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IN THE SUPREME COURT OF INDIA     CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.9676 OF 2011          (Arising out of SLP(C)No.14560 OF 2010)       

SRI LAXMAN @ LAXMAN MOURYA                         .......APPELLANT

VERSUS

DIVISIONAL MANAGER, ORITL.INS.CO.LTD& ANR          .....RESPONDENTS  

            J U D G M E N T  

G.S. Singhvi, J.

1. This appeal is directed against the judgment of the  

Division  Bench  of  the  Karnataka  High  Court  whereby  the  

compensation awarded to the appellant by Motor Accident Claims  

Tribunal-4  Metropolitan  Area,  Bangalore  (for  short,  'the  

Tribunal') in MVC No. 860/2004 was enhanced by a paltry sum of  

Rs. 31,000/-

2. The appellant became a victim of road accident which  

occurred on 8.9.2003 when he was hit from behind by bus bearing  

No. KA-04-A-3784 belonging to respondent No. 2. As a result of  

accident, the appellant sustained grievous injuries on different  

parts of the body. On the same day, he  was admitted in Bowring  

and  Lady  Curzon  Hospital,  Banglore.   He  was  discharged  on  

22.9.2003.

3. In the petition filed by him under Section 166 of the

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Motor Vehicles Act, 1988 (for short, 'the Act'), the appellant  

claimed compensation of Rs.5,00,000/- with interest by making the  

following assertions:

(i) that  at  the  time  of  accident,  his  age  was  24  

years;

(ii) that the accident was caused due to the rash and  

negligent driving of the bus;  

(iii)that  due  to  the  accident,  he  had  sustained  

grievous injuries and remained in the hospital and that  

his treatment was still continuing;

(iv)that  he  had  spent  Rs.5,000/-  by  way  of  medical  

expenses;

(v)that he was apprehensive of becoming disabled and  

that  the  same  would  result  in  loss  of  earning  and  

affect his livelihood; and

(vi)that  he  would  have  to  suffer  constant  pain  and  

discomfort throughout his life.  

4. In  their  written  statements  respondent  Nos.  1  &  2  

denied the allegation of rash and negligent driving of the bus  

and pleaded that they were not liable to pay compensation.

5. After considering evidence produced by the parties, the  

Tribunal  held  that  the  accident  was  caused  due  to  rash  and  

negligent  driving  of  the  bus  owned  by  respondent  No.  2.  The  

Tribunal then considered the issue of compensation, referred to  

statement made by the appellant in the form of affidavit as also  

the statement of Dr. S. Ranjanna, Orthopaedic Surgeon at Bowring  

and Lady Curzon Hospital, who was examined as PW-2 and held that  

the appellant is entitled to compensation of Rs.45,000/- with  

interest at the rate of 8% from the date of application till the  

date of deposit.

6. Dissatisfied  with  the  award  of  the  Tribunal,  the

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appellant filed an appeal under Section 173 of the Act.  The  

Division Bench of the High Court did notice that as per PW-2, the  

appellant had suffered 26% disability in the right lower limb,  

25% urethral injury and 38% disability to the whole body but  

granted a meager enhancement of Rs.31,000/- and declared that  

appellant is entitled to total compensation of Rs.76,000/- with  

interest at the rate of 6% on the enhanced compensation from the  

date of petition till the date of realisation.

7. We have heard Mr. V.N. Raghupathy, learned counsel for  

the appellant and perused the record. No one has appeared on  

behalf of the respondents to assist the Court.  

8. The personal sufferings of the survivors of the road  

accidents  and  those  who  are  disabled  in  such  accidents  are  

manifold. Some time they can be measured in terms of money but  

most of the times it is not possible to do so. If an individual  

is permanently disabled in an accident, the cost of his medical  

treatment and care is likely to be very high. In cases involving  

total or partial disablement, the term ‘compensation’ used in  

Section 166 of the Motor Vehicles Act, 1988 (for short, ‘the  

Act’) would include not only the expenses incurred for immediate  

treatment, but also the amount likely to be incurred for future  

medical  treatment/care  necessary  for  a  particular  injury  or  

disability caused by an accident. A very large number of people  

involved in motor accidents are pedestrians, children, women and  

illiterate  persons.  Majority  of  them  cannot,  due  to  sheer  

ignorance,  poverty  and  other  disabilities,  engage  competent  

lawyers  for  proving  negligence  of  the  wrongdoer  in  adequate  

measure. The insurance companies with whom the vehicles involved  

in the accident are insured usually have battery of lawyers on  

their  panel.  They  contest  the  claim  petitions  by  raising  all  

possible technical objections for ensuring that their clients are  

either completely absolved or their liabilities minimized. This  

results  in  prolonging  the  proceedings  before  the  Tribunal.

