What is contemplated under the Motor Vehicles Act and also under the Law of Torts is that, the person who has suffered, should be legitimately and adequately compensated and such compensation should be just and reasonable, which should always be commensurate with the nature of injuries. This question regarding grant of compensation over and above what has been claimed is no longer res Integra and has been set at rest by Apex Court and this Court. It is not the requirement of law under the Motor Vehicles Act for the claimants to specify the amount of compensation in their claim petition. A duty is cast on the Tribunal and Courts to assess and award just compensation. This view of mine is supported by the decision of Apex Court in the case of Nagappa Vs. Gurudayal Singh and Others, and of this Court in the case of The New India Assurance Company Limited, Bangalore Vs. Rajendra Singh and others. In the circumstances, I am of the view that there is no impediment for this Court to travel beyond the restricted amount claimed in the claim petition because the claimant is entitled for just, reasonable and adequate compensation.
A person physically injured may recover both for his pecuniary losses and his non-pecuniary losses. Pecuniary losses consist of loss of earnings and the medical and other expenses to which he is put to as a result of the injury. The non-pecuniary damages would consist of pain and suffering, loss of amenities of life.
The Courts have evolved a particular method for assessing loss of earning capacity, for arriving at the amount which the plaintiff has been prevented by the injury from earning in future. Normally, the compensation is determined on the loss of earning of the injured on account of disability suffered by him due to the accident. In the case on hand the injured has suffered permanent disability and therefore the question is, what should be the damages payable to him. The claimant-appellant has been a victim of a traumatic accident in which his right leg has been amputated, due to the said accident the physical frame has shattered. He has to put up with deformity with the rest of life. It cannot be denied that there would not be normal enthusiasm for the victim in social and other gathering without any reservation. The Courts have to eventually keep these factors in mind before assessing the damages. But, at the same time it cannot be lost sight of that the damages cannot be high and ridiculously low nor niggardly or windfall. The damages will have to be assessed on the basis of earnings and earning capacity at the time of accident. Some element of conjecture is inevitable in assessing damages. LORD PEARCE IN MALLET v. MEMONAGLE 1969 ACJ 312 (H.R. England ) calls it “reasonable prophecy”.
In a serious injury of this nature all these relevant factors will have to be taken into consideration while awarding damages. This takes us to the next question what would be the amount to be awarded under the heading of pain and suffering, loss amenities, medical expenses and all other allied heads relating to the damages. Mogregor on Damages (15th edition) has observed while dealing with non-pecuniary damage as follows;
“Non-pecuniary loss is a very different field. Little can be stated with certainty as to the amount of damages awardable for such loss caused by personal physical injury. Indeed full compensation cannot be given in the sense that no amount can fully compensate for a serious physical injury. Beyond this, no yardstick exists for measuring in money the compensation to be accorded a given amount of physical pain or mental suffering because, as far as money goes the loss is imponderable, and any amount awarded must be in the nature of a conventional sum. The difficulty then is in deciding what proportion the conventional sum should take. For there is no reason, in logic or in economics, why for specified period of suffering the award should be 10, rather than 1,000/- or indeed any other figure. Here a solution can only be found by taking as the test what our particular society would deem to be a fair sum, such as would, in the words of Lord Devlin in West v. Sheperd, allow the wrongdoer to “hold up his head among his neighbours and say with their approval that he has done the fair thing”.
“The term “pain and suffering” has been used so constantly by the Courts without any clear distinction between the two words that it is now a term of art. It has been suggested that “pain” is the immediately felt effect on the nerves and brain of some lesion or injury to a part of the body, while “suffering is distress which is not felt as being directly connected with any bodily condition. On this analysis pain needs no further elucidation; it may be noted that it will include for the purpose of damages, any pain caused by medical treatment or surgical operation rendered necessary by the injury inflicted by the defendant. As to suffering, this would seem to include fright at the time of the injury and fright reaction, fear of future incapacity, either as to health, sanity or the ability to make a living, and humiliation, sadness and embarrassment caused by disfigurement.”
“This head of damage concentrates on the curtailment of the plaintiff’s enjoyment of life not by the positive unpleasantness of pain and suffering but, in a more negative way, by his inability to pursue the activities he pursued beforehand, Birkett L.J., put is thus in Manlay v. Rugby Portland Cement Co. “There is a head of damage which is sometimes called loss of amenities the man-made blind by the accident will no longer be able to see the familiar things he has seen all his life, the man who has had both legs removed and will never again go upon his walking excursions – things of that kind – loss of amenities”.
In the words of Lord Pearce “If the plaintiff has lost a leg, the Court approaches the matter on the basis that he has suffered a serious physical injury no matter what his condition of temperament or State of mind may be”.