you're reading...
legal issues

exceeding the claim, more amount can be granted in suitable case.= amendments can also be permitted =under the MV Act, there is no restriction that the Tribunal/court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/court is to award “just” compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time-barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub-section (4) to Section 166, even the report submitted to the Claims Tribunal under sub-section (6) of Section 158 can be treated as an application for compensation under the MV Act. If required, in appropriate cases, the court may permit amendment to the claim petition.”

motor vehicle accident

Image via Wikipedia



 CIVIL APPEAL No.8943 OF 2011

 (Arising out of S.L.P. (C) No.25372 of 2005)

Ibrahim .......Appellant


Raju and others .......Respondents 

 J U D G M E N T

G.S. Singhvi, J.

1. Delay condoned.

2. Leave granted.

3. Feeling dissatisfied with the enhancement granted by the High 

Court in the amount of compensation awarded by 2nd Additional Motor 

Accident Claims Tribunal, Karwar (for short, `the Tribunal'), the 

appellant has filed this appeal.

4. The appellant sustained serious injuries on the head, nose, back and 

lower region of abdomen including the pelvic region when the tempo in 

which he was travelling met with an accident on 23.4.2000. He was taken 

to Vijayashree Orthopaedic Centre for first aid and was then shifted to 


Kasturba Hospital, Manipal. He remained in the hospital from 

23.04.2000 to 05.06.2000. 

5. The appellant filed a petition under Section 166 of the Motor 

Vehicles Act, 1988 (for short, `the Act') and claimed compensation of 

Rs.3,00,000/- with interest and cost. He pleaded that the accident was 

caused due to rash and negligent driving of the tempo by its driver Shri 

Raju; that he had suffered serious injuries in the accident; that he 

remained in the hospital for almost one month and a half and had to spend 

more than Rs.80,000/- towards medical treatment, conveyance and 

expenses of the attendants; that at the time of accident he was a student of 

Class 8 and on account of the injuries he was not in a position to continue 

his studies.

6. The owner and the driver of the offending vehicle, who were 

impleaded as non-petitioners No.1 and 2 did not contest the claim of the 

appellant. However, the National Insurance Company, which was 

impleaded as non-petitioner No.3 contested the claim by asserting that the 

accident was not caused due to rash and negligent driving of the tempo 

and that the appellant was himself responsible for the accident. 

7. Two of the four issues framed by the Tribunal were whether the 

accident was caused due to rash and negligent driving of the tempo and 


whether the appellant was entitled to compensation. After analysing the 

evidence produced by the parties, the Tribunal held that the accident was 

caused due to rash and negligent driving of the tempo. The Tribunal then 

referred to the statements of Dr. Anil K. Bhat, Assistant Professor of 

Orthopaedics, who issued disability certificate Exhibit P-140 and Dr. 

Joseph Thomas, Professor of Urology, who issued treatment certificate 

Exhibit P-141 (both the doctors were working in Kasturba Medical 

College and Hospital, Manipal) and awarded compensation to the 

appellant under the following heads:

 1. Pain and suffering Rs.25,000/-

 2. Medical expenses Rs.20,340/-

 3 Transportation Rs. 


 4. Diet and attendant charges Rs.30,600/-

 5. Loss of future earning on Rs.21,600/-

 account of disability

 6. Decline in the prospects of Rs.50,000/

 marriage -


 Total Rs.1,49,440/-

8. The High Court partly allowed the appeal filed by the appellant 

under Section 173 of the Act and enhanced the amount of compensation 

by a sum of Rs.40,000/-.


9. The appellant has questioned the impugned judgment mainly on the 

ground that while determining the amount of compensation, the Tribunal 

and the learned Single Judge of the High Court overlooked the parameters 

and principles laid down by this Court and did not take into consideration 

the expenses likely to be incurred by him for future treatment and the loss 

of amenities and enjoyment of life.

