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The Motor Vehicles Act, 1988
Joint Secretary To The Government ... vs Khillu Ram And Anr on 6 October, 1975
Harnam Singh vs The State Of Himachal Pradesh on 21 November, 1974
State Of U. P vs Hari Prasad & Others on 6 December, 1973

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Himachal Pradesh High Court
Surjit Singh vs Waryam Singh And Anr. on 15 October, 1993
Equivalent citations: 1994 ACJ 505
Author: D Gupta
Bench: D Gupta, L Panta

JUDGMENT

Devinder Gupta, J.

1. Appellant has come up in appeal against the award made on 10th December, 1990, by the Motor Accidents Claims Tribunal, Una, for further enhancement of the amount of compensation.

2. On 4th September, 1988, at about 4.00 p.m., when appellant along with his aunt, Darshan Kaur, was standing on the kacha portion of the road near village Badhauri in District Una, he was hit by a scooter No. DDK 7399 driven by respondent No. 1, which was on its way from Kante Palkwah towards Haroli. As a result of this, the claimant-appellant fell on the road and received serious injuries on his head and mouth. He was immediately taken to Civil Dispensary, Haroli, from where he was referred to District Hospital, Una and within an hour, he was referred to Post Graduate Institute, Chandigarh. The condition of the appellant when he was brought to P.G.I. was very serious. Immediate operation was advised by Dr. Rajesh Pasricha, Senior Resident Neurosurgeon, in consultation with Dr. S.N. Mathuria, Associate Professor of Neurosurgery, P.G.I., Chandigarh. On the next day, the appellant was operated upon by Dr. Kashmir Singh, PW 6, with the assistance of Dr. S. Reddy, for head injury. During operation, it was found that the appellant was having cerebral oedema. On 24th September, 1988, the appellant was discharged from P.G.I. He continued under treatment as an outdoor patient of the P.G.I. There was no improvement in the disability suffered by the appellant, which was estimated to the extent of 100 per cent. On 18th November, 1988, claim petition was preferred before the Motor Accidents Claims Tribunal, Una, seeking compensation of Rs. 3,00,000/- along with interest from the date of application till payment for the injuries received by the appellant.

3. Respondent No. 1, the owner and driver of scooter, contested the petition. The accident was not disputed. It was also not disputed that the appellant did receive injuries but he gave his own version as to the manner in which the accident had taken place. It was alleged that he was coming on scooter on the correct side of the road from Palkwah at a slow speed. The appellant was holding a balloon in his hand, which was blown away and had come on the road. The appellant being a child, all of a sudden dashed to the middle of the road to get hold of the balloon and in this process hit the side of the scooter. Despite best efforts, the appellant could not be saved, though the scooter was stopped. The child, for treatment to the injuries sustained; was taken to hospital. On the question of quantum of compensation for the injuries, respondent No. 1 pleaded that the claim was highly exaggerated and since he was not negligent in driving the vehicle, he was not liable to compensate the appellant. Respondent No. 2, insurance company, with whom, at the relevant time, the scooter involved in the accident was insured, also filed its reply and took up a plea that the driver of the vehicle did not have a valid driving licence and that the amount of compensation was highly exaggerated.

4. The Claims Tribunal, on the basis of the evidence, held the accident to have taken place due to rash and negligent driving on the part of respondent No. 1. It was also held that as a result of the accident, the appellant received serious injuries. Respondent No. 1 was found to be having a valid driving licence at the time of accident and it was also held that the vehicle was not being driven in violation of the terms of the insurance policy. While allowing the claim petition, an award in the sum of Rs. 38,500/- along with interest at the rate of 10 per cent per annum from the date of institution of the petition, till realisation was passed in favour of the appellant against respondent Nos. 1 and 2. It is this award which is under challenge at the behest of the appellant. The appellant has prayed for further enhancement of the amount of compensation. No appeal or cross-appeal has been preferred by the respondents. We have heard the learned counsel for the parties and have also gone through the entire record.

