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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.5370-5372 OF 2013 (Arising  out of SLP (C) Nos. 5649-51 of 2012)

REKHA JAIN     ... APPELLANT VS.

NATIONAL INSURANCE CO. LTD.     .. RESPONDENT

J U D G M E N T

V. Gopala Gowda, J.

Leave  is  granted  by  this  Court  vide  order  dated  

02.07.2013  after  condoning  the  delay  in  filing  the  

special leave petitions.

2. These  appeals  are  directed  against  the  judgment,  

award and orders dated 24.2.2011 passed in MACA No. 580

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of 2007, MACA No. 846 of 2007 and dated 10/03/2011 in MC  

No. 386 of 2011 in MACA No. 580 of 2007 of the High  

Court of Orissa at Cuttack allowing the appeal of the  

Insurance  Company  and  dismissing  the  appeal  of  the  

appellant  by  which  she  has  prayed  to  set  aside  the  

impugned judgment, award and order and has further prayed  

for  enhancement  of  compensation  by  award  of  just  and  

reasonable  compensation  allowing  the  appeals  urging  

various facts and legal contentions.  

3. The  necessary  brief  facts  for  the  purpose  of  

appreciating  the  rival  factual  and  legal  contentions  

urged in these appeals are stated as under:

On 17.08.2001 the appellant was driving a Maruti Car  

bearing Regn. No. OR 15 D-9005 by which she was going  

along with her mother Grace Jain from Sambalpur towards  

Cuttack when the accident occurred. A truck bearing Regn.  

No. MP 23 D-0096 coming from the opposite direction from  

Cuttack towards Sambalpur hit the car which resulted in  

the instantaneous death of the mother of the appellant  

and the appellant received grievous injuries to her body.  

She was admitted to the VSS Medical College Hospital,  

Burla,  Sambalpur  and  subsequently,  she  had  undergone

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treatment at different Nursing Homes both at Cuttack and  

in the State of Kerala.   

4. On account of the accident, grievous injuries were  

sustained by the appellant on the right side of her face  

which left permanent scars and caused disfiguration of  

her face and other parts of her body including her leg.  

She  underwent  a  number  of  surgeries  due  to  grievous  

injuries sustained by her.  She underwent treatment from  

18.08.2001 to 10.10.2001 at Kalinga Hospital and later  

on, in different Nursing Homes/hospitals.  The District  

Medical Board issued a certificate dated 24.02.2006 to  

the appellant certifying that she is suffering from 30%  

permanent disability.  The appellant has approached the  

Motor  Accident  Claims  Tribunal  (for  short  ‘MACT’)  at  

Sambalpur by filing a claim petition No. 119 of 2002 with  

a request to award just and reasonable compensation.     

5. The respondents herein, the owner of the vehicle and  

the insurer were impleaded and after service of summons  

on  them  they  filed  their  statement  of  objections  

disputing the claim of the appellant.   The owner of the  

vehicle has admitted the accident and has also stated  

that  the  motor  vehicle  involved  in  the  accident  is

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covered by the insurance policy which was valid up to  

30.11.2001. He has further categorically stated that the  

driver who drove that truck had a valid licence.  The  

respondent  Insurance  Company  in  its  statement  of  

objections denied its liability on the ground that the  

accident  did  not  take  place  on  account  of  rash  and  

negligent driving of the driver who drove the offending  

vehicle, but was due to a motor cyclist who came in front  

of the truck on account of which the accident took place.  

It  had  further  denied  the  various  claims  of  the  

appellant.    

6. The  case  went  for  trial  and  on  behalf  of  the  

appellant,  three  witnesses  were  examined  including  the  

appellant and documents were produced in justification of  

her claim.  Both the owner and the Insurance Company have  

not adduced evidence in justification of their defence  

taken  in  their  statement  of  objections.    The  Motor  

Accidents  Claims  Tribunal,  on  proper  appraisal  of  

evidence on record, has answered the contentious issues  

in favour of the appellant holding that the accident took  

place on account of rash and negligent driving of the  

truck by its driver. It is further held by the Tribunal

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that  the  appellant  is  entitled  to  compensation  and  

awarded Rs. 23,51,726/- both under the heads of pecuniary  

and non-pecuniary damages with interest @ 6% per annum  

from the date of filing of the claim application i.e.  

30.03.2002 till the date of payment. Aggrieved by the  

judgment and award of the Tribunal, both the Insurance  

Company and the appellant filed appeals before the High  

Court of Orissa in Appeal No. 580 and MACA 846 of 2007  

respectively.   The appeal of the Insurance Company was  

allowed by reducing the compensation from 23,51,726/- to  

Rs. 14,00,000/- after finding fault with the Tribunal in  

awarding  a  sum  of  Rs.  17,51,726/-  towards  pecuniary  

damages  by  accepting  the  vouchers,  hospital  bills,  

receipts  which  have  not  been  marked  as  exhibits  in  

evidence  on  behalf  of  the  appellant.  Though,  the  

compensation awarded towards the pecuniary loss for the  

medical expenses, treatment charges and the purchase of  

medicines,  supported  by  the  documentary  evidence,  that  

is,  bills,  receipts,  cash  memos  and  vouchers,  as  per  

Exhs.   26-28  series  worth  Rs.  2,07,713/-  and  other  

documents cash memos, hospital bills and receipts etc.  

were  marked  as  exhibits  in  the  evidence,  some  of  the  

hospital bills and receipts worth Rs. 5,72,000/-, though

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available on record, have not been marked as evidence to  

show   that  the  appellant  had  also  incurred  medical  

expenses  amounting  to  Rs.5,72,000/-.  The  Tribunal  has  

taken  into  account  all  those  documents  on  record  as  

evidence by marking them as exhibits. However, only a sum  

of Rs.7,77,000/- in total was awarded by the High Court  

towards pecuniary damages and Rs.6,00,000/- towards non  

pecuniary damages under different heads which is rounded  

off in all at Rs.14,00,000/- by modifying the judgment of  

the Tribunal.  The Misc case No. 386 of 2011 filed by the  

appellant was considered and the High Court modified its  

earlier order vide its order dated 10.3.2011 directing  

the Insurance Company to deposit the amount with interest  

with the Registry of the High Court and out of the said  

amount, it has directed the Registry to keep 70% in the  

fixed deposit in the name of the appellant in any of the  

Nationalized  Bank  for  a  period  of  five  years  and  the  

balance amount be disbursed to the appellant on proper  

identification.    The  appeal  of  the  appellant  was  

dismissed in view of the fact that the appeal filed by  

the Insurance Company, MACA No. 580 of 2007 was allowed  

and the compensation awarded by the Tribunal was reduced.  

The same judgment is questioned by the appellant in these

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civil  appeals  seeking  for  enhancement  of  compensation  

urging various grounds.

7. The grounds urged in these appeals are that the High  

court has exceeded its jurisdiction in interfering with  

the finding of fact recorded by the Tribunal with regard  

to award of pecuniary damages towards medical expenses  

without proper appreciation of pleadings and evidence on  

record and has considerably reduced the amount under the  

heading  of  pecuniary  damages  from  Rs.17,51,726/-  to  

Rs.7,77,000/-.  The  correctness  of  the  said  impugned  

judgment  and  order  is  questioned  before  this  Court  

contending that the same is not only erroneous but also  

suffers from error in law and therefore, the appellant  

prayed  for  setting  aside  the  same  and  award  just  and  

reasonable compensation in favour of the appellant both  

under the heads of pecuniary and non-pecuniary damages by  

applying the law laid down by this Court.   

