Yogesh Subhash Panchal v. Mohd. Hussain Malik & Ors.

13. In Pappu Dev Yadav v/s. Naresh Kumar AIR 2020 SC 4424, the two questions for consideration before three Judge Bench of the Hon’ble Supreme Court were: one, whether in cases of permanent disablement incurred as a result of a motor accident, the claimant can seek, apart from compensation for future loss of income, amounts for future prospects too; and two, the extent of disability. While answering both these questions in the affirmative, the Hon’ble Supreme Court after referring to and considering the previous decisions reiterated that ‘just compensation’ should include all elements that would go to place the victim in as near a position as he or she was in, before the occurrence of the accident. While no amount of money or other material compensation can erase the trauma, pain and suffering that the victim undergoes after a serious accident, monetary compensation in the manner known to law whereby society assures some measures of restitution to those who survive, and the victims who have to face their lives. The Apex Court has emphasized that the Court should not adopt a stereotypical or myopic approach, but instead view the matter taking into account the realities of life, both in the assessment of the disabilities and compensation under various heads. It is observed that Court should be mindful that a serious injury not only imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendent trauma of the victim’s having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in Judge’s mind whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right to life under Article 21) of the individual, thus depriving the person of the essence of the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit-pick and award niggardly amounts of oblivious of these circumstances, there is resultant affront of the injured victim.

14. Reverting to the facts of the case, as on the date of the accident, the Claimant was 26 years of age and he was married. The evidence on record reveals that the claimant had suffered multiple injuries viz., rib fracture with lung contusion, Grade III liver tear, injury on chest and abdomen, spinal cord injury resulting in traumatic paraplegia and consequent 100% permanent disablement.

15. It may be noted that Paraplegia, which is a form of paralysis of lower body restricts everyday routine physical activity and leads to (i) deprivation of simple pleasures and amenities of life, (ii) 100% loss of earning capacity, (iii) long term secondary complications requiring continuous care, medical treatment and hospitalization, (iv) feeling of helplessness, depression, anger, stress, anxiety, etc. In short, paraplegia impairs physical, mental and psychological health and has devastating impact on social and financial well being of the victim.

16. Paraplegia also impacts marital life of the spouse, who inevitably becomes the main care taker or care giver and in the process shared vows, friendship, intimacy and emotional support become a thing of the past. The children too do not remain untouched with this tragedy, as impaired mobility limit parenting responsibilities and results in depriving the children of guidance, love, care and affection of the parent which is essential for the development and welfare of the children. Paraplegia of the sole bread earner also puts infirm parents in a helpless situation. Monetary compensation howsoever high cannot rebuild the life of the victim or reduce his physical or mental trauma. It cannot restore the shattered dreams of the spouse, bring back lost childhood of the children or relieve the agony of the parents of seeing their child in a vegetative state.

17. Nevertheless, the provisions under the Motor Vehicles Act, which is a beneficial legislation, enables the Tribunal or the Court to provide relief to the victim or the family by awarding compensation which appears to be just. The object and endeavour is to provide much needed financial stability to the victim and the family to navigate the change with minimal trauma. The quantum of compensation has to be determined keeping in view the sufferings of the victim and his family and as held by the Supreme Court in R.D. Hattangadi v/s. Pest Control (India) Pvt. Ltd. (1995) 1 SCC 551, by venturing into some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused, at the same time viewing the aforesaid elements with objective standards.

18. As noted above, the Claimant was 26 years of age and had suffered multiple injuries in an accident leading to traumatic paraplegia. He was admitted in Wokhardt hospital from 29/11/2004 to 11/01/2005. He was again admitted to Wokhardt hospital from 24/01/2005 to 01/04/2005; in Parijit Nursing Home on 17/06/2005; again in Wokhardt hospital from 30/10/2005 to 04/11/2005; in BSESMG hospital from 14/11/2005 to 13/12/2005; in Hiramongi Hospital from 03/04/2006 to 05/04/2006 and in Lifeline Hospital, Chennai for stem cell therapy from 20/06/2007 to 24/06/2007. He had undergone spinal stabilization injury.

19. The Claimant has produced the medical records of each of these hospitals which are at Exhibits – 29 to 35. He has deposed that as advised by the Doctor he has taken follow up treatment. He was examined by the Medical Board at J.J. Hospital to assess the permanent disability and as per the certificate at Exhibit – 37. The Claimant suffers from traumatic paraplegia with bladder-bowel involvement with permanent disability of 100%.

20. The Claimant has produced several medicines/hospital bills from the year 2005 to 2007, air ticket from Mumbai to Chennai for stem cell therapy, bills issued by Dr. Wadke for physiotherapy from April, 2005 to July, 2005 and the bills (Exhibit – 41) issued by the attendant – AW[2], Santosh towards attendant charges. These bills, genuineness of which is not disputed, prove that the Claimant had incurred actual expenses towards medical, transport, physiotherapy and attendant charges to the tune of Rs.13,77,915/-. The Claimant is entitled for reimbursement of the said amount of Rs.13,77,915/-. In addition, the claimant is also entitled for compensation of Rs.6,000/- towards special diet while under treatment.

21. The Claimant has deposed that he is unable to perform his daily chores and that he has engaged AW[2] – Santosh Manchekar as his attendant on payment of Rs.3,000/- to Rs.4,000/- per month. The evidence of AW[2] -Santosh Manchekar, reveals that he has been engaged by the Claimant as an attendant to take care of his day to day activities. He was initially paid attendant charges of Rs.3,000/- per month and subsequently increased to Rs.4,500/- per month.

