Bombay High Court

The New India Assurance Co. Ltd vs Shweta Dilip Mehta And Ors on 14 December, 2009

Bench: S.A. Bobde, S. J. Kathawalla

                                        1

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION




                                                                          
                           FIRST APPEAL NO. 969 OF 2008
                                         WITH




                                                  
                          FIRST APPEAL NO. 1262 OF 2008.

     The New India Assurance Co. Ltd.                       ...Appellant




                                                 
                  Vs.

     Shweta Dilip Mehta and Ors.                            ...Respondents




                                      
               WITH

     Shweta Dilip Mehta
                         ig                                 ...Appellant

                  Vs.
                       
     Muralidhar Shankar Khare & Ors.                        ...Respondents.

                                        ....
      

     Mr. Sameer Tambekar, for Respondent Nos. 1 & 2 in F. A. 1262 of 2008.
     Mr. S. M. Dange, Responent No.3 in F. A. 1262 of 2008 & for Appellant,
   



     in F.A. No.969 of 2008.
     Mr. Tejpal S. Ingale for Respondent No.1 in F.A. 969 of 2008.
                                        ....





                          CORAM : S. A. BOBDE &
                                       S. J. KATHAWALLA, JJ.
                          RESERVED ON : 5TH DECEMBER 2009.
                          PRONOUNCED ON : 14TH DECEMBER 2009.





     JUDGMENT (Per S. A. Bobde, J.)

1. The present appeals arise from the order of the Motor Accidents

Claims Tribunal (hereinafter referred to as "the Tribunal") at Sangli,

in Petition No. 323/1993, decided on 16.8.2007. At the outset, we

must mention that the Learned Advocate for the Insurance Co.

(original Respondent No. 3 before the Tribunal; hereinafter referred to

as "respondent") has not pressed their appeal before us and has been

allowed to withdraw it. The facts in brief are that one Dilip Shah was

proceeding to Kohlapur along with his family and the family of his

close friend, Dilip Mehta, in a Maruti 800 car bearing Registration No.

MH-01-A/122. In all, 6 persons were travelling in the car. On

2.5.1993, at about 6-30 a.m., the car met with an accident near Itkari

Phata when a truck, bearing Registration No. MHF-6469, which was

travelling in the opposite direction, collided with it. As a result, the

driver, Mr. Dilip Shah, died instantaneously, while the other

passengers were severely injured. Ms. Shweta Dilip Mehta

(hereinafter referred to as the "appellant"), aged 11 years at the time,

was rendered paraplegic i.e. her entire body from waist - down is

paralysed since the day of the accident and doctors assess her

permanent disablement to an extent of 80 - 90 per cent.

2. It seems that initially the police in fact registered an offence against

the driver of the Maruti 800 for rash and negligent driving. The

Tribunal having examined the evidence on record found that the

accident occurred due to the sudden detachment of the two front

wheels along with the axle of the truck. Consequently, the truck driver

lost control and collided head - on with the Maruti 800. This

detachment of the front wheels occurred because the truck was old and

not properly maintained. We find from the evidence before us that the

Tribunal has come to a correct conclusion in this regard and the

accident did not occur due to any fault of the driver of the Maruti 800,

in which the girl was travelling, but occurred due to the negligent

maintenance of the truck. In any case, whether or not the truck driver

or owner was negligent has not been specifically contended before us

by the respondent.

3. The present appeals relate to the Tribunal's award of compensation,

u/s 166 of the Motor Vehicles Act, 1988, to the appellant by the

Tribunal, which was claimed against the respondent. The appellant

had initially filed a claim for Rs. 20 lakh in 1993, but amended the

plaint on 4.2.2006 to a claim of Rs. 91 lakh. The Tribunal, as per its

judgment dated 16.8.2007, awarded the appellant Rs. 21, 23, 848/-,

computed under various heads, for both pecuniary and non-pecuniary

losses, caused by the accident. The appellant submits that this award

was inadequate to meet all the expenses incurred and likely to be

incurred and presses her claim for Rs. 91 lakh before us. We must

mention here that an effort was made for settlement of the claim,

however, it failed and we hence proceed to calculate the quantum of

compensation which is to be awarded to the appellant.