8. Further, it is contended by Mr. Sukumar Pattjoshi,  

learned  Senior  Counselfor  the  appellant  that  the  High  

Court  has  erroneously  interfered  with  the  impugned  

judgment and award of the Tribunal which is contrary to  

legal evidence on record and various judgments of this

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Court with regard to the claim and he also contended that  

the  High  Court  has  not  awarded  just  and  reasonable  

compensation  to  mitigate  the  hardship  and  restore  the  

claimant’s position financially as she was in before the  

accident.   

9. Further, the learned Senior Counsel submitted that  

the High Court was not justified in not enhancing the non  

pecuniary  compensation  though  sufficient  evidence  was  

brought on record by the appellant before the MACT to  

show that she was a celebrity in the sphere of modeling  

and acting who had a bright future ahead of her which was  

doomed  by  the  accident  which  resulted  in  number  of  

surgeries conducted on her body. The opportunity for the  

appellant to act in the movies and T.V. serials is lost  

by her on account of the grievous injuries sustained by  

her.   The Tribunal has referred the same in its judgment  

while awarding compensation under different headings of  

non- pecuniary damages, namely, suffering and future loss  

of earnings but it did not take into consideration the  

permanent partial disablement suffered by the appellant  

which was assessed at 30% and disfigurement of her face  

due to accident and the fact that she is a celebrity

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acting in movies and TV serials and also in the field of  

modeling. Due to disfigurement of her face, she will be  

losing  her  future  income  as  she  will  not  get  

opportunities  to  act  in  the  films  and  T.V.  serials.  

Therefore, the learned Senior Counsel submits that both  

the Tribunal and the High Court were not justified in not  

awarding the just and reasonable compensation under the  

heading of future income. They have awarded only a meager  

amount of Rs.2,00,000/- towards the loss of income during  

the period of medical treatment though she was unable to  

earn  nearly  for  a  period  of  four  years  as  she  was  

undergoing treatment. Also, the Tribunal did not award  

any amount for loss of future income but has awarded a  

sum of Rs. 1,00,000/-  towards the pain and suffering  

without taking into consideration the fact that she has  

undergone  treatment  in  various  Nursing  Homes/Hospitals  

for  plastic  surgery  and  other  surgeries  and  

physiotherapy. A paltry sum of Rs. 1,00,000/- was awarded  

for loss of income during the period of medical treatment  

of the appellant. A sum of Rs. 2,00,000/- was  awarded  

towards  loss  of  amenities  and  pleasure  of  life.  

Therefore,  she  has  filed  the  appeals  requesting  this  

Court  to  award  just  and  reasonable  compensation  by

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appreciating the legal evidence on record.

10. It is further urged that the High Court has failed to  

take  into  consideration  the  fact  that  the  injured  

appellant is a single lady left in her family who was  

compelled to engage an attendant during the period of her  

treatment while she was in a state of immobility.   It is  

further contended by the learned Senior Counsel that the  

learned members of the Tribunal and the High Court have  

erred in passing impugned judgment and order which are  

not in accordance with the cardinal principles laid down  

by this Court in various judgments in matters of Motor  

Vehicle Accidents Claims and they also did not consider  

the  various  relevant  aspects   such  as  the  grievous  

injuries suffered by the appellant which has resulted in  

disfigurement of her face, who has lost her future career  

to act in the films and T.V. serials  and also through  

advertisements as well as modeling.  The Tribunal and  

High Court have erred in not taking into consideration  

the  above  said  relevant  aspects  of  the  case  to  award  

pecuniary  damages  and  adequate  compensation  under  the  

heading  of  non-pecuniary  damages  without  proper  

appreciation  of  pleadings  and  the  legal  evidence  on

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record particularly when both the owner of the truck and  

the Insurance Company have not adduced rebuttal evidence.  

The Insurance Company has not obtained the permission as  

required under Section 170(b) of the Motor Vehicles Act  

to avail the defence of the insured and contest in the  

proceeding  on  the  defence  of  the  insured/  owner.  

Therefore, the finding of the Tribunal and the High Court  

in the impugned judgment and order and not awarding just  

and reasonable compensation in favour of the appellant is  

not only erroneous but also suffers from error in law.  

Therefore, it is contended by Mr. Pattjoshi, the learned  

Senior Counsel that the appellant is entitled to just and  

reasonable  compensation.   The  learned  Senior  Counsel  

placed strong reliance on the evidence on record and has  

contended that the appellant was a good actress and model  

and worked in many films, albums, T.V. serials etc. and  

she  had  also  won  many  awards  like  “Ponds  Woman  of  

Tomorrow” for the year 1999, best actress in feature film  

“Maa Pari Kiye Haba” etc. The said legal evidence was  

neither challenged nor was any rebuttal evidence adduced  

on  behalf  of  either  the  owner  of  the  truck  or  the  

Insurance  Company  to  show  that  the  appellant  is  not  

entitled to just and reasonable compensation.  However,

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the High Court should have taken into consideration all  

the relevant facts and evidence on record as the Tribunal  

has  failed  to  exercise  its  power  and  discharge  its  

statutory duty to award just and reasonable compensation  

in  her  favour.   The  learned  Judge  of  the  High  Court  

should  have  considered  that  the  appellant  is  a  film  

actress and her beauty is an essential requirement for  

acting  in  films,  T.V.  Serials  and  modeling.  When  her  

beauty is lost on account of disfigurement of her face,  

she has lost everything which means that there is hundred  

percent functional disability in her life. But, both the  

Tribunal and the High Court did not even consider 30%  

permanent partial disablement suffered by the appellant  

at  the  time  of  passing  the  award  to  determine  the  

compensation  under  various  heads  of  non-pecuniary  

damages.  Further, it is contended by the learned Senior  

Counsel that the loss of future income of the appellant  

is on account of the fact that she had suffered grievous  

injuries  in  the  accident  and  therefore  her  life  has  

become miserable. In future as well, she will not be able  

to act in films and T.V. serials. The High Court as well  

as  the  Tribunal  have  failed  to  consider  the  evidence  

adduced by the injured appellant in her examination-in-

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chief  wherein  she  has  categorically  stated  about  her  

income per annum and the loss of future income. Both the  

Tribunal and the High Court have not properly evaluated  

the evidence on record and have not applied the law on  

the point to determine the future loss of income of the  

appellant and on other heads to award just and reasonable  

compensation.   Therefore,  the  learned  Senior  Counsel  

submitted that the impugned judgments of the Tribunal and  

the  High  Court  are  erroneous  in  this  regard  and  are  

liable  to  be  set  aside  and  require  modification  with  

award  of  just  and  reasonable  compensation.   She  has  

stated in her evidence that she earned Rs.50,000/- from  

“Ponds  beauty”  competition,  Rs.30,000/-  from  Oriya  

feature  film  “Maa  Pari  Kiye   Haba”,  Rs.60,000/-  from  

Oriya feature film “Dharma Debata”,  Rs. 75,000/- from  

Malayalam feature film “Paith Dhigem Alam”, Rs.10,000/-  

from each T.V. serial, Rs.5,000 to Rs.7,000/- from each  

album.    Further,  it  is  urged  by  the  learned  Senior  

Counsel that both the Tribunal as well as the High Court  

erred  in  not  differentiating  between  pecuniary  damages  

and  non  pecuniary  damages  at  the  time  of  determining  

compensation  and  awarding  the  same.   The  law  is  well  

settled  by  this  Court  that  pecuniary  damages  under

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various heads such as expenses incurred by the appellant  

that  is,  medical  expenses,  expenses  spent  towards  

surgeries, loss of earning during the period of medical  

treatment  and  expenses  incurred  by  her  to  engage  an  

attendant  and  other  material  losses  suffered  by  her,  

should have been awarded by the Tribunal and the High  

Court  under  pecuniary  damages.   The  Tribunal  did  not  

consider  the  above  relevant  aspects  and  evidence  on  

record  to  award  just  and  reasonable  compensation.  In  

relation to other two aspects, that is, loss of earning  

up to the date of trial and other losses suffered by the  

appellant,  the  same  were  also  not  considered.    The  

Tribunal and the High Court have erred in not granting  

relief to the appellant considering the aspect of the  

loss  of  expectation  of  life  on  account  of  grievous  

injuries and shortened longevity of the appellant’s life.  

