Gujarat High Court
Pradipbhai Labhubhai Dangar vs Balwantsinh Harisinh Solanki on 11 August, 2023
Bench: Gita Gopi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1493 of 2023
With
R/FIRST APPEAL NO. 1494 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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Whether Reporters of Local Papers may be allowed
1 NO
to see the judgment ?
2 To be referred to the Reporter or not ? YES
Whether their Lordships wish to see the fair copy of
3 NO
the judgment ?
Whether this case involves a substantial question of
4 law as to the interpretation of the Constitution of NO
India or any order made thereunder ?
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PRADIPBHAI LABHUBHAI DANGAR
Versus
BALWANTSINH HARISINH SOLANKI
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Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 11/08/2023
ORAL JUDGMENT
A] Prelude:
1. The captioned appeals arise out of same set of facts and
accident and common judgment and award dated 02.05.2022 passed
by the learned Motor Accident Claims Tribunal (Special), Rajkot in
Motor Accident Claim Petition Nos. 74 and 75 of 2020 and hence,
the same were heard together and are being decided by way of this
common judgment.
B] First Appeal No. 1493 of 2023:
2. The First Appeal No. 1493 of 2023 is filed being aggrieved
and dissatisfied by the judgment and award in Motor Accident Claim
Petition No. 74 of 2018, inter alia contending that the learned
Tribunal has committed material illegalities, which has led to gross
miscarriage of injustice. The learned Tribunal has not assessed the
income of the injured minor claimant as per his academic career.
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The claimant is totally in bedridden condition and though 100%
functional disability has been considered by the Tribunal, the
amount under the heads of Future Medical Expenses, Pain, Shock
and Suffering does not commensurate with the evidence on record
and under other heads, the amount has not been assessed in
accordance with the disability sustained by the minor and hence, a
prayer is made for enhancement of compensation.
3. The facts suggest that on 12.12.2017 at about 5:30 in the
evening on Rajkot - Bhavnagar highway, near Gal-kotadi village,
Randhir Mehurbhai Dangar was going on motorcycle bearing
registration No. GJ-04-AB-7994 along with his younger brother -
Shubham Mehurbhai Dangar as a pillion rider and on their way, had
parked their motorcycle on the side of the road, while Pradipbhai
Labhubhai Dangar had come to meet them and was standing near
them. It is stated that when Randhirbhai Mehurbhai Dangar was
about to start his vehicle with the pillion rider, suddenly, one bus
bearing registration No. GJ-04-Z-0960 belonging to Bindiya Travels
came in full speed, in rash and negligent manner and dashed the
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motorcycle. In the accident, Randhirbhai and Shubham sustained
fatal injuries and died during the course of treatment, whereas,
Pradipbhai, who was standing near them, received very serious
injuries.
4. Learned advocate Mr. Mohsin M. Hakim for the appellants -
claimants submitted that the respondent No. 1 has not examined his
driver as a witness nor the insurance company had called the driver
of the bus to be examined.
4.1 The learned advocate Mr. Hakim for the appellants has relied
upon the decisions of the Hon'ble Supreme Court in i) Kajal v.
Jagdish Chand and Others , (2020) 4 SCC 413, ii) Abhimanyu
Partap Singh v. Namita Sekhon and Another, (2022) 8 SCC 489
and iii) Master Ayush v. Branch Manager, Reliance General
Insurance Co. Ltd., 2022 (7) SCC 738 : 2022 (0) AIJEL-SC 68581
and submitted that the Tribunal ought to have granted appropriate
compensation in accordance with the proposition of law as laid
down in the decision in Kajal (supra), followed in the subsequent
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decisions.
5. Motor Accident Claim Petition No. 74 of 2018 was filed on
behalf of injured Pradipbhai Labhubhai Dangar by his father. The
age of the said claimant, at the time of accident, was proved to be 16
years, 08 months, who went in coma after the accident. As per the
deposition of his father at exh. 38, his son was studying in standard
XII Science Stream. The Bona Fide Certificate was produced at
exh. 45, Mark sheet of Standard XI at exh. 46 and a copy of Aadhar
Card at exh. 49, which showed his date of birth as 08.04.2001.
