Ajay Kumar v. Jasbir Singh And ORS.

Dr. Rattan Lal, who was examined as PW2, deposed that on 31.05.2005 (i.e the date of accident), he medico legally examined the appellant/claimant Ajay Kumar. He further proved MLR (Ex. P2). 14.

EHC Ramesh (PW3) proved the Daily Diary Report (DDR) (Ex. P3).

15.

Sajjan Singh (PW4), the author of complaint Ex. P1, corroborated the factum of the accident.

16.

Kanwar Singh (PW5), an eye-witness of accident, further corroborated the appellant-claimant's version. 17.

Dr. T.S. Bagri (PW6), a member of the Medical Board on Disability, proved the Disability Certificate (Ex. P4), which recorded the appellant-claimant as 100% permanent disabled with respect to his lower limb. 18.

Madan Lal (PW7), an attendant, substantiated the appellantclaimant's statement.

19.

Ajay Kumar (PW8), the appellant-claimant examined himself while sitting in a chair, as he was unable to stand due to his injuries. 20.

Dharam Pal (PW9), another eye-witness of accident, corroborated the statement of the appellant-claimant.

21.

Ram Prashad (PW10), the author of the DDR, testified to the factum of the accident.

22.

A perusal of the award reveals that the learned Tribunal, without assigning any reason, concluded that neither the appellant-claimant (PW8) nor the eyewitnesses, Kanwar Singh and Dharam Pal (examined as PW5 and PW9, respectively), were credible witnesses.

23.

Perusal of the record further shows that learned Tribunal observed that complaint Ex.P1 was lodged by Sajjan Singh (i.e uncle of the appellantclaimant) on 22.07.2005, who was also examined as PW4, then why FIR was not lodged on the same very day of accident i.e on 31.05.2005 and if the SHO did not register the FIR why the higher authorities were not approached by Sajjan Singh himself. Learned Tribunal did not appreciate the very fact that DDR EX.P3 is dated 31.05.2005 and the complaint Ex.P1 was pending adjudication in the Court of Judicial Magistrate, Ist Class, Mohindergarh, which was proved by Additional Ahlmad Sushil Kumar, who was examined as PW1.

24.

A bare perusal of the award shows that the learned Tribunal dismissed the claim petition on the basis of assumptions and presumptions without appreciation of evidence on record. Learned Tribunal has laid

unnecessary stress on non-lodging of FIR on the same day and the lodging of the complaint by claimant himself, who was discharged on 24.06.2005, in stead of his uncle Sajjan Singh, without appreciating the fact that the appellant claimant became 100% disabled, which is proved by PW6 Dr. T.S Bagri and who proved the Disability Certificate Ex.P4 which is 100% qua lower limb. 25.

The Learned Tribunal held that the deposition of witnesses did not inspire confidence, reasoning that Kanwar Singh (PW-5), an eyewitness, was expected to take steps to apprehend the driver and provide immediate medical assistance to the injured. Additionally, the Tribunal found the witness's failure to report the incident to the police to be a ground for doubting his testimony. However, this Court finds such reasoning to be legally untenable and unsustainable in law. Further the reasoning given is that version of complainant Sajjan Singh (uncle of the appellant-claimant) is highly delayed and for that the claim petition is dismissed, is also not acceptable to this Court.

The Hon'ble Supreme Court has consistently held that, in adjudicating claims arising from motor vehicle accidents, the emphasis should not be on identifying inconsistencies or infirmities in the testimony of the prime witness but on assessing the entire body of evidence to ascertain whether it satisfies the standard of proof based on the preponderance of probabilities. The reliance at this stage can be made to the judgment rendered by the Hon'ble Supreme Court in the case of Anita Sharma Vs. New India Assurance Co. Ltd.

"22.

Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence in accident claim cases ought not to be to find fault with non-examination of some best eye-witnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant's version is more likely than not true. A somewhat similar situation arose in Dulcina Fernandes v. Joaquim Xavier Cruz (2013) 10 SCC 646, wherein this Court reiterated that:

"7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pickup van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt." can be made to the judgment rendered by the Hon'ble

"18. The cumulative effect of the aforesaid events clearly established that accident had taken place on 7.10.2001 at about 8.30 in the morning on account of rash and negligent reversing of the truck by driver Badrinarayan, owned by Respondent No. 2, Prahlad Singh. Under these circumstances, it cannot be said that delay in lodging the FIR could have proved fatal to the claim case filed by Ravi.

19. Narration of the aforesaid events would show the bona fides of Suresh. As mentioned hereinabove, a consistent stand has been taken right from the beginning till the lodging of the FIR. The chronological events narrated hereinabove inspire confidence and it does not smack of a concocted case which has been filed against the driver and the owner of the vehicle only with an intention to get compensation.