5. It has been contended on behalf of the appellant that the amount awarded is not the just amount of compensation. It is highly inadequate, keeping in view the injuries received by the appellant. Prayer has been made to enhance the amount of compensation to Rs, 8,00,000/- with interest at the rate of 18 per cent per annum from the date of filing of the petition till realisation. It is contended that though in the claim petition, keeping in view the facts and circumstances, till that date claim was laid only to the tune of Rs. 3,00,000/-, but there is no impediment in making an award for the amount as claimed by the appellant. Learned counsel for the respondents have contended that award cannot exceed the limit of the amount as originally claimed by the appellant and also there is no case made out for enhancing the amount of compensation. The appellant at the time of accident was a four years old child. His condition as on the date of making the statement by PW 6, Dr. Kashmir Singh, Lecturer, Neurosurgery, Indira Gandhi Medical College, Shimla, on 23rd August, 1990, deserves to be noticed. On being admitted to the P.G.I. on 4th September, 1988, the appellant was operated upon the following day for head injury. During operation, it was found that the appellant was having cerebral oedema and before operation, he was decerebrating with both lower limbs and right upper limb and decorticating with left upper limb. He was unconscious and there was no verbal response and no eye opening. After operation, the appellant improved and started opening eyes spontaneously. Even after discharge on 24th September, 1988, the appellant continued to be an outdoor patient at P.G.I. On being examined in court, Dr. Kashmir Singh opined that the appellant was still in a vegetative state and was unable to sit, stand or maintain sitting posture independently. His condition as noticed by the Neuro-surgeon is in the following words: ...At present Surjit Singh (as examined in the court) is in a vegetative state. He is opening eyes spontaneously, cries on examination. He cannot sit, he cannot stand even when he is made to sit or stand with support, he cannot maintain his sitting posture independently. He does not obey commands. He is not communicable and no menace is present. Glabellar tap present and palmomental reflex is present bilaterally. His pulse rate is 84 per minute. Both pupils are of equal size and reacting to light. Tone all over the body is increased and deep tendon reflexes exaggerated and ankle clonuses present bilaterally. Abdominal reflexes absent on right side and left lower abdomen. At present the disability of the patient is 100 per cent. He is not communicable that is why he cannot read, write or receive education. At present he needs one attendant to look after him even after two years of his sustaining the injuries. The chances of recovery of the patient in future are minimum as two years have already passed after he sustained injuries. Exact expectancy of the life will depend upon the care of the patient. I cannot say if Surjit Singh can survive up to 50 years but chances are there if proper care is taken. He needs one attendant to look after him as the chances of recovery are minimum. At present the patient needs liquid diet. ...

6. The observations and opinion of PW 6, Dr. Kashmir Singh, do suggest that the present state and the extent of damage to the appellant is as a result of the injury, which he received in the accident. During the cross-examination, the doctor stated that after examining the injured, he was of the opinion that in future he cannot recover so as to lead an independent life and also is unable to take care of himself. Brain cells were completely dead and the doctor opined that once the cells are dead, they are dead for ever and cannot regenerate.

7. The Tribunal noticed the statement of the doctor as also various other documents, which were produced on record and observed that the claimant was merely a four years old child at the time of accident and thus was not a student and there was no definite evidence on the file regarding his suffering from permanent disability with no chance of recovery. The Tribunal observed that there was no evidence on the file to establish for how long the claimant would survive. Rs. 4,000/- was assessed as medical expenditure incurred by the appellant and Anr. sum of Rs. 500/- towards taxi charges. On account of loss of prospective earnings, a sum of Rs. 14,000/- was awarded. Rs. 20,000/- was awarded on account of pain and suffering, loss of amenities and enjoyment of life. Thus, the total award made was in the sum of Rs. 38,500/-. The observations made by the Tribunal that there is no definite evidence regarding the appellant having suffered permanent disability or about there being no evidence about his chances of recovery are the reasons which led the Tribunal in assessing the amount of compensation. These observations, as we find, are contrary to the evidence on record.

8. The statement of the doctor is clear and is without any ambiguity, not only to the extent of injuries received by the appellant, but also on the chances of recovery. According to him, chances of recovery in future were minimum and the disability is to the extent of 100 per cent. The appellant was unable to either sit or stand or to maintain sitting posture independently. The appellant was found to be not obeying the commands and he was not communicable. It was opined by the doctor that the appellant, in future, would be unable to lead an independent life and he required at least one attendant throughout his life.

9. PW 1, Gurdial Singh, is the father of appellant. His statement was recorded on 18th October, 1989. His version is that he had already spent a sum of Rs. 75,000/- on treatment, but there was no improvement in the child. He remained admitted at P.G.I. for 25 to 26 days, where the authorities opined that the appellant be taken back as it was not possible to restore his mental condition. He stated that since he was working as a labourer in Bombay, therefore, the appellant was taken to Bombay with him for treatment. Treatment was given in the Nair Hospital, where the doctors prescribed a special diet of fruits and juices. Certain medicines were also prescribed. The daily expenses, according to him, on special diet and medicines were about Rs. 300/-, an attendant had been engaged to look after the appellant on which a sum of Rs. 2,000/- was spent in six months including his wages and meals, special accommodation was hired on a rental of Rs. 400/- per month including electricity charges. A sum of Rs. 1,500/- was stated to have been spent on taxi charges from residence to hospital in Bombay and another sum of Rs. 500/- for taking the appellant up to Bombay. He wanted to give best education to the child but the appellant was not in a position to read now.

