JAGDISH versus MOHAN & ORS. on 6 March 2018

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[2018] 3 S.C.R. 20

SUPREME COURT REPORTS

[2018] 3 S.C.R.

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JAGDISH

v.

MOHAN & ORS.

(Civil Appeal No. 2217 of 2018)

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MARCH 06, 2018

[DIPAK MISRA, CJI, A.M. KHANWILKAR ANDDR. D.Y. CHANDRACHUD, JJ.]

Motor accident: Compensation – Enhancement – Selfemployed, skilled carpenter met with motor accident – Income takenCas 4050/- and disability assessed at 90% - Award ofRs.12,81,228/- as compensation by the tribunal, however the HighCourt awarded an additional amount of Rs.2,19,000/- – On appealheld: Claim of the victim that his earnings were Rs. 6,000/- pm cannotbe regarded as being unreasonable or contrary to a realisticDassessment of the situation on the date of the accident – As regards,the benefit of future prospects, being self-employed person, additionof 40 per cent of the established income should be made where theage of the victim at the time of the accident was below 40 years,thus, the victim entitled to an enhancement of Rs. 2400/- towardsloss of future prospects – Victim has suffered a serious disability inEwhich he has suffered a loss of the use of both his hands – He isunable to even eat or to attend to a visit to the toilet without theassistance of an attendant – Disability is indeed total – Thus, thevictim awarded a total sum of Rs. 25,38,308/- by way ofcompensation, payable on account of the loss of income, includingFfuture prospects, pain, suffering and loss of amenities, medicalexpenses, with interest at the rate of 9 per cent per annum on thecompensation from the date of the filing of the claim petition.

Appellant-self employed skilled carpenter met with a motoraccident. Tribunal took the monthly income of the appellant asGRs.4,050/- and assessed the disability at 90%. The compensationof Rs.12,81228/- was awarded for the injuries suffered by thevictim. However the High Court awarded an additional amountof Rs.2,19,000/- with interest of 7.5 per cent per annum from thedate of filing of the claim. Hence, the instant appeal seekingenhancement of compensation.H

Allowing the appeal, the Court

HELD : 1.1 The claim of the appellant that his earningswere Rs. 6,000/- per month cannot be discarded. This claim cannotbe regarded as being unreasonable or contrary to a realisticassessment of the situation on the date of the accident. As heldin in Pranay Sethi case that the benefit of future prospects shouldnot be confined only to those who have a permanent job and wouldextend to self-employed individuals. In the case of a self-employedperson, an addition of 40 per cent of the established incomeshould be made where the age of the victim at the time of theaccident was below 40 years. Hence, in the instant case, theappellant would be entitled to an enhancement of Rs. 2400/-towards loss of future prospects. [Paras 9, 10] [27-B-C, D-E]

1.2 In making the computation, the court must be mindfulof the fact that the appellant suffered a serious disability in whichhe has suffered a loss of the use of both his hands. For a personengaged in manual activities, it requires no stretch of imaginationto understand that a loss of hands is a complete deprivation ofthe ability to earn. Nothing at least in the facts of the case–canrestore lost hands. But the measure of compensation must reflecta genuine attempt of the law to restore the dignity of the being.The yardsticks of compensation should not be so abysmal as tolead one to question whether the law values human life. If it does,as it must, it must provide a realistic recompense for the pain ofloss and the trauma of suffering. Awards of compensation are notlaw’s doles. In a discourse of rights, they constitute entitlementsunder law. The conversations about law must shift from apaternalistic subordination of the individual to an assertion ofenforceable rights as intrinsic to human dignity. [Para 11][27-E-G]

1.2 The tribunal noted that the appellant was unable to eveneat or to attend to a visit to the toilet without the assistance of anattendant. In this background, it would be a denial of justice tocompute the disability at 90 per cent. The disability is indeedtotal. Having regard to the age of the appellant, the tribunal applieda multiplier of 18. In the circumstances, the compensation payableto the appellant on account of the loss of income, including futureprospects, would be Rs. 18,14,400/-. In addition to this amount, B

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22SUPREME COURT REPORTS

[2018] 3 S.C.R.