20. It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In

cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinised more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground.

21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons."

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In view of the above, since the claimant was a bright student of 19 years of age, further because of the accident he could not pursue his carrier/education qualifications, which could have given him bright future and employment, in the interest of justice, it would be appropriate to fix his notional income as Rs.15,000/- per month

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13. While acknowledging that `pain and suffering', as a concept escapes definition, we may only refer to certain authorities, scholarly as also judicial wherein attempts have been made to set down the contours thereof.

13.1 The entry recording the term `pain and suffering' in P. Ramanatha Iyer's Advanced Law Lexicon[9] reads as under:- "Pain and suffering. The term `Pain and suffering' mean physical discomfort and distress and include mental and emotional trauma for which damages can be recovered in an accident claim.

This expression has become almost a term of art, used without making fine distinction between pain and suffering. Pain and suffering which a person undergoes cannot be measured in terms of money by any mathematical calculation. Hence the Court awards a sum which is in the nature of a conventional award [Mediana, The (1900) AC 113, 116]" 13.2 Eric Cassell[10], an American Physician and Bioethicist, defines `pain' not only as a sensation but also `as experience embedded in beliefs about causes and diseases and their consequences', and `suffering' as `the state of severe distress associated with events that threaten the intactness of person'. 13.

3 In a recent article[11] published in the journal of the International Association for the Study of Pain, it has been recorded that there is no consensus on what exactly the concept of pain-related suffering includes, and it is often not precisely operationalised in empirical studies. The authors in their systematic review analysed 111 articles across a variety of disciplines such as bioethics, medical ethics, psycho-oncology, anaesthesiology, philosophy, sociology etc., we may refer to few of them: 13.3.1 Eugene V. Boisaubin[12], who is currently a Professor at the University of Texas, at Houston, in a 1989 article defined it as "Suffering is experienced by individual and arises from threats to the integrity of the individual as a complex social and psychological entity."

13.3.2 Andrew Edgar, who is currently a Reader Emeritus in Philosophy at Cardiff University at UK has defined, in a 2007 article suffering as an "experience of life never getting better, revealing in the sufferer only vulnerability, futility, and impotence."

13.3.3 Arthur W. Frank[13], Professor Emeritus, Department of Sociology, University of Calgary in his well-known article "Can We Research Suffering?", published in 2001, observed that "at the core of suffering is the sense that something is irreparably wrong with our lives, and wrong is the negation of what could have been right. Suffering resists definition because it is the reality of what is not."

13.3.4 Daryl Pullman[14] who currently serves as University research Professor, Bioethics at the Memorial University of Newfoundland, Canada in his 2002 article defined suffering as the "product of [physical], psychological, economic, or other factors that frustrate an individual in the pursuit of significant life projects."

13.4 The Judicial Studies Board, now known as the Judicial College in the United Kingdom, produced guidelines in 1992 to produce greater

consistency of awards and make the judicial scale of values more easily accessible. They have been deduced from a study of past cases, examining the range of awards therein. The latest edition of these guidelines was published in 2021[15]. They record the diࢃculty of computing `pain and suffering' as under :- [15 See : Hassam and Anr. v. Rabot and Anr. (2024) UKSC 11] "It is widely accepted that making of an award of general damages for pain and suffering is a somewhat artificial task. It involves the Judge seeking to convert the pain and suffering of a given claimant into a monetary award which he or she considers to be reasonable by way of compensation. That is a diࢃcult task and one which has historically led to judges making widely varying awards of damages in respect of relatively comparable injuries a result which not only offends the principle of equality before law but results in unnecessary appeals and the incurring of additional cost, apart altogether from the burden that such appeals place on the Court's own scarce resources."

13.5 In determining non-pecuniary damages, the artificial nature of computing compensation has been highlighted in Heil v. Rankin [2001] QB 272, as referred to in Attorney General of St. Helena v. AB & Ors. Privy Council Appeal No. 0034 of 2018 as under:- "23. This principle of `full compensation' applies to pecuniary and non-pecuniary damage alike. But, as Dickson J indicated in the passage cited from his judgment in Andrews v. Grand & Toy Alberta Ltd, 83 DLR (3d) 452, 475-476, this statement immediately raises a problem in a situation where what is in issue is what the appropriate level of `full compensation' for non-pecuniary injury is when the compensation has to be expressed in pecuniary terms. There is no simple formula for converting the pain and suffering, the loss of function, the loss of amenity and disability which an injured person has sustained, into monetary terms. Any process of conversion must be essentially artificial. Lord Pearce expressed it well in H West & Son Ltd v. Shephard [1964] AC 326, 364 when he said:

`The court has to perform the diࢃcult and artificial task of converting into monetary damages the physical injury and deprivation and pain and to give judgment for what it considers to be a reasonable sum. It does not look beyond the judgment to the spending of the damages.'

