Children of divorced, illegally wedded wives of deceased officers entitled to pension

Children of divorced or those born to illegally wedded wife of a deceased all India services officer are entitled to get family pensions, according to new rules notified by the central government.

"Where the deceased member of service or pensioner is survived by a widow but has left behind eligible child or children from a divorced or an illegally wedded wife or wives, the eligible child or children shall be entitled to the share of family pension which the mother would have received at the time of the death of the member of service or pensioner had she not been so divorced or had she been legally wedded," they say.

All India services comprise IAS, IPS and Indian Forest Service.

Earlier, children born outside wedlock of a government servant had no claim on family pension and the legally wedded wife was the sole recipient of the post-retirement benefit.

The amended All India Services (Death-cum-Retirement Benefits) Rules, 1958, also have provisions to provide equal share of pension to more than one widow of a deceased officer.

The rules have a provision to recognise marriage and family of a member of the services after his or her retirement and have made such family member eligible to receive pension after the death of an officer.

They also provide for monetary support to mentally retarded children of an officer of Indian Administrative Service (IAS), Indian Police Service (IPS) and Indian Forest Service (IFoS).

"If the son or daughter of a member of service is suffering from any disorder or disability of mind including the mentally retarded or is physically crippled or disabled so as to render him or her unable to earn a living even after attaining the age of twenty-five years, the family pension shall be payable to such son or daughter for life," the rules said.

If there are more than one such son or daughter suffering from disorder or disability of mind or who are physically crippled or disabled, the family pension shall be paid in the order of their birth and the younger of them will get the family pension only after the elder next above him or her ceases to be eligible, the rules clarified.

In case both wife and husband are members of service and are governed by the provisions of the rules and one of them dies while in service or after retirement, the family pension in respect of the deceased shall become payable to the surviving husband or wife and in the event of the death of the husband or wife, the surviving child or children shall be granted the two family pensions in respect of the deceased parents, they said.

Retired all India service officials will also get additional pensions after completing 80 years of age, according to them.

Such retired government officials will get 20 per cent of additional pension after they complete 80 years of age, 30 per cent of after completing 85 years, 40 per cent after crossing 90 years of age, 50 per cent after reaching 95 years and 100 per cent of additional pension after completing 100 years of age, the rules said.

If there are more than one such son or daughter suffering from disorder or disability of mind or who are physically crippled or disabled, the family pension shall be paid in the order of their birth and the younger of them will get the family pension only after the elder next above him or her ceases to be eligible, the rules clarified.

In case both wife and husband are members of service and are governed by the provisions of the rules and one of them dies while in service or after retirement, the family pension in respect of the deceased shall become payable to the surviving husband or wife and in the event of the death of the husband or wife, the surviving child or children shall be granted the two family pensions in respect of the deceased parents, they said.

Retired all India service officials will also get additional pensions after completing 80 years of age, according to them.

Such retired government officials will get 20 per cent of additional pension after they complete 80 years of age, 30 per cent of after completing 85 years, 40 per cent after crossing 90 years of age, 50 per cent after reaching 95 years and 100 per cent of additional pension after completing 100 years of age, the rules said.

SC warns courts against showing leniency towards rape convicts

The Supreme Court on Tuesday ruled that compromise between rape survivor and rape convict cannot be a ground to reduce sentence of imprisonment.

Even offer of marriage by the accused to rape survivor cannot persuade courts to reduce sentence of rape convicts, the top court said.

The apex court said law permits the court to reduce sentence even in rape cases under exceptional circumstances but compromise between the assaulted woman and the rapist cannot be a ground for that exception.

The top court said allowing compromise between rape survivor and convict for reduction of sentence would allow the accused to exert every kind of pressure on the rape survivor to settle for a compromise.

Long delay in trial and the fact that rape survivor has settled in life were also no grounds to reduce sentence of rapists, the SC ruled.
Religion, caste or status of accused too should not make any difference to the case trial and imposition of sentence when convicted, the court said.
Justifying harsh punishment in rape cases, the court said rape is not only a physical and mental assault of a woman but also a crime against society requiring courts not to show leniency to rape convicts when it came to imposing sentence.

Warning the high courts and trial courts against leniency towards rape convicts, SC said orders imposing sentence less than prescribed or releasing accused on the grounds that period of sentence has already been undergone would reflect insensitivity of court towards rape survivor and society.

Medicine or cosmetic - SC uses 'cure or care' formula

 The Supreme Court has used "cure or care" differentiation to separate medicinal products from cosmetics for levy of central excise duties.

It is of seminal importance to producers of cosmetics to classify their products as medicaments, which attract a central excise duty of 15% as against cosmetics that face 15% levy.

How to classify a product as medicament or cosmetic? This question was raised before a bench of Justice SJ Mukhopadhaya and Justice Kurian Joseph by central excise, Mumbai, which wanted to tax the product "Moisturex" as cosmetics, even as the producer claimed it to be a medicament.

Referring to the Central Excise Act, the bench found that preparations for the care of skin, beauty or make-up preparations were the ones to be classified as cosmetics but it had clarified that cosmetics with medicinal preparations used to treat certain skin complaints could be categorized as medicaments or products containing pharmaceutical substances used for medical, surgical, dental or veterinary purposes.

Writing the judgment for the bench, Justice Joseph said: "If a product comprises of two or more constituents mixed or compounded together for therapeutic or prophylactic use, the same is to be covered under medicament."

Applying the law to the dispute whether 'Moisturex' was medicine or cosmetic, the bench said, "Care or cure', is the clue for the resolution of the lis (dispute) arising in these cases."

The bench said prior to adjudicating upon whether a product was a medicament, courts have to see what consumers understand the product to be. "If a product's primary function is "care" and not "cure", it is not a medicament," it said.

The bench said, "Cosmetic products are used in enhancing or improving a person's appearance or beauty, whereas medicinal products are used to treat or cure some medical condition. A product that is used mainly in curing or treating ailments or diseases and contains curative ingredients even in small quantities is to be branded as a medicament."

The bench said, "The use of the cream is not for the care of the skin. 'Moisturex' is also not primarily intended to protect the skin from sun, tan or dryness, etc. On the other hand, it is intended for treating or curing the dry skin conditions of the human skin and for a few other skin complaints like fissure feet, dry scaly skin conditions, ichthyosis, etc."

The excise department said if it was a medicament as claimed by the producer, it should have been sold under doctor's prescription and not over the counter like any other cosmetic.

Rejecting this argument, the bench said: "If a product is sold without a prescription of a medical practitioner, it does not lead to the immediate conclusion that all products that are sold over/across the counter are cosmetics. There are several products that are sold over-the-counter and are yet, medicaments."

Diabetes no ground for job denial: Madras HC

The Madras high court has said, adding, "There cannot be a blanket ban on giving public employment to persons with diabetes. Medical experts opine that diabetes is a condition where the body fails to utilise the ingested glucose properly. Further, there is a strong school of thought that a diabetic is not suffering from a disease, but only a disorder that could be managed."

Upholding a Central Administrative Tribunal (CAT) order rejecting the railway administration's claim that a diabetic might not be able to discharge his/her works efficiently, a bench of Justice R Banumathi and Justice T S Sivagnanam said, "It is unfair on the part of the railway administration to reject a candidature on a single blood test."

Manikandan, a commercial clerk in Southern Railway, died in harness in 2010. His wife Arockiammal applied to the railways for a job on compassionate grounds. In 2011, the railway administration informed that she was unfit on medical grounds, as her blood sugar level was around 140mg/dL.

She then approached the CAT for remedy. The railways resisted her application, stating that compassionate appointment cannot be a matter of right and that she had been found medically unfit for the job. The tribunal, however, allowed her plea, and directed the railways to appoint her under compassionate grounds.

The present appeal in the high court was filed by the railway administration.

Dismissing the appeal, the division bench said that, as of a 2011 survey, 62.4million (as against 1.2 billion Indian population) are diabetic. It is slated to increase in 2030 to 110.1 million. "Diabetes usually has no impact on an individual's ability to do a particular job, and in most cases the employer may not even know that his employee has diabetes. As the impact of diabetes and its management varies among individuals, there cannot be a blanket ban on giving public employment to persons with diabetes.

The judges said they were conscious of the legal position that there is no vested right to secure appointment on compassionate grounds, but said that they had jurisdiction to step in when they find that there has not been an objective consideration or arbitrary approach by the authorities. Pointing out that Arockiammal was otherwise eligible for the employment, the judge said, "to deny employment to her on speculation that what might occur in future is unreasonable."

The judges then directed the railway administration to comply with the CAT direction on giving employment to Arockiammal within three months.

Medical experts point out that people with diabetes should not be discriminated based on their condition as it is treatable and does not interfere with the person's routine life. "Diabetes is a very common disorder and no one can deny a job for a diabetic on these grounds. Diabetics are healthy people who have a treatable condition and it does not affect their work in any way," said diabetologist Dr A Ramachandran, Chairman, Dr A Ramachandran's Diabetes Hospitals.

APARNA A.SHAH v. M/S SHETH DEVELOPERS P.LTD.& ANR [2013] EssenSC 586 (1 July 2013)

REPORTABLE 

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION 1 CRIMINAL APPEAL No. 813 OF 2013 (Arising out of S.L.P. (Crl.) No. 9794 of 2010) 

Mrs. Aparna A. Shah .... Appellant(s) 

Versus 

M/s Sheth Developers Pvt. Ltd. & Anr. .... Respondent(s) 2

P.Sathasivam,J.