10. We have heard learned counsel for the parties and carefully perused 

the record. The sufferings of the dependents of those who are killed in 

motor accidents and the survivors who are disabled are manifold. Some 

time these can be measured in terms of money but most of the times it is 

not possible to do so. If an individual is disabled as a result of road 

accident, the cost of treatment, care and rehabilitation is likely to be very 

high. A very large number of people involved in motor accidents are 

pedestrians, children and women and, on account of sheer ignorance, 

poverty and other disabilities, majority of them are unable to engage 

competent lawyers for putting their cause before the Tribunals and the 

Courts. The insurance companies, with whom the vehicles involved in 

accidents are insured always have the advantage of assistance of legally 

trained mind (law officers and panel lawyers). They contest the claim 

petitions by raising all possible technical objections for ensuring that their 

clients are either completely absolved or their liability is minimized and 


in the process, adjudication of the claims filed by the victims and/or their 

legal representatives is delayed for years together. At times, the delay in 

disposal of the claim cases and litigation expenses make the award of 

compensation meaningless for survivors of the accidents and/or families 

of the victims. This Court has time and again emphasized that the 

officers, who preside over the Tribunals adopt a proactive approach and 

ensure that the claims filed under the Act are disposed of with required 

urgency and compensation is awarded to the victims of the accident 

and/or their legal representatives in adequate measure keeping in view the 

relevant factors. Unfortunately, despite repeated pronouncements of this 

Court in which guiding principles have been laid down for determination 

of the compensation payable to the victims of road accidents and/or their 

families, the Tribunals and even the High Courts do not pay serious 

attention to the imperative of awarding just compensation to the 


11. In Ward v. James (1965) 1 All ER 563, the Court of Appeal, while 

dealing with a case under Section 6 of the Administration of Justice 

(Miscellaneous Provisions) Act, 1933 made some important observations, 

which are extracted below:

"Although you cannot give a man so gravely injured much for his `lost 

years', you can, however, compensate him for his loss during his 

shortened span, that is, during his expected `years of survival'. You can 


compensate him for his loss of earnings during that time, and for the cost 

of treatment, nursing and attendance. But how can you compensate him 

for being rendered a helpless invalid? He may, owing to brain injury, be 

rendered unconscious for the rest of his days, or, owing to a back injury, 

be unable to rise from his bed. He has lost everything that makes life 

worthwhile. Money is no good to him. Yet judges and juries have to do 

the best they can and give him what they think is fair. No wonder they 

find it well nigh insoluble. They are being asked to calculate the 

incalculable. The figure is bound to be for the most part a conventional 

sum. The judges have worked out a pattern, and they keep it in line with 

the changes in the value of money."

12. In R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. and others 

(1995) 1 SCC 551, this Court while dealing with a case involving claim 

of compensation under the Motor Vehicles Act, 1939, referred to the 

judgment in Ward v. James (supra), Halsbury's Laws of England, 4th edn., 

vol. 12 (page 446) and observed:

"Broadly speaking while fixing an amount of compensation payable to a 

victim of an accident, the damages have to be assessed separately as 

pecuniary damages and special damages. Pecuniary damages are those 

which the victim has actually incurred and which are capable of being 

calculated in terms of money; whereas non-pecuniary damages are those 

which are incapable of being assessed by arithmetical calculations. In 

order to appreciate two concepts pecuniary damages may include 

expenses incurred by the claimant: (i) medical attendance; (ii) loss of 

earning of profit up to the date of trial; (iii) other material loss. So far 

non-pecuniary damages are concerned, they may include (i) damages for 

mental and physical shock, pain and suffering, already suffered or likely 

to be suffered in future; (ii) damages to compensate for the loss of 

amenities of life which may include a variety of matters i.e. on account of 

injury the claimant may not be able to walk, run or sit; (iii) damages for 

the loss of expectation of life, i.e., on account of injury the normal 

longevity of the person concerned is shortened; (iv) inconvenience, 

hardship, discomfort, disappointment, frustration and mental stress in 


In the same case, the Court further observed:


"In its very nature whenever a tribunal or a court is required to fix the 

amount of compensation in cases of accident, it involves some 

guesswork, some hypothetical consideration, some amount of sympathy 

linked with the nature of the disability caused. But all the aforesaid 

elements have to be viewed with objective standards."