24. The last part of this statement is undoubtedly right. The injured person may not even be in a position to enjoy the

damages he receives because of the injury which he has sustained. Lord Clyde recognised this in Wells v. Wells [1999] 1 AC 345, 394H when he said: `One clear principle is that what the successful plaintiff will in the event actually do with the award is irrelevant."

13.6 In the context of the United States, the most important piece of legal literature regarding `pain and suffering' is an article titled Valuing Life and Limb in Tort: Scheduling Pain and Suffering, published in the year 1989. Relevant extracts thereof read as under :

"Pain and suffering and other intangible or non-economic losses are even more problematic. Physical pain and attendant suffering have for centuries being recognised as legitimate elements of damages, and "modern" tort law has seen a marked expansion of the rights to recover for forms of mental anguish. Some Courts have even permitted recovery for emotional trauma unaccompanied by physical injury, including derivative losses stemming from injuries to family members. The precise elements of compensable non-economic loss vary by jurisdiction. Pain and suffering may be used as a catch-all category for the jury's consideration of all non-pecuniary losses in a case of a nonfatal injury, subsuming other qualitative categories such as mental anguish and humiliation. More commonly, though, other non-economic elements - such as "loss of enjoyment of life" are accorded independent standing ..." Another important observation is that:

"Whatever the categories of non-economic damages allowed in a given jurisdiction, the law provides no objective benchmarks valuing them. As one commentator notes, "Courts have usually been content to say that pain and suffering damages should amount to `fair compensation', or a `reasonable amount', `without any definite guide'."

13.7 Consideration of the above, underlines that while each discipline has its own conception of the meaning of pain/suffering, within its confines, the commonality that emerges is that a person's understanding of oneself is shaken or compromised at its very root at the hands of consistent suffering. In the present facts, it is unquestionable that the sense of something being irreparably wrong in life, as spoken by Frank (supra); vulnerability and futility, as spoken by Edgar, is present and such a feeling will be present for the remainder of his natural life.

14. In respect of `pain and suffering' in cases where disability suffered is at 100%, we may notice a few decisions of this Court :-

14.1 In R.D Hattangadi v. Pest Control (India ) (P) Ltd. (1995) 1 SCC 551. It was observed :

"17. The claim under Sl. No. 16 for `pain and suffering' and for loss of amenities of life under Sl. No. 17, are claims for nonpecuniary 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 `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 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 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 and suffering'" and "Loss of amenities of life".

(Emphasis Supplied) 14.2 This Judgment was recently referred to by this Court in Sidram v. United India Insurance Company Ltd. (2023) 3 SCC 439 reference was also made to Karnataka SRTC v. Mahadeva Shetty (2003) 7 SCC 197 (irrespective of the percentage of disability incurred, the observations are instructive), wherein it was observed :

"18. A person not only suffers injuries on account of accident but also suffers in mind and body on account of the accident through out his life and a feeling is developed that his no more a normal man and cannot enjoy the amenities of life as another normal person can. While fixing compensation for pain and suffering as also for loss of amenities, features like his age, marital status and unusual deprivation he has undertaken in his life have to be reckoned."

14.3 In Kajal v. Jagdish Chand (2020) 4 SCC 413 considering the facts of the case, i.e., 100% disability, child being bedridden for life, her mental age being that of a nine-month-old for life - a vegetative existence, held that "even after taking a conservative view of the matter an amount payable for the `pain and suffering' of this child should be at least Rs.15,00,000/-."

14.4 In Ayush v. Reliance General Insurance (2022) 7 SCC 738 relying on Kajal (supra) the amount awarded in `pain and suffering' was enhanced to Rs.10,00,000. The child who had suffered the accident was five years old and the Court noted in paragraph 2 that :

"As per the discharge certificate, the appellant is not able to move both his legs and had complete sensory loss in the legs, urinary incontinence, bowel constipation and bed sores. The appellant was aged about 5 years as on the date of the accident, hence has lost his childhood and is dependent on others for his routine work."

14.5 In Lalan (supra) cited by the claimant-appellant, the Tribunal awarded Rs.30,000/- which was enhanced to Rs.40,000/- by the High Court . Considering the fact that the appellant therein has suffered extensive brain injury awarded compensation under `pain and suffering' to the tune of Rs.3,00,000/-.