Delhi High Court
Master Jatin @ Jatin Bhardwaj vs Hdfc Ergo General Insurance Co. ... on 21 August, 2023
$~61
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:21.08.2023
+ MAC.APP. 258/2020
MASTER JATIN @ JATIN BHARDWAJ ..... Appellant
Through: Mr.Manish Maini, Ms.Yashika
Miglani & Mr.Vibhor Jain,
Advs.
versus
HDFC ERGO GENERAL INSURANCE CO. LTD. & ANR.
..... Respondents
Through: Mr.Rajshekhar Rao, Sr. Adv.
with Mr.Karan Lahiri,
Ms.Vishakha Dasgupta &
Mr.Anubhab Atreya, Advs. for
R-1.
Mr.Shashi Pratap Singh &
Ms.Urvashi, Adv. for R-2.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (ORAL)
1. This appeal challenges the Award dated 12.02.2020
passed by the learned Motor Accidents Claims Tribunal (North-
West), Rohini Courts, in MACT No. 436/2017 titled Jatin v.
Karan & Anr.
2. This Court by its judgment and order dated 08.12.2020,
on the question of the appellant being entitled to compensation
towards attendant charges, had inter alia observed as under:-
"7 Compensation should be meaningful and
have a reparative character i.e., the
injured should be put in same position as
Signature Not Verified she/he was before the injury. In the
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present case, the doctors have opined that
there is no likelihood of any improvement
in the appellant's condition. Indeed, his
condition is only likely to worsen. He
should therefore be provided the basic but
necessary assistance of attendants who
could care for his rudimentary needs,
such as to go to the toilet, to sit up, to put
on clothes, to eat and other human
activities. The 100% disabled appellant
would require two attendants/care-givers
in 12-hour shifts. Let the same be
provided to him.
8 Presently, the appellant may have the
benefit of his caring parents but they
cannot be expected to be present with him
at all times, as they may be engaged in
other activities and/or be employed to
make provisions for the family's needs. In
the circumstances, the appellant shall be
paid compensation towards the
procurement of the assistance of two semi-
skilled worker on the basis of minimum
wages, from the date of the accident and
for the rest of the appellant's life.
9 The arrears towards the same shall be
paid by the insurer, on the basis of
notified minimum wage rates applicable
to a semi-skilled worker. The arrears shall
be deposited directly into the bank
account of the appellant, jointly operated
by his parents, in a month's time, along
with interest accrued thereon @ 9% p.a.
Payments apropos 'attendant charges' in
the future shall also be ensured by the
insurer. The current minimum wage rate
of a semi-skilled workman is
approximately Rs. 18,000/-. Accordingly,
Rs.36,000/- per month would be required
to be paid to the appellant. These rates
are revised twice a year. Therefore,
prudently provision should be made for
automatic crediting of the current and
future wages into the appellant's bank
account. Logically, the insurance
company should assure about Rs.50,000/-
Signature Not Verified per month as DFR interest. According to
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the current FDR rates, a deposit Rs.60
lakhs is likely to fetch about Rs.50,000/-
per month as interest. Let Rs.60 lakhs be
kept in an interest-bearing FDR by the
insurer in its own bank. The interest
earned therefrom, shall be credited into
the appellants' account by the 10th day of
each Gregorian calendar month, on the
basis of notified minimum wages for two
attendants.
10 Should the minimum wages be
subsequently enhanced to a quantum
which does not meet the interest generated
from the FDR, the insurer shall augment
the deposit to meet the shortfall. The
insurer shall have a lien on the deposit,
which it shall encash on the demise of the
claimant."
(Emphasis supplied)
3. Feeling aggrieved of the direction, the respondent no.1
challenged the above judgment before the Supreme Court by
way of Civil Appeal no. 4577/2021. The Supreme Court by its
judgment and order dated 03.08.2021, set aside the directions
contained in paragraph 8 to 10 of the order dated 08.12.2020,
however, at the same time directed as under:-
"Now turning to the facts of the present case,
the child was 11 years of age when he suffered
functional disability which has been assessed
at 70% by the medical board and the tribunal,
and which the High Court determined as
100% functional disability. It is in these
circumstances that the direction has been
passed for attendants with a methodology of
accessing the minimum wages payable for two
skilled workers. In the given factual scenario,
we are of the view that the apposite course to
follow is set out in Kajal's case (supra)."
(Emphasis supplied)
Signature Not Verified
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4. The learned counsel for the petitioner submits that in
terms of the judgment of the Supreme Court in Kajal v. Jagdish
Chand & Ors., (2020) 4 SCC 413, the appellant shall be
entitled to compensation taking into account the minimum
wages notified by the Government of NCT of Delhi for a skilled
worker, which is Rs.11,830/-; a minimum of two attendants
would be required; and multiplier of 18 should be adopted. He
submits that, therefore, the total compensation payable to the
petitioner would be Rs.11830x2x18x12=Rs.51,10,560/-, along
with interest as awarded by the learned Tribunal.
5. On the other hand, the learned senior counsel for the
respondent no.1 has drawn my attention to the „format of brief
synopsis of submission to be filed along with the appeal in
injury case‟ filed by the appellant with the present appeal,
wherein the appellant has claimed compensation towards „cost
of nursing/attendant‟ as Rs. 29,40,537/- based on only one
unskilled attendant. He also draws my attention to ground I of
the Memo of appeal, which reads as under:-
"I. That the Ld. Tribunal erred in awarding
inadequate compensation under the head
of Attendant Charges. That the Ld.
Tribunal failed to appreciate that the
Appellant would require an attendant
throughout his remaining life as he is not
able to stand or walk independently."