4. The process of determining compensation by the Court is an

essentially practical task and can never be an exact science. Perfect

compensation is hardly possible, more so in claims of injury and

disability. As rightly pointed out in H. West & Sons Ltd. v.

Shepherd [(1958) ACJ 504 (H. L)]:

"...money cannot renew a physical frame that has been

battered."

However, making a monetary assessment of the injury suffered is the

only process devised to compensate the victim. The process of making

such an assessment, whether in case of death or injury, is provided in

section 168 of the Motor Vehicles Act, 1988, which requires that the

Tribunals constituted under the Act determine compensation, which

appears to be 'just.' Thus the Act vests a wide discretion upon the

Tribunals. The decision of the Hon'ble Apex Court, in Divisional

Controller, KSRTC v. Mahadeva Shetty [2003 ACJ 1775 (SC)]

needs mention here:

"It has to be borne in mind that compensation for life and

limb can hardly be weighed in golden scales...The quantum

of damages fixed should be in accordance with the injury.

An injury may bring about many consequences like loss of

earning capacity, loss of mental pleasure and many such

consequential losses. A person becomes entitled to damages

for the mental and physical loss, his or her life may have

been shortened or that he or she cannot enjoy life which has

been curtailed because of physical handicap. The normal

expectation of life is impaired....

...Every method or mode adopted for assessing

compensation has to be considered in the background of

'just' compensation, which is the pivotal consideration.

Though by the use of the expression, 'which appears to be

just', a wide discretion is vested on the tribunal, the

determination has to be rational, to be done with a judicious

approach, and not the outcome of whims, wild guesses, and

arbitrariness." (para 15)

5. The Hon'ble Apex Court in R. D. Hattangadi v. Pest Control

(India) Pvt. Ltd. [1995 ACJ 366 (SC)] posited certain principles to

be followed:

"While fixing the amount of compensation payable to a victim

of an accident, the damages have to be assessed separately as

pecuniary and special damages. Pecuniary damages are those

which the victim has actually incurred and which are capable

of being calculated in terms of money; whereas non pecuniary

damages are those which are incapable of being assessed by

arithmetical calculations. In order to appreciate the two

concepts, pecuniary damages may include expenses incurred

by the claimant: (i) medical attendance; (ii) loss of earning;

(iii) other material loss. So far as non-pecuniary damages are

concerned, they may include (i) damage for mental and

physical shock, pain and suffering already suffered or likely to

be suffered in the 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."

6. With these broad principles in mind, we proceed to examine the

appellant's claim for enhancement of the compensation awarded to her

by the Tribunal. The Tribunal's award is split up as follows:

               Expense                                              Amount (Rs.)





     1] Amount spent by claimant till date of Tribunal award            1, 23, 848/-

     2] Towards physical pains and mental shock                         2, 00, 000/-

     3] Towards loss of amenities of life                               1, 00, 000/-

     4] Towards inevitable expenses                                     10, 00, 000/-

     5] Towards loss of future income                                   7, 00, 000/-






                    TOTAL                                               21, 23, 848/-

The Tribunal also awarded different rates of interest which is as

follows:

(i) 12% p. a. from filing of the petition till 31.12.2002.

(ii) 7.5% p. a. from 1.1.2003 to 31.12.2006.

(iii) 10% p. a. from 1.1.2007 till realization of the amount.

We proceed to deal with the amount awarded under each head and

examine whether the amount thereby awarded is 'just' as hereunder:

1] The amount already spent by claimant till date of Tribunal

award

7. The Tribunal in paragraph 25 of its order has provided the split up of

the amount of Rs. 1, 23, 848/- awarded to the claimant. The Learned

Tribunal arrived at this amount based on the receipts of medical and

other inevitable expenses, incurred by the claimant, until the date of its

award. We find that the Learned Tribunal has arrived at this figure in a

proper and reasoned manner, based on evidence. The amount awarded

under this head does not call for any interference.

2] Towards Physical Pains and Mental Shock

8. The Learned Advocate for the Appellant has contended before us that

the Learned Tribunal erred in awarding Rs. 2 lakh as compensation

under this head. He contends that the Learned Tribunal ought to have

awarded compensation separately towards 'physical pains' and

'mental shock and suffering' i.e. these ought to be treated as separate

heads for compensation. He further submits that the appellant ought to

be awarded Rs. 5 lakh under each of these heads.