5.1 The learned advocate for the appellant submitted that after the
accident, the injured minor remained in coma and despite several
surgeries, he could not recover and his permanent physical disability
has been assessed at 95%. It is submitted that Neurosurgeon Dr.
Rajendra Trivedi was examined at exh. 89 and as per his deposition,
Injury Certificate was given by Dr. Prakash Modha of Gokul
Hospital. The evidence, accordingly, suggests that the injured
claimant is totally in bedridden condition, if at all was to be brought
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for any treatment, he was to be moved on stretcher; both his legs
have lost the life and mobility. The injured sustained severe speech
problem and has seizure on both hands and he is not even in a
position to have his own food nor can independently deal with the
daily chores and has to remain dependent on other persons.
6. Learned advocate Ms. Kirti Pathak for the insurance company
submitted that the expression 'just compensation' as referred in
Section 168 of the Act should neither be a bonanza nor a windfall
and simultaneously, should not be a pittance. She submitted that the
ratio laid down in the case of Kajal (supra), cannot be made
applicable in the present case comparing the age, injuries sustained
and the evidence placed on record. She further submitted that the
claimant - injured being minor was still studying and was not having
any independent income and in that circumstances, no question of
future loss of income would arise. Ms. Pathak contended that the
claimant has relied upon deposition of witness Dr. Rajendra Trivedi,
who had admitted that the injured, while was brought before him for
the assessment of permanent disability was in a conscious state and
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that doctor, had never given any treatment to the injured, but has
only issued the Permanent Disability Certificate. He admits that the
treatment papers have not made any mention of paraplegia or
quadriplegia injuries, and when the claimant had visited him, he had
movements in all the four limbs.
7. The disability has been proved by the evidence of Dr.
Rajendra Trivedi. The learned Tribunal, while observing the injury
certificate, had also referred to the injuries on neck and vertebra and
fracture on legs and fracture on head, which had led to severe
hemorrhage. The learned Tribunal had concluded the functional
disability of 100%.
7.1 The learned Tribunal has granted the compensation under
following heads to the injured claimant:
Head Amount (Rs.)
Future Loss of Income 9,07,200/-
Actual Medical Expense and Future Medical 15,00,000/-
Expense
Loss of Amenities of Life and Loss of Enjoyment 1,50,000/-
of Life
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Head Amount (Rs.)
Special Diet, Attendant and Transportation 1,00,000/-
Charges
Total 28,07,200/-
7.2 The injured was pursuing his education in Science Stream.
The Mark-sheet of Standard XI was produced during the trial. The
learned Tribunal, while considering the Future Loss of Income, has
assessed the notional income as Rs.36,000/- per annum. In case of
Kajal (supra), the facts were to the effect that, Kajal aged 12, was
travelling on a tractor with her parents and was hit by a truck which
was driven rashly. In the accident, Kajal suffered serious injuries
resulting in damage to her brain, and that had caused very serious
consequences on her. According to the disability assessment, made
by Post Graduate Institute of Medical Education and Research,
Chandigarh, because of head injury, Kajal was left with very low IQ
and severe weakness in all her four limbs; suffered from severe
hysteria and severe urinary incontinence. Her disability was
assessed as 100%. The Hon'ble Apex Court, under the facts of the
case, to the physical disability of Kajal to be in a bedridden
condition, observed that though would grow up to be an adult, but
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her mind would remain as of a 9 months' old child and she would
not be in a position to understand what is happening all around her.
The Apex Court raised a question as to how does one assess the
compensation in such a case. While answering, it was observed that
no amount of money can compensate this child for the injuries
suffered by her. She can never be put back in the same position.
