Mody the Tribunal has erred in awarding 12% interest on the entire award amount from the date of accident. The impugned award included some of the amounts which are payable to the claimant for future. Looking to the quantum of damages under the impugned award rate of 12% is neither fair nor just. He urged that discretion has been totally misused by the Tribunal and it virtually amounts to misdirection in exercise of discretion. Mr. Hattangadi urged that there is no justification whatsoever to interfere with the discretionary order of interest. There is no reason to depart from the rule that award must follow the interest. In our opinion, the first infirmity in the award is that the Tribunal has awarded with free hand on all sub-heads of pecuniary and non-pecuniary idamages Interest at 12% per annum on the amounts payable for future is also not justified because the claimant is getting lump sum amount in his hand. In our opinion, there is clear misuse of discretionary power in this case. Interest at the rate of 12% per annum may be justified to the extent of amounts which the claimant has spent but he was deprived up to the date of the award. Halsbury 4th Edn. Vol. 12 page 490 para 1204 states as follows :
"The Court should distinguish between damages in respect of loss already incurred, for which interest may be awarded, and damages for future loss. In the latter case, far from the plaintiff being kept out of his money, the damages represent an accelerated receipt and interest in respect of future pecuniary toss should therefore not in principle be awarded.
In personal injury cases the courts have laid down certain guidelines. General damages in respect of pain, suffering and loss of amenities should attract interest calculated at the appropriate rate, normally from the date of service of the writ to the date of trial. Damages in respect of loss of future earnings should attract no interest. Special damages, which usually relate to loss of earnings, medical expenses and the like which will have been incurred at various times, should be dealt with on broad lines by awarding interest, at one-half the appropriate rate allowed on other damages, from the dale of the accident to the date of trial, thus averaging the loss and expenditure over this period. In exceptional cases such as when one party or the other has been guilty of gross delay the Court may depart from the above guidelines by diminishing or increasing the award of interest or altering the periods for which it is allowed."
This principle is followed in Jefford v. Gee (1970) 1 All ER 1202 wherein it is observed :
"On damages for loss of future earnings no interest should be awarded because a plaintiff will not have kept out of any money but on the contrary will have received it in advance (see p. 1209 post).
(iv) On damages for pain and suffering and loss of amenities interest should be awarded at the appropriate rate, from the date of service of the writ to the date of trial (see p. 1209 f. post).....
XX XX XX XX XX "the appropriate rate of interest on general damages should be the rate allowed on money in Court placed on short term investment account....."
Instead of separating the compensation under two compartments, we think that it would be proper to award interest at the rate of 6% per jannum from the date of application till the amount is paid. If the compensation inclusive of 6% interest from the date of application is not paid by the appellants to the claimant within ihree months from today, it will carry 12% interest from the date of default. It is needless to add that the appellants would get the credit for the amount which the claimant has already received.
59. Coming to the First Appeal No. 106 of 1987, which is filed by the claimant, in view of our foregoing conclusions, we do not think that the claimant is entitled to any enhanced amount of compensation. Mainly, claim in this appeal is related to rejection of the claimant's prayer for payment of compensation to enable him to purchase vehicle which is specially designed for paraplegic patient and reduction or rejection of compensation under both these heads. The Tribunal was right in rejecting the claim of the claimant in this regard and, therefore, no interference is called for. Claimant's First Appeal is. therefore, without any merits.
60. In view of our foregoing conclusions, the claimant is entitled to receive the compensation as indicated below :
(See table on next page)
61. In the result. First Appeal No. 538 of 1986 is partly allowed. The impugned award is accordingly modified and substituted by the following award :
Award "The Appellants along with Respondents 2 and 3 (original Respondents in claim petition) do jointly and severally pay to the claimant compensation of Rs. 8,57,352-00 together with interest thereon at the rate of 6% per annum from the date of application i.e. 13th Nov. 1980 till realisation with proportionate costs in the lower Tribunal within 3 months from today. However, the liability of Respondent No. 3 (original Respondent 3) is restricted to Rs. 50,000/- together with interest thereon at the rate of 6% per annum as indicated above with proportionate costs. If the Appellants and Respondents 2 and 3 fail and neglect to pay the amounts in full or part as indicated above, such defaulted amount shall carry 12% interest per annum from the date of default till its realisation."
