KUM. MICHAELversusREGIONAL MANAGER ORIENTAL INSURANCE CO. LTD.

                        [2013] 1 S.C.R. 966


A                         KUM. MICHAEL
                                  v.
    REGIONAL MANAGER ORIENTAL INSURANCE CO. LTD.
                           & ANR.
              (Civil Appeal No. 1100 of 2013)
8                      FEBRUARY 11, 2013

             [G.S. SINGHVI AND FAKKIR MOHAMED
                    IBRAHIM KALIFULLA, JJ.]

C       Motor Vehicles Act, 1988:

       Motor accident - Compensation for permanent disability,
  loss of amenities etc. - Held: Appellant at the age of eight
  years suffered a dreadful accident resulting into a severe
  injury in his right leg which has virtually created a deformity
0
  in the said leg and he has to suffer with the disability for the
  rest of his life - Age of the appellant is, therefore, a very
  relevant factor while determining the compensation -
  Accordingly, compensation of Rs. 1 lakh as enhanced by
  High Court is further enhanced to Rs. 4 lakhs with 6% interest
E on the enhanced amount from date of petition till realization
  - Delayllaches.

       The appellant, a male child of 8 years, was hit by a
  motor cycle, as a result of which his right leg got
F fractured and even after treatment, he suffered terminal
  restrictions of joint movements of right knee and total
  restriction of dorsiflexion of right ankle joint. Further the
  right lower limb got shortened by 1 cm as compared to
  opposite limb. The disability was assessed at 16% to the
G whole body. The Tribunal allowed a total compensation
  of Rs. 77,000/- (as against the claim of Rs. 4 lakhs), which
  was enhanced by the High Court to Rs. 1 lakh. The
  claimant filed the appeal for further enhancement of the
  compensation.
H                               966
 KUM. MICHAEL v. ,REGIONAL MANAGER ORIENTAL INSURANCE      967
                         CO. LTD.

    Allowing the appeal, the Court                                 A
    HELD: 1.1. There was delay of 323 days in filing the
appeal. The respondents have not contested the appeal.
This Court is satisfied with the reasons adduced in
support of the petition for condonation of delay. The              8
delay stands condoned. [para 2] [969-C-D]

      1.2. The appellant, at the age of 8 years, suffered a
dreadful accident resulting into a severe injury in his right
leg which has virtually created a deformity in the said leg
and he has to suffer with the disability for the rest of his C
life. The age of the appellant was, therefore, a very relevant
factor while determining the compensation payable. The
sufferance of such physical disaster, cannot be measured
in terms of money precisely, yet having regard to th~
present day living conditions and the extent to which the D
aspirations of the appellant came to be demolished by
suffering a permanent disability for no fault of his, it
becomes the responsibility of the respondent to
adequately compensate whatever sufferings undergone
by the appellant at that time and immediately after the E
accident as well as the mental agony that is being suffered
by the appellant life long. [para 1O] [972-G-H, 973-A-C]

      R.D. Hattangadi v. Mis. Pest Control (India) Pvt. Ltd. and
Others - AIR 1955 SC 755; Ashwani Kumar Mishra v. P.
Muniam Babu and Others 1999 (2) SCR 518 = (1999) 4 SCC             F
22; The Divisional Controller, K.S.R. T.C. V. Mahadeva Sheffy
and Another 2003 (2) Suppl. SCR 14 =AIR 2003 SC 4172;
B. T. Krishnappa v. 0. M. United Insurance Co. Ltd. & Anr.
2010 (5) SCR 657 =AIR 2010 SC 2630 - relied on
                                                                   G
     1.3. Keeping in view the various disadvantages
suffered by the appellant as a result of the accident, he
is entitled to still higher amount than what has been
granted by the Tribunal as well as the High Court on
account of pain and sufferings as well as loss of                  H
    968        SUPREME COURT REPORTS              [2013] 1 S.C.R.


A amenities, and permanent disability. Though it will be
  impossible to make a precise assessment of the pain and
  suffering of the appellant considering the age at which
  the appellant met with the accident and the consequent
  disability and also taking note of the deprivement of better
B prospects in the life of the appellant due to the physical
  disability suffered, the compensation is determined in a
  sum of Rs.4 lacs as claimed by the appellant under the
  heads enumerated in the judgment. Interest shall be
  payable on enhanced compensation @ 6% per annum
C from the date of petition till the date of realization. Since
  the appellant is now 19 years old, this Court declares him
  as major. The Tribunal shall release the compensation
  amount to him as and when it is deposited by the first
  respondent. [para 15-16) [975-G-H; 976-A-B, E-F]
D                         Case Law Reference:
          AIR 1955 SC 755            relied on           para 11
          1999 (2) SCR 518           relied on           para 12

E         2003 (2) Suppl. SCR 14 relied on               para 13

          2010 (5) SCR 657           relied on           para 14

        CIVIL APPELLATE JURISDICTION : CIVIL APPEAL NO.
    1100 OF 2013.
F
        From the Judgment & Order dated 15.09.2010 of the High
    Court of Karnataka at Bangalore in M.F.A No. 7863 of 2004
    (M.V.)].