However, compensation has to be determined in terms of the
provisions of the Motor Vehicles Act, 1988 (the Act). The Act
requires determination of payment of just compensation and it is the
duty of the Court to ensure that compensation paid is just. The
Tribunal had awarded Rs.11,08,501/- and the High Court enhanced
the award amount to Rs.25,78,501/-. The compensation was
computed by the High Court in following heads:
Head High Court
Multiplier -
Income (taken to be) Rs.15,000/-
Disability 100%
Loss of income and permanent disability Rs.2,70,000/-
compensation
Pain, suffering and loss of amenities Rs.3,00,000/-
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Head High Court
Attendant Charges Rs.3,20,000/-
(Rs.2,500 for 44 years)
Future medical expenses Rs.2,00,000/-
Loss of marriage prospects Rs.3,00,000/-
Medical treatment Rs.1,38,501/-
Transportation details / special diet Rs.50,000/-
Total Rs.25,78,501/-
7.3 Aggrieved by the said award, the case of Kajal was before the
Supreme Court. The Hon'ble Supreme Court, while dealing with the
case, has observed regarding the principles with regard to
determination of just compensation contemplated under the Act,
which are noted to be well settled. It was observed in paragraph 5 of
the said decision as under:
"5. The principles with regard to determination of just
compensation contemplated under the Act are well settled.
Injuries cause deprivation to the body which entitles the
claimant to claim damages. The damages may vary according
to the gravity of the injuries sustained by the claimant in an
accident. On account of the injuries, the claimant may suffer
consequential losses such as:
(i) loss of earning;
(ii) expenses on treatment which may include medical
expenses, transportation, special diet, attendant charges
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etc.,
(iii) loss or diminution to the pleasures of life by loss of a
particular part of the body, and
(iv) loss of future earning capacity.
Damages can be pecuniary as well as non-pecuniary, but all
have to be assessed in Rupees and Paise."
7.4 The loss of human life and sufferings and individual
deprivation cannot be equated with money. While the Act lays
down upon the Court to determine the compensation which is to be
just and the Court has to make the judicious attempt to award the
damage so as to compensate the claim for the loss suffered by the
victim. The Court, while assessing the compensation, should have
regard to the degree of deprivation and the loss caused by such
deprivation. Such compensation is what is termed as just
compensation, the compensation or the damages assessed for
personal injuries should be substantial to compensate injured for the
deprivation to be suffered throughout his/her life, as observed in
Kajal (supra).
7.5 In case of Abhimanyu Partap Singh (supra), the Hon'ble
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Apex Court, while dealing with the case of a minor claimant, who
was five and a half years of age at the time of accident and whose
lower limb was completely paralysed resulting in 100% disability,
whose hope to live blissful life was lost due to those injuries, had
considered the adequacy of grant of compensation, which was
assailed by the claimant by filing an appeal before the High Court.
The High Court enhanced the compensation to Rs.23,20,000/-,
wherein, the Tribunal had granted total compensation of Rs.9 lakh.
While, challenging the adequacy of the grant of compensation by the
Tribunal as well as the High Court, reliance was placed on the
judgment in Kajal (supra). The Hon'ble Supreme Court observed in
paragraph 10 of the said decision to the effect that, "making the
payment of compensation for damages would not revive the claimant
into his original position. The compensation towards wrongful act
in terms of money though cannot be decided by the Court but it may
be determined as per the recognized principles, and for that purpose,
the Hon'ble Supreme Court had also placed reliance on English
judgments and also referred to the decision in R. D. Hattangadi v.
Pest Control (India) (P) Ltd., (1995) 1 SCC 551. The said reference
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requires reproduction herein as in cases where the claimants are
required to be compensated and when determination of the
compensation cannot be met with exact arithmetical calculation,
then, the Court is enjoined with the duty to take assistance of
comparable awards, in possible comparable injuries to grant just
compensation. Relevant paragraphs 10, 11, 12, 13 and 14 are
extracted hereunder:
"10. It is not out of place to state, by making the payment of
compensation for damages would not revive the claimant into
his original position. The compensation towards wrongful act
in terms of money though cannot be decided by the Court but
it may be determined as per the recognized principles. In the
said context, some of the English judgments are relevant,
which may specify why the compensation be paid, what should
be the basis for determination and what may be the reason for
awarding such compensation, applying the uniform
methodology for determination of compensation, comparable
to the injuries, thereby a person can lead his life, though his
physical frame cannot be reversed.