The  Tribunal  and  the  High  Court  have  erred  in  not  

granting  relief  to  the  appellant  by  appreciating  the  

facts  of  inconvenience,  hardship,  discomfort,  

disappointment, frustration and mental stress, pain and  

suffering and agony caused to her. They further failed to  

take into consideration the most important fact, that the  

face of the injured appellant was fully and hopelessly

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disfigured due to accident and she got plastic surgery on  

her  entire  face  and  other  parts  of  her  body  by  the  

plastic  surgeons  outside  the  State  of  Odisha.   After  

plastic  surgery,  the  appellant’s  face  appearance  got  

changed and she herself was not able to recognize her  

changed face in the mirror.  It is further urged by the  

learned Senior Counsel on behalf of the appellant that  

both the Tribunal as well as the High Court have failed  

to take into consideration all the relevant facts deposed  

by her before the Tribunal- that she has been undergoing  

treatment due to the accident which would continue till  

the complications subsist and she requires a lot of money  

to  be  spent  for  her  future  treatment  and  she  also  

requires  an  attendant  for  this  purpose.   Therefore,  

impugned judgments and awards of both the Tribunal and  

the  High  Court  are  vitiated  on  both  the  counts  of  

erroneous  finding  and  error  in  law  as  they  have  not  

awarded just and reasonable compensation in favour of the  

appellant.

11. Mr.  S.L.  Gupta,  the  learned  counsel  appearing  on  

behalf  of  the  Insurance  Company  has  justified  the  

impugned judgment, award and order passed by the High

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Court. Respondent nos. 2 and 3 however, were deleted from  

the array of parties in these appeals by the order of  

this Court at the request of the appellant. The learned  

counsel contended that the High Court has exercised its  

appellate  jurisdiction,  on  proper  appreciation  of  

pleadings and evidence on record and it is justified in  

reducing the compensation awarded under the heading of  

pecuniary  damages  as  the  injured  appellant  did  not  

establish her claim regarding the expenses incurred by  

her for the purpose of   medical treatment, purchase of  

medicine and other incidental expenses by producing the  

bills, receipts and vouchers.  Therefore, the Tribunal  

was not justified in placing reliance on those documents  

which  were  not  marked  as  exhibits  to  prove  her  claim  

under  the  heading  of  ‘Medical  Expenses’  and  other  

incidental  expenses  and  it  has  awarded  exorbitant  

compensation  under  head  of  pecuniary  damages  which  is  

unsustainable  in  law.   Therefore,  the  High  Court  has  

rightly taken into consideration the entire documentary  

evidence  on  record  and  is  justified  in  awarding  

compensation at Rs.7,77,000/- under the heading  towards  

expenses,   treatment  charges  and  expenses  towards  

medicines.    Therefore,  the  same  does  not  call  for

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interference by this Court.  

12. Further,  it  was  contended  by  the  counsel  for  the  

respondent-Insurance  Company  that  the  compensation  

awarded under different heads referred to supra towards  

non pecuniary damages is not based on proper appreciation  

of facts and legal evidence on record particularly in the  

absence of evidence to prove the fact that she is an  

income tax assessee since no proof is produced in this  

regard before the Tribunal to prove her annual income  

based  on  which  her  future  loss  of  income  could  be  

determined. Therefore, he submits that the appellant is  

not  entitled  for  the  reliefs  as  prayed  for  in  these  

appeals. Hence, he submits that these are not fit cases  

to interfere with the impugned judgments, award or the  

order of the High Court and the appellant is not entitled  

to enhancement of compensation as claimed by her in her  

appeal. Hence, he has prayed for the dismissal of the  

appeals filed by the appellant.   With reference to the  

above rival factual and legal contentions, the following  

points would arise for consideration:

(i) Whether the impugned judgment, order and award  

passed  in  MACA  580  and  846/  2007  and  Misc.  Case  No

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386/2011 in MACA 580 is legal and valid?   

(ii) Whether the Tribunal is justified in awarding  

Rs.17 lakhs and odd towards pecuniary damages in favour  

of  the  appellant  namely,  medical  charges,  medicine  

expenses  and  other  expenses  on  the  basis  of  the  

documentary evidence on record?

(iii) Whether the appellant is entitled to enhanced  

compensation under the different heads of non pecuniary  

damages?

(iv)  If so, to what compensation and for what award  

the appellant is entitled to?

13. Point Nos. (i) and (ii) are answered together as they  

are  interrelated  with  each  other,  by  assigning  the  

following reasons:

The High Court has gravely erred both on facts and in  

law in interfering with the impugned judgment and award  

of the Tribunal in reducing the pecuniary damages awarded  

towards medical expenses incurred by the appellant herein  

from Rs.17,51,726/- to Rs.7,77,000/- solely on the ground  

that there is no documentary evidence in relation to the  

amount spent towards medical expenses which is awarded by

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the Tribunal. This assumption by the learned Judge of  

High Court is factually not correct. As could be seen  

from the record, there are large number of medical bills  

and vouchers produced by the appellant for having spent  

the money towards the surgeries conducted upon her and  

payment made to the various Hospitals and Nursing Homes  

namely, V.S.S. Medical Hospital, Burla, Kalinga Hospital,  

Bhubaneshwar, Nursing Home, Cuttack along with purchase  

of  medicines  for  the  aforesaid  period  which  run  to  

Rs.17,51,726/-. The above said factual aspects are stated  

in unequivocal terms in her statement of evidence, and  

she has also referred to the documents such as bills,  

receipts  and  vouchers  obtained  by  her  from  various  

medical stores on the basis of the prescriptions of the  

doctors who have treated her. Some of the documents were  

marked in the evidence of PW-3 - the appellant herein and  

she had spoken about the expenses incurred towards her  

treatment and purchase of medicines. In relation to some  

other documents, the learned counsel for the Insurance  

Company  has  objected  for  making  them  exhibits  without  

raising tenable objections.   The learned member of the  

Tribunal neither upheld nor rejected the objection raised  

by  the  counsel  on  behalf  of  the  respondent  Insurance

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Company  at  the  time  of  marking  documents  through  the  

appellant  in  her  evidence.  Nonetheless,  the  learned  

member of the Tribunal has taken those documents into  

consideration  and  has  awarded  compensation  under  

pecuniary damages having regard to the clinching evidence  

on record that the surgeries were conducted and treatment  

was taken by her in various hospitals and Nursing Homes  

for a period of four years.   The correctness of the said  

claim is examined by us with reference to the documents  

in Ann. P-7 produced in this case, in which date-wise  

particulars with regard to the name of the Institutions  

and  Medical  Stores,  the  expenses  incurred  and  bill  

numbers, payment made for the purpose of conducting blood  

tests, purchase of medicines, purchase of blood from the  

blood bank and cost of surgeries spent by the appellant  

are  given.   The  Tribunal,  in  the  absence  of  rebuttal  

evidence  and  the  nature  of  cross  examination  of  the  

appellant-PW3 made by the learned counsel on behalf of  

the Insurance Company and the evidence adduced by the  

appellant  herein  and  the  claim  made  by  her  under  the  

pecuniary  damages  towards  the  medical  expenses,  tests,  

surgeries  etc.  and  other  incidental  purposes,  has  

accepted and has rightly awarded a sum of Rs. 17,51,726/-

Page 21

under the heading of medical expenses. The same has been  

arbitrarily  and  unreasonably,  without  assigning  any  

cogent  and  valid  reason,  interfered  with  by  the  High  

Court and it has erroneously modified the judgment by  

reducing  the  amount  from  Rs.  17,51,726/-  to  Rs.  