22. The Claimant, who is paralyzed from waist below would require attendant throughout his life. Considering the attendant charges at Rs.4,500/- per month and adopting multiplier of 17, the Claimant is entitled for compensation of Rs.9,18,000/- towards attendant charges in future as against Rs.50,000/- awarded by the Tribunal.

23. The Claimant being paraplegic, is confined to bed. He is prone to suffer from bladder and kidney infections, pulmonary embolism, deep vein thrombosis, etc. He is likely to develop pressure ulcers and is require to sleep on water bed to avoid pressure sores. Hence, the Claimant will have to incur expenses towards purchase of water bed, wheel chair, crutches and other miscellaneous items. The Claimant will need constant followup treatment for his physical and mental well being. Considering future medical expenses on an average of Rs.5,000/- per month and adopting multiplier method, the Claimant is entitled for compensation of Rs.10,20,000/- towards future medical expenses. The Claimant will also require physiotherapy for both the lower limbs for which he is entitled for lumpsum compensation of Rs.30,000/-. The Claimant is therefore entitled for total compensation of Rs.10,50,000/- towards future medical treatment, physiotherapy charges and other miscellaneous expenses.

24. It is well known that paraplegic patients need high protein and fiber diet, with multivitamin supplements. They also need special diet to regulate their bowel movement. Even by conservative estimation, the amount cannot be less than Rs.3,50,000/-. Therefore, sum of Rs.10,000/- awarded by the Tribunal towards special diet is enhanced to Rs.3,50,000/-.

25. As regards loss of future income, the Claimant has deposed that he was in business of metal cutting and was earning Rs.1,70,995/- per annum. The Claimant has produced income tax returns at Exhibit – 36. The Claimant has deposed that since the accident, he is unable to run his business and earn his livelihood. The Tribunal relied upon the income tax returns at Exhibit – 36 and considered the income of the Claimant at Rs.1,70,995/- per annum. The Tribunal deducted 1/3rd towards personal expenses and applying multiplier of 18, awarded compensation of Rs.28,04,762/- towards loss of income from the date of the accident, including future loss of income.

26. It is pertinent to note that the Claimant had not produced any documentary evidence to prove that he was in metal cutting business. The income tax returns produced by the Claimant were filed subsequent to the accident. No reasons have been assigned for not producing the tax returns in respect of the previous years. In such circumstances the tribunal was not justified in relying upon the income tax returns at Exhibit-36 for the purpose of assessing the loss of earning. Similarly, the Tribunal was not justified in applying multiplier of 18. Considering the age of the claimant and the decision of the Apex Court in Sarla Verma (Smt.) and ors. v/s. Delhi Transport Corporation and anr. (2009) 6 SCC 121, the multiplier applicable is 17.

27. The Tribunal has also erred in deducting 1/3rd towards personal expenses of the Claimant. In Raj Kumar (supra), the Hon’ble Supreme Court has held that in the case of an injured claimant with a disability, what is calculated is the future loss of earning of the claimant, payable to the claimant (as contrasted from loss of dependency calculated in a fatal accident, where the dependent family members of the deceased are the claimants). Therefore, there is no need to deduct 1/3rd or any other percentage from the income towards the personal and living expenses.

28. The loss of earning capacity of the Claimant is 100%. The Claimant having failed to prove the actual income, the loss of future earning has to be assessed on the basis of the notional income. Considering the age of the claimant, the notional income can be considered at Rs.8,000/- per month i.e., Rs.96,000/- per annum. Considering the age of the Claimant and adding 40% towards loss of future prospects, total amount would be Rs.1,34,400/- per annum. Applying multiplier of 17, the total loss of future earnings of the Claimant works out to Rs.22,84,800/-.

29. The Claimant, a young man of 26 years of age is wheelchair bound for life. In addition to physical and mental suffering, his mobility impairment is likely to affect his conjugal relationship and shatter his hope to nurture children. He is unable to enjoy amenities of life, which he would have otherwise enjoyed but for the tragic accidental injuries. In such circumstances, compensation of Rs.3,00,000/- awarded by the Tribunal towards pain and suffering and loss of amenities is enhanced to Rs.5,00,000/-.

30. Accordingly, the Claimant is held to be entitled for compensation of Rs.64,86,714/- which is more than the amount claimed by the Claimant. Having regard to the decision of the Hon’ble Supreme Court in Nagappa v/s. Gurudayal Singh and ors. (2003) 2 SCC 274, there is no embargo in awarding compensation more than that claimed by the Claimant. Rather it is obligatory for the Tribunal and Court to award ‘just compensation’, even if it is in the excess of the amount claimed.

31. Hence, the following order:- (a) First Appeal No.1700/2012 is allowed. (b) The Claimant is held to be entitled for total compensation of Rs.64,86,715/- inclusive of no fault liability. Upon excluding an amount of Rs.23,18,000/- in respect of future expenditure under different heads, the Claimant shall be entitled for interest on amount of Rs.41,68,715/- @ 7.5% per annum from the date of the application till final realization.

(c) Respondent – Insurance Company shall deposit the balance amount within a period of four weeks from the date of uploading of the order; (d) 10% of the compensation deposited by the Respondent – Insurance Company with proportionate interest accrued thereon be paid to the Appellant-claimant on payment of deficit court fees, if any. (e) The balance amount shall be invested in the name of the Appellant-claimant in any nationalized bank with liberty to withdraw quarterly interest accrued on the said amount;

32. First Appeal No.1361/2010 is dismissed. No order as to costs.

33. Pending Civil/Interim Applications, if any, stand disposed in view of disposal of the Appeals. (SMT.

ANUJA PRABHUDESSAI, J.) PREETI H