11. In the case of Philipps vs. London & South Western
Railway Co. - (1879) LR 5 QBD 78, it was held that by
making a payment of compensation for the damages, the
Court cannot put back again the claimant into his original
position. On the date of determination of the compensation, he
is being compensated but he cannot sue again, therefore, the
compensation must be full and final while determining the
same. In Mediana, In re - 1900 AC 113 (HL), it is said that the
determination for an amount of compensation to the damages
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is an extreme task. What may be adequate amount for a
wrongful act and can it be compensated by money,
particularly towards pain and suffering. By an arithmetical
calculation, it cannot be decided what may be the exact
amount of money which would represent the pain and
suffering to a person, but as per recognized principles,
damages must be paid. In H. West & Son Ltd. vs. Shephard -
1964 AC 326, it was held that payment of compensation in
terms of money may be awarded so that something tangible
may be procured to replace something else of the like nature
which has been destroyed or lost. But money cannot renew a
physical frame that has been battered and shattered, however
the courts must consider to award sums, which may be a
reasonable. Simultaneously, uniformity in the general method
of approach is also required. Thereby, possible comparable
injuries can be compensated by comparable awards. Lord
Denning, while speaking for the Court of Appeal in Ward vs.
James - (1966) 1 QB 273 has specified three basic principles
i.e. accessibility, uniformity and predictability to be followed
in the like cases.
12. In the perspective of Indian law, in the case of R.D.
Hattangadi vs. Pest Control (India) (P) Ltd. - (1995) 1 SCC
551, this Court has specified that while determining the
compensation for physical injuries, the heads on which the
amount of compensation is to be determined, may be of two
types, one is of pecuniary damages and another is of non-
pecuniary damages. Pecuniary damages include the loss of
earning, medical attendance, transport charges and other
material loss. The non-pecuniary damages include the
expenses for mental and physical shock, pain and suffering
already suffered or likely to be suffered in the future, loss of
amenities of life, loss of expectation of life, inconvenience,
hardship, discomfort, disappointment, frustration and mental
stress in life which has been followed in the case of Raj
Kumar vs. Ajay Kumar and another - (2011) 1 SCC 343.
13. In the case of Kajal (supra), this Court in case of
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permanent disability, to decide the just compensation, the
principles have been summarized, whereby the compensation
may be awarded in the heads of 'loss of earning', 'medical
expenses, transportation, special diet, attendant charges',
'loss or diminution to the pleasures of life by loss of a
particular part of the body' and 'loss of future earning
capacity', damages, pecuniary as well as non-pecuniary have
to be assessed while it is impossible to equate human
sufferings and personal deprivation with money. This Court
said attendant charges @ Rs.2,500/- p.m. awarded by the
High Court is inadequate, however enhanced to Rs. 5,000/-
with two attendants, total Rs.10,000/- p.m. for whole life and
calculated the compensation applying the multiplier of 18. The
Court further said compensation may also be awarded for
non-pecuniary damages including pain, suffering, loss of
amenities, loss of marriage prospects. Therefore, the
compensation on account of injuries, causing 100% disability,
looking to the facts of the case at hand, is required to be
determined, applying the ratio of the said judgment.
14. The High Court in the impugned order observed that the
claimant has now started practice as an advocate, therefore,
future loss of earning has been calculated only for 10 years,
applying the multiplier of 16, without looking to the facts that
claimant cannot perform the work of advocacy similar to the
other advocates by attending the cases in different Courts. The
attendant charges have been allowed only for 20 years with
one attendant. In fact, not only for determination of future loss
of earning but for attendant charges also the multiplier
method should be followed. The multiplier method has been
recognized as most realistic and reasonable because it has
been decided looking to the age, inflation rate, uncertainty of
life and other realistic needs. Thus, for determination of just
compensation to ensure justice with the family of deceased or
the injured as the case may be the compensation can be
determined applying said method. Therefore, in our view the
Tribunal while granting the compensation of future loss as
well as earning only for 10 years and attendant charges only
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for 20 years was not justified. In fact, the said amount should
be determined applying the multiplier method."