          V.N. Raghupathy for the Appellant.
G
          The Judgment of the Court was delivered by

          FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. This
    petition is directed against the Division Bench judgment of the
H
 KUM. MICHAEL v. REGIONAL MANAGER ORIENTAL INSURANCE         969
     CO. LTD. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.)

High Court of Karnataka at Bangalore dated 15.09.2010                A
passed in M.F.A. No.7863 of 2004 (MV).

      2. While hearing the S.L.P. on 06.01.2012 notice was
ordered on the application for condonation of delay as well as
on the main special leave petition and Dasti service was also        B
permitted. After the service of notice, it was reported that the
respondents did not enter appearance. As there was no
representation on behalf of the respondents, the record of
Courts below was called for. There was delay of 323 days in
filing this petition. As the respondents have not bothered to
contest this petition, we heard learned counsel for the appellant    C
both on application for condonation of delay as well as on
merits. As we are satisfied with the reasons adduced in the
application filed in support of the condonation of delay petition,
the delay stands condoned.
                                                                     D
     3. Leave granted.

     4. We perused the judgment of the Motor Accident Claims
Tribunal, Bangalore dated 02.07.2004 passed in M.V.C.
No.248 of 2002, original record as well as the Division Bench        E
Judgment impugned in this appeal. There was no dispute about
the accident that occurred on 25.10.2001 at about 3:30 p.m.
on the 1st Main Road, 2nd Cross, Valmikhinagar, Mysore
Road, Bangalore. In the said accident the appellant who was
then aged eight years was hit by Hero Puch Motor Cycle
                                                                     F
bearing Registration No.KA-09-J-4982 which belonged to the
second respondent, by its rider. The manner in which the
accident took place was vividly stated by P.W.1 who was none
another than the father of the appellant himself and who was
an eye witness to the accident. After the accident, the appellant
was stated to have been admitted in Victoria Hospital and that       G
he was treated as inpatient between 29.10.2001 to 10.11.2001
for a period of 12 days. The appellant suffered injuries in his
right leg which was fractured coupled with lower third
displacement, Plaster of Paris was applied to the right leg,
which was removed after three months. The appellant was              H
    970         SUPREME COURT REPORTS              [2013] 1 S.C.R.


A   doing his third standard at that time and due to the accident,
    as per the evidence of P.W.2 the doctor, who attended on him
    and who also subsequently examined him on 14.01.2004
    noticed the following physical impairments:

          "1.    Painful limp
B
          2.     Wasting & Weakness of muscles of right limb.

          3.     Tenderness right with joint line tenderness of right
                 knee.
c         4.     Terminal restrictions of joint movements of right
                 knee by last, 20 degrees and total restriction of
                 dorsiflexion of right ankle joint.

          5.     Shortening of 1 cm of right lower limb (compared
D                to opposite limb)

        He has assessed the disability to the extent of 16% to the
    whole body because of these accidental injuries."

       5. It was also in medical evidence that the appellant
E continued to take follow-up treatment subsequently. In support
  of the medical evidence, apart from the version of P.W.2
  Doctor, Exhibit P-4 the copy of accident register maintained
  at Victoria Hospital, Exhibit P-5 the discharge summary, Exhibit
  P-6 the inpatient record, Exhibit P-7 the outpatient record and
F Exhibit P-8 the X-ray were all produced. P.W.2 subsequently
  stated that there was a shortening of 1 cm of right lower limb
  as compared to the opposite limb.

       6. Keeping the above factors in mind as there was no
G evidence placed on the side of respondents except the marking
  of the policy Exhibit R-1, the Tribunal held that the second
  respondent as the owner and the first respondent as the insurer
  were liable to pay compensation. The Tribunal computed the
  compensation payable under the following heads:
H
 KUM. MICHAEL v. REGIONAL MANAGER ORIENTAL INSURANCE         971
     CO. LTD. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

  "For pain, agony, trauma, injury & suffering      Rs.35,000/-     A
  Medical expenses as per bills and other
  Incidental charges like Conveyance,
  special                                           Rs.12,000/-
  Diet, Attendant charges, nourishment etc                          B

  Loss of amenities in life                         Rs.30,000/-
                                  Total             Rs.77,000-

    Thus the petitioner is entitled for total compensation of Rs.   C
     77,0001-."