13. In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka 

(2009) 6 SCC 1, the three-Judge Bench was dealing with a case arising 

out of the complaint filed under the Consumer Protection Act, 1986. 

While enhancing the compensation awarded by the National Consumer 

Disputes Redressal Commission from Rs.15 lakhs to Rs.1 crore, the 

Bench made the following observations which can appropriately be 

applied for deciding the petitions filed under Section 166 of the Act:

"We must emphasise that the court has to strike a balance between the 

inflated and unreasonable demands of a victim and the equally untenable 

claim of the opposite party saying that nothing is payable. Sympathy for 

the victim does not, and should not, come in the way of making a correct 

assessment, but if a case is made out, the court must not be chary of 

awarding adequate compensation. The "adequate compensation" that we 

speak of, must to some extent, be a rule of thumb measure, and as a 

balance has to be struck, it would be difficult to satisfy all the parties 


At the same time we often find that a person injured in an accident leaves 

his family in greater distress vis-`-vis a family in a case of death. In the 

latter case, the initial shock gives way to a feeling of resignation and 

acceptance, and in time, compels the family to move on. The case of an 

injured and disabled person is, however, more pitiable and the feeling of 

hurt, helplessness, despair and often destitution enures every day. The 

support that is needed by a severely handicapped person comes at an 

enormous price, physical, financial and emotional, not only on the victim 

but even more so on his family and attendants and the stress saps their 

energy and destroys their equanimity."

 (emphasis supplied)


14. In Reshma Kumari and others vs. Madan Mohan and another 

(2009) 13 SCC 422, this Court reiterated that the compensation awarded 

under the Act should be just and also identified the factors which should 

be kept in mind while determining the amount of compensation. The 

relevant portions of the judgment are extracted below:

"The compensation which is required to be determined must be just. 

While the claimants are required to be compensated for the loss of their 

dependency, the same should not be considered to be a windfall. Unjust 

enrichment should be discouraged. This Court cannot also lose sight of 

the fact that in given cases, as for example death of the only son to a 

mother, she can never be compensated in monetary terms.

The question as to the methodology required to be applied for 

determination of compensation as regards prospective loss of future 

earnings, however, as far as possible should be based on certain 

principles. A person may have a bright future prospect; he might have 

become eligible to promotion immediately; there might have been 

chances of an immediate pay revision, whereas in another (sic situation) 

the nature of employment was such that he might not have continued in 

service; his chance of promotion, having regard to the nature of 

employment may be distant or remote. It is, therefore, difficult for any 

court to lay down rigid tests which should be applied in all situations. 

There are divergent views. In some cases it has been suggested that some 

sort of hypotheses or guess work may be inevitable. That may be so.

In the Indian context several other factors should be taken into 

consideration including education of the dependants and the nature of job. 

In the wake of changed societal conditions and global scenario, future 

prospects may have to be taken into consideration not only having regard 

to the status of the employee, his educational qualification; his past 

performance but also other relevant factors, namely, the higher salaries 

and perks which are being offered by the private companies these days. In 

 act while determining the multiplicand this Court in O
 riental Insurance 

 o. Ltd. v. Jas
 huben held that even dearness allowance and perks with 

regard thereto from which the family would have derived monthly 

benefit, must be taken into consideration.


One of the incidental issues which has also to be taken into consideration 

is inflation. Is the practice of taking inflation into consideration wholly 

incorrect? Unfortunately, unlike other developed countries in India there 

has been no scientific study. It is expected that with the rising inflation 

the rate of interest would go up. In India it does not happen. It, therefore, 

may be a relevant factor which may be taken into consideration for 

determining the actual ground reality. No hard-and-fast rule, however, 

can be laid down therefor."

