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               REPORTABLE

   IN THE SUPREME COURT OF INDIA    CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2006 OF 2015 (Arising out of SLP(C) NO. 981 OF 2014)

JAKIR HUSSEIN                            … APPELLANT

VERSUS  

SABIR & ORS.                             … RESPONDENTS

J U D G M E N T

V. GOPALA GOWDA, J.

 Leave granted.  

2.  This appeal has been filed by the appellant against  

the judgment and order dated 24.01.2013 passed in M.A.  

No. 3414 of 2010 by the High Court of Madhya Pradesh at  

Indore, wherein the High Court partly allowed the appeal  

of the appellant by modifying the award passed by the

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MACT, Mandsor, M.P., in claim case No. 3 of 2009 dated  

29.07.2010.  

3.   The relevant facts of the case are stated as under:

    On 12.11.2008 at about 6.30 p.m., Jakir Hussein,  

the  appellant  herein,  was  driving  a  Tempo  bearing  

registration No. MP-14-G-0547 from Krishi Upaj  Mandi,  

Mandsor  to Multanpura  village, Madhya  Pradesh. A  few  

others  were  also  riding  along  with  the  appellant,  

namely,  Santosh, Kumari  Krishna, Smt.  Paipa Bai  etc.  

While the appellant was on the way, a tractor bearing  

registration  No.  MP  14-K-  4886  which  was  driven  by  

Sabir-respondent  no.1  herein,  in  rash  and  negligent  

manner hit the appellant’s tempo which was coming from  

the opposite direction with enormous force. Due to the  

impact of the accident, the appellant sustained grievous  

injuries.  The  right  arm  of  the  appellant  had  severe  

compound fractures preventing him from performing his  

regular work as a driver hereafter. At the time of the  

said accident, the appellant was earning Rs.4,500/- per  

month by working as a driver.

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4. The appellant filed Claim Petition No. 3 of 2009  

under Section 166 of the Motor Vehicles Act, 1988 before  

the  Motor  Accidents  Claim  Tribunal/Additional  First  

Member, Mandsor, Madhya Pradesh. The Tribunal determined  

the permanent disability suffered by the appellant on  

account of the motor vehicle accident at 30% and his  

monthly income was taken at Rs.3,000/- for the purpose  

of assessing annual income of the appellant to compute  

his loss of future earnings.  On the basis of the annual  

income,  his  future  loss  of  income  due  to  permanent  

disability  suffered  by  him  was  estimated  at  

Rs.1,72,800/- and loss of income at Rs.51,000/-. Medical  

expenses  was  estimated  at  Rs.1,80,000/-.  The  total  

compensation of Rs.4,38,000/- with an interest at the  

rate of 7% p.a. was awarded to the appellant by the  

Tribunal as against a claim of Rs.8,80,000/- made by  

him.  

5.  Aggrieved  by  the  award  of  the  Tribunal  regarding  

inadequate compensation, the appellant filed M.A. No.  

3414 of 2010 before the High Court of Madhya Pradesh at  

Indore.  The  High  Court  opined  that  the  income  of  

appellant  has  been  taken  on  the  lower  side  by  the

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Tribunal  and  determined  the  same  at  Rs.4,000/-  per  

month.  The  High  Court  after  re-determination  of  the  

compensation held that the appellant is entitled to an  

enhancement  of  Rs.1,77,200/-  towards  permanent  

disability and addition of Rs.5,000/- towards pain and  

suffering.  In  addition  to  that  amount,  a  sum  of  

Rs.20,000/- was awarded towards medical expenses. The  

High  Court  has  further  awarded  Rs.40,000/-  towards  

medical  expenses  during  the  pendency  of  the  appeal.  

Further, it has awarded interest at the rate of 8% p.a.  

on the enhanced compensation. Being unsatisfied with the  

enhanced compensation by the High Court, the appellant  

filed this appeal.

6. The learned counsel on behalf of the appellant, Mr.  

Parameshwara, who is appointed to assist this Court as  

amicus  curiae  has  contended  that  the  compensation  

awarded  by  both  the  Tribunal  and  the  High  Court  is  

wholly inadequate. It is submitted by him that the High  

Court  has  committed  a  serious  error  in  law  in  not  

awarding just and reasonable compensation in favour of  

the appellant by taking various factual aspects such as  

permanent disability suffered by him, medical evidence

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and keeping in view the law on the relevant aspects for  

