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Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.   4340       OF 2013 (Arising out SLP (C) No.8164 of 2012)

Smt. V. Sudha        … Appellant Versus

P. Ganapathi Bhat & Anr.            …  Respondents

J  U  D  G  E  M  E  N  T

H.L. Gokhale J.

Delay condoned.  Leave granted.

2. This appeal by special leave seeks to challenge the  

judgment  and  order  dated  1.2.2011  rendered  by  a  Single  

Judge of the Karnataka High Court in MFA No.3356 of 2009  

(MV), whereby the learned Single Judge modified the award  

rendered by the Motor Accident Claims Tribunal (“MACT” for  

short) Bangalore dated 7.2.2009 in M.V.C. No.7724 of 2007.  

The  High  Court  by  the  impugned  judgment  and  order  has  

enhanced the compensation payable to the appellant for the

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accidental injury suffered by her, though not fully meeting her  

requirement, and hence this appeal by Special Leave.

Facts leading to this appeal are as follows:-

3. The appellant then aged about 36 years sustained  

grievous  injuries  on  11.9.2007  in  a  road  accident  which  

occurred  at  Mill  Road  Junction,  Cottonpete  Main  Road,  

Bangalore.  The appellant claims to be doing the business of  

selling saaris and on that date when she was proceeding on  

that  road  at  about  3.30  pm,  a  motorcycle  driven  by  the  

respondent no.1 bearing registration no.KA-02-ET-8786 came  

in a rash and negligent manner at a high speed and dashed  

against  her.   The appellant  sustained grievous injuries  and  

was admitted in Srinivasa Hospital, Bangalore where she was  

treated  by  Dr.  Avinash  s/o  B.  Parthosarthi,  Orthopaedic  

Surgeon.

4. The appellant was treated for the following injuries:-

(i) Fracture of distal end of left radius (forearm bone)

(ii) Fracture of left neck of femur – (hip bone)

(iii) Abrasions over left elbow

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The wound certificate issued by the doctor stated that injury  

no.1 and 2 above were grievous in nature.

5. As per the medical record the appellant had to be  

operated for ‘close reduction and annulated screw fixation of  

fractured neck of femur’.  ‘Close reduction and B/E POP cast  

was applied for fractured lower end of left radius’.  After the  

discharge from the hospital she continued to suffer pain in left  

forearm and  left  hip,  and  found  difficulty  in  walking.   She  

suffered  for  inability  to  stand with  full  weight  in  left  lower  

limb, and needed crutches to walk. She could not squat and  

sit  cross legged,  had great difficulty in climbing stairs,  and  

could not stand for longer duration.

6. The  appellant  filed  the  above  referred  motor  

accident  claim  petition  bearing  MVC  No.7724  of  2007  and  

claimed the compensation of Rs.3,50,000/-.  The respondent  

no.2-National Insurance Company with which the motorcycle  

was  insured,  filed  its  written  statement  and  produced  the  

insurance  policy  which  showed  that  the  motorcycle  was  

insured with it on the date of the accident.  Respondent no.1  

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did not  file  any written statement.   The MACT framed two  

issues,  firstly  whether  the  appellant  proved  that  she  has  

sustained grievous injuries in the road accident on that date  

due to the rash and negligent act of the rider of the concerned  

motorcycle.   The  second  issue  framed  was  whether  the  

appellant  was  entitled  for  compensation,  and  if  so  what  

amount and from whom.  The appellant filed her evidence by  

affidavit and supported her claim with the affidavit of above  

referred Dr. Avinash dated 3.12.2008.   

7.     While  deciding  the  first  issue,  the  MACT  

considered  the  statement  of  the  appellant  in  her  affidavit  

about the occurrence of the accident.  The Court noted the  

contents  of  the  FIR,  and  the  chargesheet  filed  in  the  

Magistrate’s Court. The rider of the motorcycle did not file the  

written statement, nor did he step into the witness box. The  

Tribunal  was  therefore,  constrained  to  draw  the  adverse  

inference that the respondent No. 1 was responsible for the  

accident, and that the accident was caused by his rash and  

negligent driving.

