The Hindu Business Line : Reality of actual loss

HERE is an unusual verdict in an accident case, where the court awarded more than what the claimant had appealed for: Manohar Madhukar Tambe vs Bhagubhai Liladhar, decided by the Gujarat High Court on October 20.

First, the facts. On February 5, 1985, about 12-30 p.m., Vasudev Chugla was riding his motorcycle near village Adada, with Tambe (minor) on the pillion. A truck coming from the opposite side, driven by Liladhar, hit the bike. Chugla died. Tambe suffered fracture on his right thigh and the knee, apart from other parts of the body; he lay in bed for nine months, was operated twice and wore plaster for six months.

At the Motor Accident Claims Tribunal, Valsad, legal heirs of Chugla claimed a compensation of Rs 4,00,000. And Tambe claimed Rs 50,000 (as compensation for pain, shock and suffering, medical expenses, loss of education, transportation and other connected charges, including attendance).

As usual, there were a host of denials from the other side, on almost everything from Chugla's licence to Tambe's disability. However, the Tribunal awarded, in November 1988, a compensation of Rs 39,600 to Tambe (that is, Rs 15,000 for pain, shock and suffering; Rs 12,000 for medical expenses attendance and transportation, and Rs 12,600 for disability). To Chugla's heirs, the compensation awarded was Rs 1,35,000. Interest was to be paid at 12 per cent. Seeking `just compensation', the claimants approached the High Court.

After studying the evidence, Chief Justice Bhawani Singh and Justice H. K. Rathod concurred with the Tribunal's finding of `rash and negligent driving by truck driver'. The next question was about compensation quantum. Tambe's counsel Amrish Pandya submitted that Tambe could not pay court fee owing to poverty, and that looking at the nature of injuries, Tambe was entitled to "just compensation, i.e., more than what has been claimed." Pandya cited the apex court's decision in Nagappa vs Gurdayal Singh (2002).

Tambe must have undergone `great pain, shock and suffering,' empathised the court. "Therefore, award of Rs 15,000 seems to be unjust, consequently, it is enhanced to Rs 50,000," it said. Compensation for `medicines, transportation, and attendant charges', was raised from Rs 12,000 to Rs 20,000, considering the length of treatment. "Persons suffering from serious injuries are not expected to maintain accounts of every amount spent during the treatment due to seriousness of illness, therefore, general assessment of such expenditure can be made," said the court.

"Claims Tribunal did not award compensation for studies," noted the court. The Tribunal had reasoned that Tambe had not failed but passed in the ninth standard examination, and therefore, he could not be awarded special amount. No, that's not reasonable, said the court. "Loss in study for nine months is obvious. Of course, the claimant passed, but he could have passed with higher marks had he been in the school for these nine months. Loss is obvious, therefore, an amount of Rs 10,000 is awarded," the court ruled.

Focus then turned to claim for permanent partial disability. The court noted that Tambe's leg got shortened owing to the accident and that he limped while walking. "He cannot walk properly, he cannot run, he cannot sit cross-legged, nor squat or do cycling. There is, therefore, all round difficulty suffered by the claimant due to this disability," observed the court.

According to the doctor, the disability was "at 1/6th of 45 per cent, i.e., 8 per cent of the entire body." In this context, the court cited a 1993 decision in State of Gujarat vs Somabhai Dhurabhai Sindhava, where it was held that "for computing the future economic loss of an injured person, the court has to apply its mind not only to the abstract percentage of loss of earning capacity, but also to the actual economic loss sustained or likely to be sustained by the injured person."

Applying that logic to Tambe's case, the court said, "Merely computing the economic loss on the basis of the medical certificate regarding physical disability will amount to turning a blind eye to the reality of actual economic loss. The claimant is going to suffer with physical disability throughout his life, therefore, he will have the disadvantage in every sphere of activity, earning or non-earning. Accordingly, it is just and proper to fix the disability at 25 per cent."

Computations were explained as follows: "The age of claimant at the time of accident was 17... annual income Rs 15,000, monthly income Rs 1,250 x 25 per cent = Rs 312.50 x 12 x 17 = Rs 63,750." Thus, Tambe who had originally claimed Rs 50,000 was awarded Rs 1,43,750 (that is, Rs 50,000 for pain, shock and suffering; Rs 20,000 for medicines and other charges; Rs 63,750 for permanent partial disability; and Rs 10,000 for loss of studies).

To the heirs of Chugla, Rs 3,08,600 was awarded as compensation, after computing his average income as Rs 1,400 p.m. on the basis of "assessment orders issued by the Income-Tax Department for 1981-82, 1982-83 and 1983-84," and applying the principles laid down in Pratap vs State of Rajasthan, and Ritaben @ Vanitaben vs Ahmedabad Municipal Transport Service.

"Compensation can be worked out thus: Rs 1,400 x 3 = Rs 4,200 x ½ = 2,100 x 1/3rd = Rs 1,400 x 12 = Rs 16,800 x 17 = Rs 2,85,600 + Rs 10,000 (loss of expectancy of life) + Rs 3,000 (funeral expenses) + Rs 10,000 (consortium) = Rs 3,08,600," reads the text of the verdict.

Interest was fixed at 12 per cent `from the date of application till payment' and `opponents' were directed to pay compensation `in two months to the claimants.'

LawLane@TheHindu.co.in

D. Murali

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