2013 Supreme(SC) 696

IN THE SUPREME COURT OF INDIA
G.S. SINGHVI AND V. GOPALA GOWDA, JJ.
REKHA JAIN - APPELLANT
VS.
NATIONAL INSURANCE CO. LTD. - RESPONDENT
CIVIL APPEAL NOS.5370-5372 OF 2013 (Arising out of SLP (C) Nos. 5649-51 of 2012)
Decided on: August 1, 2013

IMORTANT POINT
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.

Headnote:Motor Vehicles Act, 1988- Section 168- Quantification of non-pecuniary damages-The appellant injured in the accident at theme of accident was 24 years old. The truck dashed against her car at the driver's seat which was occupied by the appellant. She was an actress who acted in T.V. serials and in the motion pictures in Oriya as lead actress . She was adjudged as the 'Best Actress' and the 'Best New Comer Artist' in that film. She also performed in the lead role in other Oriya Feature Film. She also acted in Malayalam Feature film as heroine, which was directed by Jaya Krishna. She has signed for the feature films in Oriya. But she could not act in those films due to the accident. At the time of accident she had completed her graduation in Commerce and she was pursuing her studies for her post graduate degree. 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. Having regard to the nature of vocation she has been carrying on and wishes to carry on 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. Her permanent disability is 30%. Held, Even though the claimant does not suffer from 100% physical permanent disability, he suffers from 100% functional disability if he loses the capacity to pursue his work as a result of the accident 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. She is suffering from 100% functional disability. Her annual income 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, the total amounts to Rs.42,50,000/-. The Tribunal awarded only Rs. 2,00,000/- which is enhanced to Rs. 42,50,000/- under the said head. 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/-. 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 or likely to suffer. 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. 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. (Paras 34, 35, 36, 37, 38, 40, 42, 43, 44, 45, 46)

        Motor Vehicles Act, 1988- Section 168- Pecuniary damages-Computation of- The claim towards the medical expenses, tests, surgeries etc. and other incidental purposes supported by 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 to be accepted. (Para 13)

        Motor Vehicles Act, 1988- Section 168- Non-pecuniary damages- Compensation under various heads- The percentage of permanent partial disablement suffered due to the Motor Vehicle Accident as per the Disability Certificate issued by the Chief Medical Officer of the District Medical Board is very relevant in awarding just and reasonable compensation - (Para 14)

        Motor Vehicles Act, 1988- Section 168- Non-pecuniary damages- Compensation under various heads- 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, who has sustained grievous injuries to her body and whose future prospects are completely doomed. (Para 14)

        Motor Vehicles Act, 1988- Section 168- Non-pecuniary damages- Compensation 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- 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. (Para 14)

        Motor Vehicles Act, 1988- Section 168- Compensation- Pecuniary damages and Non-pecuniary damages meaning of- Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money. Non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. (Para 15)

        Motor Vehicles Act, 1988- Section 168- Compensation for personal injury- Mode of Quantification- 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 elements are the personal loss and pecuniary loss. (Para 25)

        Motor Vehicles Act, 1988- Section 170(b)- Permission to avail the defence of the insured and contest in the proceeding on the defence of the insured/ owner- The finding of fact on the question of the accident caused on account of rash and negligent driving on the part of offending truck driver on account of which the appellant has sustained grievous injuries and has undergone trauma and mental agony for over a period of four years, the Insurance Company could not challenge 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. (Paras 30, 31)

       Facts of the case :

        The appellant was driving a Maruti Car from Sambalpur towards Cuttack when the accident occurred. A truck 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 had undergone treatment at different Nursing Homes both at Cuttack and in the State of Kerala. The grievous injuries sustained by the appellant were 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. The Medical Board issued a certificate to the appellant certifying that she is suffering from 30% permanent disability. The insurance company of the offending truck 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.

        The Motor Accidents Claims Tribunal held 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 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 till the date of payment.

        On appeal of the Insurance Company the High Court reduced 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. In appeal by the appellant, the High Court modified its earlier order, 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.

       Findings of the Court:

        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 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.

       Result : Appeal allowed.