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Sometimes  the  delay  and  litigation  expenses’  make  the  award  

passed by the Tribunal and even by the High Court (in appeal)  

meaningless. It is, therefore, imperative that the officers, who  

preside over the Motor Accident Claims Tribunal adopt a proactive  

approach and ensure that the claims filed under Sections 166 of  

the Act are disposed of with required urgency and compensation is  

awarded  to  the  victims  of  the  accident  and/or  their  legal  

representatives in adequate measure. The amount of compensation  

in  such  cases  should  invariably  include  pecuniary  and  non-

pecuniary damages. In R.D. Hattangadi v. Pest Control (India)  

Private Limited (1995) 1 SCC 551, this Court while dealing with a  

case involving claim of compensation under the Motor Vehicles  

Act, 1939, referred to the judgment of the Court of Appeal in  

Ward v. James (1965) 1 All ER 563, Halsbury’s Laws of England,  

4th Edition, Volume 12 (page 446) and observed:  

“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.”

In the same case, the Court further observed:

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“In  its  very  nature  whenever  a  tribunal  or  a  court  is  required  to  fix  the  amount  of  compensation  in  cases  of  accident,  it  involves  some guesswork, some hypothetical consideration,  some amount of sympathy linked with the nature of  the  disability  caused.  But  all  the  aforesaid  elements  have  to  be  viewed  with  objective  standards.”  

9. In Reshma Kumari v. Madan Mohan (2009) 13 SCC 422, this  

Court  reiterated  that  the  compensation  awarded  under  the  Act  

should be just and also identified the factors which should be  

kept in mind while determining the amount of compensation. The  

relevant portions of the judgment are extracted below:  

“The  compensation  which  is  required  to  be  determined must be just. While the claimants are  required to be compensated for the loss of their  dependency, the same should not be considered to  be  a  windfall.  Unjust  enrichment  should  be  discouraged. This Court cannot also lose sight of  the  fact  that  in  given  cases,  as  for  example  death of the only son to a mother, she can never  be compensated in monetary terms.

The question as to the methodology required to be  applied  for  determination  of  compensation  as  regards  prospective  loss  of  future  earnings,  however, as far as possible should be based on  certain principles. A person may have a bright  future prospect; he might have become eligible to  promotion  immediately;  there  might  have  been  chances of an immediate pay revision, whereas in  another (sic situation) the nature of employment  was  such  that  he  might  not  have  continued  in  service; his chance of promotion, having regard  to  the  nature  of  employment  may  be  distant  or  remote. It is, therefore, difficult for any court  to lay down rigid tests which should be applied  in all situations. There are divergent views. In  some cases it has been suggested that some sort  of hypotheses or guess work may be inevitable.  That may be so.

In  the  Indian  context  several  other  factors

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should  be  taken  into  consideration  including  education  of  the  dependants  and  the  nature  of  job. In the wake of changed societal conditions  and global scenario, future prospects may have to  be  taken  into  consideration  not  only  having  regard  to  the  status  of  the  employee,  his  educational  qualification;  his  past  performance  but  also  other  relevant  factors,  namely,  the  higher salaries and perks which are being offered  by  the  private  companies  these  days.  In  fact  while determining the multiplicand this Court in  Oriental Insurance Co. Ltd.   v.   Jashuben   held that    even  dearness  allowance  and  perks  with  regard  thereto from which the family would have derived  monthly  benefit,  must  be  taken  into  consideration.

One of the incidental issues which has also to be  taken  into  consideration  is  inflation.  Is  the  practice of taking inflation into consideration  wholly  incorrect?  Unfortunately,  unlike  other  developed countries in India there has been no  scientific study. It is expected that with the  rising inflation the rate of interest would go  up. In India it does not happen. It, therefore,  may be a relevant factor which may be taken into  consideration for determining the actual ground  reality. No hard-and-fast rule, however, can be  laid down therefor.”

(emphasis supplied)

10. In Arvind Kumar Mishra v. New India Assurance Company  

Limited (2010) 10 SCC 254, the Court considered the plea for  

enhancement  of  compensation  made  by  the  appellant,  who  was  a  

student  of  final  year  of  engineering  and  had  suffered  70%  

disablement in a motor accident. After noticing factual matrix of  

the case, the Court observed:

“We do not intend to review in detail state of  authorities  in  relation  to  assessment  of  all  damages for personal injury. Suffice it to say  that the basis of assessment of all damages for  personal injury is compensation.  The whole idea  is to put the claimant in the same position as he  was insofar as money can. Perfect compensation is  hardly possible but one has to keep in mind that  the victim has done no wrong; he has suffered at  the  hands  of  the  wrongdoer  and  the  court  must

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take care to give him full and fair compensation  for that he had suffered.”