1) Leave granted.

2) This appeal is directed against the final judgment and order dated 24.09.2010 passed by the High Court of Judicature at Bombay in Criminal Writ Petition No. 1823 of 2010 whereby the High Court partly allowed the petition filed by the appellant herein.

3) Brief facts:

a) M/s Sheth Developers Private Ltd.-the respondent herein is a company incorporated under the provisions of the Companies Act, 1956 having its registered office at 11, Vora Palace, M.G. Road, Kandivali (West), Mumbai and is engaged in the business of land development and constructions.

Aparna A. Shah (the appellant herein) and Ashish Shah, her husband, are the Land Aggregators and Developers who have been in the said business for the last 15 years and are the owners of certain lands in and around Panvel.

b) According to the appellant, in January 2008, since the Company was interested in developing a Township Project and a Special Economic Zone (SEZ) project in and around Panvel, Dist. Raigad, Maharashtra, one Virender Gala of Mahavir Estate Agency - the Broker, introduced them to the appellant herein and her husband as the land owners holding huge land in Panvel. The appellant represented to the Company that the said land was ideal for the development of a Township Project and a Special Economic Zone (SEZ) and also that they have no financial means and capacity to develop the same single handedly. It was further represented that they were also looking for a suitable person, interested in developing the said land jointly with them.

(c) On believing the above said representations, the respondent-Company agreed for the development of the said land jointly with the appellant herein and her husband. When the respondent-Company requested for inspection of the title documents in respect of the said land, the appellant and her husband agreed for the same upon the entrustment of a token amount of Rs. 25 crores with an understanding between the parties that the said amount would be returned if the project is not materialize.

Agreeing the same, the respondent-Company issued a cheque of Rs. 25 crores in favour of the appellant herein and her husband. However, for various reasons, the proposed joint venture did not materialize and it was claimed by the appellant herein that the whole amount of Rs. 25 crores was spent in order to meet the requirements of the initial joint venture in the manner as requested by the respondent-Company.

(d) According to the appellant, again the respondent-Company expressed interest to start a new project and to take financial facilities from their bank in order to submit a tender for the purchase of a mill land. With regard to the same, the respondent-Company approached the appellant herein and her husband and informed that they are not having sufficient securities to enable the bank to grant the facility and the bank is to show receivables in writing. Therefore, on an understanding between the respondent and the appellant, a cheque of Rs. 25 crores was issued by the husband of the appellant from their joint account. It is the case of the appellant that in breach of the aforementioned understanding, on 05.02.2009, the respondent deposited the cheque with IDBI Bank at Cuffe Parade, Mumbai and the said cheque was dishonoured due to “insufficient funds”.

e) On 18.02.2009, a statutory notice under Section 138 of the Negotiable Instruments Act, 1881 (in short ‘the N.I. Act”) was issued to the appellant and her husband asking them to repay the sum of Rs. 25 crores. On 06.03.2009, the appellant and her husband jointly replied mentioning the circumstances in which the said cheque was issued with the supporting letters.

f) On 04.04.2009, a complaint was filed against the appellant and her husband in the Court of the Metropolitan Magistrate, Dadar, Mumbai and the same was registered as Case No. 1171-SS of 2009. By order dated 20.04.2009, process was issued against them.

g) On 12.01.2010, the appellant and her husband filed an application objecting the exhibition of documents and the same was registered as Exh.

28. By order dated 11.05.2010, the said application was dismissed.

h) Against the issuance of process dated 20.04.2009 and order dated 11.05.2010 dismissing the application by the Magistrate, the appellant filed Writ Petition No. 1823 of 2010 before the High Court. The High Court, by impugned order dated 24.09.2010, partly allowed the petition and quashed the order dated 11.05.2010 and directed the Magistrate to decide the objections raised by the counsel for the accused after hearing both the sides, but refused to quash the proceedings.

i) Aggrieved by the said order, the appellant has filed the above appeal by way of special leave.

4) Heard Mr. K.V. Vishwanathan, learned senior counsel for the appellant and Mr. Mukul Rohtagi, learned senior counsel for respondent No.1.

Contentions:

5) Mr. K.V. Vishwanathan, learned senior counsel for the appellant, by drawing our attention to Section 138 of the N.I. Act as well as various decisions of this Court relating to interpretation of the expression “drawer”, submitted that the issuance of process by learned Magistrate cannot be sustained. On the other hand, Mr. Mukul Rohtagi, learned senior counsel for respondent No.1/the complainant submitted that inasmuch as the instant case is squarely covered by Section 141 of the N.I. Act and that the accused persons, namely, Ashish Shah and Aparna Shah (appellant No.1) are an association of individuals as envisaged under Section 141, learned Magistrate was fully justified in issuing process. He also submitted that the transaction with respondent No.1 herein was negotiated by both the accused, the cheque which had been issued by respondent No.1 was deposited in the joint account maintained by both the accused, the cheque bears the name and stamp of both the accused and by suppressing all the materials, the appellant has approached the High Court and this Court, hence her claim has to be rejected on the ground of concealing/suppressing material facts.

He finally pointed out that inasmuch as the trial has commenced and the appellant will have her remedy during trial, the High Court was right in dismissing her petition filed under Section 482 of the Code of Criminal Procedure, 1973 (in short ‘the Code’).

6) We have carefully considered the rival submissions and perused all the relevant materials.

Discussion:

7) In order to understand the rival contentions, it is useful to refer Section 138 of the N.I. Act which reads as under:

“138. Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an arrangement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless— (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.

Explanation.-For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability”.

8) In order to constitute an offence under Section 138 of the N.I. Act, this Court, in Jugesh Sehgal vs. Shamsher Singh Gogi, (2009) 14 SCC 683, noted the following ingredients which are required to be fulfilled:

“(i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account;

(ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;

(iii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier;

(iv) that cheque is returned by the bank unpaid, either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank;

(v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;

(vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice.

Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act.” Considering the language used in Section 138 and taking note of background agreement pursuant to which a cheque is issued by more than one person, we are of the view that it is only the “drawer” of the cheque who can be made liable for the penal action under the provisions of the N.I. Act. It is settled law that strict interpretation is required to be given to penal statutes.

9) In Jugesh Sehgal (supra), after noting the ingredients for attracting Section 138 on the facts of the case, this Court concluded that there is no case to proceed under Section 138 of the Act. In that case, on 20.01.2001, the complainant filed an FIR against all the accused for the offence under Sections 420, 467, 468, 471 and 406 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC) and there was hardly any dispute that the cheque, subject-matter of the complaint under Section 138 of the N.I. Act, had not been drawn by the appellant on an account maintained by him in Indian Bank, Sonepat Branch. In the light of the ingredients required to be fulfilled to attract the provisions of Section 138, this Court, after finding that there is little doubt that the very first ingredient of Section 138 of the N.I. Act enumerated above is not satisfied and concluded that the case against the appellant for having committed an offence under Section 138 cannot be proved.

10) In S.K. Alagh vs. State of Uttar Pradesh and Others, (2008) 5 SCC 662, this Court held:

19. … …. If and when a statute contemplates creation of such a legal fiction, it provides specifically therefor. In absence of any provision laid down under the statute, a Director of a Company or an employee cannot be held to be vicariously liable for any offence committed by the Company itself. (See Sabitha Ramamurthy v. R.B.S.

Channabasavaradhya, (2006) 10 SCC 581)” 11) In Sham Sunder and Others vs. State of Haryana[1989] INSC 246; , (1989) 4 SCC 630, this Court held as under:

“9. The penal provision must be strictly construed in the first place. Secondly, there is no vicarious liability in criminal law unless the statute takes that also within its fold. Section 10 does not provide for such liability. It does not make all the partners liable for the offence whether they do business or not.” 12) As rightly pointed out by learned senior counsel for the appellant, the interpretation sought to be advanced by the respondents would add words to Section 141 and extend the principle of vicarious liability to persons who are not named in it.

13) In the case on hand, we are concerned with criminal liability on account of dishonour of a cheque. It primarily falls on the drawer, if it is a Company, then Drawer Company and is extended to the officers of the company. The normal rule in the cases involving criminal liability is against vicarious liability. To put it clear, no one is to be held criminally liable for an act of another. This normal rule is, however, subject to exception on account of specific provision being made in statutes extending liability to others. For example, Section 141 of the N.I. Act is an instance of specific provision that in case an offence under Section 138 is committed by a company, the criminal liability for dishonour of a cheque will extend to the officers of the company. As a matter of fact, Section 141 contains conditions which have to be satisfied before the liability can be extended. Inasmuch as the provision creates a criminal liability, the conditions have to be strictly complied with. In other words, the persons who had nothing to do with the matter, need not be roped in. A company being a juristic person, all its deeds and functions are the result of acts of others. Therefore, the officers of the company, who are responsible for the acts done in the name of the company, are sought to be made personally liable for the acts which result in criminal action being taken against the company. In other words, it makes every person who, at the time the offence was committed, was in-charge of, and was responsible to the company for the conduct of business of the company, as well as the company, liable for the offence. It is true that the proviso to sub- section enables certain persons to prove that the offence was committed without their knowledge or that they had exercised all due diligence to prevent commission of the offence. The liability under Section 141 of the N.I. Act is sought to be fastened vicariously on a person connected with the company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability.