7,77,000/-. This has been very lightly interfered with by  

the learned Judge of the High Court without application  

of mind and consideration of legal evidence on record  

particularly  in  the  absence  of  rebuttal  evidence  and  

further, the Insurance Company was unable to show that  

the documents referred to supra produced by the appellant  

in her evidence are fabricated documents, which have been  

produced  with  deliberate  intention  to  prefer  a  false  

claim in this regard as contended by the learned counsel  

on behalf of the Insurance Company.  We have carefully  

examined the evidence on record and the findings of the  

Tribunal to examine as to whether the findings recorded  

by the High Court in the impugned judgment for reduction  

of pecuniary damages from Rs.17,51,726/- to Rs.7,77,000/-  

is  correct.   On  careful  perusal  of  the  evidence  and  

documents produced by the appellant we have to hold that  

the  finding  and  reason  recorded  by  the  High  Court  is  

wholly erroneous in law as the same is contrary to the

Page 22

facts pleaded and proved by producing evidence on record.  

Therefore, the same requires to be interfered with by  

this Court in these appeals.  Accordingly, point Nos. (i)  

and (ii) are answered in the affirmative in favour of the  

appellant. The finding and reason recorded by the High  

Court in not awarding just and reasonable compensation  

under  the  various  heads  of  non  pecuniary  damages  for  

which she is legally entitled to on the basis of proven  

facts, legal evidence on record and law laid down by this  

Court, is not only erroneous but also suffers from error  

in law.  On this aspect, separate reasons are assigned  

while answering point Nos. (iii) & (iv).

14. Point No.(iii) is also required to be answered in  

favour of the appellant. We are of the view that the  

appellant  is  substantially  entitled  to  enhancement  of  

compensation under various heads of non-pecuniary damages  

having regard to the concurrent findings recorded on this  

aspect of the matter by the High Court. Both the Tribunal  

and the High Court have accepted the nature of injuries  

sustained by her and the percentage of permanent partial  

disablement  suffered  by  her  due  to  the  Motor  Vehicle  

Accident as per the Disability Certificate No.943 dated

Page 23

24.2.2006  issued  by  the  Chief  Medical  Officer  of  the  

District Medical Board of Sambalpur. This aspect of the  

matter is very relevant for the purpose of examining the  

claim of the appellant and also to find out as to whether  

the Tribunal and the High Court were justified in not  

awarding just and reasonable compensation in favour of  

the appellant under the various heads of non-pecuniary  

damages.  This Court is required to keep in mind justice,  

equity and good conscience which must be the primary,  

relevant  and  important  aspects  for  awarding  just  and  

reasonable  compensation  to  an  unfortunate  victim,  the  

appellant herein who has sustained grievous injuries to  

her  body  and  whose  future  prospects  are  completely  

doomed.   Further, the Tribunal and courts while awarding  

compensation for bodily injuries, must realise that the  

possession  of  one’s  own  body  is  the  first  and  most  

valuable  of  all  human  rights  and  that  all  other  

possessions and ownership are the extensions of the basic  

right.  Bodily  injuries  should  be  equated  with  the  

deprivation which entitles a claimant to damages and the  

amount of damages varies in accordance with the gravity  

of injuries. In this regard, it is worthwhile to refer to  

certain paragraphs which have been referred to by the

Page 24

Karnataka High Court in the case of K. Narasimha Murthy  

vs. The Manager, Oriental Insurance Company Limited and  

Anr.1, wherein the Division Bench of the Karnataka High  

Court has considered the relevant important aspects from  

the judgment of this Court and the House of Lords and  

different  learned  scholars  and  authors  of  books  on  

awarding  pecuniary  and  non  pecuniary  damages.  The  

abovementioned decision states about the approach of the  

Motor Accidents Claim Tribunals and Courts for awarding  

just  and  reasonable  compensation  in  favour  of  the  

claimants in relation to the bodily injuries suffered by  

them. It is worthwhile to extract Paragraph 16 from K.  

Narasimha Murthy case (supra), which reads as under:

“16. The Courts and Tribunals, in bodily injury  cases, while assessing compensation, should take  into  account  all  relevant  circumstances,  evidence,  legal  principles  governing  quantification  of  compensation.  Further,  they  have  to  approach  the  issue  of  awarding  compensation  on  the  larger  perspectives  of  justice, equity and good conscience and eschew  technicalities  in  the  decision-making.  There  should  be  realisation  on  the  part  of  the  Tribunals and Courts that the possession of one's  own body is the first and most valuable of all  human  rights,  and  that  all  possessions  and  ownership are extensions of this primary right,  while awarding compensation for bodily injuries.  Bodily injury is to be treated as a deprivation  

1   ILR 2004 Karnataka 2471

Page 25

which entitles a claimant to damages. The amount  of  damages  varies  according  to  gravity  of  injuries.”  

15. In  R.D. Hattangadi v. Pest Control (India) Private  

Limited  and  Ors.2, speaking  about  the  heads  of  

compensation, this Court has held thus:

"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  is 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 profit upto 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  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,  

2   1995 (1) SCC 551

Page 26

disappointment, frustration and mental stress in  life."

16. Further, on this point, Justice Viscount Dunedin in  

Admiralty Comrs v. S.S. Valeria3, has observed thus:

"The true method of expression, I think, is that  in calculating damages you are to consider what  is the pecuniary consideration which will make  good to the sufferer, as far as money can do so,  the loss which he has suffered as the natural  result of the wrong done to him".

17. Further, Lord Blackburn in  Livingstone v. Rawyards  

Coal Company4, has held as under:

"Where  any  injury  is  to  be  compensated  by  damages,  in  settling  the  sum  of  money  to  be  given. . . . you should as nearly as possible get  at that sum of money which will put the person  who has been injured. . . . in the same position  as he would have been in if he had not sustained  the wrong."

3  (1922)2 A.C. 242 at p. 248 4  1880 5 App. Cas. 25 at p. 39

Page 27

18. Lord Morris in his memorable speech in  H. West and  Sons, pointed out this aspect in the following words:

"Money may be awarded so that something tangible  may be procured to replace of like nature which  has been destroyed or lost. But, the money cannot  renew a physical frame that has been battered and  shattered. All the Judges and Courts 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  assessed  with  moderation.  Further,  more  it  is  eminently  desirable  that  so  far  as  possible  comparative  injuries  should  be  compensated  by  comparable awards."