9. The Learned Tribunal based its decision to award the compensation

under the single head of 'physical pains and mental shock' based on

the reasoning that 'physical pains is inclusive of mental shock.'

Though it is difficult to accept the statement that 'physical pains is

inclusive of mental shock', we agree that the compensation for both

should be considered under the same head. We recall Lord Denning's

observations in Ward v. James [(1965) 1 All E. R. 563] where he

states that the process of determining compensation must be such that

the awards are both 'assessable' and 'uniform.' 'Assessable' means

that the awards are conventional figures based on experience or

comparable cases. On the other hand, 'uniform' refers to similar

awards in similar cases and circumstances. We find that similar cases

have treated 'physical pain' and 'mental shock' as a single head for

awarding compensation. In R. D. Hattangadi's case [supra], the

Hon'ble Apex Court granted Rs. 1,50, 000/- to a 52 year old advocate,

who was rendered paraplegic by a motor accident, under the single

head of 'pains and sufferings.' Again in Mahadeva Shetty's case

[supra], the claimant was an unmarried mason, rendered paraplegic by

a motor accident, and the Hon'ble Apex Court granted Rs. 1, 00, 000/-

under the single head of 'mental agony, pain and suffering.' We also

note that the Second Schedule of the Motor Vehicles Act, 1988, in

paragraph 4 (i), which deals with General Damages to be awarded in

case of injuries and disabilities, refers to 'pain and sufferings' as a

single head of General Damages. We may also use the the Second

Schedule as a guideline, even while awarding compensation u/s 166 of

the Act, as per the decision in S. Kaushanuma Begum v. New India

Assurance Co. Ltd. [AIR 2001 SC 485]. We hence find no merit in

the contention of the Appellant that 'physical pain' and 'mental shock'

ought to be treated as separate heads for compensation.

10. As regards enhancement of the amount of Rs. 2, 00, 000/- awarded

under this head, two important points from the above mentioned cases

emerge, which ought to be followed in determining compensation. In

Mahadeva Shetty's case [supra]:

"A person not only suffers injuries on account of the

accident, but also suffers in mind and body on account of the

accident throughout his life and a feeling is developed that

he is no more a normal man and cannot enjoy the amenities

of life as a normal person can." (Para 18)

In R. D. Hattangadi's case [supra], the Hon'ble Apex Court laid down

that:

"when compensation is to be awarded for pain and

sufferings and loss of amenities of life, the special

circumstances of the claimant have to be taken into account

including his age, the unusual deprivation he has suffered

and the effect thereof on his future life."

11. In the present case, the Appellant was only 11 years old at the time of

the accident. It needs no mention that on account of the accident, the

Appellant has lost out on several pleasures of her childhood and

adolescence, including the ability to move, run and play freely, as other

children do. She was a bright and promising student, yet her condition

may now be an impediment to not only her success, but also everyday

ordinary living. Added to this are the physical and mental suffering

caused by her medical condition itself, its treatment and the knowledge

that she will never be able to lead a normal life. Even looking after

personal hygiene has become difficult for her, as the evidence shows.

There is also the loss of expectation of life i.e. the normal lifespan of the

person being shortened due to the injury, which causes disappointment

and stress. We also bear in mind that if her life expectancy is now 55

years, she must endure this inconvenience, disappointment and suffering

for as much as 28 years from now. Keeping in mind the awards under this

head to the claimants in the aforementioned cases by the Hon'ble Apex

Court, we find it proper to increase the compensation awarded 'towards

physical pains and mental shock', to the appellant to Rs. 4, 00, 000/- due

to the special circumstances of the case.

3] Towards Loss of Amenities of Life

12. The Tribunal awarded Rs. 1, 00, 000/- under this head against the

claim of Rs. 5, 00, 000/- made by the appellant. The Learned Tribunal

referred to the aforementioned principle in R. D. Hattangadi's case

[supra], and felt this amount was proper considering these aspects. We

find that this amount is inadequate. This head must take into account all

aspects of a normal life that have been lost due to the injury caused. As

per R. D. Hattangadi's case [supra], this includes a variety of matters

such as the inability to walk, run or sit etc. We include here too the loss

of childhood pleasures such as the free ability to play, dance, run etc, the

loss of ability to freely move or travel without assistance. Then, there is

the virtual impossibility of marriage as well as a complete loss of the

ability to have sex and to have and nurture children. On this count alone,

in Mahadeva Shetty's case [supra], the Hon'ble Apex Court had

awarded Rs. 50, 000/- where the claimant was a bachelor. In the present

case, keeping in mind these factors, and the age and deprivation of the

appellant, we increase the sum awarded under this head to Rs. 3, 00,

000/-.