Athe appellant should be granted an amount of Rs. 2 lakhs onaccount of pain, suffering and loss of amenities and Rs. 3 lakhstowards future medical expenses. The amount awarded by thetribunal towards medical expenses (Rs. 98,908/-); for extranourishment (Rs. 25,000/-) and for attendant’s expenses (Rs. 1lakh) is maintained. The appellant is thus awarded a total sum ofBRs. 25,38,308/- by way of compensation, with interest at the rateof 9 % p.a. on the compensation from the date of the filing of theclaim petition. The liability to pay compensation has been fastenedby the tribunal and by the High Court on the insurer, owner anddriver jointly and severally which is affirmed. [Para 11] [28-A-D]CNational Insurance Company Limited v Pranay Sethi(2017) 13 SCALE 12 ; Sri Laxman @ Laxman Mouryav Divisional Manager, Oriental Insurance Co. Ltd.(2011) 12 SCALE 658 ; K Suresh v New IndiaAssurance Company Ltd. [2012] 11 SCR 414 :D(2012) 12 SCC 274 ; Ramesh Chandra v Randhir Singh[1990] 3 SCR 1 : (1990) 3 SCC 723 ; B Kothandapaniv Tamil Nadu State Transport Corporation Limited[2011] 6 SCR 791 : (2011) 6 SCC 420 ; Govind Yadavv New India Insurance Company Limited (2011) 10SCC 683 ; R D Hattangadi v Pest Control (India) (Pvt)ELtd. [1995] 1 SCR 75 : (1995) 1 SCC 551 : Nizam’sInstitute of Medical Sciences v Prasanth S Dhananka[2009] 9 SCR 313 : (2009) 6 SCC 1 ; Reshma Kumariv Madam Mohan [2009] 11 SCR 305 : (2009) 13 SCC422 ; Arvind Kumar Mishra v New India AssuranceFCompany Limited [2010] 11 SCR 857 : (2010) 10 SCC254 ; Raj Kumar v Ajay Kumar [2010] 13 SCR 179 :(2011) 1 SCC 343 ; Subulaxmi v MD Tamil Nadu StateTransport Corporation [2012] 9 SCR 962 – referredto.

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2217of 2018.

From the Judgment and Order dated 05.12.2016 of the High Courtof Judicature for Rajasthan, Jaipur Bench, Jaipur in S.B. CivilMiscellaneous Appeal No.3050 of 2015.

Anuj Bhandari, Yashodhar Pandey, Advs for the Appellant.

Satyajeet Kumar, Adv for the Respondent.

The Judgment of the Court was delivered by DR. D.Y. CHANDRACHUD, J. 1. The appellant was injuredin a motor accident. The Tribunal awarded compensation ofRs. 12,81,228/- for the injuries suffered by him. The High Court enhancedthe award of compensation by an amount of Rs.2,19,000/-. Interest of7.5 per cent per annum has been awarded from the date of the filing ofthe claim. The appellant seeks an enhancement of compensation.

2. The appellant was 24 years of age when the accident tookplace on 24 November 2011. The accident occurred at 4pm when theappellant and another person were riding on a motor cycle. The appellantwho was riding the motor cycle at a moderate speed indicated to adumper which was ahead of him to allow him to pass. When the appellantwas passing the vehicle, it swerved on the driver’s side and hit the motorcycle of the appellant. The appellant was injured in the course of theaccident.

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A3. The nature of the injuries is evident from the following extractfrom the judgment of the Motor Accidents Claims Tribunal No. 2, Kota.

“As for the claimant due to the injuries received by the claimanthe has suffered 90% permanent disability…

The claimant came to give evidence in the matter…

looking at both the hands of the claimant it was noted that…the hands are not able to perform any function. It has also beensubmitted on behalf of the claimant that the claimant himself isunable to eat food or go to toilet for which he requires the assistanceof someone else as both his hands are unable to perform anyfunction as it has been stated in Exhibit 168. In such situation if aperson of labour class suffers from an injury due to which 90% ofboth his hands are unable to perform any function then in suchsituation the claimant would have same difficulty which would bethe permanent disability of his body. Therefore relying on Exhibit168 I hold that there has been loss of 90% of earning ability of theclaimant”.