14) It is not in dispute that the first respondent has not filed any complaint under any other provisions of the penal code and, therefore, the argument pertaining to the intention of the parties is completely misconceived. We were taken through the notice issued under the provisions of Section 138, reply given thereto, copy of the complaint and the order issuing process. In this regard, Mr.Mukul Rohatgi, learned senior counsel for the respondent after narrating the involvement of the appellant herein and her husband contended that they cannot be permitted to raise any objection on the ground of concealing/suppressing material facts within her knowledge. For the said purpose, he relied on Oswal Fats and Oils Limited vs. Additional Commissioner (Administration), Bareilly Division, Bareilly and Others, (2010) 4 SCC 728, Balwantrai Chimanlal Trivedi vs. M.N.

Nagrashna & Ors.[1960] INSC 118; , AIR 1960 SC 1292, J.P. Builders & Anr. vs. A. Ramadas Rao & Anr., (2011) 1 SCC 429. Inasmuch as the appellant had annexed the relevant materials, namely, copy of notice, copy of reply, copy of the complaint and the order issuing process which alone is relevant for consideration in respect of complaint under Section 138 of the N.I. Act, the argument of learned senior counsel for Respondent No.1 that the stand of the appellant has to be rejected for suppressing of material facts or relevant facts, cannot stand. In such circumstances, we are of the view that the case law relied upon by the contesting respondent No.1 is inapplicable to the facts of the present case.

15) Mr. Mukul Rohtagi, learned senior counsel for respondent No.1, by drawing our attention to the definition of “person” in Section 3(42) of the General Clauses Act, 1897 submitted that in view of various circumstances mentioned, the appellant herein being wife, is liable for criminal prosecution. He also submitted that in view of the explanation in Section 141(2) of the N.I. Act, the appellant wife is being prosecuted as an association of individual. In our view, all the above contentions are unacceptable since it was never the case of respondent No.1 in the complaint filed before learned Magistrate that the appellant wife is being prosecuted as an association of individuals and, therefore, on this ground alone, the above submission is liable to be rejected. Since, this expression has not been defined, the same has to be interpreted ejusdem generis having regard to the purpose of the principle of vicarious liability incorporated in Section 141. The terms “complaint”, “persons” “association of persons” “company” and “directors” have been explained by this Court in Raghu Lakshminarayanan vs. Fine Tubes, (2007) 5 SCC 103.

16) The above discussion with reference to Section 138 and the materials culled out from the statutory notice, reply, copy of the complaint, order, issuance of process etc., clearly show that only the drawer of the cheque being responsible for the same.

17) In addition to our conclusion, it is useful to refer some of the decisions rendered by various High Courts on this issue.

18) Learned Single Judge of the Madras High Court in Devendra Pundir vs.

Rajendra Prasad Maurya, Proprietor, Satyamev Exports S/o. Sri Rama Shankar Maurya, 2008 Criminal Law Journal 777, following decisions of this Court, has concluded thus:

“7. This Court is of the considered view that the above proposition of law laid down by the Hon’ble Apex Court in the decision cited supra is squarely applicable to the facts of the instant case. Even in this case, as already pointed out, the first accused is admittedly the sole proprietrix of the concern namely, “Kamakshi Enterprises” and as such, the question of the second accused to be vicariously held liable for the offence said to have been committed by the first accused under Section 138 of the Negotiable Instruments Act not at all arise.” After saying so, learned Single Judge, quashed the proceedings initiated against the petitioner therein and permitted the Judicial Magistrate to proceed and expedite the trial in respect of others.

19) In Gita Berry vs. Genesis Educational Foundation, 151 (2008) DLT 155, the petitioner therein was wife and she filed a petition under Section 482 of the Code seeking quashing of the complaint filed under Section 138 of the N.I. Act. The case of the petitioner therein was that the offence under Section 138 of the Act cannot be said to have been made out against her only on the ground that she was a joint account holder along with her husband. It was pointed out that she has neither drawn nor issued the cheque in question and, therefore, according to her, the complaint against her was not maintainable. Learned Single Judge of the High Court of Delhi, after noting that the complaint was only under Section 138 of the Act and not under Section 420 IPC and pointing out that nothing was elicited from the complainant to the effect that the petitioner was responsible for the cheque in question, quashed the proceedings insofar as the petitioner therein.

20) In Smt. Bandeep Kaur vs. S. Avneet Singh, (2008) 2 PLR 796, in a similar situation, learned Single Judge of the Punjab and Haryana High Court held that in case the drawer of a cheque fails to make the payment on receipt of a notice, then the provisions of Section 138 of the Act could be attracted against him only. Learned Single Judge further held that though the cheque was drawn to a joint bank account which is to be operated by anyone, i.e., the petitioner or by her husband, but the controversial document is the cheque, the liability regarding dishonouring of which can be fastened on the drawer of it. After saying so, learned Single Judge accepted the plea of the petitioner and quashed the proceedings insofar as it relates to her and permitted the complainant to proceed further insofar as against others.

21) In the light of the principles as discussed in the earlier paras, we fully endorse the view expressed by the learned Judges of the Madras, Delhi and Punjab & Haryana High Courts.

22) In the light of the above discussion, we hold that under Section 138 of the Act, it is only the drawer of the cheque who can be prosecuted. In the case on hand, admittedly, the appellant is not a drawer of the cheque and she has not signed the same. A copy of the cheque was brought to our notice, though it contains name of the appellant and her husband, the fact remains that her husband alone put his signature. In addition to the same, a bare reading of the complaint as also the affidavit of examination-in- chief of the complainant and a bare look at the cheque would show that the appellant has not signed the cheque.

23) We also hold that under Section 138 of the N.I. Act, in case of issuance of cheque from joint accounts, a joint account holder cannot be prosecuted unless the cheque has been signed by each and every person who is a joint account holder. The said principle is an exception to Section 141 of the N.I. Act which would have no application in the case on hand.

The proceedings filed under Section 138 cannot be used as an arm twisting tactics to recover the amount allegedly due from the appellant. It cannot be said that the complainant has no remedy against the appellant but certainly not under Section 138. The culpability attached to dishonour of a cheque can, in no case “except in case of Section 141 of the N.I. Act” be extended to those on whose behalf the cheque is issued. This Court reiterates that it is only the drawer of the cheque who can be made an accused in any proceeding under Section 138 of the Act. Even the High Court has specifically recorded the stand of the appellant that she was not the signatory of the cheque but rejected the contention that the amount was not due and payable by her solely on the ground that the trial is in progress. It is to be noted that only after issuance of process, a person can approach the High Court seeking quashing of the same on various grounds available to him. Accordingly, the High Court was clearly wrong in holding that the prayer of the appellant cannot even be considered. Further, the High Court itself has directed the Magistrate to carry out the process of admission/denial of documents. In such circumstances, it cannot be concluded that the trial is in advanced stage.

24) Under these circumstances, the appeal deserves to be allowed and process in Criminal Case No. 1171/SS/2009 pending before the Court of learned Metropolitan Magistrate 13th Court, Dadar, Mumbai deserves to be quashed, accordingly, quashed against the appellant herein. The appeal is allowed.

............................................................J.

(P. SATHASIVAM)

 ...................................J.

(JAGDISH SINGH KHEHAR) NEW DELHI;

JULY 01, 2013.

REKHA JAIN v. NATIOANL INSURANCE CO.LTD. & ORS. [2013] EssenSC 732 (1 August 2013)

REPORTABLE 

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.5370-5372 OF 2013 (Arising out of SLP (C) Nos. 5649-51 of 2012) 

REKHA JAIN ... APPELLANT 

VS.

NATIOANL INSURANCE CO.LTD.

V. Gopala Gowda, J.

Leave is granted by this Court vide order dated 02.07.2013 after condoning the delay in filing the special leave petitions.

2. These appeals are directed against the judgment, award and orders dated 24.2.2011 passed in MACA No. 580 of 2007, MACA No. 846 of 2007 and dated 10/03/2011 in MC No. 386 of 2011 in MACA No. 580 of 2007 of the High Court of Orissa at Cuttack allowing the appeal of the Insurance Company and dismissing the appeal of the appellant by which she has prayed to set aside the impugned judgment, award and order and has further prayed for enhancement of compensation by award of just and reasonable compensation allowing the appeals urging various facts and legal contentions.

3. The necessary brief facts for the purpose of appreciating the rival factual and legal contentions urged in these appeals are stated as under:

On 17.08.2001 the appellant was driving a Maruti Car bearing Regn. No.

OR 15 D-9005 by which she was going along with her mother Grace Jain from Sambalpur towards Cuttack when the accident occurred. A truck bearing Regn.

No. MP 23 D-0096 coming from the opposite direction from Cuttack towards Sambalpur hit the car which resulted in the instantaneous death of the mother of the appellant and the appellant received grievous injuries to her body. She was admitted to the VSS Medical College Hospital, Burla, Sambalpur and subsequently, she had undergone treatment at different Nursing Homes both at Cuttack and in the State of Kerala.

4. On account of the accident, grievous injuries were sustained by the appellant on the right side of her face which left permanent scars and caused disfiguration of her face and other parts of her body including her leg. She underwent a number of surgeries due to grievous injuries sustained by her. She underwent treatment from 18.08.2001 to 10.10.2001 at Kalinga Hospital and later on, in different Nursing Homes/hospitals. The District Medical Board issued a certificate dated 24.02.2006 to the appellant certifying that she is suffering from 30% permanent disability.

The appellant has approached the Motor Accident Claims Tribunal (for short

‘MACT’) at Sambalpur by filing a claim petition No. 119 of 2002 with a

request to award just and reasonable compensation.

5. The respondents herein, the owner of the vehicle and the insurer were impleaded and after service of summons on them they filed their statement of objections disputing the claim of the appellant. The owner of the vehicle has admitted the accident and has also stated that the motor vehicle involved in the accident is covered by the insurance policy which was valid up to 30.11.2001. He has further categorically stated that the driver who drove that truck had a valid licence. The respondent Insurance Company in its statement of objections denied its liability on the ground that the accident did not take place on account of rash and negligent driving of the driver who drove the offending vehicle, but was due to a motor cyclist who came in front of the truck on account of which the accident took place. It had further denied the various claims of the appellant.

6. The case went for trial and on behalf of the appellant, three witnesses were examined including the appellant and documents were produced in justification of her claim. Both the owner and the Insurance Company have not adduced evidence in justification of their defence taken in their statement of objections. The Motor Accidents Claims Tribunal, on proper appraisal of evidence on record, has answered the contentious issues in favour of the appellant holding that the accident took place on account of rash and negligent driving of the truck by its driver. It is further held by the Tribunal that the appellant is entitled to compensation and awarded Rs. 23,51,726/- both under the heads of pecuniary and non-pecuniary damages with interest @ 6% per annum from the date of filing of the claim application i.e. 30.03.2002 till the date of payment. Aggrieved by the judgment and award of the Tribunal, both the Insurance Company and the appellant filed appeals before the High Court of Orissa in Appeal No. 580 and MACA 846 of 2007 respectively. The appeal of the Insurance Company was allowed by reducing the compensation from 23,51,726/- to Rs. 14,00,000/- after finding fault with the Tribunal in awarding a sum of Rs. 17,51,726/- towards pecuniary damages by accepting the vouchers, hospital bills, receipts which have not been marked as exhibits in evidence on behalf of the appellant. Though, the compensation awarded towards the pecuniary loss for the medical expenses, treatment charges and the purchase of medicines, supported by the documentary evidence, that is, bills, receipts, cash memos and vouchers, as per Exhs. 26-28 series worth Rs. 2,07,713/- and other documents cash memos, hospital bills and receipts etc. were marked as exhibits in the evidence, some of the hospital bills and receipts worth Rs. 5,72,000/-, though available on record, have not been marked as evidence to show that the appellant had also incurred medical expenses amounting to Rs.5,72,000/-. The Tribunal has taken into account all those documents on record as evidence by marking them as exhibits. However, only a sum of Rs.7,77,000/- in total was awarded by the High Court towards pecuniary damages and Rs.6,00,000/- towards non pecuniary damages under different heads which is rounded off in all at Rs.14,00,000/- by modifying the judgment of the Tribunal. The Misc case No. 386 of 2011 filed by the appellant was considered and the High Court modified its earlier order vide its order dated 10.3.2011 directing the Insurance Company to deposit the amount with interest with the Registry of the High Court and out of the said amount, it has directed the Registry to keep 70% in the fixed deposit in the name of the appellant in any of the Nationalized Bank for a period of five years and the balance amount be disbursed to the appellant on proper identification. The appeal of the appellant was dismissed in view of the fact that the appeal filed by the Insurance Company, MACA No. 580 of 2007 was allowed and the compensation awarded by the Tribunal was reduced.

The same judgment is questioned by the appellant in these civil appeals seeking for enhancement of compensation urging various grounds.

7. The grounds urged in these appeals are that the High court has exceeded its jurisdiction in interfering with the finding of fact recorded by the Tribunal with regard to award of pecuniary damages towards medical expenses without proper appreciation of pleadings and evidence on record and has considerably reduced the amount under the heading of pecuniary damages from Rs.17,51,726/- to Rs.7,77,000/-. The correctness of the said impugned judgment and order is questioned before this Court contending that the same is not only erroneous but also suffers from error in law and therefore, the appellant prayed for setting aside the same and award just and reasonable compensation in favour of the appellant both under the heads of pecuniary and non-pecuniary damages by applying the law laid down by this Court.

8. Further, it is contended by Mr. Sukumar Pattjoshi, learned Senior Counselfor the appellant that the High Court has erroneously interfered with the impugned judgment and award of the Tribunal which is contrary to legal evidence on record and various judgments of this Court with regard to the claim and he also contended that the High Court has not awarded just and reasonable compensation to mitigate the hardship and restore the claimant’s position financially as she was in before the accident.

9. Further, the learned Senior Counsel submitted that the High Court was not justified in not enhancing the non pecuniary compensation though

sufficient evidence was brought on record by the appellant before the MACT

to show that she was a celebrity in the sphere of modeling and acting who had a bright future ahead of her which was doomed by the accident which resulted in number of surgeries conducted on her body. The opportunity for the appellant to act in the movies and T.V. serials is lost by her on account of the grievous injuries sustained by her. The Tribunal has referred the same in its judgment while awarding compensation under different headings of non- pecuniary damages, namely, suffering and future loss of earnings but it did not take into consideration the permanent partial disablement suffered by the appellant which was assessed at 30% and disfigurement of her face due to accident and the fact that she is a celebrity acting in movies and TV serials and also in the field of modeling. Due to disfigurement of her face, she will be losing her future income as she will not get opportunities to act in the films and T.V.

serials. Therefore, the learned Senior Counsel submits that both the Tribunal and the High Court were not justified in not awarding the just and reasonable compensation under the heading of future income. They have awarded only a meager amount of Rs.2,00,000/- towards the loss of income during the period of medical treatment though she was unable to earn nearly for a period of four years as she was undergoing treatment. Also, the Tribunal did not award any amount for loss of future income but has awarded a sum of Rs. 1,00,000/- towards the pain and suffering without taking into consideration the fact that she has undergone treatment in various Nursing Homes/Hospitals for plastic surgery and other surgeries and physiotherapy.

A paltry sum of Rs. 1,00,000/- was awarded for loss of income during the period of medical treatment of the appellant. A sum of Rs. 2,00,000/- was awarded towards loss of amenities and pleasure of life. Therefore, she has filed the appeals requesting this Court to award just and reasonable compensation by appreciating the legal evidence on record.

10. It is further urged that the High Court has failed to take into consideration the fact that the injured appellant is a single lady left in her family who was compelled to engage an attendant during the period of her treatment while she was in a state of immobility. It is further contended by the learned Senior Counsel that the learned members of the Tribunal and the High Court have erred in passing impugned judgment and order which are not in accordance with the cardinal principles laid down by this Court in various judgments in matters of Motor Vehicle Accidents Claims and they also did not consider the various relevant aspects such as the grievous injuries suffered by the appellant which has resulted in disfigurement of her face, who has lost her future career to act in the films and T.V. serials and also through advertisements as well as modeling. The Tribunal and High Court have erred in not taking into consideration the above said relevant aspects of the case to award pecuniary damages and adequate compensation under the heading of non- pecuniary damages without proper appreciation of pleadings and the legal evidence on record particularly when both the owner of the truck and the Insurance Company have not adduced rebuttal evidence. The Insurance Company has not obtained the permission as required under Section 170(b) of the Motor Vehicles Act to avail the defence of the insured and contest in the proceeding on the defence of the insured/ owner. Therefore, the finding of the Tribunal and the High Court in the impugned judgment and order and not awarding just and reasonable compensation in favour of the appellant is not only erroneous but also suffers from error in law. Therefore, it is contended by Mr. Pattjoshi, the learned Senior Counsel that the appellant is entitled to just and reasonable compensation. The learned Senior Counsel placed strong reliance on the evidence on record and has contended that the appellant was a good actress and model and worked in many films, albums, T.V. serials etc. and she had also won many awards like “Ponds Woman of Tomorrow” for the year 1999, best actress in feature film “Maa Pari Kiye Haba” etc. The said legal evidence was neither challenged nor was any rebuttal evidence adduced on behalf of either the owner of the truck or the Insurance Company to show that the appellant is not entitled to just and reasonable compensation. However, the High Court should have taken into consideration all the relevant facts and evidence on record as the Tribunal has failed to exercise its power and discharge its statutory duty to award just and reasonable compensation in her favour. The learned Judge of the High Court should have considered that the appellant is a film actress and her beauty is an essential requirement for acting in films, T.V. Serials and modeling. When her beauty is lost on account of disfigurement of her face, she has lost everything which means that there is hundred percent functional disability in her life. But, both the Tribunal and the High Court did not even consider 30% permanent partial disablement suffered by the appellant at the time of passing the award to determine the compensation under various heads of non-pecuniary damages.

Further, it is contended by the learned Senior Counsel that the loss of future income of the appellant is on account of the fact that she had suffered grievous injuries in the accident and therefore her life has become miserable. In future as well, she will not be able to act in films and T.V. serials. The High Court as well as the Tribunal have failed to consider the evidence adduced by the injured appellant in her examination- in-chief wherein she has categorically stated about her income per annum and the loss of future income. Both the Tribunal and the High Court have not properly evaluated the evidence on record and have not applied the law on the point to determine the future loss of income of the appellant and on other heads to award just and reasonable compensation. Therefore, the learned Senior Counsel submitted that the impugned judgments of the Tribunal and the High Court are erroneous in this regard and are liable to be set aside and require modification with award of just and reasonable compensation. She has stated in her evidence that she earned Rs.50,000/- from “Ponds beauty” competition, Rs.30,000/- from Oriya feature film “Maa Pari Kiye Haba”, Rs.60,000/- from Oriya feature film “Dharma Debata”, Rs.

75,000/- from Malayalam feature film “Paith Dhigem Alam”, Rs.10,000/- from each T.V. serial, Rs.5,000 to Rs.7,000/- from each album. Further, it is urged by the learned Senior Counsel that both the Tribunal as well as the High Court erred in not differentiating between pecuniary damages and non pecuniary damages at the time of determining compensation and awarding the same. The law is well settled by this Court that pecuniary damages under various heads such as expenses incurred by the appellant that is, medical expenses, expenses spent towards surgeries, loss of earning during the period of medical treatment and expenses incurred by her to engage an attendant and other material losses suffered by her, should have been awarded by the Tribunal and the High Court under pecuniary damages. The Tribunal did not consider the above relevant aspects and evidence on record to award just and reasonable compensation. In relation to other two aspects, that is, loss of earning up to the date of trial and other losses suffered by the appellant, the same were also not considered. The Tribunal and the High Court have erred in not granting relief to the appellant considering the aspect of the loss of expectation of life on account of grievous injuries and shortened longevity of the appellant’s life. The Tribunal and the High Court have erred in not granting relief to the appellant by appreciating the facts of inconvenience, hardship, discomfort, disappointment, frustration and mental stress, pain and suffering and agony caused to her. They further failed to take into consideration the most important fact, that the face of the injured appellant was fully and hopelessly disfigured due to accident and she got plastic surgery on her entire face and other parts of her body by the plastic surgeons outside the State of Odisha. After plastic surgery, the appellant’s face appearance got changed and she herself was not able to recognize her changed face in the mirror. It is further urged by the learned Senior Counsel on behalf of the appellant that both the Tribunal as well as the High Court have failed to take into consideration all the relevant facts deposed by her before the Tribunal- that she has been undergoing treatment due to the accident which would continue till the complications subsist and she requires a lot of money to be spent for her future treatment and she also requires an attendant for this purpose.

Therefore, impugned judgments and awards of both the Tribunal and the High Court are vitiated on both the counts of erroneous finding and error in law as they have not awarded just and reasonable compensation in favour of the appellant.

11. Mr. S.L. Gupta, the learned counsel appearing on behalf of the Insurance Company has justified the impugned judgment, award and order passed by the High Court. Respondent nos. 2 and 3 however, were deleted from the array of parties in these appeals by the order of this Court at the request of the appellant. The learned counsel contended that the High Court has exercised its appellate jurisdiction, on proper appreciation of pleadings and evidence on record and it is justified in reducing the compensation awarded under the heading of pecuniary damages as the injured appellant did not establish her claim regarding the expenses incurred by her for the purpose of medical treatment, purchase of medicine and other incidental expenses by producing the bills, receipts and vouchers.

Therefore, the Tribunal was not justified in placing reliance on those documents which were not marked as exhibits to prove her claim under the heading of ‘Medical Expenses’ and other incidental expenses and it has awarded exorbitant compensation under head of pecuniary damages which is unsustainable in law. Therefore, the High Court has rightly taken into consideration the entire documentary evidence on record and is justified in awarding compensation at Rs.7,77,000/- under the heading towards expenses, treatment charges and expenses towards medicines. Therefore, the same does not call for interference by this Court.

12. Further, it was contended by the counsel for the respondent-Insurance Company that the compensation awarded under different heads referred to supra towards non pecuniary damages is not based on proper appreciation of facts and legal evidence on record particularly in the absence of evidence to prove the fact that she is an income tax assessee since no proof is produced in this regard before the Tribunal to prove her annual income based on which her future loss of income could be determined. Therefore, he submits that the appellant is not entitled for the reliefs as prayed for in these appeals. Hence, he submits that these are not fit cases to interfere with the impugned judgments, award or the order of the High Court and the appellant is not entitled to enhancement of compensation as claimed by her in her appeal. Hence, he has prayed for the dismissal of the appeals filed by the appellant. With reference to the above rival factual and legal contentions, the following points would arise for consideration:

(i) Whether the impugned judgment, order and award passed in MACA 580 and 846/ 2007 and Misc. Case No 386/2011 in MACA 580 is legal and valid? (ii) Whether the Tribunal is justified in awarding Rs.17 lakhs and odd towards pecuniary damages in favour of the appellant namely, medical charges, medicine expenses and other expenses on the basis of the documentary evidence on record? (iii) Whether the appellant is entitled to enhanced compensation under the different heads of non pecuniary damages? (iv) If so, to what compensation and for what award the appellant is entitled to?

13. Point Nos. (i) and (ii) are answered together as they are interrelated with each other, by assigning the following reasons:

The High Court has gravely erred both on facts and in law in interfering with the impugned judgment and award of the Tribunal in reducing the pecuniary damages awarded towards medical expenses incurred by the appellant herein from Rs.17,51,726/- to Rs.7,77,000/- solely on the ground that there is no documentary evidence in relation to the amount spent towards medical expenses which is awarded by the Tribunal. This assumption by the learned Judge of High Court is factually not correct. As could be seen from the record, there are large number of medical bills and vouchers produced by the appellant for having spent the money towards the surgeries conducted upon her and payment made to the various Hospitals and Nursing Homes namely, V.S.S. Medical Hospital, Burla, Kalinga Hospital, Bhubaneshwar, Nursing Home, Cuttack along with purchase of medicines for the aforesaid period which run to Rs.17,51,726/-. The above said factual aspects are stated in unequivocal terms in her statement of evidence, and she has also referred to the documents such as bills, receipts and vouchers obtained by her from various medical stores on the basis of the prescriptions of the doctors who have treated her. Some of the documents were marked in the evidence of PW-3 - the appellant herein and she had spoken about the expenses incurred towards her treatment and purchase of medicines. In relation to some other documents, the learned counsel for the Insurance Company has objected for making them exhibits without raising tenable objections. The learned member of the Tribunal neither upheld nor rejected the objection raised by the counsel on behalf of the respondent Insurance Company at the time of marking documents through the appellant in her evidence. Nonetheless, the learned member of the Tribunal has taken those documents into consideration and has awarded compensation under pecuniary damages having regard to the clinching evidence on record that the surgeries were conducted and treatment was taken by her in various hospitals and Nursing Homes for a period of four years. The correctness of the said claim is examined by us with reference to the documents in Ann.

P-7 produced in this case, in which date-wise particulars with regard to the name of the Institutions and Medical Stores, the expenses incurred and bill numbers, payment made for the purpose of conducting blood tests, purchase of medicines, purchase of blood from the blood bank and cost of surgeries spent by the appellant are given. The Tribunal, in the absence of rebuttal evidence and the nature of cross examination of the appellant- PW3 made by the learned counsel on behalf of the Insurance Company and the evidence adduced by the appellant herein and the claim made by her under the pecuniary damages towards the medical expenses, tests, surgeries etc.

and other incidental purposes, has accepted and has rightly awarded a sum of Rs. 17,51,726/- under the heading of medical expenses. The same has been arbitrarily and unreasonably, without assigning any cogent and valid reason, interfered with by the High Court and it has erroneously modified the judgment by reducing the amount from Rs. 17,51,726/- to Rs. 7,77,000/-.

This has been very lightly interfered with by the learned Judge of the High Court without application of mind and consideration of legal evidence on record particularly in the absence of rebuttal evidence and further, the Insurance Company was unable to show that the documents referred to supra produced by the appellant in her evidence are fabricated documents, which have been produced with deliberate intention to prefer a false claim in this regard as contended by the learned counsel on behalf of the Insurance Company. We have carefully examined the evidence on record and the findings of the Tribunal to examine as to whether the findings recorded by the High Court in the impugned judgment for reduction of pecuniary damages from Rs.17,51,726/- to Rs.7,77,000/- is correct. On careful perusal of the evidence and documents produced by the appellant we have to hold that the finding and reason recorded by the High Court is wholly erroneous in law as the same is contrary to the facts pleaded and proved by producing evidence on record. Therefore, the same requires to be interfered with by this Court in these appeals. Accordingly, point Nos. (i) and (ii) are answered in the affirmative in favour of the appellant. The finding and reason recorded by the High Court in not awarding just and reasonable compensation under the various heads of non pecuniary damages for which she is legally entitled to on the basis of proven facts, legal evidence on record and law laid down by this Court, is not only erroneous but also suffers from error in law. On this aspect, separate reasons are assigned while answering point Nos. (iii) & (iv).

14. Point No.(iii) is also required to be answered in favour of the appellant. We are of the view that the appellant is substantially entitled to enhancement of compensation under various heads of non-pecuniary damages having regard to the concurrent findings recorded on this aspect of the matter by the High Court. Both the Tribunal and the High Court have accepted the nature of injuries sustained by her and the percentage of permanent partial disablement suffered by her due to the Motor Vehicle Accident as per the Disability Certificate No.943 dated 24.2.2006 issued by the Chief Medical Officer of the District Medical Board of Sambalpur. This aspect of the matter is very relevant for the purpose of examining the claim of the appellant and also to find out as to whether the Tribunal and the High Court were justified in not awarding just and reasonable compensation in favour of the appellant under the various heads of non- pecuniary damages. This Court is required to keep in mind justice, equity and good conscience which must be the primary, relevant and important aspects for awarding just and reasonable compensation to an unfortunate victim, the appellant herein who has sustained grievous injuries to her body and whose future prospects are completely doomed. Further, the Tribunal and courts while awarding compensation for bodily injuries, must realise that the possession of one’s own body is the first and most valuable of all human rights and that all other possessions and ownership are the extensions of the basic right. Bodily injuries should be equated with the deprivation which entitles a claimant to damages and the amount of damages varies in accordance with the gravity of injuries. In this regard, it is worthwhile to refer to certain paragraphs which have been referred to by the Karnataka High Court in the case of K. Narasimha Murthy vs. The Manager, Oriental Insurance Company Limited and Anr.[1], wherein the Division Bench of the Karnataka High Court has considered the relevant important aspects from the judgment of this Court and the House of Lords and different learned scholars and authors of books on awarding pecuniary and non pecuniary damages. The abovementioned decision states about the approach of the Motor Accidents Claim Tribunals and Courts for awarding just and reasonable compensation in favour of the claimants in relation to the bodily injuries suffered by them. It is worthwhile to extract Paragraph 16 from K. Narasimha Murthy case (supra), which reads as under:

“16. The Courts and Tribunals, in bodily injury cases, while assessing compensation, should take into account all relevant circumstances, evidence, legal principles governing quantification of compensation.

Further, they have to approach the issue of awarding compensation on the larger perspectives of justice, equity and good conscience and eschew technicalities in the decision-making. There should be realisation on the part of the Tribunals and Courts that the possession of one's own body is the first and most valuable of all human rights, and that all possessions and ownership are extensions of this primary right, while awarding compensation for bodily injuries.

Bodily injury is to be treated as a deprivation which entitles a claimant to damages. The amount of damages varies according to gravity of injuries.”

15. In R.D. Hattangadi v. Pest Control (India) Private Limited and Ors.[2], speaking about the heads of compensation, this Court has held thus:

"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 damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is 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 profit upto 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 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 life."

16. Further, on this point, Justice Viscount Dunedin in Admiralty Comrs v. S.S. Valeria[3], has observed thus:

"The true method of expression, I think, is that in calculating damages you are to consider what is the pecuniary consideration which will make good to the sufferer, as far as money can do so, the loss which he has suffered as the natural result of the wrong done to him".

17. Further, Lord Blackburn in Livingstone v. Rawyards Coal Company[4], has held as under:

"Where any injury is to be compensated by damages, in settling the sum of money to be given. . . . you should as nearly as possible get at that sum of money which will put the person who has been injured. . .

. in the same position as he would have been in if he had not sustained the wrong."

18. Lord Morris in his memorable speech in H. West and Sons, pointed out this aspect in the following words:

"Money may be awarded so that something tangible may be procured to replace of like nature which has been destroyed or lost. But, the money cannot renew a physical frame that has been battered and shattered. All the Judges and Courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common assent awards must be reasonable and must be assessed with moderation. Further, more it is eminently desirable that so far as possible comparative injuries should be compensated by comparable awards."

19. In Ward v. James[5], speaking for the Court of Appeal in England, Lord Denning laid down three basic principles while dealing with the question of awarding compensation for personal injury:

"Firstly, assessability: In cases of grave injury, where the body is wrecked or brain destroyed, it is very difficult to assess a fair compensation in money, so difficult that the award must basically be a conventional figure, derived from experience or from awards in comparable cases. Secondly, uniformity: There should be some measure of uniformity in awards so that similar decisions may be given in similar cases, otherwise, there will be great dissatisfaction in the community and much criticism of the administration of justice.

Thirdly, predictability: Parties should be able to predict with some measure of accuracy the sum which is likely to be awarded in a particular case, for by this means cases can be settled peaceably and not brought to Court, a thing very much to the public good.

In deciding on the quantum of damages to be paid to a person for the personal injury suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries, as far as money can do, the loss which he has suffered as. a natural consequence of the wrong done to him.” 20. Further, a Division Bench of Karnataka High Court in Basavaraj v.

Shekar[6], has held as under:

"If the original position cannot be restored - as indeed in personal injury or fatal accident cases it cannot obviously be - the law must endeavour to give a fair equivalent in money, so far as money can be an equivalent and so 'make good' the damage.

Therefore, the general principle which should govern the assessment of damages in personal injury cases is that the Court should award to injured person such a sum of money as will put him in the same position as he would have been in if he had not sustained the injuries. But, it is manifest that no award of money can possibly compensate an injured man and renew a shattered human frame.” (Emphasis laid by the Court) 21. Lord Morris of Borth-y-Gest in Parry v. Cleaver[7], has said:

"To compensate in money for pain and for physical consequences is invariably difficult but. . . no other process can be devised than that of making a monetary assessment".

(Emphasis laid by the Court)

22. The necessity that the damages should be full and adequate was stressed by the Court of Queen's Bench in Fair v. London and North Western Railway Company[8]. In Rushton v. National Coal Board[9], Singleton L.J.

has said that:

“When damages have to be assessed in a case of this kind there are many elements for consideration: the pain and suffering undergone and that which may occur in the future; the loss of some of the amenities of life; the fact that a man with an injury of this kind will always require some measure of help, even though he may be able to earn considerable money. These are some of the matters which have to be taken into consideration, and another is the fact that his earnings will probably be less than they were before.” (Emphasis laid by the Court) 23. In Fowler v. Grace[10], Edmund Davies, L.J., has said that :

“It is the manifest duty of the Tribunal to give as perfect a sum as was within its power'. There are many losses which cannot easily be expressed in terms of money. If a person, in an accident, loses his sight, hearing or smelling faculty or a limb, value of such deprivation cannot be assessed in terms of market value because there is no market value for the personal asset which has been lost in the accident, and there is no easy way of expressing its equivalent in terms of money. Nevertheless a valuation in terms of money must be made, because, otherwise, the law would be sterile and not able to give any remedy at all. Although accuracy and certainty were frequently unobtainable, a fair assessment must be made. Although undoubtedly there are difficulties and uncertainties in assessing damages in personal injury cases, that fact should not preclude an assessment as best as can, in the circumstances be made.” (Emphasis laid by the Court)

24. In re the Mediana[11], the plaintiffs were deprived of the use of their own lightship, but sustained no pecuniary loss as another lightship was kept in reserve. Yet, it was held that the plaintiffs were entitled to substantial damages for the loss of the use of their ship for a period, and Lord Halsbury L.C. answered the objection that assessment was too uncertain by observing that:

"Of course the whole region of inquiry into damages is one of extreme difficulty. You very often cannot even lay down any principle upon which you can give damages; nevertheless, it is remitted to the jury, or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take the most familiar and ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident ... But, nevertheless, the law recognises that as a topic upon which damages may be given.

In personal injury cases, the Court is constantly required to form an estimate of chances and risks which cannot be determined with precision. It is because, the law will disregard possibilities which are slight or chances which are nebulous; otherwise, all the circumstances of the situation must be taken into account, whether they relate to the future which the plaintiff would have enjoyed if the accident had not happened, or to the future of his injuries and his earning power after the accident. Damages are compensation for an injury or loss, that is to say, the full equivalent of money so far as the nature of money admits; and difficulty or uncertainty does not prevent an assessment.” (Emphasis laid by the Court)

25. It is well-settled principle that in granting compensation for personal injury, the injured has to be compensated (1) for pain and suffering; (2) for loss of amenities; (3) shortened expectation of life, if any; (4) loss of earnings or loss of earning capacity or in some cases for both; and (5) medical treatment and other special damages. In personal injury cases the two main elements are the personal loss and pecuniary loss. Chief Justice Cockburn in Fair's case, supra, distinguished the above two aspects thus:

"In assessing the compensation the jury should take into account two things, first, the pecuniary loss the plaintiff sustains by the accident : secondly, the injury he sustains in his person, or his physical capacity of enjoying life. When they come to the consideration of the pecuniary loss they have to take into account not only his present loss, but his incapacity to earn a future improved income".

26. McGregor on Damages (14th Edition) at paragraph no. 1157, referring to the heads of damages in personal injury actions, states as under:

"The person physically injured may recover both for his pecuniary losses and his non-pecuniary losses. Of these the pecuniary losses themselves comprise two separate items, viz., the loss of earnings and other gains which the plaintiff would have made had he not been injured and the medical and other expenses to which he is put as a result of the injury, and the Courts have sub-divided the non- pecuniary losses into three categories, viz., pain and suffering, loss of amenities of life and loss of expectation of life".

Besides, the Court is well-advised to remember that the measures of damages in all these cases 'should be such as to enable even a tort feasor to say that he had amply atoned for his misadventure'. The observation of Lord Devlin that the proper approach to the problem or to adopt a test as to what contemporary society would deem to be a fair sum, such as would allow the wrongdoer to 'hold up his head among his neighbours and say with their approval that he has done the fair thing', is quite apposite to be kept in mind by the Court in assessing compensation in personal injury cases.” (Emphasis laid by the Court)

27. In R. Venkatesh v. P. Saravanan & Ors.[12], the High Court of Karnataka while dealing with a personal injury case wherein the claimant sustained certain crushing injuries due to which his left lower limb was amputated, held that in terms of functional disability, the disability sustained by the claimant is total and 100% though only the claimant's left lower limb was amputated. In paragraph 9 of the judgment, the Court held as under:

"9. As a result of the amputation, the claimant had been rendered a cripple. He requires the help of crutches even for walking. He has become unfit for any kind of manual work. As he was earlier a loader doing manual work, the amputation of his left leg below knee, has rendered him unfit for any kind of manual work. He has no education.

In such cases, it is well-settled that the economic and functional disability will have to be treated as total, even though the physical disability is not 100 per cent".

28. Lord Reid in Baker v. Willoughby[13], has said:

"A man is not compensated for the physical injury; he is compensated for the loss which he suffers as a result of that injury.

His loss is not in having a stiff leg; it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned…. ."

29. The aforesaid principles laid down by this Court, Appeal Cases, House of Lords and leading authors and experts referred to supra, whose opinions have been extracted above, with all fours, are applicable to the fact situation for awarding just and reasonable compensation in favour of the appellant as she had sustained grievous injuries on her face and other parts of the body which is assessed at 30% permanent disablement by competent doctors.

30. The finding of fact is recorded by the Tribunal on the question of the accident caused on account of rash and negligent driving on the part of offending truck driver on 17.8.2001, the date of the accident on account of which the appellant herein has sustained grievous injuries and has undergone trauma and mental agony for over a period of four years. She had also gone through a number of surgeries on account of this accident in which her face has been disfigured. With regard to the nature of injuries sustained by her, the District Medical Board of Sambalpur, represented by the Chief Medical Officer has issued disability certificate certifying that the appellant has suffered disability to the extent of 30%. The finding recorded by the Tribunal on this important aspect of the case on the basis of legal evidence is not challenged either by the owner of the truck or by the Insurance Company and it could not have challenged the finding without obtaining the permission as required under Section 170(b) of the Motor Vehicles Act to avail the defence of the insured to contest the case as has been held by a three judge bench of this Court in the case of National Insurance Co. Ltd. vs. Nicolletta Rohtagi & Ors.[14] The relevant paragraphs read as under:

“15. It is relevant to note that Parliament, while enacting sub-section (2) of Section 149 only specified some of the defences which are based on conditions of the policy and, therefore, any other breach of conditions of the policy by the insured which does not find place in sub-section (2) of Section 149 cannot be taken as a defence by the insurer. If Parliament had intended to include the breach of other conditions of the policy as a defence, it could have easily provided any breach of conditions of insurance policy in sub-section (2) of Section 149. If we permit the insurer to take any other defence other than those specified in sub-section (2) of Section 149, it would mean we are adding more defences to the insurer in the statute which is neither found in the Act nor was intended to be included.

16. For the aforesaid reasons, we are of the view that the statutory defences which are available to the insurer to contest a claim are confined to what are provided in sub-section (2) of Section 149 of the 1988 Act and not more and for that reason if an insurer is to file an appeal, the challenge in the appeal would confine to only those grounds.” The said finding of fact has attained the finality and the compensation has been awarded by the Tribunal and affirmed by the High Court. The only aspect which was required to be examined by the High Court in the appeals filed both by the respondent Insurance Company as well as by the appellant was that the quantum of compensation required to be awarded in her favour under the different heads of non-pecuniary damages as per the principles laid down by this Court, House of Lords, Queens Bench and Authors in various judgments and extracts from various texts and books respectively, referred to supra.

31. Both the Tribunal as well as the High Court have gravely erred both on facts and in law in not evaluating the legal evidence on record to award just and reasonable compensation in favour of the appellant keeping in view the fact that the appellant was a good actress, model and has acted in many films, albums, T.V. serials etc. This evidence is not challenged though the appellant was cross examined by the counsel for the respondent Insurance Company extensively without obtaining the permission from the Tribunal as required under Section 170(b) to contest in the proceeding. In the absence of such permission, the Insurance Company has got limited defence as provided under section 149(2) of the Motor Vehicles Act, which provides for the conditions which determines breach of the terms and conditions of the insurance policy. The Tribunal did not apply the legal principles laid down by this Court to award just and reasonable compensation by following various guiding factors and legal principles under the heading of future loss of earnings. It has also not awarded compensation under the following heads namely (1)damages for mental and physical shock, pain and suffering already undergone by the appellant or she is likely to undergo in future, (2) damages for loss of amenities of life on account of injury due to which the appellant is unable to act in the films and (3) damages for the loss of expectations of life, inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. The said principles have been recognized by this Court time and again in catena of cases reference to which are not required to be mentioned again as we have referred to the same in the preceeding paragraphs of this judgment.

32. Since under the head of non pecuniary damages the Tribunal did not award reasonable compensation, the appellant has rightly approached the High Court by filing MACA No.846 of 2007. The said appeal was heard along with MACA No. 580 of 2007 filed by the respondent Insurance Company which has affirmed the compensation awarded under the non-pecuniary damages by the Tribunal in the impugned judgment passed in the said appeal for enhancement of compensation under the aforesaid heads. Without considering the legal grounds urged in the appeal filed by the appellant, it has simply dismissed the appeal of the appellant for the reasons recorded in the judgment passed in the appeal of the Insurance Company. The dismissal of the appeal of the appellant in view of the order passed in MACA No.580 of 2007 without assigning any reason whatsoever for enhancement of compensation is arbitrary and unreasonable. Therefore, the appellant is justified in challenging the said order in these appeals. It is in the evidence of the appellant that at the time of accident her age was 24 years, which is not disputed by the respondents.

33. It is also in her evidence that she was an actress who acted in T.V.

serial titled ‘Swara Sudha’, which was an album directed by Harish Mohanty.

She also acted in the motion picture in Oriya titled ‘Ma Pari Kiye Haba’.

She was the lead actress in this picture. By Cane Critics Award Organisation, she was adjudged as the ‘Best Actress’ and the ‘Best New Comer Artist’ in that film and she also performed in the lead role in the Oriya Feature Film ‘Dharma Debata’ directed by Bijaya Bhaskar Reddy. She also acted in Malayalam Feature film named ‘Paith Thingel Kalam’ as heroine, which was directed by Jaya Krishna. She has further stated in her evidence that she has signed for the feature film in Oriya ‘Pua Bada Jagata Jita’ and another feature film in Oriya ‘Pua Bhangidela Suna Sanbar’. But she could not act in those films due to the accident. Further she has stated that she was in the lead role in the two completed T.V. serials ‘Atrupta Atma’ and ‘Akhabuluthile Chakabuluthaa’. She was an artist in the Oriya Albums ‘Jhankar’ and ‘Mahake Rajni Gandha’. She had also signed Hindi T.V. Serial ‘Silla Padma’ by Dr. Pravita Roy as heroine but could not perform in the serial due to the accident. She has acted in advertisement films for products like Coca Cola, Saree and Saree house etc. She had also performed in Oriya Cassette namely ‘Mu Kendrapada Jhia’ which was an audiocassette.

34. Further, she has stated in her evidence that at the time of accident she had completed her graduation in Commerce from G.M. College, Sambalpur and she was pursuing her studies for her post graduate degree in that College. Prior to her admission to P.G. Class, she had done P.G. Diploma course in Hotel Management from the Institute of Hotel Management and Catering Technology, Bhubaneswar. She has further stated that while pursuing her studies she was performing in the films referred to supra.

She has further stated that after the accident, her physical fitness, physical appearance and her zeal to perform in films have been reduced to zero. The vital statistics required of her for modeling has also become disproportionate after the accident. She has categorically stated that she became permanently handicapped and disabled. She has also stated that prior to the accident she was lean and thin. But due to continued treatment after accident, she gained 4 to 5 k.gs. The aforesaid positive and substantive legal evidence remained unshaken in the cross examination of the appellant – PW-3 by the counsel of the respondent Insurance Company, though he was not entitled to cross examine all these aspects since the Company did not obtain the permission from the Tribunal. Nonetheless, permission was granted by the Tribunal to cross examine the appellant-PW3. Despite her cross examination by the counsel, the aforesaid important facts could not be shaken and the same remained unchallenged and undisturbed.

35. The registered owner of the car in which she was traveling belonged to her mother. The truck dashed against her car at the driver’s seat which was occupied by the appellant. The Tribunal has not accepted the case of the Insurance Company that the appellant was driving the car negligently.

36. In the cross examination of the appellant – PW-3 except eliciting answer that there is no written contract for playing the role of modeling for the Ponds Products for 3 years so also for acting in Albums, T.V.

serials or films, the fact remained that even in the absence of written contracts, the fact that she has been acting as an actress in the aforesaid films is proved since the said portion of the evidence remained unchallenged. The case pleaded by the appellant that she has been acting in films, T.V. serials, modeling and participating in the award competition is established by pleadings and evidence on record. There is no rebuttal evidence adduced in this regard by either the insured or by the Insurance Company.

37. The finding of fact recorded by the Tribunal stating that she has been acting as an actress has been re-affirmed by the High Court by affirming the award of compensation under the various heads of non- pecuniary damages. Despite the cogent and substantive evidence adduced on record by the appellant before the Tribunal, neither has it awarded just and reasonable compensation nor the High Court has enhanced the same in exercise of its appellate jurisdiction by re-appreciating the pleadings and evidence on record.

38. For a film actress, the physical appearance particularly the facial features are very important to act in the films and in T.V. serials. It is in her evidence that on account of the accident her face was disfigured, she has put on weight and has become fat and therefore she is unable to perform the role as an actress in films in future. Having regard to the nature of vocation she has been carrying on and wishes to carry on with in future, the opportunity is lost on account of the disfigurement of her face, to act in the films as an actress either as a heroine or actress in supporting role or any other role to be played in T.V. serials, albums and also as a model. It is in the evidence of the appellant that as per the District Medical Board of Sambalpur, her permanent disability is 30%.

Having regard to the nature of injuries and observations made by this Court and Karnataka High Court in the cases referred to supra, we have to record a finding of fact that the appellant’s permanent disability should be treated as 100% functional disablement as she cannot act in the films and in T.V. serials in future at all. Therefore, on account of the aforesaid reasons, she has suffered functional disability. In this regard, it is relevant to refer to the judgment of this Court in the case of National Insurance Company Ltd. V. Mubasir Ahmed[15]. This Court has held that loss of earning capacity is not a substitute for percentage of physical disablement. It is simply one of the factors taken into account to award just and reasonable compensation. Even though the claimant does not suffer from 100% physical permanent disability, he suffers from 100% functional disability if he loses the capacity to pursue his work as a result of the accident. It is worthwhile to extract paragraph no. 8 from the aforesaid judgment which reads as under:

“8. Loss of earning capacity is, therefore, not a substitute for percentage of the physical disablement. It is one of the factors taken into account. In the instant case the doctor who examined the claimant also noted about the functional disablement. In other words, the doctor had taken note of the relevant factors relating to loss of earning capacity. Without indicating any reason or basis the High Court held that there was 100% loss of earning capacity.”

39. In Palraj v. North East Karnataka Road Transport Corpn.[16], where the appellant was a driver, this Court held that although the appellant has lost the use of his legs, the same amounts to total disablement as far as driving a vehicle is concerned.

40. In Nizam’s Institute of Medical Sciences v. Prasanath S. Dhananka[17], this Court has observed as under:

“88. 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 concerned.

……. …. …..

90. At the same time we often find that a person injured in an accident leaves his family in greater distress vis-à-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)

91. We can also visualise the anxiety of the complainant and his parents for the future after the latter, as must all of us, inevitably fade away. We, have, therefore computed the compensation keeping in mind that his brilliant career has been cut short and there is, as of now, no possibility of improvement in his condition, the compensation will ensure a steady and reasonable income to him for a time when he is unable to earn for himself.”

41. In this regard, in Baker’s case supra, it has been stated by Lord Reid that a man is not compensated for the physical injury; he is compensated for the loss which he suffers as a result of that injury.

Therefore, the functional disability is a forceful alteration of career option of the appellant who has already undergone physical and mental injuries because of the accident. It would amount to adding distress to injury if one is forced to work with difficulty to earn his/her livelihood so as to reduce the burden of the wrongdoer in terms of compensation.

42. In view of the aforesaid decisions of this Court and various courts and High Court of Karnataka and authors referred to supra, we have to record the finding of fact having regard to the nature of grievous injuries and her disfigured face and that she was acting as an actress in the films, T.V. serials, etc. her functional disablement is 100%. This relevant aspect of the matter has been conveniently omitted to be considered both by the Tribunal as well as by the High Court while determining compensation under various heads of non-pecuniary damages. For the foregoing reasons, we are of the view that under the different heads of non-pecuniary damages she is entitled to higher compensation in her appeal. For that purpose, we are required to consider her annual income for the purpose of computation of just and reasonable compensation under the aforesaid different heads of non-pecuniary damages. It is in her evidence that her income depends upon the project. She got 30,000/- for her first film “Maa Pari Kiye Haba” and Rs.75,000/- for Malayalam film ‘Paith Digem Alam’. For her performance in a serial, she used to get within Rs.7000/- to 10,000/-. She had received Rs.50,000/- for winning the “Ponds Women of Tomorrow” Contest. The said evidence remains unchallenged in the cross examination by the counsel for the respondent Insurance Company. Having regard to her age and qualification and that she was acting in various Oriya and Malayalam films, T.V. serials and that she was in the beginning stage of her acting career and having regard to the fact that she has acted in various films, she would have definitely had a very good chance for acting in future if she had not suffered the grievous injuries, facial disfigurement and other injuries on account of the accident. She has also stated in her evidence that she is an assessee for income tax. She has got PAN card and has produced the same. Having regard to the aforesaid legal evidence on record and in the absence of documentary evidence to show her probable annual income, it would be proper for this Court to take her probable annual income as Rs.5,00,000/- for the purpose of computation of her future loss of earning. We have already held that though the disability certificate speaks of her disability at 30% on account of disfigurement of the face and other injuries to her body, her physical fitness is completely changed, she has put on weight 4 to 5 kgs., she is not fit to act and no film producer will offer her roles in their films to act as an actress. Having regard to the nature of the vocation, we have to hold that she is suffering from 100% functional disability. In the light of the facts of this case and keeping in view the aforesaid evidence on record that she is a film actress and also taking into consideration that in the film world of this country the heroine will certainly get the substantial sum for acting in films, T.V.

serials, modeling, it would be just and proper for us to take 50% of her annual income for the purpose of computation of her future loss of income keeping in view that throughout her life she may not be in a position to act in the films, albums and modeling. Her annual income is assessed at Rs.5,00,000/-. 50% of which is Rs.2,50,000/- per annum which is multiplied by 17 as the proper multiplier considering her age at the time of accident by applying the legal principle laid down by this Court in Sarla Verma &

Ors. v. Delhi Transport Corp. & Anr.[18], which amounts to Rs.42,50,000/-.

Hence, we award Rs.42,50,000/- compensation under the aforesaid head. The Tribunal awarded only Rs.2,00,000/- which is enhanced to Rs.42,50,000/- under the said head.

43. The Tribunal awarded compensation of Rs.2,00,000/- for the loss of amenities, pleasure of life and her inability to attend social functions in future, which is inadequate, therefore, it should be enhanced to Rs.10,00,000/-.

44. Towards the pain and suffering, the Tribunal awarded Rs.1,00,000/-. It should be proper to award another Rs.9,00,000/- as she has undergone ordeal for the period of 4 years continuously taking treatment in Odisha and Kerala States and the damages for mental and physical shock, pain and suffering, disfigurement of the face and other bodily injuries she already suffered continuously or likely to suffer.

45. The Tribunal awarded Rs.17,15,726/- towards the medical expenses based on the legal evidence and, therefore we affirm the compensation awarded by the Tribunal.

46. Thus, the total compensation amounting to Rs.79,65,726/- which is rounded of to Rs. 79,66,000/-along with interest at the rate of 6% per annum is awarded from the date of application till the date of deposit of the amount. The aforesaid enhancement of compensation under different heads referred to supra, in our considered view would be just and reasonable compensation in this case.

47. Before parting with the judgment, it would be just and necessary for this Court to make observation that the Motor Accidents Claims Tribunals and the Appellate Courts should keep in view the rights of the claimants under the provisions of the M.V. Act to determine the compensation claims of the claimants by considering the facts of each case and the legal position laid down by this Court on relevant aspects.

49. Accordingly, the appeals of the appellant are allowed in the above said terms. We set aside the impugned judgment, award and orders passed by the High Court. The respondent Insurance Company is directed to deposit 70% of the awarded compensation along with proportionate interest with any Nationalized Bank of the choice of the appellant in fixed deposit and the remaining 30% with proportionate interest, after deducting any amount if already paid by the respondent as awarded by the High Court should be disbursed to the appellant within six weeks on proper identification. There will be no order as to costs.

.......................................J.

[G.S. SINGHVI] 

......................................J.

[V. GOPALA GOWDA] New Delhi, August 1, 2013.

ITEM NO.1B COURT NO.2 SECTION XIA (For Judgment) S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS CIVIL APPEAL NO(s). 5370-5372 OF 2013 REKHA JAIN Appellant (s) VERSUS NATIOANL INSURANCE CO.LTD. & ORS. Respondent(s) Date: 01/08/2013 These Appeals were called on for Judgment today.

For Appellant(s) Mr. Sibo Sankar Mishra, Adv.

For Respondent(s) Ms. Shalu Sharma, Adv.

Hon’ble Mr.Justice V.Gopala Gowda pronounced the judgment of the Bench comprising Hon’ble Mr.Justice G.S.Singhvi and His Lordship.

The appeals are allowed in terms of the signed judgment.