10. PW 2, Darshan Kaur, is the aunt of the appellant. She has narrated the details of the manner in which accident took place. There is no rebuttal to this evidence adduced by respondent No. 1.

11. The appellant also relied upon the documentary evidence and produced a number of documents, which, according to the Tribunal, have not been proved in accordance with law and, as such, were discarded. It was PW 1, who tendered all these documents in evidence by stating that these were the vouchers and the receipts in his possession and were obtained by him while purchasing medicines prescribed by the doctors and of the other amounts spent by him. At the time of production or at the time when documents were received in evidence and were duly marked with Exhibit marks, no objection was raised by the opposite party. In case, when the documents were tendered and were received in evidence, without any objection, it was not permissible for the Tribunal to have discarded these documents at subsequent stage.

12. Before proceeding to determine as to what should be just amount of compensation in the light of the nature of injuries received by the appellant, we may deal with one of the questions raised, namely, whether it will be permissible to make an award in excess of the amount as claimed in the petition.

13. Chapter XII of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act') refers to the 'Claims Tribunals'. For adjudicating upon the claims for compensation in respect of accidents involving death or bodily injury to persons, arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both, the State Government is empowered to constitute one or more Motor Accidents Claims Tribunals for such area as may be specified in the notification.

14. Section 166 provides for the manner of submitting an application for compensation. Not only the person who has sustained injuries or the owner of the property or where the death has resulted, all or any of the legal representatives of the deceased are entitled to make an application for compensation, but the Claims Tribunal, if it thinks necessary to do so, can treat a copy of the report sent to it by a police officer, under Section 160, regarding an accident, to be an application for compensation under the Act.

15. Section 168 enjoins upon the Claims Tribunal, on receipt of an application, after hearing the parties and recording evidence, to make an award determining the amount of compensation, which appears to it to be just and specifying the person or persons to whom the compensation shall be paid. In the award, the Claims Tribunal is required to specify the amount, which shall be paid by the insurer or the owner or driver of the vehicle, involved in the accident. Procedure, which is required to be followed by the Claims Tribunal, subject to any rules that may be made, by virtue of Section 169 of the Act is only a summary procedure, as it thinks fit. The Claims Tribunal is also required to direct, by virtue of Section 171 of the Act that in addition to the amount of compensation, a simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim. Power to frame Rules by the State Government is contained in Section 176 of the Act.

16. No Rules have been framed yet under the provisions of the Act, but there are two sets of Rules operating. Himachal Pradesh Motor Accidents Claims Tribunals Rules, 1960, framed by the authority of the Lt. Governor of Himachal Pradesh in exercise of powers conferred by Section 111-A of the Motor Vehicles Act, 1939, as published in the Himachal Pradesh Rajpatra (Extraordinary) on 25th November, 1960, at page 275 are in operation in that part of the State of Himachal Pradesh, which prior to 1st November, 1966, formed part of Union Territory of Himachal Pradesh. In those areas, which were merged, on coming into force of the Punjab Reorganisation Act on and from 1st November, 1966, with Union Territory of Himachal Pradesh by taking out those areas from the State of Punjab, the Punjab Motor Vehicles Rules are applicable.

17. Under both sets of the Rules, a form has been prescribed to enable the claimant(s) to specify the amount of claim. The question arising for consideration is as to whether in a case where a claimant has specified a particular sum, being the amount of compensation claimed by him, can the jurisdiction of the Claims Tribunal be said to have been curtailed by such exercise of option by the claimant in specifying the amount, in making determination and thereby making an award of a just amount of compensation, in case the Claims Tribunal considers that an amount higher than the amount claimed by the claimant is the just amount of compensation, which should be awarded? The consensus of the judgments cited at the Bar is that there is no bar in the Claims Tribunal in making award over and above the amount of compensation claimed. But in such an eventuality, it has been observed in some of the judgments that proper procedure which should be followed is to allow the claimant to amend the petition.

18. In Municipal Corporation of Greater Bombay v. Kisan Gangaram Hire 1987 ACJ 311 (Bombay), Division Bench of Bombay High Court was dealing with a case where the claimant had prayed for being allowed compensation in the sum of Rs. 75,000/- but the Tribunal made an award of Rs. 1,44,612/-. After discussing the provisions of the Act and the procedure prescribed in the relevant Rules, which is required to be followed by a Claims Tribunal in determining the amount of compensation, it was held that there was no fetter in the powers of a Tribunal to award compensation in excess of that which is claimed in the petition. It was observed that in such like cases the proper procedure to be followed should be to give a proper notice or intimation to the opposite party to enable it to lead further evidence and, if necessary, by getting the claim petition amended. The Division Bench laid down the precise procedure and the safeguards, which deserve to be taken, in order to avoid abuse of the powers conferred on the Tribunal in awarding compensation in excess to the amount claimed in the petition.