7.6 In Abhimanyu Partap Singh (supra), the Hon'ble Apex Court
has placed reliance upon the decision in Kajal (supra), to assess the
compensation for the disablement suffered by the claimant aged
about five and a half years of age.
7.7 In Kajal (supra), the Hon'ble Supreme Court, by placing
reliance on the decision in Raj Kumar v. Ajay Kumar, (2011) 1
SCC 343, had considered the heads under which, the compensation
is to be awarded for personal injuries, which is reflected hereunder:
"16. In Raj Kumar v. Ajay Kumar and Others, this Court laid
down the heads under which compensation is to be awarded
for personal injuries.
"6. The heads under which compensation is awarded in
personal injury cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalization,
medicines, transportation, nourishing food, and miscellaneous
expenditure.
(ii) Loss of earnings (and other gains) which the injured
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would have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent
disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal
longevity).
In routine personal injury cases, compensation will be
awarded only under heads (i), (ii) (a) and (iv). It is only in
serious cases of injury, where there is specific medical
evidence corroborating the evidence of the claimant, that
compensation will be granted under any of the heads (ii)(b),
(iii), (v) and (vi) relating to loss of future earnings on
account of permanent disability, future medical expenses,
loss of amenities (and/or loss of prospects of marriage)
and loss of expectation of life."
7.8 While dealing with the aspect of loss of earnings, the Hon'ble
Supreme Court in Kajal (supra) found that the way of assessing the
future loss of income adopted by the Courts below, of a young girl
aged about 12 only on a notional income of Rs.15,000/- per annum
was not appropriate way of assessing. The Hon'ble Supreme Court
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observed that the young girl after studying, would have worked and
earned much more than Rs.15,000/-. Each case has to be decided on
its own evidence, but has hold that taking notional income to be
Rs.15,000/- per annum, is not at all justified. Materials were shown
before the Hon'ble Apex Court for the minimum wages payable to a
skilled worker and adding future prospects and applying the
multiplier of 18, the loss of earnings was assessed at Rs.14,66,000/-.
7.8.1 In the instant case, the evidence of the father of the claimant
reflects that his son is bedridden and in unconscious state and cannot
make movement; there was a fracture in the left leg; injuries in the
intestine, injury in vertebra and fracture and hemorrhage in the head.
He has referred to the Certificate of Disability, issued by Dr.
Rajendra Trivedi. He has also referred to the medical bills of
Rs.10,75,000/- + Rs.68,192/-. The learned Tribunal has granted
Rs.15 lakh under the head of actual medical expenses and future
medical expenses. Dr. Rajendra Trivedi was examined at exh. 89.
He is a Neurosurgeon, having his practice for about 30 years. While
in his deposition, referring to the injury certificate issued by Gokul
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Hospital, Rajkot, stated that when the injured claimant was brought
before him by his father, he was brought on a stretcher in bedridden
position and he has deposed that because of the injuries, he would,
throughout his life, not be in a position to do any work and lifelong,
would remain bedridden; both his lower limbs have become useless;
and could not get married and would require attendant throughout
his life to take care of him and in future too, would have to suffer
pain and sufferings. The doctor in his evidence had stated that the
claimant was having severe difficulty in speech, his pronunciations
were unclear, both the hands were having continuous tremors,
having difficulty in writing and even in eating; the injured claimant
could not stand on his own and for his daily chores, would have to
be dependent on the other persons and with the modern technology,
probably, the legs could be treated but the estimated cost would be
about Rs.20 lakh.