(Emphasis supplied)
6. The learned senior counsel for the respondent no.1
submits that the appellant cannot be granted relief beyond his
pleadings. He submits that, therefore, the appellant is entitled to
Signature Not Verified
compensation towards attendant charges calculated at the
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minimum wages notified by the Government of NCT of Delhi
for an unskilled worker, which was Rs.9724/-, and for only one
attendant. He submits that, therefore, the compensation payable
to the appellant would be Rs.9724x1x18x12=Rs.21,00,384/-.
7. I have considered the submissions made by the learned
counsels for the parties.
8. As is evident from the extracts of the judgment of the
Supreme Court dated 03.08.2021, the Supreme Court has
remanded the matter to this Court for determining the
appropriate lump sum amount on the basis of the methodology
as set out in Kajal's case (Supra). The Supreme Court had also
upheld the direction of this Court in paragraph 7 of the order
dated 08.12.2020, that such compensation would be payable for
„two skilled workers‟.
9. In view of the above, I cannot accept the submission of
the learned senior counsel for the respondent no.1 that appellant
shall be entitled to compensation only for one attendant and that
too unskilled.
10. In Kajal's case (Supra), the Supreme Court has laid down
the following principles for determining the compensation
payable to the injured Claimant towards „Attendant Charges‟:
"Attendant charges
22. The attendant charges have been awarded
by the High Court @ Rs 2500 per month for
44 years, which works out to Rs 13,20,000.
Unfortunately, this system is not a proper
system. Multiplier system is used to balance
out various factors. When compensation is
awarded in lump sum, various factors are
Signature Not Verified taken into consideration. When compensation
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followed the multiplier system. The multiplier
system should be followed not only for
determining the compensation on account of
loss of income but also for determining the
attendant charges, etc. This system was
recognised by this Court in Gobald Motor
Service Ltd. v. R.M.K. Veluswami. The
multiplier system factors in the inflation rate,
the rate of interest payable on the lump sum
award, the longevity of the claimant, and also
other issues such as the uncertainties of life.
Out of all the various alternative methods, the
multiplier method has been recognised as the
most realistic and reasonable method. It
ensures better justice between the parties and
thus results in award of "just compensation"
within the meaning of the Act.
xxxxx
24. This Court has reaffirmed the multiplier
method in various cases like MCD v.
Subhagwanti, U.P. SRTC v. Trilok Chandra,
Sandeep Khanuja v. Atul Dande. This Court
has also recognised that Schedule II of the Act
can be used as a guide for the multiplier to be
applied in each case. Keeping the claimant's
age in mind, the multiplier in this case should
be 18 as opposed to 44 taken by the High
Court.
25. Having held so, we are clearly of the view
that the basic amount taken for determining
the attendant charges is very much on the
lower side. We must remember that this little
girl is severely suffering from incontinence,
meaning that she does not have control over
her bodily functions like passing urine and
faeces. As she grows older, she will not be
able to handle her periods. She requires an
attendant virtually 24 hours a day. She
requires an attendant who though may not be
medically trained but must be capable of
handling a child who is bedridden. She would
require an attendant who would ensure that
she does not suffer from bedsores. The
claimant has placed before us a notification of
the State of Haryana of the year 2010, wherein
Signature Not Verified the wages for skilled labourer is Rs 4846 per
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month. We, therefore, assess the cost of one
attendant at Rs 5000 and she will require two
attendants which works out to Rs 10,000 per
month, which comes to Rs 1,20,000 p.a., and
using the multiplier of 18, it works out to Rs
21,60,000 for the attendant charges for her
entire life. This takes care of all the pecuniary
damages."
11. The Supreme Court in Kajal's case (Supra) has held that
that the multiplier method would be most reasonable to
determine award of "just compensation" within the meaning of
the Motor Vehicles Act, 1988. The Supreme Court further
awarded the compensation taking the wages notified for a
„skilled‟ labourer. It adopted a multiplier of 18 in the case
where the claimant was aged 12 years. The Supreme Court also
granted compensation for two attendants.
12. In view of the judgment dated 03.08.2021 of the Supreme
Court, which directs this Court to determine the compensation
in terms of its judgment in Kajal's case (supra), the
compensation to the appellant is to be determined applying the
multiplier method, with a multiplier of 18. To this there is no
dispute raised by the respondent no. 1 as well.
13. In view of the judgment in Kajal's case (supra) and
paragraph 7 of the order dated 08.12.2020 of this Court in the
present appeal, and the judgment dated 03.08.2021 of the
Supreme Court, the compensation is to be for two attendants.
14. In view of the judgment in Kajal's case (supra), the
minimum wages of a „skilled‟ labourer has to be taken into
account.
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15. Accordingly, the compensation payable to the appellant
towards attendant charges is determined at Rs.51,10,560/-. The
same shall be paid by the respondent no.1 to the appellant along
with rate of interest as has been stipulated in the Impugned
Award.
16. The Supreme Court in its judgment dated 03.08.2021
passed in the above-mentioned appeal has also opined as
under:-
"We also find that while seeking to examine
the larger issues, the learned judge has
ventured into the aspect of Government policy
to be framed in that behalf. This really
amounts to beyond the jurisdiction over
determination of the amount, in the Motor
Accident Claim proceeding, but on a larger
canvas taking the colour of a Public Interest
Litigation. We, thus, consider it appropriate
that this aspect ought to be examined by the
Bench dealing with the Public Interest
Litigation, as a larger canvas would have to
be determined rather than something
restricted to the case of the respondent before
us."
(Emphasis Supplied)
17. In view of the above direction of the Supreme Court, and
subject to the orders of Hon‟ble the Chief Justice, list this
appeal before the appropriate Division Bench for consideration
of the larger issues, on 6th September, 2023.
NAVIN CHAWLA, J
AUGUST 21, 2023/rv/ss
Signature Not Verified
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