19. Section 168 of the Act enjoins upon a Tribunal to make an award determining the amount of compensation which appears to be 'just'. Neither the word 'just' nor the term 'compensation' has been defined in the Act. The word 'compensation' as construed in State of Gujarat v. Shantilal Mangaldas, AIR 1969 SC 634, has been held to mean anything given to make things equivalent; a thing given to or to make amends for loss, recompense, remuneration or pay. Meaning of the word 'compensation' in terms of the personal injury has also been defined in the Words and Phrases, Permanent Edn., 8th Vol., West Publishing Co., at page 292: ...an act which a court orders to be done, or money which a court orders to be paid, by a person whose acts or omissions have caused loss or injury to another, in order that thereby the person damnified may receive equal value for his loss, or be made whole in respect of his injury; a consideration; the consideration or price of a privilege purchased; an equivalent in money for a loss sustained; an equivalent given for property taken or for an injury done to another; the giving back an equivalent in either money which is but the measure of value, or in actual value otherwise conferred; the rendering an equivalent in value or amount; indemnification; making amends; payment of damages; a recompense in value; a recompense or reward for some loss, injury, or service, especially when it is given by statute; remuneration for the injury directly and proximately caused by a breach of contract or duty; remuneration or satisfaction for injury or damage of every description; that return which is given for something else; that which is necessary to restore an injured party to his former position. The term etymologically suggests the image of balancing one thing against another, its primary signification being equivalence and the secondary and more common meaning something given or obtained as an equivalent. ...

20. In Corpus Juris Secundum, Vol. 15-A, p. 104, the word 'compensation' with reference to injury or loss is defined as:

...as meaning amends; remuneration; recompense; and equivalent given for property taken or for an injury done to another, or an equivalent in money for a loss sustained; reimbursement; remuneration for the injury directly and proxi-mately caused by a breach of contract or duty; remuneration or satisfaction for injury or damage of every description; that which is necessary to restore an injured party to his former position; that which compensates for loss or privation; that which makes good the lack or variation of something else; that which is received by one person from another in extinguishment of a claim forming the basis of a legal demand...

21. When the law enjoins upon the Claims Tribunal to make an award of compensation, which appears to be 'just', it means that compensation has to be such that an ordinary sensible man would not instinctively regard it as either mean or extravagant, but would consider it to be sensible and fair.

22. Damages are compensation in money. In Damages for Personal Injuries and Death by John Munkman, 6th Edn., the author has observed that "when one person causes harm of any kind to another person, whether it is personal injury, damage to property or financial loss, the normal remedy which the law gives is a right to recover damages." The damages are compensation for an injury or loss, that is to say, full equivalent in money, insofar as the nature of money admits. The author while dealing with the subject of damages has observed:

(i) Damages must be full and adequate.

(ii) Damages are assessed once and for all; and

(iii) Difficulty and uncertainty of assessment does not preclude an award of damages.

Since compensation has to be awarded in terms of money, therefore, while determining the just amount of compensation, it is necessary that the same be full and adequate. It be assessed once for all and difficulty or uncertainty in assessment does not preclude an award being made.

23. When the Act nowhere enjoins upon the claimant to specify the amount of compensation, the procedure prescribed also does not prevent a Claims Tribunal in limiting the award to a limit up to which it is claimed by a claimant, but enjoins upon the Tribunal to assess the just amount of compensation, it follows that the Tribunal is not powerless in making an award even in excess of the amount of compensation claimed. Claim for compensation is also not made dependent upon the amount of court fee payable, since it is a fixed amount of court fee of Rs. 10/-, which is payable on every claim petition. Otherwise also, in the facts and circumstances of the instant case, where injuries to the claimant are of such a nature, extent or impact of which could not have been visualised on the date of filing of the claims petition, the same would not prevent the court from assessing the compensation, which appears to be just.

24. In N.K.V. Bros (P) Ltd. v. M. Karumai Animal 1980 ACJ 435 (SC), the Apex Court observed that the court should not succumb to niceties, technicalities and mystic maybes in genuine and just claims.