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8. Turning to the issue no.2, the MACT considered the  

evidence produced by the appellant by way of her affidavit, as  

well  as  the  evidence  through  the  affidavit  of  Dr.  Avinash  

(PW2) dated 3.12.2008.  Dr. Avinash placed on record as to  

how the appellant was admitted to Srinivasa Hospital, and the  

treatment  given  to  her.   He  pointed  out  that  after  her  

discharge  from the  hospital  she  continued  to  come to  the  

hospital with complaints of pain in left forearm and left hip,  

difficulty  in  walking,  inability  to  stand  with  full  weight,  

restriction of the movement, needing the crutches to walk and  

not being able to sit down with cross legs or to squat.  He  

opined that there was serious physical impairment in her left  

leg.  Its mobility component as well as the stability component  

had  been  seriously  eroded.  Its  mobility  component  was  

eroded  by  16.3%  and  stability  component  was  eroded  by  

30%.  The doctor assessed the permanent disability to the left  

lower limb at 52%, and in relation to the whole body at 17.3%.  

In  his  affidavit,  the doctor  referred to the future treatment  

which  was  expected  for  the  appellant.  He  stated  that  to  

minimize the persistent disablement, she needed to undergo  

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femoral  head  excision  and  Bipolar  Hemi-arthoplasty  which  

would cost more than Rs.90,000/-.

9.  The appellant had claimed her monthly income in  

the  range  of  Rs.6000  to  Rs.7000  but  the  MACT  took  it  as  

Rs.3000/- and arrived at annual income of Rs.36,000/-.  The  

Tribunal awarded an amount of Rs.1,94,350/- with interest @  

8%  per  annum  from  the  date  of  petition  till  the  date  of  

depositing  the  amount  in  Court  with  advocate  fee  fixed  at  

Rs.500/-.  The amount of compensation was arrived at in the  

following manner:-

1) Pain and suffering Rs.30,000/-

2) Loss of future income & disability Rs.81,000/-

3) Loss of amenities Rs.20,000/-

4) Loss of expectation of life Rs.15,000/-

5) Medical Expenses Rs.38,346/-

6) Travelling expenses Rs.10,000/-

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Total Rs.1,94,350/-  

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10. When  the  appeal  filed  by  the  appellant  under  

Section 173 (1) of the Motor Vehicles Act, 1988 (M.V. Act for  

short) was heard by the High Court, it came to the conclusion  

that the compensation awarded by the Tribunal under the loss  

of  earning  capacity  and future  loss  of  earning  was  on  the  

lower  side.   The  Court  noted  that  the  Tribunal  had  not  

awarded compensation towards loss of earning,  attendants,  

nourishment and food charges as well as for future medical  

expenses.   The  High  Court,  therefore,  modified  the  award  

rendered  by  the  MACT  and  awarded  the  compensation  of  

Rs.2,65,000/- in the following manner:-

“1) Pain and suffering Rs.30,000/-

2) Medical Expenses Rs.39,000/-

3) Loss of earning during laid up

Period (Rs.3000 x 6) Rs.18,000/-

4) Loss of amenities Rs.40,000/-

5) Travelling expenses Rs.10,000/-

6) Attendant & nourishing food Rs.5,000/-

7) Loss of earning capacity &  

Future loss of earning

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(Rs.3000 x 12 x 15 x 0.20) Rs.1,08,000/-

8) Future medical expenditure Rs.15,000/-

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Total Rs.2,65,000/-“

11. The learned counsel for the appellant criticised the  

judgment  of  the  High  Court  principally  for  accepting  the  

permanent physical disability of the appellant at 17.3% only,  

and for not considering the supporting medical evidence for  

future  expenses.   It  was  contended  that  the  permanent  

physical  disability  was  52%.   However,  when  we  see  the  

evidence of  the doctor,  it  is  seen that  the disability to  left  

lower  limb  is  52% but  the  disability  to  the  whole  body  is  

17.3%.  However, as far as the award of Rs.15000/- for future  

medical expenses is concerned, as can be seen the High Court  

has lost sight of the statement of the doctor that to minimize  

the persistent disablement the appellant needed to undergo  

femoral  head  excision  and  Bipolar  Hemi-arthoplasty  which  

would cost more than Rs.90,000/-.

