Abhimanyu Partap Singh vs Namita Sekhon & Another

Motor Vehicles Act, 1988 – Non-pecuniary damages – “pain, shock and suffering” – Multiple factors to be considered from the date of accident – Discussed.

Partly allowing the appeal, the Court

HELD: 1.1 The claimant has suffered 100% permanent disability in a road accident and the liability is joint and several. By making the payment of compensation for damages would not revive the claimant into his original position. The compensation towards wrongful act in terms of money though cannot be decided by the Court but it may be determined as per the recognized principles. [Para 9, 10][9-F; 10-B-C]

1.2 The High Court in the impugned order observed that the claimant has now started practice as an advocate, therefore, future loss of earning has been calculated only for 10 years, applying the multiplier of 16, without looking to the facts that claimant cannot perform the work of advocacy similar to the other advocates by attending the cases in different Courts. The attendant charges have been allowed only for 20 years with one attendant. In fact, not only for determination of future loss of earning but for attendant charges also the multiplier method should be followed. The multiplier method has been recognized as most realistic and reasonable because it has been decided looking to the age, inflation rate, uncertainty of life and other realistic needs. Thus, for determination of just compensation to ensure justice with the family of deceased or the injured as the case may be the compensation can be determined applying said method. Therefore, the Tribunal while granting the compensation of future loss as well as earning only for 10 years and attendant charges only for 20 years was not justified. In fact, the said amount should be determined applying the multiplier method. In the judgment of Sarla Verma and Pranay Sethi, while replacing the schedule of Motor Vehicle Act, it is not made clear what multiplier would be applicable below the age of 15. In the case of Kajal, the injured was 12 years of the age, however, the multiplier of 18 has been applied. Therefore, taking guidance from the judgment of Kajal, for determination of the compensation in the present case, the multiplier of 18 shall be applicable. [Para 14, 15][11-G-H; 12A-E]

Kajal v. Jagdish Chand and Others (2020) 4 SCC 413 : [2020] 3 SCR 622 – relied on.

Sarla Verma (Smt.) & Others v. Delhi Transport Corporation and Another (2009) 6 SCC 121 : [2009] 5 SCR 1098; National Insurance Company Limited v. Pranay Sethi & Others (2017) 16 SCC 680 : [2017] 13 SCR 100 – referred to.

1.3 In view of the said legal position, the compensation can be assessed in pecuniary heads i.e. the loss of future earning, medical expenses including future medical expenses, attendant charges and also in the head of transportation including future transportation. In the non--pecuniary heads, the compensation can be computed for the mental and physical pain and sufferings present and in future, loss of amenities of life including loss of marital bliss, loss of expectancy in life, inconvenience, hardship, discomfort, disappointment, frustration, mental agony in life etc. Out of the pecuniary heads MACT has not awarded any amount in future loss of earning even having 100% permanent disability while the High Court granted Rs.6,00,000/- only for 10 years because the appellant is now practicing as an advocate in the Court accepting his earning Rs.60,000/- per annum. The father of the appellant was a Professor and the mother was an IAS officer. The claimant has been nurtured and brought up in a status enjoyed by his parents. He was planning to become an Executive or IAS officer. On account of the injuries in temporal region and the permanent disability suffered, he was unable to do his studies as expected or planned. After sincere efforts he could have passed the LL. B and started the advocate profession. A judicial notice can be taken of the fact that for a proficient advocate the person must be physically fit as he is required to move frequently to attend the professional work reaching from one Court to other, and for movements to complete other professional commitments. Looking to the nature of injuries and the permanent disablement which the claimant has suffered, i.e., lower limb is completely paralyzed while his upper limb is partially paralyzed having 100% permanent disability resulting in bodily movements being hampered. The capacity of the claimant being an advocate cannot be equated with other practicing advocate having no deformity in the same profession. The claimant is required to make extraordinary efforts to attend the proceedings in the Court and to come up to the expectations of the client. The disablement suffered to the claimant is for whole life and in the said fact, the future loss of earning calculated by the High Court only for 10 years is not justified. Accepting the future loss of earning Rs.5,000/- per month as decided by the High Court which annually comes to Rs.60,000/- and apply the multiplier of 18 as applicable looking to the age, then the sum comes to Rs.10,80,000/-, in the said head. [Para 16, 17][12-G-H; 13-A-E]