19. In  Ward v. James5, speaking for the Court of Appeal  

in England, Lord Denning laid down three basic principles  

while dealing with the question of awarding compensation  

for personal injury:

"Firstly,  assessability:  In  cases  of  grave  injury,  where  the  body  is  wrecked  or  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.  Secondly,  uniformity:  There  

5  1966 1 Q.B. 273 at pp. 299-300

Page 28

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.

In deciding on the quantum of damages to be paid  to a person for the personal injury suffered by  him,  the  Court  is  bound  to  ascertain  all  considerations  which  will  make  good  to  the  sufferer of the injuries, as far as money can do,  the  loss  which  he  has  suffered  as.  a  natural  consequence of the wrong done to him.”

20. Further, a Division Bench of Karnataka High Court in  

Basavaraj v. Shekar6, has held as under:

"If the original position cannot be restored - as  indeed in personal injury or fatal accident cases  it cannot obviously be - the law must endeavour  to give a fair equivalent in money, so far as  money can be an equivalent and so 'make good' the  damage.

Therefore,  the  general  principle  which  should  govern  the  assessment  of  damages  in  personal  

6   ILR 1987 Kar. 1399

Page 29

injury cases is that the Court should award to  injured person such a sum of money as will put  him in the same position as he would have been in  if he had not sustained the injuries. But, it is  manifest  that  no  award  of  money  can  possibly  compensate an injured man and renew a shattered  human frame.”

                    (Emphasis laid by the Court)

21. Lord Morris of Borth-y-Gest in Parry v. Cleaver7, has  said:

"To compensate in money for pain and for physical  consequences is invariably difficult but. . . no  other process can be devised than that of making  a monetary assessment".

                    (Emphasis laid by the Court)

22. The necessity that the damages should be full and  

adequate was stressed by the Court of Queen's Bench in  

Fair  v.  London  and  North  Western  Railway  Company8.  In  

Rushton v. National Coal Board9, Singleton L.J. has said  

that:

“When damages have to be assessed in a case of  7  [1970] 1 AC 1 at p. 22 8  21 L.T. (N.S.) 326 (1869) 9  1953 1 QB 495 at p. 499

Page 30

this  kind  there  are  many  elements  for  consideration: the pain and suffering undergone  and that which may occur in the future; the loss  of        some of the amenities of life; the fact that    a man with an injury of this kind will always  require some measure of help, even though he may  be able to earn considerable money. These are  some of the matters which have to be taken into  consideration, and another is the fact that his  earnings will probably be less than they were  before.”  

(Emphasis laid by the Court)

23. In  Fowler v. Grace10,  Edmund Davies, L.J., has said  

that :

“It is the manifest duty of the Tribunal to give  as perfect a sum as was within its power'. There  are many losses which cannot easily be expressed  in terms of money. If a person, in an accident,  loses his sight, hearing or smelling faculty or a  limb,  value  of  such  deprivation  cannot  be  assessed in terms of market value because there  is no market value for the personal asset which  has been lost in the accident, and there is no  easy way of expressing its equivalent in terms of  money. Nevertheless a valuation in terms of money  must be made, because, otherwise, the law would  be sterile and not able to give any remedy at  all.  Although  accuracy  and  certainty  were  frequently unobtainable, a fair assessment must  

10  (1970) 114 Sol. Jo.193

Page 31

be  made.  Although  undoubtedly  there  are  difficulties  and  uncertainties  in  assessing  damages  in  personal  injury  cases,  that  fact  should not preclude an assessment as best as can,  in the circumstances be made.”

                   (Emphasis laid by the Court)

24. In re the Mediana11, the plaintiffs were deprived of  the  use  of  their  own  lightship,  but  sustained  no  

pecuniary loss as another lightship was kept in reserve.  

Yet, it was held that the plaintiffs were entitled to  

substantial damages for the loss of the use of their ship  

for  a  period,  and  Lord  Halsbury  L.C.  answered  the  

objection that assessment was too uncertain by observing  

that:

"Of course the whole region of inquiry into  damages is one of extreme difficulty. You very  often cannot even lay down any principle upon  which you can give damages; nevertheless, it is  remitted to the jury, or those who stand in place  of the jury, to consider what compensation in  money shall be given for what is a wrongful act.  Take the most familiar and ordinary case: how is  anybody to measure pain and suffering in moneys  counted? Nobody can suggest that you can by any  arithmetical  calculation  establish  what  is  the  

11  [1900] AC  113 at p. 116

Page 32

exact amount of money which would represent such  a thing as the pain and suffering which a person  has undergone by reason of an accident ... But,  nevertheless, the law recognises that as a topic  upon which damages may be given.

In  personal  injury  cases,  the  Court  is  constantly  required  to  form  an  estimate  of  chances and risks which cannot be determined with  precision. It is because, the law will disregard  possibilities which are slight or chances which  are nebulous; otherwise, all the circumstances of  the situation must be taken into account, whether  they relate to the future which the plaintiff  would  have  enjoyed  if  the  accident  had  not  happened, or to the future of his injuries and  his earning power after the accident. Damages are  compensation for an injury or loss, that is to  say, the full equivalent of money so far as the  nature  of  money  admits;  and  difficulty  or  uncertainty does not prevent an assessment.”

                  (Emphasis laid by the Court)

25. It  is  well-settled  principle  that  in  granting  

compensation for personal injury, the injured has to be  

compensated (1) for pain and suffering; (2) for loss of  

amenities; (3) shortened expectation of life, if any; (4)  

loss of earnings or loss of earning capacity or in some  

cases  for  both;  and  (5)  medical  treatment  and  other  

special damages. In personal injury cases the two main

Page 33

elements are the personal loss and pecuniary loss. Chief  

Justice Cockburn in Fair's case, supra, distinguished the  above two aspects thus:

"In assessing the compensation the jury should  take  into  account  two  things,  first,  the  pecuniary  loss  the  plaintiff  sustains  by  the  accident : secondly, the injury he sustains in  his person, or his physical capacity of enjoying  life. When they come to the consideration of the  pecuniary loss they have to take into account not  only his present loss, but his incapacity to earn  a future improved income".

26. McGregor on Damages (14th Edition) at paragraph no.  1157,  referring  to  the  heads  of  damages  in  personal  

injury actions, states as under:

"The person physically injured may recover  both  for  his  pecuniary  losses  and  his  non- pecuniary losses. Of these the pecuniary losses  themselves comprise two separate items, viz., the  loss  of  earnings  and  other  gains  which  the  plaintiff would have made had he not been injured  and the medical and other expenses to which he is  put as a result of the injury, and the Courts  have  sub-divided  the  non-pecuniary  losses  into  three categories, viz., pain and suffering, loss  of amenities of life and loss of expectation of  life".

Page 34

Besides,  the  Court  is  well-advised  to  remember  that  the  measures  of  damages  in  all  these cases 'should be such as to enable even a  tort feasor to say that he had amply atoned for  his misadventure'. The observation of Lord Devlin  that the proper approach to the problem or to  adopt  a  test  as  to  what  contemporary  society  would deem to be a fair sum, such as would allow  the  wrongdoer  to  'hold  up  his  head  among  his  neighbours and say with their approval that he  has done the fair thing', is quite apposite to be  kept  in  mind  by  the  Court  in  assessing  compensation in personal injury cases.”

(Emphasis laid by the Court)

27. In  R. Venkatesh  v. P. Saravanan & Ors.12, the High  Court of Karnataka while dealing with a personal injury  

case  wherein  the  claimant  sustained  certain  crushing  

injuries due to which his left lower limb was amputated,  

held  that  in  terms  of  functional  disability,  the  

disability sustained by the claimant is total and 100%  

though only the claimant's left lower limb was amputated.  