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12. When  this  special  leave  petition  came  for  

consideration  a  notice  was  issued  on  the  prayer  of  

condonation of delay as also on merits of the appeal.  The  

notice has been served on the respondents. Ms. Kiran Suri has  

appeared  for  appellant  and  Mr.  Parmanand  Gaur  has  

appeared for the insurance company.  Ms. Suri appearing for  

the appellant has submitted that the future medical expenses  

and  necessary  treatment  have  not  been  considered  

adequately  by  the  High  Court.   In  fact  now  the  appellant  

claims that  she needs to undergo hip  replacement  surgery  

which could cost Rs.2 lakhs.  She has produced a certificate of  

a  consulting  orthopedic  surgeon  of  a  health  centre  dated  

14.7.2011.  (We  may  however  note  that  the  certificate  is  

issued on a date which is even subsequent to the decision of  

the High Court,  and it  does not contain the address of the  

concerned  health  centre).   The  counsel  for  the  insurance  

company has submitted that the compensation has to be in  

proportion to the injury suffered and not in excess.

13. We have considered the  submissions  of  both  the  

counsel.  Section 168 of the Motor Vehicle Act under which  

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the  Tribunal  passes  its  award  requires  the  Tribunal  to  

determine the amount of compensation ‘which appears to it  

to be just’.  While considering the claim of a injured retired  

Judge  we  may  note  that  in  R.D  Hattangadi  Vs.  Pest  

Control (India) Pvt. Ltd. reported in 1995 (1) SCC 551 this  

Court has observed that the determination of compensation  

involves  some  hypothetical  consideration  linked  with  the  

nature of the disability, but these factors are required to be  

considered in an objective manner.   In  Arvind Kumar Vs.  

New India Insurance reported in 2010 (10) SCC 254, this  

Court  was  concerned  with  the  70%  permanent  disability  

suffered by a final year engineering student,  and the Court  

observed that the whole idea in granting the compensation is  

to put the claimant in the same position as he was in so far as  

money  can.   In  Raj  Kumar  Vs.  Ajay  Kumar  reported  in  

2011 (1) SCC 343, this Court observed that the provision of  

M.V. Act makes it clear that the award must be just, which  

means that the compensation should, to the extent possible  

fully and adequately restore the claimant to the position prior  

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to the accident.  With respect to the heads of compensation,  

the court observed:-

“The  heads  under  which  compensation  is   awarded in personal injury cases are the following:

Pecuniary damages (Special damages)

(i)  Expenses  relating  to  treatment,  hospitalization,   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  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   

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amenities (and/or loss of prospects of marriage) and loss of   expectation of life.”

14. In the present case, the claim petition filed by the  

appellant  claimed an amount  of  Rs.3,50,000/-,  the Tribunal  

awarded Rs.1,94,350/- which was enhanced by the High Court  

to Rs.2,65,000/-.  The evidence of the doctor tendered in the  

Tribunal on 3.12.2008 stated that the future treatment would  

cost more than Rs.90,000/-. This corroborating evidence has  

not been contravented. The High Court however awarded only  

an amount of Rs.15,000/- towards future medical expenses. In  

view of  the dicta in  Raj  Kumar  Vs.  Ajay Kumar (supra)  we  

accept the corroborative evidence given by the doctor, and  

add  the  amount  as  reflected  in  the  doctor’s  evidence.   A  

similar view has been taken by a Bench of this Court recently  

in  Civil  Appeal  No.  5945 of  2012 Kavita  Vs.  Deepak,  

decided on 22.8.2012 to which one of us (G.S. Singhvi J) was  

party.  This would add the remaining amount of Rs.75,000/- to  

the compensation awarded by the High Court which takes it to  

a figure of  Rs.3,40,000/. Since, the doctor has said that the  

expenses  could  be  more  than  Rs.90,000/-  but  has  not  

specified  how  much  would  be  that  amount,  we  add  the  

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remaining amount of Rs.10,000/- to make it Rs.3,50,000/- and  

thus fully allow the claim of the appellant.   The amount of  

Rs.85,000/- thus added, with interest at 8% from the date of  

the  petition  (as  originally  awarded)  will  give  her  an  added  

amount  in  the  range of  Rs.  1,25,000/.   That  will  meet  her  

requirement as placed before the MACT in her claim petition  

in its entirety.

15. The  appeal  is  accordingly  allowed.   The  claim  

petition  filed  by  the  appellant  will  stand  decreed  at  

Rs.3,50,000/- with interest @ 8% per annum from the date of  

the petition as awarded by the MACT.  The respondent No.2  

insurance  company  is  directed  to  pay  the  amount  as  now  

added  with  interest  at  8%  as  above  within  8  weeks  from  

today.   

    .…………..………………………..J.  

 [ G.S. Singhvi ]

.………….. ………………………..J.

    [ H.L. Gokhale ]      

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New Delhi Dated : May 6, 2013

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