 (emphasis supplied)

15. In Arvind Kumar Mishra v. New India Assurance Company 

Limited and another (2010) 10 SCC 254, the Court considered the plea 

for enhancement of compensation made by the appellant, who was a 

student of final year of engineering and had suffered 70% disablement in 

a motor accident. After noticing the factual matrix of the case, the Court 


"We do not intend to review in detail state of authorities in relation to 

assessment of all damages for personal injury. Suffice it to say that the 

basis of assessment of all damages for personal injury is compensation. 

The whole idea is to put the claimant in the same position as he was 

insofar as money can. Perfect compensation is hardly possible but one has 

to keep in mind that the victim has done no wrong; he has suffered at the 

hands of the wrongdoer and the court must take care to give him full and 

fair compensation for that he had suffered."

 (emphasis supplied)

16. In Raj Kumar vs. Ajay Kumar and another (2011) 1 SCC 343, the 

Court considered some of the precedents and held: 

"The provision of the Motor Vehicles Act, 1988 ("the Act", for short) 

makes it clear that the award must be just, which means that 

compensation should, to the extent possible, fully and adequately restore 

the claimant to the position prior to the accident. The object of awarding 


damages is to make good the loss suffered as a result of wrong done as far 

as money can do so, in a fair, reasonable and equitable manner. The court 

or the Tribunal shall have to assess the damages objectively and exclude 

from consideration any speculation or fancy, though some conjecture with 

reference to the nature of disability and its consequences, is inevitable. A 

person is not only to be compensated for the physical injury, but also for 

the loss which he suffered as a result of such injury. This means that he is 

to be compensated for his inability to lead a full life, his inability to enjoy 

those normal amenities which he would have enjoyed but for the injuries, 

and his inability to earn as much as he used to earn or could have earned. 

The heads under which compensation is awarded in personal injury cases 

are the following:

Pecuniary damages (Special damages) 

(i) Expenses relating to treatment, hospitalisation, medicines, 

transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injured would have made 

had he not been injured, comprising:

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on account of permanent disability.

(iii) Future medical expenses.

Non-pecuniary damages (General damages) 

(iv) Damages for pain, suffering and trauma as a consequence of the 


(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life (shortening of normal longevity).

In routine personal injury cases, compensation will be awarded only 

under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where 

there is specific medical evidence corroborating the evidence of the 

claimant, that compensation will be granted under any of the heads (ii)(b), 

(iii), (v) and (vi) relating to loss of future earnings on account of 

permanent disability, future medical expenses, loss of amenities (and/or 

loss of prospects of marriage) and loss of expectation of life."

 (emphasis supplied)

17. In the light of the above, we shall now consider whether the 

compensation awarded to the appellant is just and reasonable or the 


Tribunal and the High Court committed an error by not awarding 

compensation for the future treatment, deprivation of opportunity to 

undertake further studies and consequential loss of earning/income which 

he would have derived by taking up appropriate job or doing some 

business as also diminution of the marriage prospects.

18. A perusal of the record shows that the appellant had produced 

substantive evidence to prove that as a result of accident he had suffered 8 

grievous injuries including fracture of pelvis and he had to remain in the 

hospital for one month and a half; that he was treated by Dr. Anil K. Bhat, 

Assistant Professor, Orthopaedics and Dr. Joseph Thomas, Professor of 

Urology and that on account of grievous injuries he was unable to 

continue his studies. In his deposition, Dr. Joseph Thomas categorically 

stated that the appellant will have to undertake life long treatment for 

recurrence of urethral strictures and consequential dysfunction due to 

fracture of pelvis. Unfortunately, neither the Tribunal nor the High Court 

adverted to this part of the evidence and omitted to award compensation 

for the expenses likely to be incurred by the appellant for future 

treatment. One can reasonably expect that the appellant who was only 18 

years old at the time of accident would live for at least next 50 years. The 

Tribunal awarded Rs.20,340/- for expenses incurred by the appellant for 

treatment taken by him in the hospital. Although, Dr. Thomas did not 


indicate the approximate expenditure likely to be incurred by the 

appellant and his family for future treatment, keeping in view the nature 

of injuries and the fact that he will have to take treatment for the 

remaining life, it will be reasonable to infer that he will be required to 

spend a minimum of Rs.1,000/- per month for future treatment, which 

would necessarily include fees of the doctors, medicines, transportation, 

etc. In the absence of concrete evidence about the anticipated 

expenditure, we think that ends of justice will be met if the appellant is 

awarded a sum of Rs.2 lacs which, if deposited in a fixed deposit, would 

earn an interest of Rs.14,000/- to 16,000/- per annum.