quantifying just and reasonable compensation both under  

the heads of pecuniary and non-pecuniary damages. It is  

further urged by him that on the motor vehicle accident  

caused by the respondent-driver on account of rash and  

negligent  driving  of  the  vehicle,  the  appellant  has  

become permanently disabled due to which he will not be  

able to get suitable employment and lead a normal life  

in  future.  It  is  further  contended  by  him  that  the  

future medical treatment and care of the appellant is  

very much necessary which will also be on the higher  

side. In cases where the claimant suffering from either  

total  or  partial  permanent  disablement,  the  term  

‘compensation’  used  under  Section  166  of  the  Motor  

Vehicles Act, 1988, would not only include the expenses  

incurred for immediate treatment, but also the amount  

likely  to  be  incurred  by  the  appellant  for  future  

medical  treatment/care  and  necessary  assistance  on  

account  of  permanent  disablement  caused  to  him  on  

account of grievous injury of loss of his right arm in  

the said accident. Reliance was placed by the learned  

amicus curiae on the decision of this Court in the case

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of  R.D.  Hattangadi v. Pest  Control  (India)  Private  

Limited1, wherein it was held as under:-

“9.Broadly  speaking  while  fixing  an  amount  of  compensation 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.”

7.  It is further contended by him that the monthly  

income of the appellant has been erroneously taken as  

Rs.3,000/- by the Tribunal and Rs.4,000/- by the High  

Court when he was actually earning Rs.4,500/- per month  

while working as the driver. The learned amicus curiae  

1  (1995) 1 SCC 551

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placed reliance upon the case of  Nizam’s Institute of  

Medical Sciences v. Prasanth S. Dhananka2, wherein, the  three-Judge Bench of this Court while dealing with a  

case  arising  out  of  the  complaint  filed  under  the  

Consumer Protection Act, 1986, enhanced the compensation  

awarded  by  the  National  Consumer  Disputes  Redressal  

Commission  from  Rs.1.5  lacs  to  Rs.1  crore.  The  

observations  made  by  the  Bench  at  para  39  can  

appropriately be applied to the case on hand, wherein it  

is stated as under:-

“88.  We  must  emphasize  that  the  Court  has  to  strike  a  balance  between  the  inflated  and  unreasonable demands of a victim and the equally  untenable claim of the opposite party saying that  nothing is payable. Sympathy for the victim does  not, and should not, come in the way of making a  correct assessment, but if a case is made out,  the Court must not be chary of awarding adequate  compensation. The "adequate compensation" that we  speak of, must to some extent, be a rule of the  thumb measure, and as a balance has to be struck,  it would be difficult to satisfy all the parties  concerned.  

89.It must also be borne in mind that life has  its pitfalls and is not smooth sailing all along  the way (as a claimant would have us believe) as  the hiccups that invariably come about cannot be  visualized. Life it is said is akin to a ride on  a roller coaster where a meteoric rise is often  followed by an equally spectacular fall, and the  distance between the two (as in this very case)  is a minute or a yard.

2  (2009) 6 SCC 1

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 90.At the same time we often find that a person  injured  in  an  accident  leaves  his  family  in  greater distress, vis- `-vis a family in a case  of death. In the latter case, the initial shock  gives  way  to  a  feeling  of  resignation  and  acceptance, and     in time, compels the family to    move  on.  The  case  of  an  injured  and  disabled  person is, however, more pitiable and the feeling  of  hurt,  helplessness,  despair  and  often  destitution enures every day. The support that is  needed by a severely handicapped person comes at  an  enormous  price,  physical,  financial  and  emotional, not only on the victim but even more  so on his family and attendants and the stress  saps their energy and destroys their equanimity.”

(emphasis laid by this Court)  

8. Further, with regard to award just and reasonable  

compensation  both  under  pecuniary  and  non-pecuniary  

damages to the victims of motor-vehicle accidents, the  

learned counsel has placed reliance upon the decision of  

this Court in the case of Raj Kumar v. Ajay Kumar & Anr.   3, wherein it was held as under:-

“5. The provision of the Motor Vehicles Act, 1988  (`Act' for short) makes it clear that the award  must  be  just,  which  means  that  compensation  should,  to  the  extent  possible,  fully  and  adequately restore the claimant to the position  prior  to  the  accident.  The  object  of  awarding  damages is to make good the loss suffered as a  result of wrong done as far as money can do so,  in a fair, reasonable and equitable manner. The  court  or  tribunal  shall  have  to  assess  the  damages  objectively  and  exclude  from  consideration  any  speculation  or  fancy,  though  some conjecture with reference to the nature of  

3  (2011)1 SCC 343

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disability and its consequences, is inevitable. A  person  is  not  only  to  be  compensated  for  the  physical injury, but also for the loss which he  suffered as a result of such injury. This means  that he is to be compensated for his inability to  lead a full life, his inability to enjoy those  normal amenities which he would have enjoyed but  for the injuries, and his inability to earn as  much as he used to earn or could have earned.”

