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Andhra Pradesh High Court
Judges : M.JAGANADHA RAO
K.SAPANA - Appellant
Versus
B.Appa Rao - Respondent
C.M.A.No.258 of 1980
Decided On : 08-07-87
Advocates Appeared :
Mr. K. Sri Krishna,Mr. I.A. Naidu
Held : Non-pecuniary damages for loss of expectation of life , loss of amenities of life and for pain and suffering are awarded both in case of injured Plaintiffs as well as in cases by dependants of a person dying in a fatal accident. In the latter type of cases i.e., fatal cases, the damages awarded for these non-pecuniary losses go into the award towards loss to the estate . Regarding the quantum awarded for pain and suffering it varies from injury to injury. The duration of the pain is equally important Allowances must also be made for some unpleasant surgical operations, especially where there is a series of skin-grafting operations or where there is an awkward fracture of a bone which necessitates more than one operation to set it properly. If nervous shock, accompanies physical injuries, it too qualifies for damages as a part of pain and suffering . The shock may give rise at a later stage to adverse physical effects, such as the premature termination of pregnancy. This cannot be treated as a matter of remote damage.
The head of non-pecuniary damages viz. loss of amenities of life embraces everything which reduces the plaintiffs enjoyment of life considered apart from any material or pecuniary loss which may be attendent upon the plaintiff s injuries. So far as the amounts awarded under this head is concerned, they vary from injury to injury. Brain damages, paralysis, loss of eyes etc, are given higher amounts. Loss of legs, spinal injuries etc., belong to other categories.
Damages are awardable under loss of expectation of life not only in case of injured victims but also in cases of death but in the latter case, the damages devolve on the estate. Conventional amounts are awarded by various Courts for this loss, if there is evidence of shortening of life due to the accident, the amount depending upon the extent to which life is shortened.
One has to look to the amounts awarded in India in earlier cases and increase the same periodically on the basis of the fall in money values. In determining the past or future loss of earning capacity, the question is not whether the plaintiff would have worked, by choice. He is entitled to compensation for his lost capacity to earn, whether he would have chosen to exercise his choice to work or not. Loss of past earnings upto date of trial have in case of long delay between the date of accident and date of trial· have to be increased to offset inflation in that period.
Probable future earnings, if there was no accident has to be estimated on the basis of earning, capacity at the time of accident. If the rate is varied, or the work was of a casual nature, the practice is to take an average over a reasonable period of one year. The Court must also provide for the chances of increase or reduction in the rate of earnings. Potential future earnings, after the accident may also have to be ascertained, for the purpose of being deducted from the earnings estimated as if there is no accident. Of course, when there is a total disability, the Court can proceed on the basic that the claimant has nil potential or deductible e3rnings after the accident. But, when there is partial disability, the position is different and in that event, the Court has to see what he can earn. The monetary value of perquisites has to be included in the loss of future earnings
The Court has to estimate the duration for which the disability will last. There may be a total incapacity for the rest of the life or it may be only for a particular period in the future. It may also be a case of partial disability even from the beginning. Much depends on medical evidence.
In the case of a house wife, the loss of house keeping capacity, the cost of home help is considered to be a fair measure of future loss even if she did not intend to employ anyone.
Where a claimant has not yet left school the loss of an academic year or to have to be compensated by awarding some conventional amounts.
The claimant is entitled to recover fee for medical advice and for surgical operations, the cost of treatment and care in a hospital or nursing home, and the cost of artificial limbs and of medicines.
The expense for medical advice is admissible even if the diognosis proves to be wrong.
The expense for nursing or attendant s services are permissible. They have to be capitalised in the same manner as loss of future earnings. The value of special diet or nourishment, that had to be provided to the injured or will have to be provided, can be included in the damages.
Voluntary charitable assistance rendered to the injured cannot be claimed as a deduction by the tort-feasor.
In arriving at the net income before the accident or the net income afterwards, contributions of premia liable to be mode towards insurance have to be deducted. The Income-Tax payable for the sum covered by the loss of earnings or loss of future earnings has to be deducted.
In fatal accident cases, the multiplicand is arrived at by computing the actual loss to the dependants. For this purpose, the annual income of the deceased is computed and a deduction for his personal expenses is made which dependant on the facts of the case may range from 1/3 or 1/2. The resultant amount is called the basic figure or datum which has to be multiplied by the appropriate multiplier to arrive at the loss of future earnings.
In the case of injured persons, the multiplicand has to be first computed. It will comprise of the annual loss of earnings of the injured at the date of trial. Here also, the chances of higher earnings or pension can be taken into by first arriving at the multiplicand based on earnings at time of accident and increasing it to take into account these factors.
C.M.A. Allowed
( 1 ) IN this appeal, it has become necessary to refer to the various Heads of Pecuniary and Non-pecuniary losses in injury cases. Incidentally, I shall refer to the method of arriving at the multiplicand white computing future pecuniary losses and the Deductions therefrom.
( 2 ) THE appellant who is a young girl met with a serious accident on 24-4-1978 at Kakinada. The right front wheel of the respondent s lorry belonging to the 2nd respondent and driven by the 1st respondent ran over the right leg. The right leg below the knee had to be amputated. She was in the Government Hospital Kakinada for a prolonged period i. e. , 24-4-1978 to 5-8-1978. At the time of accident, she was 12 years old and was in the 6th Class and had a good future scholastic career, her father being a Lecturer in the M. S. N. Degree College, Kakinada. Her mother was working as a health Supervisor in P. H. C. Pandur. The chances of good education and marriage were shattered. She sufferrd and will suffer physical and mental agony, throughout her life. Soon alter the operation, the patents were corresponding with an artificial limb centre at Pooaa. A total compensation of Rs. 80,0001- was claimed comprising of Rs. 30,000/- for medical expenses, treatment and artificial limb ; Rs. 40,000/- for loss of prospects of marriage and loss of future earnings and Rs. 10,000/- for physical and mental agony.
( 3 ) THE respondents 1 and 2 remained ex-parte before the Tribunal and the matter was contested by the 3rd respondent. Insurance Company. On a consideration of the evidenee, the Tribunal, in its judgment dated 26-11-1979 held that negligence of the driver was proved and it passed a decree for Rs. 20,000/- for general damages and awarded Rs. 8,000/- as special damages towards expenses for replacement of artificial limb, and travelling expenses, in all Rs. 28,000/ -. Against the said judgment, the claimant, represented by her father, has filed this appeal.
( 4 ) IN this appeal, the learned counsel for the appellant, Sri K. Srikrishna has contended that the award is gtossly inadequate, that the learned tribunal has not considered the matter in the context of the relevant heads and sub-heads for pecuniary and non-pecuniary compensation. On the other hand, Sri I A. Naidu, the learned counsel for the Insurance Company has tried to support the decree.
( 5 ) THE petitioner has since become a major and is so declared and the next friend/guardian is accordingly discharged.
( 6 ) UNFORTUNATELY, these days, lawyers do not seem to be best owingas much attention as is necessary to pleadings and evidence in accident cases. In cases of serious injuries, adequate sums are not claimed under the required heads of damages and even if claimed, the necessary evidence is not led. A tendency has grown to treat accident claims as matters which can be disposed of almost summarily. Lack of attention to pleadings, evidence and principles of law has resulted in accident victims becoming victims of an inadequate trial. Awareness of these deficiencies is the need of the hour. I have, therefore, thought it necessary to refer to the principal heads and subheads of Non-pecuniary as well as Pecuniary damages so as to guide lawyers and lower tribunals for dealing with these questions in a proper and effective manner.
( 7 ) WE have adopted the English law of Torts in our country, except to the extent modified by any special law. Judgments of our Courts in india have generally drawn the principles from leading cases in England in this field. If one has to refer to the Indian rulings, one has to refer to quite a lot of them because of the existence of a large number of High Courts. Instead, it will be sufficient to refer to the source from which all the High courts have drawn inspiration, namely, the cases in England. It is, of course, necessary to mould them to suit Indian conditions.
( 8 ) WITH these preliminary remarks, I shall come to the subject proper.
( 9 ) IN my judment in
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