(emphasis supplied)

11. In Raj Kumar v. Ajay Kumar (2011) 1 SCC 343, the Court  

considered some of the precedents and held:  

“The provision of the Motor Vehicles Act, 1988  (“the 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 the 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  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.  

The heads under which compensation is awarded in  personal injury cases are the following: Pecuniary damages (Special damages)  (i)  Expenses  relating  to  treatment,  hospitalisation,  medicines,  transportation,  nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the  injured would have made had he not been injured,  comprising: (a)  Loss  of  earning  during  the  period  of  treatment; (b)  Loss  of  future  earnings  on  account  of  permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages)  (iv) Damages for pain, suffering and trauma as a  consequence of the injuries. (v) Loss of amenities (and/or loss of prospects  of marriage). (vi) Loss of expectation of life (shortening of

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normal longevity). In  routine  personal  injury  cases,  compensation  will be awarded only under heads (i), (ii)(a) and  (iv).  It  is  only  in  serious  cases  of  injury,  where  there  is  specific  medical  evidence  corroborating the evidence of the claimant, that  compensation  will  be  granted  under  any  of  the  heads (ii)(b), (iii), (v) and (vi) relating to  loss of future earnings on account of permanent  disability,  future  medical  expenses,  loss  of  amenities (and/or loss of prospects of marriage)  and loss of expectation of life.”

(emphasis supplied)  

12. The ratio of the above noted judgments is that if the  

victim of an accident suffers permanent or temporary disability,  

then efforts should always be made to award adequate compensation  

not only for the physical injury and treatment, but also for the  

pain,  suffering  and  trauma  caused  due  to  accident,  loss  of  

earning and victim's inability to lead a normal life and enjoy  

amenities, which he would have enjoyed but for the disability  

caused due to the accident.

13. In  the  light  of  the  above,  we  shall  now  consider  

whether the compensation awarded to the appellant is just or he  

is entitled to enhanced compensation under any of the following  

heads:

(i) Loss of earning and other gains due to the accident.

(ii) Loss of future earning on account of the  disability.

(iii)Expenses for future treatment.

(iv) Compensation for pain, suffering and trauma caused  due to the accident.

(v) Loss of amenities including loss of the prospects  of marriage.

(vi) Loss of expectation of life.

14. In the affidavit filed by him before the Tribunal, the  

appellant  categorically  stated  that  due  to  accident  he  had  

suffered injuries on the abdomen and other parts of the body;

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that he was shifted to Bowring Hospital, where he remained for 15  

days; that thereafter, he went to his native place at Gorakhpur  

and  remained  admitted  in  Royal  Hospital  from  29.9.2003  to  

10.10.2003;  that  he  had  also  taken  treatment  at  Sri  Krishna  

Hospital and Urology Centre as indoor patient from 12.10.2003 to  

13.10.2003 and that he had spent Rs. 40,000/- towards medicines,  

conveyance  and  other  charges.  He  further  stated  that  due  to  

accident,  he  was  finding  it  difficult  to  pass  urine  and  was  

having severe pain in the lower part of the abdomen; that the  

Doctors had advised him to undergo an operation to set right the  

problem but due to financial constraint he was not in a position  

to undergo the surgery. As regards his earning, the appellant  

gave  out  that  at  the  time  of  accident,  he  was  working  as  

Carpenter and was earning Rs. 5,000/- per month and that after  

the accident he was not in a position to work as carpenter.

15. In his affidavit, PW-2 Dr. S.Ranjanna confirmed that  

the appellant was admitted in Bowring and Lady Curzon Hospital on  

8.9.2003 and was discharged on 22.9.2003; that he had examined  

the patient on 2.5.2005 and found that he was having altered  

gait, frequency of inculcation and was finding difficult to sit  

with cross-legs or squat.  In cross-examination, Dr. Ranjanna  

made the following statement:

 “1)   Patient walks with a riding gait. 2)   Tenderness present over pubic region. 3)   His movements on right side are restricted  

by 30%. 4)   Wasting of right pelive surrender by 6   

cms. 5)   Wasting of right leg muscles by 3 cms. 6)   Difficulty to pass urine. As per urologist opinion he need surgery for  STRUCTURE URETHRA.