(emphasis laid by this Court)  

9. It is further contended by the learned Amicus Curiae  

that the appellant was working as a driver and getting  

salary of Rs.4,500/- per month. However, the Tribunal  

proceeded  to determine  his income  at Rs.36,000/-  per  

annum solely on the basis that there was no evidence on  

record to prove the claim of the appellant that he was  

earning Rs. 4,500/- per month as a driver of the motor  

vehicle.  Therefore,  in  the  absence  of  any  cogent  

evidence, the Tribunal and the High Court ought to have  

taken the appellant’s annual income at Rs.54,000/- as he  

was working as a driver of the motor vehicle  till the  

accident occurred for the purpose of determination of  

compensation towards the loss of future earnings of the  

appellant, as he had  100% permanent disablement having  

regard to the nature of work he was doing at the time of  

the accident. Accordingly, it should be at Rs.54,000/-

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per annum for proper quantification of future loss of  

earnings as he had suffered 100% functional disability.

10. It is further contended by him that the award passed  

by the Tribunal for future medical expenses was wholly  

inadequate. Reliance was placed on the decision of this  

Court  in  the  case  of  Nagappa  v. Gurudayal  Singh4,  

wherein this Court held that in a case where injury to a  

victim requires periodical medical expenses, it is not  

possible for a fresh award to be passed or to review a  

previous award when the medical expenses are incurred  

after finalisation of the compensation proceedings. It  

was further held that the only alternative is that at  

the  time  of  passing  of  the  final  award,  the  

Tribunal/Court should consider such eventuality and fix  

the compensation under the above said head accordingly.  

Therefore, it is submitted by him that it will be just  

and reasonable for this Court to award a further sum of  

Rs.2,00,000/- to the appellant for his future treatment.  

If the said amount is deposited in fixed deposit, the  

interest accruing on it will take care of future medical  

treatment and other ancillary expenses.

4  (2003) 2 SCC 274

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11. With regard to the pain, suffering and trauma which  

have been caused to the appellant due to his crushed  

hand, it is contended that the compensation awarded by  

the Tribunal was meagre and insufficient. It is not in  

dispute that the appellant had remained in the hospital  

for a period of over three months. It is not possible  

for the courts to make a precise assessment of the pain  

and trauma suffered by a person whose arm got crushed  

and  has  suffered  permanent  disability  due  to  the  

accident  that  occurred.  The  appellant  will  have  to  

struggle  and  face  different  challenges  as  being  

handicapped permanently. Therefore, in all such cases,  

the  Tribunals  and  the  courts  should  make  a  broad  

estimate for the purpose of determining the amount of  

just and reasonable compensation under pecuniary loss.  

Admittedly, at the time of accident, the appellant was a  

young man of 33 years. For the rest of his life, the  

appellant will suffer from the trauma of not being able  

to do his normal work of his job as a driver. Therefore,  

it is submitted that to meet the ends of justice it  

would  be  just  and  proper  to  award  him  a  sum  of  

Rs.1,50,000/- towards pain, suffering and trauma caused

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to him and a further amount of Rs.1,50,000/- for the  

loss of amenities and enjoyment of life.  

 12. On the other hand, Dr. Meera Agarwal, the learned  

counsel  for  the  respondent  no.3  -  The  New  India  

Assurance Company Ltd herein contended that this Court  

has held in a catena of cases that the percentage of  

loss  of  earning  capacity  should  correspond  to  the  

percentage of loss of functional/physical disability, if  

the loss of functional disability is 55%, the loss of  

earning capacity should also be 55% of the income of the  

injured/claimant. In support of the above contentions,  

reliance was placed by her on the decision of this Court  

in  the  case  of  National  Insurance  Company  Ltd.  v.  

Mubasir Ahmed5.

13. It is further contended on behalf of the Insurance  

Company that the amount of compensation awarded by the  

Tribunal was just and reasonable, still the High Court  

in  exercise  of  its  appellate  jurisdiction  has  

erroneously  taken  a  generous  view  and  enhanced  the  

amount of compensation and therefore, does not warrant  

interference for enhancement of compensation as claimed  5  (2007) 2 SCC 349

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by the appellant.