4] Towards Inevitable Expenses

13. The appellant claimed before the tribunal a sum of Rs. 17, 458/- at

minimum, as recurring inevitable expenses. This expenditure includes

the amounts required to be spent for attendants, charges for

physiotherapy, salary of a driver, expenditure towards petrol etc. The

Learned Tribunal examined the claim and found that there was some

element of exaggeration, such as a claim of Rs. 1500/- on a masseur

and another Rs. 3000/- as charges for the physiotherapist, which he felt

were repetitive. Having considered all the expenses, he concluded that

a sum of Rs. 10, 00, 000/- is to be given under this head, so that the

amount fetches Rs. 7000 - 8000 a month by way of interest. The

appellant contends that this sum is inadequate and ought to be at least

Rs. 25, 00, 000/- in order to give an interest of about Rs. 17, 000/- p.m.

14. Inevitable expenses is that burden of expenses, which the injured

person is required to incur including the need for nursing, constant

attendance, extra nourishment, medical expenses as well as any other

expense that may arise in the future. We bear in mind the caveat laid

down in Phillps v. Western Railway Co. [1874 4 Q. B. D. 406],

which is that this is the only occasion on which the claimant may be

awarded compensation, as he cannot sue again for it and hence a full

compensation must be given. It is hence important to account for all

expenses incurred and likely to be incurred and award reasonable sums

for each. It is also important to remember the decreasing money value.

[Nagappa v. Gurudayal Singh; (2003) 2 SCC 274] Lastly, the life

expectancy of the injured is to be kept in mind. We feel that life

expectancy of the victim in such a case can be reasonably assumed to

be at least 55 years, given the advancements in medical science etc.

The claimant's age on the date of the accident was 11 years, which

means that the remaining period of life expectancy from that date is 44

years i.e. 1993 - 2037.

15. Coming to the expenses, it is clear that the appellant will require an

attendant to assist her in her daily activities. However, we cannot

accept the submission of the Learned Advocate for the appellant, who

first stated that this requires an expenditure of Rs. 20, 000 p. m and

later in the Affidavit in rejoinder dated 3.12.2009 submitted that the

appellant has two attendants which results in monthly expenditure of

Rs. 8500/-. We feel that these are highly exaggerated figures. As stated

in R. D. Hattangadi's case [supra], the Court need not be

mathematical in calculating expenses on home attendants, but ought to

look at circumstances prevailing in society to decide the amount. We

feel that the average cost of keeping a home attendant would be about

Rs. 2500/- p. m. for the period of life expectancy. Accordingly, the

annual expense on an attendant works out to Rs. 30, 000/-. The

appellant's condition renders her unable to walk about and she would

require a car to get to even the nearest of places. The family would also

require employing a driver, as it cannot be expected reasonably that

some family member would always be present to drive the vehicle. It is

hence necessary to consider the expenses on the driver's salary and

petrol and other maintenance expenses. The average driver's salary for

this period is at the least Rs. 3000/- p. m. and the average petrol and

maintenance expenses as Rs. 2000/- p. m. Accordingly, this works out

annually to Rs. 36, 000/- for driver's salary and another Rs. 24, 000/-

annually for petrol and maintenance expenses.