Check X-ray shows 698/10.1.2003 evidence  of old fracture of both rams of both pelive  bones noted with altered shape of selive inset.

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Due to above disabilities he cannot pass the  urine smoothly he will have disturbed sleep due  to  frequency  of  ...  He  cannot  sit  crossed,  difficulty  to  squat  difficulty  to  lift  any  weight. He cannot do any hard manual work.

After referring to various guidelines and  including Alimco manual I am the opinion that  the  petitioner  is  having  disability  26%  of  right lower limb & 25% due to urethral injury  and 38% disabilities to the whole body. In view  of  this  disabilities,  the  petitioner  cannot  work as a Carpenter and cannot do any other  manual work also.

I  am  herewith  producing  the  following  documents. Such as, 1)   Case Sheet. 2)   Recent examination O.P. Book 3)   Recent check X-ray.”

16. Unfortunately, neither the Tribunal nor the High Court  

adverted to the criteria laid down by this Court for award of  

compensation under the two broad heads, i.e., pecuniary and non-

pecuniary damages and awarded compensation, which cannot but be  

described as wholly unjust.  

17. The respondents have not controverted the appellant's  

assertion that at the time of accident his age was 24 years; that  

he was earning Rs.5,000/- per month as a Carpenter and that as a  

result of accident he had to remain in hospitals for different  

durations.  Therefore, under the first head i.e, loss of earning  

and other gains during the period of hospitalisation (one month),  

the appellant is entitled to compensation of Rs.5,000/-

18. It is also not in dispute that as a result of accident,  

the appellant suffered 26% disability of the right lower limb,  

25% disability due to urethral injury and 38% disability to the  

whole body.  Although, the percentage of the disability of whole  

body is 38, the evidence produced by the appellant in the form of  

his own affidavit and the affidavit of PW-2 shows that he will  

not be able to work as carpenter or do any manual work throughout

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his life.  In other words, even though the disability suffered by  

the appellant is not 100 per cent, his working capacity has been  

reduced  to  zero.   However,  keeping  in  view  the  degree  of  

disability,  i.e.  38%,  we  hold  that  he  shall  be  entitled  to  

compensation of Rs.3,32,640/- (38% of Rs.5,000.00 = Rs.1,540/- x  

12 x 18) for loss of future earning.

19. The issue regarding expenses for future treatment is  

required to be decided in the light of the evidence produced by  

the parties.  Although, in his evidence, PW-2 Dr. S Ranjanna has  

stated that the appellant would require future treatment but no  

concrete evidence was produced by him, i.e. appellant, about the  

possible expenses which he may incur for treatment in future.  

This phenomenon is not unusual in such cases particularly when  

the claimant belongs to financially weaker strata of the society.  

He cannot engage a competent lawyer to effectively prosecute his  

case before the Tribunal and the High Court.  However, as held in  

R. D. Hattangadi v. Pest Control (India) Private Ltd. (supra) the  

Tribunal and the Court can fix the amount of compensation by  

making some guess work.  Keeping in view the nature of injuries  

suffered by the appellant and the fact that he will have to take  

treatment throughout life, we feel that ends of justice will be  

met by awarding him a sum of Rs.1,50,000/- under that head.  

20. For  pain,  suffering  and  trauma  caused  due  to  the  

accident, a sum of Rs.1,50,000/- deserves to be awarded to the  

appellant.  Likewise, for the loss of amenities including the  

loss of prospects of marriage which has become an illusion for  

the appellant, it will be just and proper to award a sum of Rs.2  

lacs.

21. It  is  true  that  in  the  petition  filed  by  him  under  

Section 166 of the Act, the appellant had claimed compensation of  

Rs.5,00,000/- only, but as held in Nagappa vs. Gurudayal Singh  

(2003)  2  SCC  274,  in  the  absence  of  any  bar  in  the  Act,  the

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Tribunal and for that reason any competent Court is entitled to  

award higher compensation to the victim of an accident.

22. In  the  result,  the  appeal  is  allowed.  The  impugned  

judgment is set aside and it is declared that the appellant shall  

be entitled to total compensation of Rs.8,37,640/- with interest  

at the rate of 8% from the date of filing the petition till the  

date of realisation. Respondent No. 1 is directed to pay the  

balance amount of compensation to the appellant with interest  

within  a  period  of  three  months  from  the  date  of  

receipt/production of the copy of judgment by preparing a draft  

in his name.

               ..............................J.      ( G.S.SINGHVI )   

                  ..............................J.      ( SUDHANSU JYOTI MUKHOPADHAYA )

NEW DELHI; NOVEMBER 8, 2011.

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