In paragraph 9 of the judgment, the Court held as under:

"9. As a result of the amputation, the claimant  had been rendered a cripple. He requires the help  of crutches even for walking. He has become unfit  

12   2001(1)  Kar. L.J. 411

Page 35

for any kind of manual work. As he was earlier a  loader doing manual work, the amputation of his  left leg below knee, has rendered him unfit for  any kind of manual work. He has no education. In  such cases, it is well-settled that the economic  and functional disability will have to be treated  as total, even though the physical disability is  not 100 per cent".

28. Lord Reid in Baker v. Willoughby13, has said:

"A  man  is  not  compensated  for  the  physical  injury;  he  is  compensated  for  the  loss  which  he  suffers as a result of that injury. His loss is not  in having a stiff leg; it is in his inability to lead  a full life, his inability to enjoy those amenities  which depend on freedom of movement and his inability  to earn as much as he used to earn or could have  earned…. ."

29. The  aforesaid  principles  laid  down  by  this  Court,  

Appeal  Cases,  House  of  Lords  and  leading  authors  and  

experts  referred  to  supra,  whose  opinions  have  been  

extracted above, with all fours, are applicable to the  

fact  situation  for  awarding  just  and  reasonable  

compensation  in  favour  of  the  appellant  as  she  had  

sustained grievous injuries on her face and other parts  

13  (1969) 3 All ER 1528 at p. 1532

Page 36

of  the  body  which  is  assessed  at  30%  permanent  

disablement by competent doctors.

30. The finding of fact is recorded by the Tribunal on  

the question of the accident caused on account of rash  

and  negligent  driving  on  the  part  of  offending  truck  

driver on 17.8.2001, the date of the accident on account  

of  which  the  appellant  herein  has  sustained  grievous  

injuries and has undergone trauma and mental agony for  

over a period of four years. She had also gone through a  

number of surgeries on account of this accident in which  

her face has been disfigured.  With regard to the nature  

of injuries sustained by her, the District Medical Board  

of Sambalpur, represented by the Chief Medical Officer  

has  issued  disability  certificate  certifying  that  the  

appellant has suffered disability to the extent of 30%.  

The finding recorded by the Tribunal on this important  

aspect of the case on the basis of legal evidence is not  

challenged either by the owner of the truck or by the  

Insurance Company and it could not have challenged the  

finding  without  obtaining  the  permission  as  required  

under Section 170(b) of the Motor Vehicles Act to avail  

the defence of the insured to contest the case as has

Page 37

been held by a three judge bench of this Court in the  

case  of  National  Insurance  Co.  Ltd.  vs.  Nicolletta  Rohtagi & Ors.14 The relevant paragraphs read as under:

“15. It is relevant to note that Parliament, while  enacting  sub-section  (2)  of  Section  149  only  specified some of the defences which are based on  conditions of the policy and, therefore, any other  breach of conditions of the policy by the insured  which does not find place in sub-section (2) of  Section 149 cannot be taken as a defence by the  insurer. If Parliament had intended to include the  breach  of  other  conditions  of  the  policy  as  a  defence, it could have easily provided any breach  of conditions of insurance policy in sub-section  (2) of Section 149. If we permit the insurer to  take any other defence other than those specified  in sub-section (2) of Section 149, it would mean  we are adding more defences to the insurer in the  statute which is neither found in the Act nor was  intended to be included. 16. For the aforesaid reasons, we are of the view  that the statutory defences which are available to  the insurer to contest a claim are confined to  what are provided in sub-section (2) of Section  149 of the 1988 Act and not more and for that  reason if an insurer is to file an appeal, the  challenge  in  the  appeal  would  confine  to  only  those grounds.”

The said finding of fact has attained the finality and  

the compensation has been awarded by the Tribunal and  

affirmed by the High Court. The only aspect which was  

required to be examined by the High Court in the appeals  14  (2002) 7 SCC 456

Page 38

filed both by the respondent Insurance Company as well as  

by the appellant was that the quantum of compensation  

required to be awarded in her favour under the different  

heads of non-pecuniary damages as per the principles laid  

down  by  this  Court,  House  of  Lords,  Queens  Bench  and  

Authors in various judgments and extracts from various  

texts and books respectively, referred to supra.   

31. Both the Tribunal as well as the High Court have  

gravely erred both on facts and in law in not evaluating  

the legal evidence on record to award just and reasonable  

compensation in favour of the appellant keeping in view  

the fact that the appellant was a good actress, model and  

has acted in many films, albums, T.V. serials etc. This  

evidence is not challenged though the appellant was cross  

examined  by  the  counsel  for  the  respondent  Insurance  

Company extensively without obtaining the permission from  

the Tribunal as required under Section 170(b) to contest  

in the proceeding. In the absence of such permission, the  

Insurance  Company  has  got  limited  defence  as  provided  

under section 149(2) of the Motor Vehicles Act, which  

provides for the conditions which determines breach of  

the terms and conditions of the insurance policy.  The

Page 39

Tribunal did not apply the legal principles laid down by  

this Court to award just and reasonable compensation by  

following  various  guiding  factors  and  legal  principles  

under the heading of future loss of earnings. It has also  

not awarded compensation under the following heads namely  

(1)damages  for  mental  and  physical  shock,  pain  and  

suffering already undergone by the appellant or she is  

likely  to  undergo  in  future,  (2)  damages  for  loss  of  

amenities of life on account of injury due to which the  

appellant is unable to act in the films and (3) damages  

for  the  loss  of  expectations  of  life,  inconvenience,  

hardship,  discomfort,  disappointment,  frustration  and  

mental  stress  in  life.  The  said  principles  have  been  

recognized  by  this  Court  time  and  again  in  catena  of  

cases reference to which are not required to be mentioned  

again as we have referred to the same in the preceeding  

paragraphs of this judgment.

32. Since under the head of non pecuniary damages the  

Tribunal  did  not  award  reasonable  compensation,  the  

appellant has rightly approached the High Court by filing  

MACA No.846 of 2007. The said appeal was heard along with  

MACA No. 580 of 2007 filed by the respondent Insurance

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Company which has affirmed the compensation awarded under  

the non-pecuniary damages by the Tribunal in the impugned  

judgment passed in the said appeal for enhancement of  

compensation  under  the  aforesaid  heads.  Without  

considering the legal grounds urged in the appeal filed  

by the appellant, it has simply dismissed the appeal of  

the appellant for the reasons recorded in the judgment  

passed  in  the  appeal  of  the  Insurance  Company.  The  

dismissal of the appeal of the appellant in view of the  

order passed in MACA No.580 of 2007 without assigning any  

reason  whatsoever  for  enhancement  of  compensation  is  

arbitrary and unreasonable. Therefore, the appellant is  

justified in challenging the said order in these appeals.  

It is in the evidence of the appellant that at the time  

of accident her age was 24 years, which is not disputed  

by the respondents.    

33. It is also in her evidence that she was an actress  

who acted in T.V. serial titled ‘Swara Sudha’, which was  

an album directed by Harish Mohanty.  She also acted in  

the motion picture in Oriya titled ‘Ma Pari Kiye Haba’.  

She was the lead actress in this picture. By Cane Critics  

Award  Organisation,  she  was  adjudged  as  the  ‘Best

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Actress’ and the ‘Best New Comer Artist’ in that film and  

she also performed in the lead role in the Oriya Feature  

Film ‘Dharma Debata’ directed by Bijaya Bhaskar Reddy.  

She also acted in Malayalam Feature film named ‘Paith  

Thingel Kalam’ as heroine, which was directed by Jaya  

Krishna.  She has further stated in her evidence that she  

has signed for the feature film in Oriya ‘Pua Bada Jagata  

Jita’ and another feature film in Oriya ‘Pua Bhangidela  

Suna Sanbar’.  But she could not act in those films due  

to the accident.  Further she has stated that she was in  

the lead role in the two completed T.V. serials ‘Atrupta  

Atma’  and  ‘Akhabuluthile  Chakabuluthaa’.   She  was  an  

artist in the Oriya Albums ‘Jhankar’ and ‘Mahake Rajni  

Gandha’.   She had also signed Hindi T.V. Serial ‘Silla  

Padma’  by  Dr.  Pravita  Roy  as  heroine  but  could  not  

perform in the serial due to the accident.  She has acted  

in advertisement films for products like Coca Cola, Saree  

and Saree house etc.  She had also performed in Oriya  

Cassette  namely  ‘Mu  Kendrapada  Jhia’  which  was  an  

audiocassette.

34. Further, she has stated in her evidence that at the  

time  of  accident  she  had  completed  her  graduation  in

Page 42

Commerce  from  G.M.  College,  Sambalpur  and  she  was  

pursuing her studies for her post graduate degree in that  

College.  Prior to her admission to P.G. Class, she had  

done P.G. Diploma course in Hotel Management from the  

Institute  of  Hotel  Management  and  Catering  Technology,  

Bhubaneswar. She has further stated that while pursuing  

her studies she was performing in the films referred to  

supra.  She has further stated that after the accident,  

her physical fitness, physical appearance and her zeal to  

perform in films have been reduced to zero. The vital  

statistics required of her for modeling has also become  

disproportionate  after  the  accident.  She  has  

categorically  stated  that  she  became  permanently  

handicapped and disabled. She has also stated that prior  

to  the  accident  she  was  lean  and  thin.  But  due  to  

continued treatment after accident, she gained 4 to 5  

k.gs.  The  aforesaid  positive  and  substantive  legal  

evidence remained unshaken in the cross examination of  

the appellant – PW-3 by the counsel of the respondent  

Insurance Company, though he was not entitled to cross  

examine  all  these  aspects  since  the  Company  did  not  

obtain  the  permission  from  the  Tribunal.  Nonetheless,  

permission was granted by the Tribunal to cross examine

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the appellant-PW3. Despite her cross examination by the  

counsel,  the  aforesaid  important  facts  could  not  be  

shaken  and  the  same  remained  unchallenged  and  

undisturbed.

35. The registered owner of the car in which she was  

traveling  belonged  to  her  mother.  The  truck  dashed  

against her car at the driver’s seat which was occupied  

by the appellant.  The Tribunal has not accepted the case  

of the Insurance Company that the appellant was driving  

the car negligently.   

36. In  the  cross  examination  of  the  appellant  –  PW-3  

except eliciting answer that there is no written contract  

for playing the role of modeling for the Ponds Products  

for 3 years so also for acting in Albums, T.V. serials or  

films,  the  fact  remained  that  even  in  the  absence  of  

written contracts, the fact that she has been acting as  

an actress in the aforesaid films is proved since the  

said portion of the evidence remained unchallenged.  The  

case pleaded by the appellant that she has been acting in  

films, T.V. serials, modeling and participating in the  

award  competition  is  established  by  pleadings  and

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evidence  on  record.   There  is  no  rebuttal  evidence  

adduced in this regard by either the insured or by the  

Insurance Company.   

37. The finding of fact recorded by the Tribunal stating  

that  she  has  been  acting  as  an  actress  has  been  re-

affirmed  by  the  High  Court  by  affirming  the  award  of  

compensation  under  the  various  heads  of  non-pecuniary  

damages.   Despite  the  cogent  and  substantive  evidence  

adduced on record by the appellant before the Tribunal,  

neither has it awarded just and reasonable compensation  

nor the High Court has enhanced the same in exercise of  

its  appellate  jurisdiction  by  re-appreciating  the  

pleadings and evidence on record.  

38. For  a  film  actress,  the  physical  appearance  

particularly the facial features are very important to  

act in the films and in T.V. serials.   It is in her  

evidence that on account of the accident her face was  

disfigured, she has put on weight and has become fat and  

therefore she is unable to perform the role as an actress  

in  films  in  future.  Having  regard  to  the  nature  of  

vocation she has been carrying on and wishes to carry on

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with in future, the opportunity is lost on account of the  

disfigurement of her face, to act in the films as an  

actress either as a heroine or actress in supporting role  

or any other role to be played in T.V. serials, albums  

and  also as a model.  It is in the evidence of the  

appellant  that  as  per  the  District  Medical  Board  of  

Sambalpur, her permanent disability is 30%. Having regard  

to the nature of injuries and observations made by this  

Court and Karnataka High Court in the cases referred to  

supra,  we  have  to  record  a  finding  of  fact  that  the  

appellant’s  permanent  disability  should  be  treated  as  

100%  functional  disablement  as  she  cannot  act  in  the  

films and in T.V. serials in future at all. Therefore, on  

account  of  the  aforesaid  reasons,  she  has  suffered  

functional disability. In this regard, it is relevant to  

refer  to  the  judgment  of  this  Court  in  the  case  of  

National Insurance Company Ltd. V.  Mubasir Ahmed15. This  Court has held that loss of earning capacity is not a  

substitute for percentage of physical disablement.  It is  

simply one of the factors taken into account to award  

just  and  reasonable  compensation.   Even  though  the  

claimant  does  not  suffer  from  100%  physical  permanent  

15  2007 (2) SCC 349

Page 46

disability, he suffers from 100% functional disability if  

he loses the capacity to pursue his work as a result of  

the accident. It is worthwhile to extract paragraph no. 8  

from the aforesaid judgment which reads as under:  

“8. Loss of earning capacity is, therefore, not a  substitute  for  percentage  of  the  physical  disablement. It is one of the factors taken into  account.  In  the  instant  case  the  doctor  who  examined  the  claimant  also  noted  about  the  functional  disablement.  In  other  words,  the  doctor had taken note of the relevant factors  relating  to  loss  of  earning  capacity.  Without  indicating any reason or basis the High Court  held  that  there  was  100%  loss  of  earning  capacity.”

39.  In  Palraj v.  North East Karnataka Road Transport  Corpn.16,  where the appellant was a driver, this Court  held that although the appellant has lost the use of his  

legs, the same amounts to total disablement as far as  

driving a vehicle is concerned.

40. In Nizam’s Institute of Medical Sciences v. Prasanath  S. Dhananka17, this Court has observed as under:  

“88. We  must  emphasise  that  the  court  has  to  strike  a  balance  between  the  inflated  and  unreasonable demands of a victim and the equally  

16  2010 (10) SCC 347 17   2009 (6) SCC 1

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

…….       …. …..

90. At the same time we often find that a person  injured  in  an  accident  leaves  his  family  in  greater distress vis-à-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 supplied)

91. We  can  also  visualise  the  anxiety  of  the  complainant and his parents for the future after  the latter, as must all of us, inevitably fade  away.  We,  have,  therefore  computed  the  compensation keeping in mind that his brilliant  career has been cut short and there is, as of  now,  no  possibility  of  improvement  in  his  condition, the compensation will ensure a steady  and reasonable income to him for a time when he  is unable to earn for himself.”