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4. The Tribunal found that there was negligence on the part of thedriver of the dumper and that the appellant was liable to be compensatedfor the injuries sustained by him.

E5. In computing the amount of compensation, the Tribunal notedthat the appellant was a carpenter and had claimed that he was in receiptof an income of Rs. 6,000/- per month. In the absence of documentaryevidence, the Tribunal took the monthly income of the appellant atRs. 4,050/-. The appellant having been found to suffer from 90 per centdisability, the loss of the future monthly income was computed atFRs. 3645/-. The Tribunal applied a multiplier of 18 and held that theappellant was entitled to compensation for loss of future income ofRs. 7,87,320/- (Rs. 3645 X 12 X 18). The Tribunal awarded an amountof Rs. 1.80 lakhs on account of mental and physical hardship and agony,Rs. 90,000/- for loss of comfort, Rs. 25,000/- for expenses andGRs. 95,908/- on account of medical expenses. An amount of Rs. 1 lakhwas awarded for attendant charges. The Tribunal awarded a total amountof Rs. 12,81,228/- as compensation on which interest was allowed at therate of 7.5 per cent per annum from the date of the filing of the claimpetition. No amount was awarded towards expenses for future treatment.

6. In appeal, the High Court awarded an additional amount ofRs. 2,19,000/-. The High Court directed that if the enhanced amount isnot deposited within 8 weeks, it would carry interest at 9 per cent perannum.

7. The appellant has sought an enhancement of compensationunder the following heads:

(i) The Tribunal ought to have, but did not award any amounttowards loss of future prospects. The appellant submits that inview of the recent judgment of the Constitution Bench inNational Insurance Company Limited v Pranay Sethi[1],he would be entitled to be compensated for loss of futureprospects even though he is self-employed;

(ii) According to the appellant, the nature of the injuries suffered,resulting in a total loss of the functionality of both the handswould require compensation to be computed on the basis of adisability of 100 per cent and not 90 per cent; and

(iii) The income as claimed of Rs. 6,000/- per month should be thebasis of computation and not Rs. 4,050/- as allowed by theTribunal and confirmed by the High Court.

8. In assessing the compensation payable the settled principlesneed to be borne in mind. A victim who suffers a permanent or temporarydisability occasioned by an accident is entitled to the award ofcompensation. The award of compensation must cover among others,the following aspects:

(i) Pain, suffering and trauma resulting from the accident;

(ii) Loss of income including future income;

(iii) The inability of the victim to lead a normal life together withits amenities;

(iv) Medical expenses including those that the victim may berequired to undertake in future; and

(v) Loss of expectation of life.

In Sri Laxman @ Laxman Mourya v Divisional Manager,Oriental Insurance Co. Ltd[2], this Court held:

1(2017) 13 SCALE 1222011 (12) SCALE 658

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A“The ratio of the above noted judgments is that if the victim of anaccident suffers permanent or temporary disability, then effortsshould always be made to award adequate compensation not onlyfor the physical injury and treatment, but also for the pain, sufferingand trauma caused due to accident, loss of earnings and victim’sinability to lead a normal life and enjoy amenities, which he wouldBhave enjoyed but for the disability caused due to the accident.”

In K Suresh v New India Assurance Company Ltd[3], thisCourt adverted to the earlier judgments in Ramesh Chandra v RandhirSingh[4]and B Kothandapani v Tamil Nadu State TransportCorporation Limited[5]. The Court held that compensation can be grantedCfor disability as well as for loss of future earnings for the first headrelates to the impairment of a person’s capacity while the other relatesto the sphere of pain and suffering and loss of enjoyment of life by theperson himself.