      7. Being aggrieved of the quantum of compensation
determined by the Tribunal in a sum of Rs.77,000/- as against
his claim of four lacs, the appellant approached the High Court
by filing M.F.A. No.7863 of 2004 (MV). The Division Bench of        D
the High Court while confirming the judgment of the Tribunal as
regards the liability for payment of compensation by the
respondents, however, enhanced the same to a sum of Rs.1
lac under the following heads:
                                                                    E
    Towards pain and sufferings                   Rs.40,000/-

    Towards medical expenses,                     Rs.20,000/-
    conveyance, nourishing food and
    attendant charges
                                                                    F
    Towards loss of amenities                     Rs.40,000/-

                          Total                   Rs.1,00,000/-

     8. Being aggrieved of the judgment of the Division Bench,
the appellant is before us. Having heard learned counsel for the    G
appellant and the respondents not being represented either in
person or through counsel and having perused the orders
impugned in this appeal, the oi·iginal records and other material
papers, we are of the considered opinion that for various
                                                                    H
    972      SUPREME COURT REPORTS                   [2013) 1 S.C.R.

A   reasons stated herein the appellant was entitled for higher
    compensation than what has been ordered by the Tribunal as
    well as the Division Bench of the High Court. In this context when
    we refer to the evidence of P.W.2, as noted in the earlier part
    of this judgment, even after about three years of the accident
8   the appellant continued to have a painful limp, weakness of
    muscle of right limb, tenderness in the joint line of right knee
    and terminal restrictions of joint movements of right knee and
    total restrictions of dorsiflexion of right ankle joint. That apart,
    there was shortening of 1 cm of right lower limb as compared
c   to opposite limb. In the assessment of the doctor, the appellant
    suffered a permanent disability of 16% to the whole body
    because of the injuries sustained in the accident.

        9. According to P.W.1 though he took the appellant to the
  hospital immediately after the accident, due to non-availability
D of bed facility he was advised to admit him after three days
  during which period the appellant suffered severe pain. The
  appellant was inpatient for 12 days as shown by Exhibit P-5
  discharge summary. Appellant had suffered fracture of both
  bones of right leg with displacement. Plaster of Paris applied
E on the right leg of the appellant could be removed only after
  three months. Even after the discharge and removal of Plaster
  of Paris, as per the evidence, the appellant continued to visit
  the hospital for follow-up treatment. It has to be remembered
  that at the time the accident took place the appellant was an
F eight year old boy doing his third standard with all aspirations
  in life as spoken to by P .W.1 to involve himself in sports
  activities which could not be fulfilled by virtue of the accident.

         10. De hors the evidence of P.W.1 considering the age
G at which the appellant suffered a dreadful accident in which the
  appellant suffered a severe injury in his right leg which has
  virtually created a deformity in the said leg, for the rest of his
  life the appellant has to suffer with the disability. The age of the
  appellant was, therefore, a very relevant factor while
H
 KUM. MICHAEL v. REGIONAL MANAGER ORIENTAL INSURANCE 973
     CO. LTD. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

determining the compensation payable as the sufferance of                 A
such physical disaster, that too on his right leg cannot be
measured in terms of money precisely but yet having regard
to the present day living conditions and the extent to which the
aspirations of the appellant came to be demolished by suffering
a permanent disability for no fault of his, it becomes the                B
responsibility of the respondent to adequately compensate
whatever sufferings undergone by the appellant at that time and
immediately after the accident as well as the mental agony that
is being suffered by the appellant life long.

      11. In this context the reliance placed upon by the Tribunal        C
i,n the decision reported in R.D. Hattangadi V. Mis. Pest
Control (India) Pvt. Ltd. and Others - AIR 1955 SC 755 was
apposite. That was a case where an Advocate of 52 years met
with an accident who suffered serious injuries resulting in 100%
disability and paraplegia below the waist. The said claimant              D
apart from claiming compensation on other heads made a
claim for pain and suffering and loss of amenities of life in a
sum of Rs.3 lacs each. As against claim of Rs.6 lacs, the High
Court granted a sum of Rs.1 lac. This Court considering the
claim for non-pecuniary loss stated as under in paragraphs 9              E
and 17:

    "9. Broadly speaking while fixing an amount of
    compensation payable to a victim of an accident, the
    damages have to be assessed separately as pecuniary                   F
    damages and special damages. Pecuniary damages are
    those is 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              G
    appreciate two concepts pecuniary damages may include
    expenses incurred by the claimant: (1) 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 (1) damages for mental and                H
    974       SUPREME COURT REPORTS                   [2013] 1 S.C.R.

A         physical shock, pain and suffering, already suffered or likely
          to be suffered in future; (i1) 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
B         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 life.

