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2011 Supreme(HP) 2167
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Deepak Gupta, J.
Miss Kiran Kumari…Appellant.
Versus
New Jayanti Bus Service & Ors....Respondents.
FAO No. 436 of 2005.
Decided on: 5.5.2011.
For the Appellant:Mr. Ajay Chandel, Advocate.
For the respondent No.1. ex-parte.
For the respondents No.2: None.
For the respondent No.3:Mr. Deepak Bhasin, Advocate.
The main legal point established in the judgment is the liberal determination of compensation in personal injury cases, considering both personal and pecuniary losses, the impact of the injury on the victim's future prospects, and the societal implications of the disability.
Headnote:
Compensation - Personal Injury - Fair v. London and North Western Railway Co., (1869) 21 LT 326, McGregor on Damages, 14th Edn., para 1157, Concord of India Insurance Co. Ltd. v. Nirmala Devi, 1980 ACJ 55 (SC), Brestu Ram v Anant Ram, 1989(2) Sim. L.C.298: 1990 ACJ 333(HP) - 140, 150, 160, 166, 168, 170, 180, 190, 200, 210, 220, 230, 240, 250, 260, 270 - The court discussed the legal provisions and principles related to the assessment of compensation in personal injury cases, including pecuniary and non-pecuniary losses, future loss of income, medical expenses, attendant charges, travelling expenses, pain and suffering, loss of amenities, future disability, and loss of marital prospects. The court emphasized the liberal determination of compensation and the need to consider both personal and pecuniary losses, as well as the impact of the injury on the victim's future prospects. The judgment highlighted the importance of assessing the claimant's earning capacity, the nature of the injury, and the societal implications of the disability. The court also addressed the liability of the insured owner to pay the enhanced compensation.
Fact of the Case:
The claimant, a minor girl, suffered multiple injuries in an accident, resulting in the amputation of her right limb below the knee. The court was tasked with determining the quantum of compensation to which the claimant was entitled.
Finding of the Court:
The court analyzed the evidence and awarded enhanced compensation of Rs. 7,27,000/- to the claimant, considering various factors such as future loss of income, medical expenses, attendant charges, travelling expenses, pain and suffering, loss of amenities, future disability, and loss of marital prospects. The court also held the insured owner solely liable to pay the enhanced amount.
Issues: Assessment of compensation for personal injury, including future loss of income, medical expenses, attendant charges, travelling expenses, pain and suffering, loss of amenities, future disability, and loss of marital prospects.
Ratio Decidendi: The court's decision was based on the assessment of the claimant's pecuniary and non-pecuniary losses, the impact of the injury on her future prospects, and the societal implications of the disability. The court emphasized the liberal determination of compensation and the need to consider both personal and pecuniary losses.
Final Decision: The court awarded enhanced compensation of Rs. 7,27,000/- to the claimant and held the insured owner solely liable to pay the enhanced amount.
Deepak Gupta, J. (oral)
1. This appeal for enhancement of compensation has been filed by the claimant, Ms. Kiran Kumari.
2. It would be pertinent to mention that FAO No. 75 of 2005 arising out of the same Award was filed by the owner. In this appeal he challenged the Award of the learned Motor Accident Claims Tribunal (1), Kangra at Dharamshala (MACT) whereby the learned Tribunal had directed that the Insurance Company would satisfy the Award first, but would be entitled to recover the amount deposited by it from the owner. This appeal (FAO No. 75 of 2005) was dismissed by a learned Single Judge of this Court on 4th August, 2009 and therefore, this aspect of the matter is not being gone into. Challenge to negligence made in the said appeal has also been decided.
3. The only question which remains to be decided is the quantum of compensation to which the claimant is entitled to. Therefore, the evidence only in this behalf is being referred.
4. The claimant at the relevant time was a minor girl of 8 years. In the accident, she suffered multiple injuries. The right limb of the claimant was amputated below the knee. The Medical Board vide certificate Ext. PW1/A proved on record by Dr. Gursharan Dass Gupta, PW-1 assessed the permanent disability of the claimant at 60%. PW-3 Dr. K.K. Rattan who was the then B.M.O., CHC, Jawalamukhi also supported the case of the petitioner in this regard.
5. PW-4 Smt. Pawna Devi mother of the claimant had stated that her daughter (claimant Kiran Kumari) suffered 60% disability as per medical certificate Ext.PW1/A. According to her an artificial limb was purchased for Rs. 56,270/- vide quotation “Mark B”. She had also proved the discharge certificate “Mark A”. According to her, her husband who at that time working at Dubai came back after taking leave to attend his daughter and spent Rs. 60,000-70,000/- on his visit. She also placed on record the air tickets of her husband. She had also proved the other medical expenses. PW-5 Dr. Bhanu Awasthi had also treated the claimant.
6. On the basis of the aforesaid evidence on record, the learned Tribunal awarded a sum of Rs. 8,757/- on account of medical expenses, Rs. 3,300/- for attendant charges, Rs. 1,20,000/- for purchase of artificial limbs and a global amount of Rs. 3,50,000/- under all other heads, i.e., total compensation of Rs. 4,82,057/- was awarded in favour of the claimant. The claimant by means of this petition seeks enhancement of the compensation.
7. It is well settled that in a personal injury case, injured has to be compensated under the heads (1) pain and suffering; (2) 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 like transportation or travelling expenses, nutrition and food, etc. While determining compensation under the above heads, the two main elements to be borne in mind are: personal loss and the pecuniary loss. Chief Justice Cookburn in Fair v. London and North Western Railway Co., (1869) 21 LT 326, 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 accident; and 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.”
8. McGregor on Damages, 14th Edn., para 1157, referring to heads of damages in personal injury actions states:
“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