7.8.1.1 In the cross- examination, he has admitted that when the
claimant had come for the disability certificate, he was conscious; he
had not given any treatment to the claimant. He admitted that in the
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treatment papers, there is no reference to paraplegia or quadriplegia
and has admitted that when he was given discharge from Gokul
Hospital, he was unconscious and there was movement in all the
four limbs when he was brought before him, but has also admitted
that there were tremors and there was no balance in the limbs and
could not on his own, stand or walk nor could eat. As also has
admitted that he has not referred in his certificate the percentage of
power in his limbs. But has stated that because of imbalance, there
was no tone coordination and stated that with the support of others,
he could walk and has also stated that because of the injury in the
head, there would not be sufficient strength in his body and it would
be improbable of having recovery within six months to two years.
7.8.2 In the case of Raj Kumar v. Ajay Kumar and Another, (2011)
1 SCC 343, the Hon'ble Supreme Court in paragraphs 9 to 11 has
considered the aspect of assessing the loss of earning capacity with a
word of caution to the Tribunal that it should not mechanically apply
the percentage of permanent disability as percentage of loss of
earning capacity. The relevant observations as reproduced herein
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below:
"9. The percentage of permanent disability is expressed by
the Doctors with reference to the whole body, or more often
than not, with reference to a particular limb. When a
disability certificate states that the injured has suffered
permanent disability to an extent of 45% of the left lower limb,
it is not the same as 45% permanent disability with reference
to the whole body. The extent of disability of a limb (or part of
the body) expressed in terms of a percentage of the total
functions of that limb, obviously cannot be assumed to be the
extent of disability of the whole body. If there is 60%
permanent disability of the right hand and 80% permanent
disability of left leg, it does not mean that the extent of
permanent disability with reference to the whole body is 140%
(that is 80% plus 60%). If different parts of the body have
suffered different percentages of disabilities, the sum total
thereof expressed in terms of the permanent disability with
reference to the whole body, cannot obviously exceed 100%.
10. Where the claimant suffers a permanent disability as a
result of injuries, the assessment of compensation under the
head of loss of future earnings, would depend upon the effect
and impact of such permanent disability on his earning
capacity. The Tribunal should not mechanically apply the
percentage of permanent disability as the percentage of
economic loss or loss of earning capacity. In most of the
cases, the percentage of economic loss, that is, percentage of
loss of earning capacity, arising from a permanent disability
will be different from the percentage of permanent disability.
Some Tribunals wrongly assume that in all cases, a particular
extent (percentage) of permanent disability would result in a
corresponding loss of earning capacity, and consequently, if
the evidence produced show 45% as the permanent disability,
will hold that there is 45% loss of future earning capacity. In
most of the cases, equating the extent (percentage) of loss of
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earning capacity to the extent (percentage) of permanent
disability will result in award of either too low or too high a
compensation.
11. What requires to be assessed by the Tribunal is the
effect of the permanently disability on the earning capacity of
the injured; and after assessing the loss of earning capacity in
terms of a percentage of the income, it has to be quantified in
terns of money, to arrive at the future loss of earnings (by
applying the standard multiplier method used to determine
loss of dependency). We may however note that in some cases,
on appreciation of evidence and assessment, the Tribunal may
find that percentage of loss of earning capacity as a result of
the permanent disability, is approximately the same as the
percentage of permanent disability in which case, of course,
the Tribunal will adopt the said percentage for determination
of compensation (see for example, the decisions of this court
in Arvind Kumar Mishra v. New India Assurance Co. Ltd. and
Yadava Kumar v. D.M., National Insurance Co. Ltd.).