14. We have carefully examined the facts of the case and  

material evidence on record in the light of the rival  

legal contentions urged before us by both the learned  

counsel  on  behalf  of  the  parties  to  find  out  as  to  

whether  the  appellant  is  entitled  for  further  

enhancement  of  compensation?   We  have  perused  the  

impugned judgment and order of the High Court and the  

award of the Tribunal. After careful examination of the  

facts and legal evidence on record, it is not in dispute  

that the appellant was working as a driver at the time  

of  the  accident  and  no  doubt,  he  could  be  earning  

Rs.4,500/- per month. As per the notification issued by  

the State Government of Madhya Pradesh under Section 3  

of the Minimum Wages Act, 1948, a person employed as a  

driver earns Rs.128/- per day, however the wage rate as  

per the minimum wage notification is only a yardstick  

and not an absolute factor to be taken to determine the  

compensation under the future loss of income. Minimum  

wage, as per State Government Notification alone  may at  

times fail to meet the requirements that are needed to  

maintain  the  basic  quality  of  life since  it  is  not

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inclusive of factors of cost of living index. Therefore,  

we are of the view that it would be just and reasonable  

to consider the appellant’s daily wage at Rs.150/- per  

day (Rs.4,500/- per month i.e. Rs.54,000/- per annum) as  

he was a driver of the motor vehicle which is a skilled  

job. Further, the Tribunal has wrongly determined the  

loss of income during the course of his treatment at  

Rs.51,000/- for a period of one year and five months. We  

have to enhance the same to Rs.76,500/- (Rs.4,500 X 17  

months).

15. Further, with respect to the permanent disablement  

suffered  by  the  appellant,  Mr.  K.  Parameshwar,  the  

learned amicus curiae, has rightly submitted that the  

appellant was examined by Dr. P.K. Upadhyay in order to  

prove  his  medical  condition  and  the  percentage  of  

permanent  disability. The  doctor who  has treated  him  

stated that the appellant has one long injury from his  

arm up to the wrist. Due to this injury, the doctor has  

stated that the appellant had great difficulty to move  

his shoulder, wrist and elbow and pus was coming out of  

the injury even two years after the accident and the  

treatment taken by him. The doctor further stated in his

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evidence that the appellant got delayed joined fracture  

in the humerus bone of his right hand with wiring and  

nailing  and  that  he  had  suffered  55%  disability  and  

cannot drive any motor vehicle in future due to the  

same.  He  was  once  again  operated  upon  during  the  

pendency of the appeal before the High Court and he was  

hospitalised for 10 days. The appellant was present in  

person in the High Court and it was observed and noticed  

by the High Court that the right hand of the appellant  

was  completely  crushed  and  deformed.  In  view  of  the  

doctor’s evidence in this case, the Tribunal and the  

High  Court  have  erroneously  taken  the  extent  of  

permanent disability at 30% and 55% respectively for the  

calculation of amount towards the loss of future earning  

capacity.  No  doubt,  the  doctor  has  assessed  the  

permanent disability of the appellant at 55%. However,  

it is important to consider the relevant fact namely  

that the appellant is a driver and driving the motor  

vehicle is the only means of livelihood for himself as  

well as the members of his family. Further, it is very  

crucial to note that the High Court has clearly observed  

that his right hand was completely crushed and deformed.

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In the case of  Raj Kumar  v. Ajay Kumar  (supra), this  

Court specifically gave the illustration of a driver who  

has permanent disablement of hand and stated that the  

loss  of  future  earnings  capacity  would  be  virtually  

100%.  Therefore,  clearly  when  it  comes  to  loss  of  

earning due to permanent disability, the same may be  

treated as 100% loss caused to the appellant since he  

will  never  be  able  to  work  as  a  driver  again.  The  

contention of the respondent Insurance Company that the  

appellant could take up any other alternative employment  

is no justification to avoid their vicarious liability.  

Hence,  the  loss  of  earning  is  determined  by  us  at  

Rs.54,000/- per annum. Thus, by applying the appropriate  

multiplier as per the principles laid down by this Court  

in the case of  Sarla Verma & Ors.  v.  Delhi Transport  

Corporation & Anr.6,  the total loss of future earnings  

of  the  appellant  will  be  at  Rs.54,000  X  16  =  

Rs.8,64,000/-.

16. From the facts, circumstances and evidence on record  

it is clear that a cost of Rs.2,00,000/- was incurred  

during medical treatment of the appellant. Keeping in  

6  (2009) 6 SCC 121

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mind his medical condition and future medical needs and  

requirements,  we  further  award  Rs.2,00,000/-  towards  

future medical treatment & incidental expenses in favour  

of the appellant by applying the legal principles laid  

down by this Court in the case of Nagappa v. Gurudayal  

Singh (supra).