16. Next, we must consider that the appellant requires physiotherapy. The

importance of physiotherapy for persons injured in road accidents has

already been stressed upon in R. D. Hattangadi's case [supra]. The

Learned Advocate for the appellant submits that the appellant requires

physiotherapy on every alternate day, which works out to Rs. 3000/- p.

m. We have seen the sums granted towards physiotherapy expenses in

other cases and also the bills of physiotherapy expenses already

undergone by the appellant. Accordingly, we think it reasonable to

consider Rs. 3000/- p.m. as the average expense per sitting throughout

the remaining period of physiotherapy. This works out to an annual

cost of Rs. 36, 000/-. The Learned Advocate for the appellant has

submitted that the family has not employed a nurse for the appellant

and hence we find no need to consider cost for nursing. We do accept

the Learned Advocates plea for considering recurring medical and

sanitary expenses. The decision in Nagappa's case [supra] may be

mentioned here:

"The Act does not provide for passing of further award after

the final award is passed. Therefore, in a case where injury

to a victim requires periodical medical expenses, fresh

award cannot be passed or previous award cannot be

reviewed when the medical expenses are incurred after

finalization of the compensation proceedings...It is not

improper to take into account expenditure genuinely and

reasonably required to be incurred for future medical

treatment. Future medical expenses required to be incurred

can be determined only on the basis of fair guesswork after

taking into account increase in the cost of medical

treatment."

It is clear that the condition of the appellant requires her to take

constant medication and also use sanitary pads, due to her inability to

use the toilet like a normal person. The learned advocate for the

appellant has also submitted several hospital bills of treatment already

undergone for ITB implantation, right leg fracture etc, upon being put

to strict proof of these claims by the respondent. We note that the cost

of the ITB implant refills required every 3 months itself is Rs. 2000/-.

The appellant has already, during the course of this appeal suffered a

fractured leg once and required an ITB pump to ease her discomfort by

loosening her paralysed legs. She has also had to purchase a wheelchair

for her movement. We refrain from going into the individual expenses

incurred on each of these items. However, we feel that at minimum, a

sum of Rs. 5000/- p. m. is required from hereon to account for

recurring medical and sanitary expenses of the appellant. Accordingly,

it works out to Rs. 60,000/- annually. We cannot accept the submission

of the respondent that the appellant's fathers cross - examination has

revealed certain mitigating circumstances which we must consider.

Neither can we accept the respondent's submission that there is a good

chance of recovery of the appellant. The learned advocate for the

respondent himself admitted that there has been no improvement in the

appellant's condition since the day of the accident in 1993 till the

present date. Her disability has been assessed as a permanent disability

of 80 - 90 per cent. We hence reject these submissions of the

respondent.

17. The annual inevitable expenses are hence summed up as:

          Expense                                                Amount (Rs.)




                                                                          
         1] Attendant                                            30, 000/-




                                                  
         2] Driver                                               36, 000/-

         3] Petrol and Vehicle Maintenance etc.                  24, 000/-




                                                 
         4] Physiotherapy                                        36, 000/-

         5] Recurring medical and sanitary expenses              60, 000/-




                                      
                        TOTAL                                1, 86, 000/-

It is already settled in Nagappa's case [supra] that the Court may

award a long - term deposit, the interest on which helps meet such

recurring inevitable expenses. We assume that the average rate of

interest from an FDR for the period of life expectancy is 8% p. a.

Hence, in order to obtain an annual interest of Rs. 1, 86, 000/-, an

amount of approximately Rs. 23, 25, 000 would have to be deposited.

The appellant is accordingly awarded such deposit, the interest on

which bears up for inevitable expenses during the remaining period of

life expectancy.

5] Towards Loss of Future Income

18. The Learned Tribunal computed Rs. 7, 00, 000/- as compensation

under this head in order to yield a sum of Rs. 5000/- p. m. as interest,

to cover loss of earnings. The Learned Advocate for the appellant

contended that this sum may not yield Rs. 5000/- as annual interest,

and even if it did, this sum as annual income was pleaded for in the

year 1998-99, but at present, it ought to be adjusted for inflation and

considered at around Rs. 10,000 - 12,000/- p. m. The Tribunal did not

apply the multiplier method, which is the standard practice to calculate

loss of income, but instead did so based on an estimate of future

earnings of the claimant for the remaining period of life expectancy,

and awarded a sum which would yield that amount as interest.

19. The Learned Advocate for the Appellant contended that the multiplier

method ought not to be applied in the present case and brought before

us the case of Nizam Institute of Medical Sciences v. Prasanth

Dhananka & ors. [Civil Appeal No. 4119 of 1999] to press his claim.

In that case, the Hon'ble Apex Court awarded Rs. 25 lakhs towards

loss of future income, to a 28 year old I. T. Engineer, rendered

paraplegic as a result of medical negligence in carrying out a surgery.

He refers us to paragraph 40 of this judgment, which states as follows:

"The kind of damage that the complainant has suffered, the

expenditure that he has incurred and is likely to incur in the

future and the possibility that his rise in his chosen field

would now be restricted are matters which cannot be taken

care of under the multiplier method."

20. We have considered this proposition at length. The Hon'ble Apex

Court has held that the Multiplier Method ensures a 'just' compensation,

while making for uniformity and certainty of awards, and has frowned

upon High Courts which had deviated from the method, especially for

claims made u/s 163-A of the Motor Vehicles Act. [KSRTC v.

Susamma Thomas (AIR 1994 SC 1631)] The Hon'ble Apex Court has

further stated in S. Kaushanuma Begum v. New India Assurance Co.

[supra] as follows:

"...though formulated for the purpose of s.163-A, this

method is a safer guidance at arriving at the amount of

compensation than any other method. Courts must hence

lean to adopt the structured formula provided in the Second

Schedule."

The Andhra Pradesh High Court has also expressed a similar view in the

case of L. K. Kousalyadevi v. Commissioner, Municipal

Corporation of Hyderabad [2007 ACJ 301 (AP)] stating that while

awarding compensation u/s 166, the Second Schedule can be taken as a

guideline. Even in Mahadeva Shetty's case [supra], the Hon'ble Apex

Court ultimately applied the Multiplier Method to determine

compensation for 'loss of future income.'

21. We feel that objective of the Motor Vehicles Act laying down a

structured formula and utilizing the Multiplier Method is to bring

about uniformity in the compensation amounts awarded by Courts.

This Court has earlier recognized this method to be logically and

legally well established in United India Insurance Co. Ltd. v.

Mandatai [1995 (1) TAC 68 (Bom)]. We distinguish the judgment in

Nizam's case [supra] from the present matter before us, based on the

fact that this is a case of disability caused by motor accident and not

medical negligence. The circumstances of a case of medical

negligence where a doctor did not do things which he ought to have

done or did things he ought not to have done and the circumstances

of a road accident are very different. It must be remembered that the

legislature has enacted the Motor Vehicles Act, 1988, with the object

of recognizing the principles of fault and no - fault liability with

respect to motor accidents and bringing uniformity in compensation

awards for such cases. However, it is not so with medical negligence

cases, where liability and compensation has always been determined

by the Courts themselves, having regard to the peculiar facts of each

case. We therefore cannot accept the argument that the Multiplier

Method need not be applied in this case, based on the decision in

Nizam's case [supra].

22. The choice of the multiplier is as per the Second Schedule of the

Motor Vehicles Act, determined by the age of the victim and annual

income. The calculation is then of what is the capital sum, which if

invested at an appropriate rate of interest would yield the annual

income by way of interest. There are however several errors in the

multiplier scale given in the Second Schedule table. For instance, the

compensation for a victim upto 15 years and earning Rs. 3000/- p. a. is

given as Rs. 60, 000/- which implies that the multiplier ought to be 20

and not 15 as per the Schedule. In any case, for claims under Section

166 of the MV Act, the Hon'ble Apex Court in Sarla Verma v. DTC

[(2009) 6 SCC 127 at 139] held that the multiplier to be used is as per

the scale prepared in U.P. SRTC v. Trilok Chandra [(1996) 4 SCC

362] and clarified in New India Assurance Co. Ltd. v. Charlie

[(2005) 10 SCC 720] which reads as:

Age (years) Multiplier Scale

23. In the present case, the appellant was only 11 years of age at the

time of the accident. However, the aforementioned table, laid down

in Sarla's case [supra], does not specify the multiplier to be applied

in such a case, i.e. where the victim is below 15 years of age. We

feel that this is an inadvertence rather than an intended exclusion.

The Second Schedule of the Motor Vehicles Act itself specifies a

multiplier of '15' to be applied for victims who are under 15 years

of age. It cannot be said that victims below the age of 15 years are to

be excluded from receiving compensation under the head of 'loss of

future income' merely because a multiplier has not been specified

for such age group. It is obvious that 'loss of future income' as a

head of compensation applies to all persons, whether earning or not

at the time. A child who is rendered permanently disabled due to an

accident loses the capacity to earn for himself and his family, in the

same manner as a working adult, and in fact, often loses such

capacity for a longer period than such adult. Courts have merely

sought to interpret and clarify the Second Schedule, on account of

the several errors in it, and in the interests of justice. However, no

judgement of the Hon'ble Apex Court explicitly suggests excluding

a category or age group from receiving compensation under this

head. We hence find no reason to exclude calculating compensation

under this head for the victim in the present matter.

24. We note the mathematical progression of the multiplier values, in

the aforementioned schedule, as explained in Sarla's case [supra]:

"We therefore hold that the multiplier to be used should

be as mentioned in Column (4) of the table above

(prepared be applying Susamma Thomas, Trilok Chandra

and Charlie), which starts with an operative multiplier of

18 (for the age groups of 15 - 20 and 20 - 25 years),

reduced by one unit every five years, that is M - 17 for 26

to 30 years, M -16 for 31 to 35 years, M - 15 for 36 to 40

years, M - 14 for 41 to 45 years and M - 13 for 46 to 50

years, then reduced by two units for every five years, that

is, M - 11 for 51 to 55 years, M - 9 for 56 - 60 years, M -

7 for 61 to 65 years and M - 5 for above 65 years."

As per this progression, the multiplier in the present case, for a victim

below 15 years of age ought to have been 19. However, we are also

bound by the judgment in Trilok Chandra's case [supra], where the

Hon'ble Apex Court held that even in cases under section 166 of the

Act, the maximum multiplier to be applied is 18, which was an increase

from the existing maximum value of 16 that was laid down earlier in

Susamma Thomas's case [supra]. The cap of '18' as the maximum

multiplier that may be applied in any case has been reiterated in Sarla's

case [supra] as well. Hence we conclude that irrespective of the

mathematical progression in the schedule, the maximum multiplier that

may be applied is 18, even if the victim is below 15 years. Thus, in the

present case, the multiplier to be applied for computing 'loss of future

income' for the victim is 18.

25. To compute the compensation, we will have to assume an annual

income in this case, as the appellant did not work at the time of the

accident, being only 11 years old. The Second Schedule specifies Rs. 15,

000/- per annum to be assumed as income in case of non - earning

victims. However, we find this sum wholly inadequate in the present

time. Moreover, the appellant was a bright student who seemed to be set

for a successful future, prior to the accident. In fact, inspite of the

accident, the appellant has managed to complete her M. Com. which

itself is testimony to her potential. We feel that taking all contingencies,

calamities and disadvantages that may have occurred in the appellant's

normal future into account, to consider an annual income of 1, 00, 000/-

is reasonable. Applying the multiplier of 18 to this amount, the appellant

is entitled to Rs. 18, 00, 000/- as compensation towards loss of future

income, which, if deposited at standard interest rates, would accrue an

interest approximately equal to the assumed annual income.

26. To sum up, the appellant is entitled to compensation as follows:

Expense Amount (Rs.)

1] Amount spent by claimant till date of Tribunal award 1, 23, 848/-

2] Towards physical pains and mental shock 4, 00, 000/-

         3] Towards loss of amenities of life                         3, 00, 000/-

         4] Towards inevitable expenses                             23, 25, 000/-
                      
         5] Towards loss of future income                           18, 00, 000/-

                      TOTAL                                         49, 48, 848/-

27. We hence direct the respondent to pay the appellant the difference in

the compensation awarded herein as against the amount of Rs. 21, 23,

848/- already paid according to the order of the Tribunal. The rate of

interest on this increased amount is to be the same as the rates decided

by the Tribunal, i.e. 12% from date of filing of petition till 31.12.2002;

7.5% from 1.1.2003 to 31.12.2006; 10% from 1.1.2007 till realization of

the amount. Out of this entire compensation amount of Rs. 49, 48, 848/-,

the amounts abovementioned for the purposes of 'inevitable expenses'

and 'loss of future income' shall be deposited in an annual fixed deposit

in a nationalized bank. The claimant will be entitled to draw interest on

the deposit at the end of each year, to be applied for the said purposes,

and the amount shall then be re-deposited for further terms of one year.