19. On account of the injuries suffered by him, the prospects of the 

appellant's marriage have considerably reduced. Rather, they are 

extremely bleak. In any case, on account of the fracture of pelvis, he will 

not be able to enjoy the matrimonial life. Therefore, the award of 

Rs.50,000/- under this head must be treated as wholly inadequate. In the 

facts and circumstances of the case, we feel that a sum of Rs.2 lacs should 

be awarded to the appellant for loss of marriage prospects and enjoyment 

of life.

20. The compensation awarded for loss of future earning on account of 

permanent partial disablement is ex facie unreasonable. Respondent No.3 


did not produce any evidence to controvert the appellant's assertion that 

on account of the injuries suffered in the accident, he had to abandon his 

studies. The consequences which followed were extremely grave 

inasmuch as he lost all opportunities for making a career in future. The 

prospects of the appellant's marriage are extremely bleak. Therefore, a 

sum of Rs.2 lacs deserves to be awarded under these heads.

21. We are conscious of the fact that in the petition filed by him, the 

appellant had claimed compensation of Rs.3 lacs only with interest and 

cost. It will be reasonable to presume that due to financial incapacity the 

appellant and his family could not avail the services of a competent 

lawyer and make a claim for adequate compensation. However, as the 

Tribunal and the High Court and for that reason this Court are duty bound 

to award just compensation, we deem it proper to enhance the 

compensation from Rs.1,89,440/- to Rs.6 lacs. This approach is in tune 

with the judgment in Nagappa v. Gurudayal Singh (2003) 2 SCC 274. In 

that case, the Court considered a similar issue, referred to the judgments 

of the Bombay High Court in Municipal Corporation of Greater Bombay 

v. Kisan Gangaram Hire 1987 ACJ 311 (Bombay), Orissa High Court in 

Mulla Mod. Abdul Wahid v. Abdul Rahim 1994 ACJ 348 (Orissa) and 

Punjab and Haryana High Court in Devki Nandan Bangur v. State of 

Haryana 1995 ACJ 1288 (P&H) and observed:


"For the reasons discussed above, in our view, under the MV Act, there is 

no restriction that the Tribunal/court cannot award compensation amount 

exceeding the claimed amount. The function of the Tribunal/court is to 

award "just" compensation which is reasonable on the basis of evidence 

produced on record. Further, in such cases there is no question of claim 

becoming time-barred or it cannot be contended that by enhancing the 

claim there would be change of cause of action. It is also to be stated that 

as provided under sub-section (4) to Section 166, even the report 

submitted to the Claims Tribunal under sub-section (6) of Section 158 can 

be treated as an application for compensation under the MV Act. If 

required, in appropriate cases, the court may permit amendment to the 

claim petition."

22. In the result, the appeal is allowed. The impugned judgment is 

modified and it is declared that the appellant shall be entitled to total 

compensation of Rs.6 lacs with interest at the rate of 6% per annum from 

the date of filing the claim petition. If respondent No.3 has already paid 

the compensation in terms of the award of the Tribunal and the impugned 

judgment, then it shall pay the balance amount with interest at the rate of 

6% per annum on the enhanced amount of compensation within a period 

of 3 months. If the amount awarded by the Tribunal and the High Court 

has not been paid so far, then respondent No.3 shall pay the total amount 

of Rs.6 lacs to the appellant with interest at the rate of 6% per annum 

within the said period of 3 months.


 (G.S. Singhvi)



 (Asok Kumar Ganguly)

New Delhi,

October 31, 2011.

About advocatemmmohan



Comments are closed.

Blog Stats

  • 2,897,611 hits



Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,907 other followers
Follow advocatemmmohan on WordPress.com
%d bloggers like this: