Equivalent citations: ILR 2008 KAR 633, 2008 (2) KarLJ 400 Bench: R M Reddy Rathna Bai vs Oriental

Insurance Co. Ltd. And Anr. on 5/10/2007 JUDGMENT Ram Mohan Reddy, J. 1. The claimantinjured dissatisfied with the award of Rs. 38,000/ as compensation for personal injuries, by judgment and award dated 28th September, 2005, in MVC 4813/2003 on the file of the Motor Accident Claims TribunalIV Bangalore, for short MACT has preferred this appeal for enhancement of compensation. 2. The fact that the appellant sustained injuries in an accident that occurred on 03.08.2003 involving a motor vehicle is indisputable. The appellant suffered fracture of the ulna and radius of the left upper limb and received conservative treatment by application of Plaster of Paris, in K.C. General hospital, is evident from Ex.P5 the wound certificate. Dr. Prabhakar, Orthopedic Surgeon examined as PW2 testified to the gross mal union of both the bones as disclosed in the Xray Ex.P8, wastage of muscle, weak grip and inability to lift weight, and that the appellant requires to undergo two surgeries to set right mal union. In the opinion of the Doctor, the appellant sustained 20% whole body disability due to the injuries. Though the appellant claimed to be a vendor selling cloth and earning Rs. 3000/ per month, nevertheless did not place relevant material constituting substantial legal evidence of both earning and avocation. So also no material was produced to establish medical expenses of Rs. 15,000/. In the circumstances, the MACT awarded compensation as follows: 1. Pain and suffering Rs. 25,000/ 2. Amenities Rs. 10,000/ 3. Medical expenses Rs. 3,000/ TOTAL Rs. 38,000/ 3. Learned Counsel for the appellant contends that the award is grossly insufficient and does not represent just and adequate compensation. According to the learned counsel, the MACT fell in error in not awarding compensation towards loss of earning during laid off period; loss of future earning capacity due to disability; cost of future surgery; disability and disfigurement. In addition, learned counsel contends that the award of compensation towards loss of amenities; pain and suffering; medical and incidentals are on the lower side. 4. Per contra, the learned counsel for the respondent Insurance Company seeks to support the impugned judgment and award as well merited, fully justified and not calling for interference. 5. It is universally known that pain and suffering do not mean the sum which the plaintiff or anyone else would be willing to suffer the injury for.
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Pain and suffering have no exchange value and there is no attempt to equate them to anything like that. In case of bodily injury, damages will be allowed for many forms of mental distress which result, worry, humiliation and functional mental disturbances. The courts may have to consider distress from inability to pursue vocations which enrich life spiritually but not materially. According to Kemp & Kemp, Quantum of Damages, 1982 (1) page 1009, para 1.007, the word pain is used to describe the physical pain caused by or consequent upon the injury while suffering relates to the mental element of anxiety, fear, embarrassment and like. In Birkett v. Hayes and Anr. 1983 ACJ 697 (CA England) the position has been stated thus: There is nothing to guide us but the feeling of what is fair.... The judge has to award compensation for the past and also for the future pain, suffering and loss of amenities. The future that lies ahead beyond the date of trial, is often of more consequence than the past The Judge awards a lumpsum at the date of trial to cover all. In Thomas v. British Railways Board 1977 ACJ 222 (CA England), Scarman L.J., observed: ...The greatest element of damage in a case such as this is the pain and suffering and loss of ordinary pleasures and convenience associated with healthy and mobile limbs. All that the Court can do is to award such a sum as will enable the plaintiff to acquire some material possessions or develop a life style which will off set to some extent her terrible disability. In the words of Lord Morris in H West and Son Ltd. v. Shephard 1983 ACJ 699 (CA England) Money cannot renew a physical frame that has been battered and shattered. All that the Judges and Courts can do is to award sum which must be regarded as giving reasonable compensation. 6. The words "Loss of amenities" have been explained in a vivid manner in the oft quoted unreported case Manley v. Rugby Portland Cement Co. Ltd. C.A.No. 286/1952, referred to in Kemp & Kemp, 1982, Para 3.001, page 3001 by Burkitt L.J. as follows: There is a head of damage which is sometimes called loss of amenities, the man made blind by the accident will no longer be able to see the familiar things he has seen all his life; the man who has had both legs removed and will never go upon his walking excursions things of that kind loss of amenities. 7. Disfigurement has always been regarded as an important element in assessing damages, especially where a young woman is disfigured and her prospects of marriage impaired. It is often difficult to decide how much of the damages is awardable for injuries and how much for the disfigurement. In Farley v. North East Metropolitan Regional Hospital Board, 1954 The Times, 9 Nov. A married woman, aged 30, had both lefts badly burnt and scarred while in hospital, and had to have a skin grafting operation which still left a scar on her thigh. She was unable to walk far or dance. 8. In India, conditions have not changed and for most of women a career in the household is common and therefore loss of amenities should also include impairment of house keeping ability. Damages are also given for loss of expectation of life i.e, for the actual shortening of life by certain number of years. Damages under these heads are awarded not only in cases of injured victims but also in cases of death. 9. Keeping in mind the aforesaid well settled principles governing
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determination of compensation for injuries and death, I now proceed to consider whether the award of Rs. 38,000/ as compensation in the facts, circumstances and evidence on record, by the MACT, is just and proper and if not to what compensation the appellant is entitled to? 10. In the admitted facts of the case that the appellant being a housewife aged 55 years suffered two fractures of the left arm resulting in gross mal union of the bones, wasting of the muscle, inability to lift weight and need for two further surgeries to set right the mal union, resulting in whole body disability of 20%, the MACT in my opinion fell in error in not awarding adequate compensation towards pain and suffering, calling for enhancement from Rs. 25,000/ to Rs. 35,000/ 11. The MACT did not award compensation for loss occasioned while the injured was recuperating and unable to discharge her household duties. Having regard to the nature of injuries, it is probable that the appellant was laid off from her house keeping duties for three months entitling her to compensation. The Apex Court in the case Lata Wadhwa and Ors. v. State of Bihar and Ors. held that the income of a housewife could be taken as Rs. 3000/ per month. In that view of the matter, the appellant is entitled to Rs. 9000/ towards loss of earning during laid off period. 12. The MACT, truly, in the absence of medical evidence over expenses for the treatment awarded Rs. 3000/. Looking to the nature of injuries sustained, it is reasonable to infer that the appellant must have expended moneys not only for treatment but for the purchase of medicines, nourishing food and charges for an attendant, during the period of recuperation. In my opinion, enhancing the compensation from Rs. 3000/ to Rs. 10,000/ would meet the ends of justice. 13. The MACT in a very casual manner not noticing the amenities that the appellant had lost due to the disability, awarded Rs. 10,000/ which in my opinion, is nothing short of rank conservatism. As noticed supra, the housewife has many chores to perform at home, including the reasonable request of her husband and children and with the impairment, of the left upper limb, undoubtedly, the appellant must have suffered from frustration, pain in not being able to attend to her family requirements. In my opinion, enhancing the award of Rs. 10,000/ to Rs. 20,000/ towards loss of amenities would meet the ends of justice. 14. The evidence of PW2 Dr. Prabhakar, Orthopedic Surgeon discloses that due to the mal union of the bones the appellant suffers from a disability to the extent of 20% to the whole body. This disability, the appellant may have to endure through the rest of her life. The MACT fell in error in not awarding compensation towards disability. The appellant is awarded Rs. 20,000/ towards disability. 15. The medical evidence discloses that there is mal union of the bones and wasting of the muscles of the left hand, due to which the upper limb is disfigured, for which the MACT failed to award compensation. A lady aged 55 years with a disfigured arm is entitled to be compensated and is accordingly awarded Rs. 10,000/. 16. The evidence of the doctor discloses that the appellant has to undergo two surgeries to set right mal union of the bones. This evidence is not seriously controverted. Although, there is no evidence over the cost of such surgeries, nevertheless on an approximation Rs. 10,000/ towards cost of future surgery, would, in my opinion, be reasonable, and is accordingly awarded. 17. I find no force in the submission of the learned counsel for the appellant that the MACT was not justified in not awarding compensation towards loss of future earning capacity on account of disability. The appellant did not place relevant material constituting substantial legal evidence of her
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occupation as a vendor of cloth and that due to the impairment the appellant is unable to carry on the occupation or there is a diminution in the earnings from out of such occupation. In that view of the matter, that contention must necessarily fail and is accordingly rejected. 18. In the result, the appellant is entitled to the following compensation: 1. Pain and Suffering Rs. 35,000/ 2. Medical expenses including conveyance, nourishment, attendant charges Rs. 10,000/ 3. Loss of earning during laid off period (3000x3) Rs. 9000/ 4. Loss of amenities in life Rs. 20,000/ 5. Disability Rs. 20,000/ 6. Disfigurement Rs. 10,000/ 7. Cost of future surgery Rs. 10,000/ TOTAL Rs. 1,14,000/ 19. The appeal is allowed in part. The impugned judgment and award is substituted, entitling the appellant to Rs. 1,14,000/with interest at 6% per annum from the date of petition until payment. 20. It is made clear that Rs. 10,000/ towards future medical expenses shall carry no interest. 50% of the award is directed to be kept in a Term Deposit initially for a period of three years in a nationalized/Schedule Bank of the choice of the appellant, entitling her to draw periodical interest therefrom.

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