25. This brings us to the question of the actual amount of compensation, which becomes due and payable. The Claims Tribunal has observed that there is no definite evidence on the file regarding suffering from permanent disability or that there is no such evidence on the record that there are no chances of recovery. It also observed that there is no evidence on the file to establish that for how long the claimant will survive. These observations made by the Claims Tribunal are contrary to the medical evidence available on record in the statement of Dr. Kashmir Singh, Lecturer, Neurosurgery, Indira Gandhi Medical College, Shimla, who not only attended upon the claimant at the time of operation in P.G.I., Chandigarh, but also examined the claimant in court and observed that the claimant is in 'vegetative state'. He cannot sit. He cannot stand and even if he is made to sit or stand with support, he cannot maintain his sitting posture independently. He does not obey commands. He is not communicable. Disability found by him is to the extent of 100 per cent. It was also stated by him that the claimant cannot read, write or receive education for the rest of his life. One attendant, at all times, is required to look after him. Chances of recovery are minimum and the exact expectancy of life depends upon the care provided.

26. In the light of the above evidence, the Tribunal took a totally erroneous view of the matter and also failed to apply the correct principles in making assessment of the amount of compensation, which ought to have been applied in the instant case. The amount awarded is not the just amount of compensation.

27. In general, damages are given to every kind of injury caused by unlawful act and for all consequential loss and expense. The items of loss and damage vary from case to case. In a case of personal injury, loss of earnings, pain and loss of the enjoyment of life are the relevant factors.

28. Damages for pain, suffering and loss of amenities and nervous shock, which the claimant has suffered in the past and is likely to undergo in future, namely, non-pecuniary loss are generally awarded as a one unit. Award of damages under this head is dependent upon various factors and are assessed depending upon nature and gravity of injury and keeping in view the facts and circumstances of each case. Under this head mental distress, in particular the distress which a permanent cripple has to undergo, because he is constantly dependent upon the care of other persons, because his enjoyment of life and possibly its duration are cut short. Any amount of money cannot restore to a claimant what he had lost permanently. As a result of the seriousness of the injuries received, he is condemned to a perpetual life of misery and agony and during the remaining period of survival he is also haunted by his previous brilliant record. Any chance of bright future prospects is permanently wiped out. There is no chance in future of the thrills and enjoyment of life. Since damages for it are assessed, keeping in view the facts and circumstances of each case, by the nature of evidence led and experience of the Judge awarding damages, we may refer to a few judgments as a guide for assessing damages under this head.

29. In A.S. Rajara v; Joitaram Rawabhai Patel 1982 ACJ (Supp) 1 (Gujarat), a person aged 26 years suffered serious injuries in accident, which occurred on 7th August, 1977. His abdomen was crushed. Urethra was ruptured. There was a fracture of hip joint and pelvis. Skin grafting had to be done. A Division Bench of Gujarat High Court treated it to be a case of extraordinary damage, awarded towards pain and suffering and loss of amenities of life a sum of Rs. 75,000/-.

30. Delhi Transport Corporation v. Kumari Lalita 1983 ACJ 253 (Delhi), was a case of accident, which occurred on 6th December, 1961, in which a young girl aged 8 years, as a result of the injuries received by her, was permanently crippled due to fracture of a right femur, right leg, right scapula and right humerus and had totally become dependent upon others. The Division Bench of the Delhi High Court, after exhaustive discussion of the law, awarded a sum of Rs. 50,000/- towards pain, suffering and loss of amenities of life by concluding:

There are some kinds of damages for which no true compensation can be given in this world by any amount of money, no matter how elaborate an arithmetical computation is employed. This is particularly so with claims for loss of expectation of life and pain and suffering. Yet the courts are obliged to do the best they can. In such cases the plaintiff is entitled to fair and reasonable compensation, assessed in the light of previous awards in respect of comparable damages. [Salmond on Torts, 13th Edn., (1961), p. 736].

In a case such as this, it is inevitable that in assessing damages there must be elements of estimate and to some extent of conjecture. Who can say what this girl of eight would have done with her life? She may have married and brought up a large family, but earned nothing herself. Or, she may have been a career woman, earning high wages. This is all speculative in the extreme. But one thing is clear. At all times damages must be assessed with a sense of proportion. [Mallett v. McMonagle 1969 ACJ 312 (HL, England)]. They should not be inordinately high or inordinately low.

The global sum awarded represents damages for all the plaintiff's losspast, present and future. In awarding damages two things have to be borne in mind: (1) Damages must be assessed on the basis that the total sum will be exhausted at the end of the period contemplated and that during that period the plaintiff will draw upon both the income from the investment of the sum awarded and upon the capital itself. [Taylor v. Connor 1971 AC 115]. That damages benefit the victim himself rather than his surviving relatives.