In Govind Yadav v New India Insurance Company Limited[6,]Dthis Court adverted to the earlier decisions in R D Hattangadi v PestControl (India) (Pvt) Ltd.[7] , Nizam’s Institute of Medical Sciencesv Prasanth S Dhananka[8], Reshma Kumari v Madam Mohan[9],Arvind Kumar Mishra v New India Assurance CompanyLimited[10], and Raj Kumar v Ajay Kumar[11] and held thus:

“18. In our view, the principles laid down in Arvind Kumar MishraEv. New India Assurance Co. Ltd. and Raj Kumar v. Ajay Kumarmust be followed by all the Tribunals and the High Courts indetermining the quantum of compensation payable to the victimsof accident, who are disabled either permanently or temporarily.If the victim of the accident suffers permanent disability, thenFefforts should always be made to award adequate compensationnot only for the physical injury and treatment, but also for the lossof earning and his inability to lead a normal life and enjoy amenities, 3(2012) 12 SCC 274G4(1990) 3 SCC 7235(2011) 6 SCC 4206(2011) 10 SCC 6837(1995) 1 SCC 551

8(2009) 6 SCC 1

9(2009) 13 SCC 422

10(2010) 10 SCC 254H11 (2011) 1 SCC 343

which he would have enjoyed but for the disability caused due tothe accident.” (Id at page 693)

These principles were reiterated in a judgment of this Court inSubulaxmi v MD Tamil Nadu State Transport Corporation[12]delivered by one of us, Justice Dipak Misra (as the learned Chief Justicethen was).

9. Having regard to these principles, it would be now appropriateto assess the case of the appellant for enhancement of compensation.The accident took place on 24 November 2011. The appellant was askilled carpenter and self-employed. The claim of the appellant that hisearnings were Rs. 6,000/- per month cannot be discarded. This claimcannot be regarded as being unreasonable or contrary to a realisticassessment of the situation on the date of the accident.

10. In the judgment of the Constitution Bench in Pranay Sethi(supra), this Court has held that the benefit of future prospects shouldnot be confined only to those who have a permanent job and wouldextend to self-employed individuals. In the case of a self-employed person,an addition of 40 per cent of the established income should be madewhere the age of the victim at the time of the accident was below 40years. Hence, in the present case, the appellant would be entitled to anenhancement of Rs. 2400/- towards loss of future prospects.

11. In making the computation in the present case, the court mustbe mindful of the fact that the appellant has suffered a serious disabilityin which he has suffered a loss of the use of both his hands. For a personengaged in manual activities, it requires no stretch of imagination tounderstand that a loss of hands is a complete deprivation of the ability toearn. Nothing – at least in the facts of this case – can restore lost hands.But the measure of compensation must reflect a genuine attempt of thelaw to restore the dignity of the being. Our yardsticks of compensationshould not be so abysmal as to lead one to question whether our lawvalues human life. If it does, as it must, it must provide a realisticrecompense for the pain of loss and the trauma of suffering. Awards ofcompensation are not law’s doles. In a discourse of rights, they constituteentitlements under law. Our conversations about law must shift from apaternalistic subordination of the individual to an assertion of enforceablerights as intrinsic to human dignity.

12Civil Appeal No. 7750 of 2012, decided on 1 November 2012

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AThe Tribunal has noted that the appellant is unable to even eat orto attend to a visit to the toilet without the assistance of an attendant. Inthis background, it would be a denial of justice to compute the disabilityat 90 per cent. The disability is indeed total. Having regard to the age ofthe appellant, the Tribunal applied a multiplier of 18. In the circumstances,the compensation payable to the appellant on account of the loss ofBincome, including future prospects, would be Rs. 18,14,400/-. In additionto this amount, the appellant should be granted an amount of Rs. 2 lakhson account of pain, suffering and loss of amenities. The amount awardedby the Tribunal towards medical expenses (Rs. 98,908/-); for extranourishment (Rs. 25,000/-) and for attendant’s expenses (Rs. 1 lakh) isCmaintained. The Tribunal has declined to award any amount towardsfuture treatment. The appellant should be allowed an amount of Rs. 3lakhs towards future medical expenses. The appellant is thus awarded atotal sum of Rs. 25,38,308/- by way of compensation. The appellantwould be entitled to interest at the rate of 9 per cent per annum on thecompensation from the date of the filing of the claim petition. The liabilityDto pay compensation has been fastened by the Tribunal and by the HighCourt on the insurer, owner and driver jointly and severally which isaffirmed. The amount shall be deposited before the Tribunal within aperiod of 6 weeks from today and shall be paid over to the appellantupon proper identification.

E12. The appeal is accordingly allowed. There shall be no order asto costs.

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Nidhi Jain

Appeal allowed.

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