7.8.3 In deciding functional disability, the Tribunal has to decide the
extent of effect of such permanent disability, with reference to the
evidence on record. In Raj Kumar's case (supra), the Hon'ble
Apex Court has underlined three steps involved to ascertain the
effect of permanent disability on the actual earning capacity. The
necessary three steps finds mention in paragraph 13 of the judgment,
which is reflected herein below:
"13. Ascertainment of the effect of the permanent disability
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on the actual earning capacity involves three steps. The
Tribunal has to first ascertain what activities the claimant
could carry on in spite of the permanent disability and what
he could not do as a result of the permanent ability (this is
also relevant for awarding compensation under the head of
loss of amenities of life). The second step is to ascertain his
avocation, profession and nature of work before the accident,
as also his age. The third step is to find out whether (i) the
claimant is totally disabled from earning any kind of
livelihood, or (ii) whether in spite of the permanent disability,
the claimant could still effectively carry on the activities and
functions, which he was earlier carrying on, or (iii) whether
he was prevented or restricted from discharging his previous
activities and functions, but could carry on some other or
lesser scale of activities and functions so that he continues to
earn or can continue to earn his livelihood."
7.8.4 The issue, which was raised by learned advocate Ms. Pathak
was with regard to the evidence of doctor stating, that the doctor
who had issued the Disability Certificate, is not the one who had
treated the claimant. The said aspect has been dealt with in Raj
Kumar's case (supra), where, the Apex Court has laid down that the
Tribunal should not be a silent spectator when medical evidence is
tendered in regard to the injuries and their effect, in particular the
extent of permanent disability. Considering the Tribunal as an active
explorer and seeker of truth who is required to 'hold an enquiry into
the claim' for determining the 'just compensation', the Hon'ble
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Supreme Court has observed that the Tribunal should, therefore, take
an active role to ascertain the true and correct position so that it can
assess the 'just compensation'. While dealing with personal injury
cases, the Tribunal should preferably equip itself with a Medical
Dictionary and a Handbook for evaluation of permanent physical
impairment for understanding the medical evidence and assessing
the physical and functional disability. The Tribunal may also keep
in view the first schedule to the Workmen's Compensation Act,
1923 which gives some indication about the extent of permanent
disability in different types of injuries, in the case of workmen. The
principles have been summarized in following terms:
"19. We may now summarise the principles discussed above:
(i) All injuries (or permanent disabilities arising from
injuries), do not result in loss of earning capacity.
(ii) The percentage of permanent disability with reference to
the whole body of a person, cannot be assumed to be the
percentage of loss of earning capacity. To put it differently,
the percentage of loss of earning capacity is not the same as
the percentage of permanent disability (except in a few cases,
where the Tribunal on the basis of evidence, concludes that
percentage of loss of earning capacity is the same as
percentage of permanent disability).
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(iii) The doctor who treated an injured-claimant or who
examined him subsequently to assess the extent of his
permanent disability can give evidence only in regard the
extent of permanent disability. The loss of earning capacity is
something that will have to be assessed by the Tribunal with
reference to the evidence in entirety.
(iv) The same permanent disability may result in different
percentages of loss of earning capacity in different persons,
depending upon the nature of profession, occupation or job,
age, education and other factors."
7.8.4.1 Thus, the Tribunal has to assess the loss of earning
capacity with reference to the evidence in entirety. Same permanent
disability may result in different percentage of loss of earning
capacity.
7.8.5 In Jagdish v. Mohan and Others, arising out SLP (C) No.
7739 of 2017, the Hon'ble Supreme Court was considering the case
of an appellant, aged about 24 years and the claimant had suffered
90% permanent disability. The evidence suggested that both the
hands of the claimant were not effectively working, claimant on his
own, was unable to eat food or to answer nature's call and was
unable to perform any function. The claimant was a Carpenter. The
Hon'ble Supreme Court has laid down the aspect to be considered,
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in assessing the compensation where the victim suffers permanent
disability occasioned by an accident and who becomes entitled for
award of compensation. Such compensation should cover among
others, the aspects: (i) Pain, suffering and trauma resulting from the
accident; (ii) Loss of income including future income; (iii) The
inability of the victim to lead a normal life together with its
amenities; (iv) Medical expenses including those that the victim may
be required to undertake in future; and (v) Loss of expectation of
life.