          17. The claim under SI. No. 16 for pain and suffering and
c         for loss of amenities of life under SI. No. 17, are claims
          for non-pecuniary loss. The appellant has claimed lump
          sum amount of Rs.3,00,000 each under the two heads. The
          High Court has allowed Rs.1,00,000 against the claims of
          Rs.6,00,000. When compensation is to be awarded for
D         pain and suffering and loss of amenity of life, the special
          circumstances of the claimant have to be taken into
          account including his age, the unusual deprivation he has
          suffered, the effect thereof on his future life. The amount
          of compensation for non-pecuniary loss is not easy to
E         determine but the award must reflect that different
          circumstances have been taken into consideration.
          According to us, as the appellant was an advocate having
          good practice in different courts and as because of the
          accident he has been crippled and can move only on
F         wheelchair, the High Court should have allowed an amount
          of Rs.1,50,000 in respect of claim for pain and suffering
          and Rs.1,50,000 in respect of loss of amenities of life. We
          direct payment of Rs.3,00,000 (Rupees three lakhs only)
          against the claim of Rs.6,00,000 under the heads 'Pain
G         and Suffering' and 'Loss of amenities of life'."

        12. The above-said ratio was subsequently followed in the
    decision reported in Ashwani Kumar Mishra V. P. Muniam
    Babu and Others - (1999) 4 SCC 22 for enhancing the
    compensation on account of loss of expectation to life besides
H
 KUM. MICHAEL v. REGIONAL MANAGER ORIENTAL INSURANCE          975
     CO. LTD. [FAKKIR MOHAMED IBRAHIM KAUFULLA, J.]

disappointment, frustration and mental stress suffered by the         A
claimant therein.

    13. The said decision was also followed in The Divisional
Controller, K. S. R. T. C. V. Mahadeva Sheffy and Another - Al R
2003 SC 4172.
                                                                      B
    14. In B. T. Krishnappa V. D.M. United Insurance Co. Ltd.
& Anr. -AIR 2010 SC 2630, where one of us (Hon. Mr. Justice
G.S. Singhvi) was a party, has held in paragraphs 17 and 18
as under:
                                                                      c
    "17. Long expectation of life is connected with earning
    capacity. If earning capacity is reduced, which is the case
    in the present situation, that impacts life expectancy as well.

    18. Therefore, while fixing compensation in cases of injury
                                                                      0
    affecting earning capacity the Court must remember:

    " ... No amount of compensation can restore the physical
    frame of the appellant. That is why it has been said by
    courts that whenever any amount is determined as the ·
    compensation payable for any injury suffered during an E
    accident, the object is to compensate such injury 'so far
    as money can compensate' because it is impossible to
    equate the money with the human sufferings or personal
    deprivations. Money cannot renew a broken and shattered
    physical frame." [See R.D. Hattangadi v. Pest Control F
    (India) (P) Ltd & Others, (1995) 1 SCC 551: (AIR 1995)
    SC 755: 1955 AIR SCW 243) at page 556, para 10.]"

      15. Having bestowed our serious consideration and having
noted the various disadvantages suffered by the appellant by
virtue of the accident, we are convinced that the appellant is G
entitled for still higher amount than what has been granted by
the Tribunal as well as the High Court on account of pain and
sufferings as well as loss of amenities. As held by us earlier,
though it will be impossible to make a precise assessment of
the pain and suffering of the appellant considering the age at H
    976       SUPREME COURT REPORTS                   [2013] 1 S.C.R.

~   which the appellant met with the accident and the consequent
    disability and also taking note of the deprivement of better
    prospects in the life of the appellant due to the physical disability
    suffered, we determine the compensation in a sum of Rs.4 lacs
    as claimed by the appellant under the following heads:
B
          Towards pain and sufferings and                Rs.2,80,000/-
          permanent disability

          Towards medical expenses, conveyance,
           nourishing food and attendant charges         Rs.20,000/-
c
          Towards loss of amenities                      Rs.1,00,000/

                                      Total              Rs.4,00,000/-

D
       16. Consequently, the impugned judgment of the Division
  Bench in M.F.A. No.7863/2004 (MV) dated 15.09.2010 and the
  award of the Tribunal in M.V.C. No.248/2002 dated 02.07.2004
  stand modified, granting a compensation of Rs.4 lacs. The
  enhanced compensation comes to Rs.3 lacs with interest at 6%
E per annum from the date of petition till the date of realization.
  The first respondent-Insurance Company is directed to deposit
  the enhanced compensation with interest within six weeks from
  today. Since the appellant was aged 8 years at the time of the
  accident, namely, 25.10.2001 and eleven years have gone by,
F he is now 19 years old. We, therefore, declare him as major
  and direct the Tribunal to release the compensation amount to
  him as and when it is deposited by the first respondent as
  directed in the judgment. Accordingly, the appeal stands
  allowed with the above directions.
G
  R.P.                                           Appeal allowed.