31. A Division Bench of the Gujarat High Court in a later decision in National Insurance Co. Ltd. v. Minor Ramanbhai Fulabhai Bhoi 1983 ACJ 779 (Gujarat), in which accident had taken place on 10th September, 1977 involving a boy of 15 years, awarded a sum of Rs. 75,000/- towards pain, suffering and loss of amenities of life. The claimant in the said case got fractured his pelvis and ruptured urethra and the natural passage of urine was closed. Catheter was put, which had to be used by the claimant for rest of his life. Reliance was placed on A.S. Rajara's case 1982 ACJ (Supp) 1 (Gujarat).

32. M. Jagannadha Rao, J., in P. Satyanarayana v. I. Babu Rajendra Prasad 1988 ACJ 88 (AP), after considering a number of judgments delivered by various High Courts as also some English decisions, observed that the particular conventional figures adopted by courts for loss of particular limbs have to be upgraded basing upon inflationby looking at the percentage increase in the wholesale price index or the consumer price index. Tabulating the amounts awarded by various High Courts for pain, suffering and loss of amenities of life, for accidents, which occurred from 1967 to 1979, in cases where the claimants had lost both eyes and had also suffered brain damage, resulting in the loss of memory, intelligence and having become unsound, awarded a sum of Rs. 50,000/- towards pain, suffering and loss of amenities of life for a 25 years old claimant, who lost both his eyes in the accident, which occurred on 4th April, 1979.

33. In Dr. P. Narasimha Rao v. Gunda-varapu Jay a Prakash 1990 ACJ 350 (AP), for a brilliant boy of 17 years, who in 1966 suffered severe brain damage as a result of negligent performance of tonsillectomy operation, assessed Rs. 2,00,000/- as damages under the head loss of amenities.

34. In the light of the awards in the aforementioned cases and keeping in view the facts and circumstances of the instant case in which accident occurred on 4th September, 1988, we assess damages under the head pain, suffering and loss of amenities of life at Rs. 90,000/-, which, in our opinion, is the just and reasonable amount.

35. In estimating financial or pecuniary loss, an opinion deserves to be formed about the nature and extent of loss. After having formed an opinion, assessment has thus to be under various sub-heads. Under the head loss of earning, the first thing to be considered would be as to what the claimant would have been earning, if the accident had not occurred, allowing for any future increase or decrease in the rate of earnings. Next factor to be considered would be as to how long the loss will continue and also making an estimate of the amount, if any, which a claimant can still earn in future, notwithstanding the disability. There is another head under which assessment of damages will have to be made where medical and nursing expenses are claimed. The court is expected to estimate the expenses already incurred up to the date of the trial. Also an estimate of the likelihood of the expenses of future nursing.

36. Under the first head, namely, the future loss of earnings, the present value of the future loss of earnings for the earning period is to be computed on the total disability basis. In case there is any partial disability the said figure is liable to be reduced proportionately to arrive at the percentage of net loss of earnings. The courts have adopted a number of methods in computing loss of future earnings, namely, interest method, lump a sum method and multiplier method. By the passage of time, the first two have now almost been discarded and replaced by the third method, namely, the multiplier method, It is the traditional multiplier method which is generally applied in which the amount of compensation is assessed on the choice of appropriate multiplier, which generally is selected on pure experience and practice, in the light of the facts and circumstances of each case, which is dependent upon a number of factors. In the instant case, we need not jot down the factors to be taken into consideration in selecting the multiplier.

37. The comparative awards are relevant only' in assessing non-pecuniary losses but insofar as the financial damages are concerned, the same have to be calculated mathematically, since they are not comparable, even if the nature of injuries may be same or similar. Each case has to be decided on its own peculiar facts. The comparison has to be limited by making reference to the comparative awards only with respect to the sums awarded under the heading pain, suffering and loss- of amenities.

38. In the instant case, evidence has been led of the amounts already spent on the medicines and treatment of the claimant-appellant till the date of making of statement by Gurdial Singh, PW 1, the father of the claimant. His version is that approximately Rs. 75,000/- had been spent by him, over and above the normal expenses, which he had to incur on the claimant during this period. As per the details contained in various cash memos and receipts, namely, Exhs. P-15, P-19, P-20, P-64, P-82, P-83 and P-88, including the details pointed out in document Exh. P-46, a sum of Rs. 18,964.40 is the expense on medicines, X-rays, transportation charges, etc. In addition thereto, a sum of Rs. 2,151/- has been spent as taxi fare and train fare of the claimant, from the place of accident to hospitals and to Bombay, etc. Exhs. P-2, P-8, P-84 contain details of the amount of Rs. 8,310/- spent for purchase of milk for the claimant-appellant. Exh. P-l gives the details of other expenditures to the tune of Rs. 3,504/- and Exh. P-87 is an affidavit containing details of expenses of Rs. 27,000/- under various items. There is no rebuttal to this evidence. The father of the claimant also stated that approximately a sum of Rs. 500/- to Rs. 600/- has been the amount of monthly expenditure on milk, Rs. 300/- on special diet, Rs. 150/- towards the purchase of medicines, Rs. 300/- to Rs. 400/- on payments made to an attendant and Rs. 400/- per month towards special accommodation provided to the claimant. By taking this as an average, for which details are to be found in various vouchers, bills, cash memos, etc. there is no manner of doubt that at least a sum of Rs. 65,000/- was spent on the claimant by his father from the date of accident till the date of making the statement in court, to which the claimant will be entitled.

39. In addition to the amount of actual expenditure incurred, the claimant would be entitled to pecuniary damages, namely, future cost of nursing as also the loss of future earnings. The claimant was a young child. Whether he would be entitled to compensation on account of loss of future earnings besides cost of future nursing and care and whether compensation is to be restricted to the period of likely survival, we may refer to the decisions of the Court of Appeal in Croke v. Wiseman 1984 ACJ 304 (CA, England). The majority decision therein held that compensation for loss of future earnings is to be treated as being so speculative that as could not be assessed and nor was it the relevant consideration that a claimant might not be able personally to benefit from the damages awarded for such loss. While holding so, it was observed as under: ...when one is considering the case of a gravely injured child who is going to live for many years into adult life, very different considerations apply. There are compelling social reasons why a sum of money should be awarded for his future loss of earnings. The money will be required to care for him. Take the present case: the cost of future nursing care has been assessed on the basis of nurses coming into care for him for part of the day and night. It is not a case where damages have been awarded which will provide a sufficient sum for him to go into a residential home and be cared for at all times. Damages awarded for his future loss of earnings will in the future be available to provide a home for him and to feed him and provide for such extra comforts as he can appreciate. It cannot be assumed that his parents will remain able to house, feed and care for him throughout the rest of his life. If, of course, damages have been awarded on the basis of the full cost of residential care so that they include the cost of roof and board, any award for future loss of earnings will be small because there will be a very large overlap between the two heads of damage. The plaintiff must not be awarded his future living expenses twice over; this would be unfair to the defendants.

Lord Justice Denning, M.R., gave a dissenting note by referring to an earlier decision in Lint Poh Choo v. Camden and Islington Area Health Authority 1980 ACJ 486 (HL, England), holding that:

In my opinion when a plaintiff is rendered unconscious or insensible, fair compensation should not include an item for loss of earnings as such...provided also that full compensation is also given for every expense that may be incurred on his behalf and every service that may be rendered to him by relatives and friends. The cost of keeping the plaintiff for the rest of his days will exceed by far the salary or wages that he would have earned if he never had been injured. It is not fair to the defendants to make them pay both.

40. In P. Satyanarayana's case 1988 ACJ 88 (AP), in addition to the future loss of earnings, which was allowed at the rate of Rs. 350/- per month, for a claimant of the age of 25 years at the time of accident and of the age of 27 years at the time of trial, by applying multiplier of 18.5, he was also allowed the future cost of nursing, which had been provided in that case at Rs. 100/- per month.

41. In State of Himachal Pradesh through Secretary (PWD) v. Chaina Ram 1989 ACJ 13 (HP), Justice P.D. Desai (as he then was) upheld an award in the sum of over Rs. 2,00,000/- made by the Claims Tribunal in favour of a claimant of 34 years of age at the time of accident, who had suffered severe permanent disability to the extent of 100 per cent whose actual earning at the time of the accident was assessed at Rs. 836.50. The award was upheld by placing reliance upon a Division Bench judgment of Gujarat High Court in Bharat Premjibhai v. Municipal Corporation, Ahmedabad 1979 ACJ 264 (Gujarat), wherein it was held that damages are awardable even for gratuitous services rendered by a close relative. We may quote, with approval, the following passage from the decision in Chaina Ram's case (supra): ...damages are awardable even for gratuitous services rendered to an injured claimant by a close relative as a result of the requirements arising out of disability sustained on account of the accident injury. Damages are awardable in such a case on the principle that the plaintiff's loss is the existence of the need for those nursing services. The value of such loss for the purposes of damages or, to put it differently, for the purpose of the ascertainment of the amount of his loss, is the fair and reasonable cost of supplying those needs. The injured claimant herein was, therefore, entitled to be compensated for such loss. The fact that no such claim was specifically advanced in the claim petition is irrelevant so long as the fact that such voluntary services were rendered is proved and the total awarded amount does not exceed the total amount claimed. In view of the fact that the injured claimant herein would require voluntary services of a family member for the duration of his life, which could be reasonably expected to be at least 35 years from the date of the accident, and if the reasonable costs of providing those services are taken into consideration, the award would appear to be on the lower side rather than excessive.

42. From the above, it is borne out that an injured claimant is also entitled to compensation for the gratuitous services rendered by relatives, even if no such specific claim is advanced in the claim petition. It was held that the injured claimant would require voluntary services of family members for the rest of his life, since he had suffered 100 per cent disablement.

43. A Division Bench of Bombay High Court in Pest Control (India) Pvt. Ltd. v. Ramanand Devrao Hattangadi 1990 ACJ 130 (Bombay), assessed a sum of Rs. 8,57,352/- as compensation to a claimant under various heads, including cost of future nursing, loss of future earnings, expenses already incurred up to the date of filing a claim and pendente lite expenses. By referring to a number of decisions, it was observed that award should be a just and fair award and should not be oppressive to the respondent. Award should not be punitive, exemplary and extravagant and as far as possible similar cases must be decided similarly.

44. A Division Bench of this court in Inder Singh v. Himachal Road Transport Corporation 1993 ACJ 620 (HP), assessed pecuniary and non-pecuniary damages to the extent of Rs. 6,30,000/- in favour of a claimant, who was of the age of 35 years at the time of accident and was permanently disabled. Before the accident, the claimant was engaged in the profession of agriculture and horticulture as also a contractor. Under the head pecuniary damages, award was made towards loss of income, attendant's expenses and medical expenses.

45. Applying the principles aforementioned to the facts of the instant case, we are of the opinion that not only the claimant has to be provided with a special one-room accommodation in Bombay, but also has to be provided with medicines for the rest of his life. In addition, special diet and special attendant have to be provided besides parents looking after him.

46. We may now proceed to assess the damages towards the cost of future nursing and care. Taking the recurring monthly expenses of Rs. 400/- towards milk, Rs. 250 for special diet, Rs. 150/- as cost of medicine, Rs. 300/- as remuneration of extra attendant and Rs. 400/- as the rent for accommodation, we can take Rs. 1,500/-as monthly expenses. PW 6, Dr. Kashmir Singh, in his statement has clarified that chances of recovery of patient in future are minimum but the life expectancy is dependent upon the care provided to the patient. Though he was not optimistic that the claimant would survive up to 50 years of age, but observed that chances are there, if proper care is taken. He requires one attendant to look after him and also requires liquid diet. We are proceeding on the assumption that the claimant is being provided with an attendant and special diet as also medicines as has been stated by his father, which evidence has remained unrebutted. The life expectancy can be taken at 45 years, for which, keeping in view the facts and circumstances, 15 would be an appropriate multiplier. As such, under the head future loss of nursing/care, the claimant, in our opinion, would be entitled to a sum of Rs. 2,70,000/-.

47. Under the head loss of future earnings, though the claimant was of the age of 4 years on the date of accident in the year 1988 and would at present be of 9 years and since we have taken the life expectancy at 45, even if it is taken that the child would have adopted the profession, namely, labourer, which at present is being carried on by his father and earning the same emoluments, namely, Rs. 50/- to Rs. 60/- per day and taking the disability of the claimant to be 100 per cent, we may take the loss of future earnings per month at Rs. 750/-and by applying the multiplier of 15, the claimant under this head would be entitled to a sum of Rs. 1,35,000/-.

48. Thus, the total amount of compensation payable to the claimant under the various heads, as discussed above, comes to Rs. 5,60,000/-, namely:

(a) Compensation towards

pain, suffering and

loss of amenities of

life. ... Rs. 90,000/-

(b) Compensation for the

amount already spent

towards transportation

charges, medicines,

hospitalisation,

special diet, etc. ... Rs. 65,000/-

(c) Compensation on

account of future

cost of nursing

/care of the

claimant. ... Rs. 2,70,000/-

(d) Compensation on

account of loss of

future earning. ... Rs. 1,35,000/-

--------------

Total: Rs. 5,60,000/-

49. The above amount in our view is the just amount of compensation for the loss suffered by the claimant. On this amount of compensation, the claimant is also held entitled to interest at 12 per cent per annum from the date of filing the claim petition till the date of payment.

50. In view of the above, we modify the award made by the Claims Tribunal and award a sum of Rs. 5,60,000/- with interest at the rate of 12 per cent per annum from the date of filing of claim petition till the date of payment. The amount of award will be payable by the respondents jointly and severally. Since the respondent insurance company has been held liable, therefore, the amount of compensation with interest will be deposited by it before the Claims Tribunal within a period of three months from today.