1.4 In the head of medical expenses, the MACT or the High Court has not awarded any compensation presumably because the mother of the claimant who was minor at the time of accident may have claimed the amount of medical expenses being an IAS officer. But now the claimant has become major, and looking to the nature of injuries, future medical expenses that includes the attendant charges, use of diapers due to loss of urination senses is required to be calculated including future medical expenses. The Tribunal awarded Rs.1,92,000/- in the head of attendant charges @ 1,000/- per month. While the High Court proceeded on the premises that the rate of the attendant charges is variable after every five years, however, the Court calculated the amount @ Rs.2,000/- thereafter @ Rs.4,000/- per month for a period of 20 years and accordingly determined Rs.9,00,000/- making enhancement of Rs.7,08,000/- in the said head. Applying the multiplier method and in view of the judgment of Kajal, the rate of attendant charges Rs.5000/- per month for

12 hours is accepted, looking to the nature of injuries and disability the claimant is required two attendants at least within 24 hours then the expenses in the head of attendant charges comes to Rs.10,000/- per month. Applying the multiplier of 18, the amount comes to Rs.21,60,000/-. Similarly for medical expenses in the head of physiotherapy required to the claimant, the Tribunal awarded Rs.2,88,000/- @ Rs.50 per day. The High Court granted lumpsum amount of Rs.8,00,000/- including the expenses for diapers. The said amount is not adequate. In these days the physiotherapist would charge at least Rs.150/- per day to treat the patient for one hour which monthly comes to Rs.4,500/- and annually 54,000/-, applying the multiplier of 18, the amount in the head of physiotherapy charges comes to Rs.9,72,000/-. For the purpose of use of diapers, regular medical check-up and medical expenses if Rs.2,00,000/- is further added then in the head of future medical expenses the amount comes to Rs.11,72,000/-. Under the head of transportation, the MACT awarded only Rs.15,000/- for the visit Delhi to Chandigarh which is enhanced by the High Court to the tune of Rs.50,000/-. The High Court further awarded Rs.1,00,000/- in the head of motorized wheel chair. During the life span grant of amount for motorized vehicle only for once is not just. Similarly, in the head of transportation in future, therefore, the said amount is enhanced in lumpsum to Rs.2,50,000/- in place of Rs.1,00,000/- + Rs.50,000/- as awarded by the High Court. [Paras 18-20][13-E-H; 14-A-E]

1.5 Under the head “non-pecuniary damages”, the claimant has faced the pain, suffering and trauma as a consequence of injuries. To award compensation under the head “pain, shock and suffering”, multiple factors are required to be considered from the date of accident, which include the prolonged hospitalization and regular medical assistance, nature of the injuries sustained, the operations underwent and the consequent pain, discomfort and suffering. Simultaneously, he has to suffer post-accident agony for whole life, including the amenities of life, which he can enjoy as a normal man but unable to do so on account of permanent disability. In the era of competition, he can perform better as a normal man but is unable to compete with others. Therefore, under the head “pain, shock and suffering”, amount of compensation deserves to be granted. The appellant is entitled for a sum of Rs.4,00,000/- in the head of loss of amenities of life and marital bliss, pain and sufferings, loss of enjoyment and loss of expectancy, Rs.1,00,000/- as awarded by the High Court is maintained in the head of special diet. Thus, in the non-pecuniary heads, the compensation as determined comes to Rs.5,00,000/-. The amount determined for payment of the compensation in pecuniary heads comes to Rs.46,62,000/- and in non-pecuniary heads the sum comes to Rs.5,00,000/-. The total compensation comes to Rs.51,62,000/-. The enhanced amount comes to Rs.28,42,000/-. The enhanced amount shall carry interest @ 6.5% p.a. from the date of filing the claim petition till its realization. [Para 24, 25][14-E-H; 15-B-D]

R. D. Hattangadi v. Pest Control (India) (P) Ltd. (1995)

1 SCC 551 : [1995] 1 SCR 75; Raj Kumar v. Ajay Kumar & Another (2011) 1 SCC 343 : [2010] 13 SCR 179relied on. Jagadish v. Mohan and Others (2018) 4 SCC 571 : [2018] 3 SCR 20 – referred to.

Philipps v. London & South Western Railway Co. (1879) LR 5 QBD 78 Mediana, In re- 1900 AC 113 (HL); H. West & Son Ltd. v. Shephard 1964 AC 326; Ward v. James (1966) 1 QB 273 – referred to.