It is needless to add that if the claimant has received any amount, credit thereof shall be given to the said party.
62. First Appeal No. 106 of 1987 filed by the claimant is dismissed.
As regards costs in both the appeals, in pur opinion, parties should be directed to bear and pay their own costs in both the appeals. Order accoridngly.
63. Before we part with this judgment, we must acknowledge the valuable and commendable assistance rendered by the Counsel for the parties and in particular Mr. Hattangadi. the claimant. Mr. Hattangadi has very ably and dispassionately argued the matter.
PARTICULARS OF DAMAGES
1. Re : Amount spent up to the date of Judgment of the Tribunal viz. 16th May 1986 Sr.No.
Item Amount awarded
1. Sion Hospital Expenses ...
2. Drugs and Tablets ...
3. Ayurvedic Treatment ...
4. Panch Karma Treatment ...
5. Homoeopathic Treatment ...
6. Magneto Therapy Treatment ...
7. Acupuncture Treatment ...
8. Special Powder Massage ...
9. Special Diet ...
10. Special Nurse ...
11. Hospital Attendant ...
12. Home Attendant (August 1980 to May 1986) ...
13. Washing charges (1984 to 1986) ...
14. Extra bed-sheets ...
15. Taxi expenses of family members ...
16. Hospital expenses at Manipal ...
17. Special Belt or Corset ...
18. Bed alteration ...
19. Wooden wheel chair ...
20. Alteration and painting at Home ...
21. Dunlop foam Mattress ...
22. Kidney Tray ...
23. Steel Folding Chair ...
24. Anti-rodent treatment for entire house ...
25. Carpenters charges for fixing side to bed ...
26. Cost of splinter supplied by Rehab. Centre ...
27. Dumbells, ropes etc. ...
28. Imported Wheel Chair ...
29. Parellel Bars ...
30. Lifting chair ...
31. Rubber foam bed ...
32. Three-in-one Radio & Cassette Player ...
33. Wrist watch ...
34. Spectacles ...
35. Fountain pen.
Rs. 150.00 ...
Rs. 1,09,952.00 II. EXPENSES INCURRED UP TO MAY, 1986 Sr.No. Item Amount awarded a) Compensation towards services rendered by Dr. Deepak Hattangadi . i) Bed sore dressing | | } | | Rs. 75,000.00 ii) Catheterization iii) Bladder washing iv) Enema charges b) Cost of catheter (Rs. 10,000) Cost of Bed sores dressing material and medicines (Rs. 20,000/-) | } | Rs. 30,000.00 c) Infra red treatment by Dr. Hattangadi ... Rs. 1,200.00 d) Compensation towards Dr. Laud's (visit fees) ... Rs. 5,000.00 e) Physiotherapist ... Rs. 12,000.00 Rs. 1,23,200.00 III. AMOUNT LOST UP TO MAY 1986: Income lost for 6 years at ... Rs. 1,44,000.00 IV. FUTURE PECUNIARY DAMAGES : a) Future Medica] Expenses : (i) Physiotherapy treatment (Rs. 12,000/-) | | | | } | | | | Rs. 1,39,000.00 (ii) Bed sores dressing material (Rs. 10,000/-) (iii) Cost of catheters (Rs. 5,000/-) (iv) Ayurvedic treatment (Rs. 12,000/-) (v) Services of medical expert/experts (Rs. l,00,000/-) b) Loss of Income ... Rs. 1,62,000.00 c) Loss of Income ... Rs. 1,62,000.00 c) Home Attendant ... Rs. 72,000.00 d) Washing charges ... Rs. 7,200.00 Rs. 3,80,200.00 V. PAST AND FUTURE NON PECUNIARY DAMAGES : a) Pain and suffering b) Loss of amenities and expectation of life ... Rs. 1,00,000.00 SUMMARY : I. Rs. 1,09,952.00 II. Rs. 1,23,200.00 III. Rs. 44,000.00 IV. Rs. 3,80,200.00 V. Rs. 1,0,000.00 Rs. 8,57,352.00 64. The bank guarantee or guarantees given by the original claimant to continue till adjustment of the claims between the rival parties under the award and settlement of account or for a period of three months whichever is earlier. Order accordingly.