Nirmal Kaur v. Wazir Ahmad And ORS.
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"12. It is to be noted that both the Tribunal and the High Court have taken the disability suffered by the claimant appellant to be at 100%. We find no ground to take a different view.
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:
"0
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 difficulty of computing `pain and suffering' as under :
[15 See : 1 * + ! - 2 $%&&] "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 difficult 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 1
* , 3 !!&456 ' , as referred to in 7
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"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 ; 7 8< + =(.:
=* : -" (-'">-'/, 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 18 $= $ 3&?/-4%: /(:/- when he said:
`The has to perform the difficult 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 3&???4&%:-", 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 * 1 0% #
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"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 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 `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 $ 2 #
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"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 @ % ! !
-$%%-&: considering the facts of the case, i.e., 100% disability, child being bedridden for life, her mental age being that of a nine month
old for life a vegetative existence, held that "even after taking a conservative view of the matter an amount payable for the `pain and suffering' of this child should be at least Rs.15,00,000/ ."
14.4 In *
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'$%% ':. 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 % 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 % . 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/ .
15. Keeping in view the above referred judgment, the injuries suffered, the 'pain and suffering' caused, and the life long nature of the disability afflicted upon the claimant appellant, and the statement of the Doctor as reproduced above, we find the request of the claimant appellant to be justified and as such, ;
* &"(!!(!!!/ under the head 'pain and suffering', fully conscious of the fact that the prayer of the claimant-appellant for enhancement of compensation was 22 (2022) 7 SCC 738 15| SLP (C) NO. 18337 OF 2021 by a sum
of Rs. 10,00,000/ , we find the compensation to be just, fair and reasonable at the amount so awarded.
43.
Further, the Hon'ble Supreme Court in the case of 6 +
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:., where the injured was a female child aged 7 years and had suffered grievous injuries, learned Tribunal awarded Rs.50,000/ towards pain and suffering, but the same was enhanced by the Hon'ble High Court to Rs. 12,00,000/ . When the matter reached to the Hon'ble Apex Court, the same was enhanced to Rs. 15,00,000/ .
44.
In view of the settled law by Hon'ble Apex Court, since in the present case as well, the disability is 100% by applying the same parameters a compensation of Rs.15 lakhs is hereby awarded to the appellant claimant towards pain and sufferings.
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F7. It is also his case that the future prospects as reckoned at 30% is not justified and the same should have been at 25% since the job of the deceased cannot be considered as permanent employment. Lastly, it is contended the interest as fixed by the High Court at
7.5% per annum is excessive and is without appropriate reason being assigned.
8. The learned counsel for the respondents/claimants would however seek to sustain the judgment passed by the High Court. On all the aspects which have been urged by the learned counsel for the appellant, it is contended that the MACT as well as the High Court have looked into the evidence which was available before it and has thereafter arrived at its conclusion, which does not call for interference.
9. In the light of the contentions put forth, insofar as the salary, we take note that by way of clarification, we had required the learned counsel for the respondents/claimants to point out that the amount paid was after deduction of the tax or proof for payment of tax, since the learned counsel for the appellant had contended that the same has not been done. Alongwith an application, in addition to the documents that were relied on before the MACT, the notice of assessment of the Inland Revenue Authority of Singapore is produced. From the same, it would indicate that from the salary paid to the deceased, tax has been assessed in Singapore. Hence, there is no scope for double taxation on the same income. Therefore, deducting any amount towards tax once over again would not arise. Hence, his salary as reckoned by the High Court is justified and the same does not call for interference.
10. On the aspect relating to the future prospects, having noted the salary that was being drawn by the deceased, we have also taken into consideration that the deceased was employed in TATA Precision Industries. Another employee who was working as the Assistant Manager in Human Resources had been examined as PW 2 before the MACT to prove the same. In that regard, taking note of the evidence tendered by PW 2 to indicate the nature of employment of the deceased as also his prospects, ;
the future prospects as reckoned in the instant case is also justified. This is for the reason that though the learned counsel for the appellant seeks to point to the portion of the cross
examination of the said witness to indicate that he had earlier
been terminated from TATA Holset Private Limited and had thereafter been appointed in TATA Precision Industries, it would not lead to a conclusion that the job was not of permanent nature. In fact, even if the employment letter indicated that the job could be terminated with 30 days notice as insisted by the learned counsel, that cannot be the basis in as much as the said provision for termination notice would be available to both the parties, namely the employer and the employee and that by itself cannot indicate that the employment was of a temporary nature. Right of the employer to terminate does not suggest it is temporary employment. Such right if exercised has to be in terms of law.
Further, from the cross examination, the suggestion put to PW 2, would only indicate that the deceased who was earlier employed in TATA Holset Private Limited was thereafter taken in another sister concern of the same group providing him better prospects. Therefore even if that aspect of the matter is kept in view, the future prospects as reckoned by the High Court is justified.G 2 :1'" "! !"!
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