17. Further, we refer to the case of Rekha Jain & Anr.  

v. National  Insurance  Co.  Ltd.7,  wherein  this  Court  

examined catena of cases and principles to be borne in  

mind while granting compensation under the heads of (i)  

pain, suffering and (ii) loss of amenities and so on.  

Therefore, as per the principles laid down in the case  

of  Rekha  Jain  &  Anr. (supra)  and  considering  the  

suffering undergone by the appellant herein, and it will  

persist in future also and therefore, we are of the view  

to grant Rs.1,50,000/- towards the pain, suffering and  

trauma  which  will  be  undergone  by  the  appellant  

throughout his life. Further, as he is not in a position  

to  move  freely,  we  additionally  award  Rs.1,50,000/-  

towards  loss  of  amenities  &  enjoyment  of  life  and  

happiness.

7  (2013) 8 SCC 389

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18. We further award an amount of Rs.20,000/- towards  

special  diet,  Rs.40,000/-  towards  attendant  expenses  

during the period of treatment and Rs.20,000/- towards  

transportation.

19. Since, the claim of the appellant has been pending  

for several years before the courts, we are of the view  

to award a sum of Rs.40,000/- towards costs incurred  

during pendency of the appeal.

20. As regards the rate of interest to be awarded on the  

compensation awarded in this appeal, we are of the view  

that  the  Tribunal  and  the  High  Court  have  erred  in  

granting  interest  rate  at  only  7%  p.a.  and  8%  p.a.  

respectively on the total compensation amount instead of  

9%  p.a.  by  applying  the  decision  of  this  Court  in  

Municipal Corporation of Delhi v. Association of Victims  

of Uphaar Tragedy8.  Accordingly, we award the interest  @9% p.a. on the compensation determined in the present  

appeal.

21. In the result, the appellant shall be entitled to  

the  compensation  figured  out  in  the  following  table  

8  (2011)14 SCC 481

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under different heads:

SL.No Particulars Amount of  

compensation 1. Loss of future income due to disability  Rs.8,64,000/-

2. Loss of income during period of treatment  Rs.76,500/-

3. Pain and suffering  Rs.1,50,000/- 4. Medical Expenses  Rs.2,00,000/-

5. Attendant charges  during the period of  treatment for 17  months

Rs.40,000/-

6. Transportation charges  during the period of  treatment

Rs.20,000/-

7.

Special diet and  nutrition as advised  by the doctor during  the period of  treatment

Rs.20,000/-

8. Permanent Disability/ loss of amenities,  happiness and  enjoyment of life

Rs.1,50,000/-

9. Future medical expenses Rs.2,00,000/-

10. Expenses during pendency of appeal Rs.40,000/-

TOTAL Rs.17,60,500/-

Thus, the total compensation payable to the appellant by  

the respondent Insurance Company will be Rs.17,60,500/-  

as per amount awarded against different heads mentioned  

above  in  the  table  with  interest  @  9%  p.a.  on  the  

compensation  awarded  by  this  Court  from  the  date  of

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filing of the claim petition till the date of payment.

22.  Since the claim petition has been pending in the  

courts for the last 6 years, we direct the Insurance  

Company to either pay the compensation awarded in this  

appeal by way of demand draft or deposit the same before  

the concerned MACT within four weeks from the date of  

receipt of the copy of this Judgment and submit the  

compliance report for the perusal of this Court.

23.  When this matter was listed, neither the counsel on  

record  nor  the  arguing  counsel  on  behalf  of  the  

appellant was present on a number of dates of hearing  

despite  granting  several  opportunities  to  him.  

Therefore,  keeping  in  view  Article  39A  of  the  

Constitution  of  India,  this  Court  vide  order  dated  

19.01.2015  appointed  Mr.  K.  Parameshwara,  as  amicus  

curiae  on  behalf  of  the  appellant  to  assist  us  to  

determine just and reasonable compensation. In pursuant  

to the same, the learned amicus curiae has given his  

valuable  assistance  to  this  Court  by  addressing  the  

arguments  and  submitting  the  written  submissions.  

Therefore,  it  is  just  and  proper  for  this  Court  to

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direct  the Legal  Services Authority,  State of  Madhya  

Pradesh to pay a nominal fee of Rs.10,000/- to him by  

sending a demand draft in the name of ‘K. Parameshwar’  

within four weeks from the date of receipt of the copy  

of this Judgment. The Registry is directed to send a  

copy of this judgment to the Legal Services Authority,  

State of Madhya Pradesh to comply with our order.

 The appeal is allowed in the above said terms.

                         ………………………………………………………J.                                    [V.GOPALA GOWDA]

………………………………………………………J.                                    [R. BANUMATHI] New Delhi, February 18, 2015