41. In this regard, in  Baker’s case supra, it has been

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stated by Lord Reid that a man is not compensated for the  

physical injury; he is compensated for the loss which he  

suffers  as  a  result  of  that  injury.   Therefore,  the  

functional disability is a forceful alteration of career  

option  of  the  appellant  who  has  already  undergone  

physical and mental injuries because of the accident.  It  

would  amount  to  adding  distress  to  injury  if  one  is  

forced to work with difficulty to earn his/her livelihood  

so as to reduce the burden of the wrongdoer in terms of  

compensation.   

42. In view of the aforesaid decisions of this Court and  

various courts and High Court of Karnataka and authors  

referred to supra, we have to record the finding of fact  

having regard to the nature of grievous injuries and her  

disfigured face and that she was acting as an actress in  

the films, T.V. serials, etc. her functional disablement  

is 100%.  This relevant aspect of the matter has been  

conveniently  omitted  to  be  considered  both  by  the  

Tribunal as well as by the High Court while determining  

compensation  under  various  heads  of  non-pecuniary  

damages.  For the foregoing reasons, we are of the view  

that under the different heads of non-pecuniary damages

Page 49

she is entitled to higher compensation in her appeal. For  

that  purpose,  we  are  required  to  consider  her  annual  

income  for  the  purpose  of  computation  of  just  and  

reasonable  compensation  under  the  aforesaid  different  

heads of non-pecuniary damages. It is in her evidence  

that  her  income  depends  upon  the  project.  She  got  

30,000/- for her first film “Maa Pari Kiye  Haba” and  

Rs.75,000/- for Malayalam film ‘Paith Digem Alam’.  For  

her  performance  in  a  serial,  she  used  to  get  within  

Rs.7000/- to 10,000/-.  She had received Rs.50,000/- for  

winning the “Ponds Women of Tomorrow” Contest.  The said  

evidence remains unchallenged in the cross examination by  

the counsel for the respondent Insurance Company. Having  

regard  to  her  age  and  qualification  and  that  she  was  

acting in various Oriya and Malayalam films, T.V. serials  

and that she was in the beginning stage of her acting  

career and having regard to the fact that she has acted  

in various films, she would have definitely had a very  

good chance for acting in future if she had not suffered  

the  grievous  injuries,  facial  disfigurement  and  other  

injuries on account of the accident. She has also stated  

in her evidence that she is an assessee for income tax.  

She has got PAN card and has produced the same.  Having

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regard to the aforesaid legal evidence on record and in  

the absence of documentary evidence to show her probable  

annual income, it would be proper for this Court to take  

her  probable  annual  income  as  Rs.5,00,000/-  for  the  

purpose of computation of her future loss of earning.  We  

have already held that though the disability certificate  

speaks  of  her  disability  at  30%  on  account  of  

disfigurement of the face and other injuries to her body,  

her physical fitness is completely changed, she has put  

on weight 4 to 5 kgs., she is not fit to act and no film  

producer will offer her roles in their films to act as an  

actress.  Having regard to the nature of the vocation, we  

have to hold that she is suffering from 100% functional  

disability. In the light of the facts of this case and  

keeping in view the aforesaid evidence on record that she  

is a film actress and also taking into consideration that  

in  the  film  world  of  this  country  the  heroine  will  

certainly get the substantial sum for acting in films,  

T.V. serials, modeling, it would be just and proper for  

us to take  50% of her annual income for the purpose of  

computation of her future loss of income keeping in view  

that throughout her life she may not be in a position to  

act in the films, albums and modeling. Her annual income

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is  assessed  at  Rs.5,00,000/-.  50%  of  which  is  

Rs.2,50,000/- per annum which is multiplied by 17 as the  

proper  multiplier  considering  her  age  at  the  time  of  

accident by applying the legal principle laid down by  

this Court in Sarla Verma & Ors. v. Delhi Transport Corp.  &  Anr.18,  which  amounts  to  Rs.42,50,000/-.  Hence,  we  award  Rs.42,50,000/-  compensation  under  the  aforesaid  

head. The Tribunal awarded only Rs.2,00,000/- which is  

enhanced to Rs.42,50,000/- under the said head.   

43. The  Tribunal  awarded  compensation  of  Rs.2,00,000/-  

for  the  loss  of  amenities,  pleasure  of  life  and  her  

inability to attend social functions in future,  which is  

inadequate,  therefore,  it  should  be  enhanced  to  

Rs.10,00,000/-.  

44. Towards the pain and suffering, the Tribunal awarded  

Rs.1,00,000/-.  It  should  be  proper  to  award  another  

Rs.9,00,000/- as she has undergone ordeal for the period  

of 4 years continuously taking treatment in Odisha and  

Kerala States and the damages for mental and physical  

shock, pain and suffering, disfigurement of the face and  

other bodily injuries she already suffered continuously  

18  2009 (6) SCC 121

Page 52

or likely to suffer.

45.  The  Tribunal  awarded  Rs.17,15,726/-  towards  the  

medical  expenses  based  on  the  legal  evidence  and,  

therefore  we  affirm  the  compensation  awarded  by  the  

Tribunal.

46.  Thus,  the  total  compensation  amounting  to  

Rs.79,65,726/-  which  is  rounded  of  to  Rs.  79,66,000/-

along  with  interest  at  the  rate  of  6%  per  annum  is  

awarded from the date of application till the date of  

deposit  of  the  amount.  The  aforesaid  enhancement  of  

compensation under different heads referred to supra, in  

our  considered  view  would  be  just  and  reasonable  

compensation in this case.   

47. Before parting with the judgment, it would be just  

and necessary for this Court to make observation that the  

Motor Accidents Claims Tribunals and the Appellate Courts  

should keep in view the rights of the claimants under the  

provisions of the M.V. Act to determine the compensation  

claims of the claimants by considering the facts of each  

case and the legal position laid down by this Court on  

relevant aspects.

Page 53

49. Accordingly, the appeals of the appellant are allowed  

in  the  above  said  terms.  We  set  aside  the  impugned  

judgment, award and orders passed by the High Court. The  

respondent Insurance Company is directed to deposit 70%  

of  the  awarded  compensation  along  with  proportionate  

interest with any Nationalized Bank of the choice of the  

appellant in fixed deposit and the remaining 30% with  

proportionate  interest,  after  deducting  any  amount  if  

already paid by the respondent as awarded by the High  

Court should be disbursed to the appellant within six  

weeks on proper identification. There will be no order as  

to costs.

…………………………………………………………J.     [G.S. SINGHVI]

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

New Delhi, August 1, 2013.

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ITEM NO.1B               COURT NO.2             SECTION XIA (For Judgment)

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                  CIVIL APPEAL NO(s). 5370-5372 OF 2013

REKHA JAIN                                        Appellant (s)

                VERSUS

NATIOANL INSURANCE CO.LTD. & ORS.                 Respondent(s)

Date: 01/08/2013  These Appeals were called on for Judgment today.

For Appellant(s)     Mr. Sibo Sankar Mishra, Adv.

For Respondent(s)    Ms. Shalu Sharma, Adv.

Hon’ble Mr.Justice V.Gopala Gowda pronounced the judgment  

of  the  Bench  comprising  Hon’ble  Mr.Justice  G.S.Singhvi  and  His  

Lordship.

The appeals are allowed in terms of the signed judgment.

   (Satish K.Yadav)            (Phoolan Wati Arora)       Court Master               Court Master

             (Signed reportable judgment is placed on the file)