7.8.6 A reference was made to a decision in Sri Laxman @ Laxman
Mourya v. Divisional Manager, Oriental Insurance Co. Ltd., 2011
(12) Scale 658, wherein, the Court had held that:
"The ratio of the above noted judgments is that if the victim of
an accident suffers permanent or temporary disability, then
efforts should always be made to award adequate
compensation not only for the physical injury and treatment,
but also for the pain, suffering and trauma caused due to
accident, loss of earnings and victim's inability to lead a
normal life and enjoy amenities, which he would have enjoyed
but for the disability caused due to the accident."
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7.8.7 In K. Suresh v. New India Assurance Company Ltd., (2012)
12 SCC 274, the Hon'ble Supreme Court, while referring to the
earlier earlier judgments in Ramesh Chandra v Randhir Singh,
(1990) 3 SCC 723 and B. Kothandapani v Tamil Nadu State
Transport Corporation Limited, (2011) 6 SCC 420, held that the
compensation can be granted for disability as well as for loss of
future earnings, for the first head, relates to the impairment of a
person's capacity, while the other relates to the sphere of pain and
suffering and loss of enjoyment of life by the person himself.
7.8.8 Learned advocate Ms. Pathak had placed reliance upon a
decision of Jagdish (supra), (a Three Bench decision), to state that
the Tribunal has declined to award any amount towards future
treatment, while Hon'ble Supreme Court allowing Rs.3 lakh for
future medical expenses, had in all, granted compensation of
Rs.25,38,308/- while considering the disability.
7.8.9 It is required to be noted that in Jagdish (supra), though the
Tribunal had considered 90% disability, the Hon'ble Supreme Court
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had held the disability in toto, while observing in paragraph 11 about
the yardstick to be adopted for the compensation, to provide realistic
recompense for the pain of loss and the trauma of suffering.
Paragraph 11 reads as under:
"11. In making the computation in the present case, the court
must be mindful of the fact that the appellant has suffered a
serious disability in which he has suffered a loss of the use of
both his hands. For a person engaged in manual activities, it
requires no stretch of imagination to understand that a loss of
hands is a complete deprivation of the ability to earn. Nothing
- at least in the facts of this case - can restore lost hands. But
the measure of compensation must reflect a genuine attempt of
the law to restore the dignity of the being. Our yardsticks of
compensation should not be so abysmal as to lead one to
question whether our law values human life. If it does, as it
must, it must provide a realistic recompense for the pain of
loss and the trauma of suffering. Awards of compensation are
not law's doles. In a discourse of rights, they constitute
entitlements under law. Our conversations about law must
shift from a paternalistic subordination of the individual to an
assertion of enforceable rights as intrinsic to human dignity.
The Tribunal has noted that the appellant is unable to even eat
or to attend to a visit to the toilet without the assistance of an
attendant. In this background, it would be a denial of justice
to compute the disability at 90 per cent. The disability is
indeed total. Having regard to the age of the appellant, the
Tribunal applied a multiplier of 18. In the circumstances, the
compensation payable to the appellant on account of the loss
of income, including future prospects, would be Rs.
18,14,400/-. In addition to this amount, the appellant should
be granted an amount of Rs. 2 lakhs on account of pain,
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suffering and loss of amenities. The amount awarded by the
Tribunal towards medical expenses (Rs. 98,908/-); for extra
nourishment (Rs. 25,000/-) and for attendant's expenses (Rs. 1
lakh) is maintained. The Tribunal has declined to award any
amount towards future treatment. The appellant should be
allowed an amount of Rs. 3 lakhs towards future medical
expenses. The appellant is thus awarded a total sum of Rs.
25,38,308/- by way of compensation. The appellant would be
entitled to interest at the rate of 9 per cent per annum on the
compensation from the date of the filing of the claim petition.
The liability to pay compensation has been fastened by the
Tribunal and by the High Court on the insurer, owner and
driver jointly and severally which is affirmed. The amount
shall be deposited before the Tribunal within a period of 6
weeks from today and shall be paid over to the appellant upon
proper identification."
7.8.10 Here, in the case on hand, the Tribunal having heard
both the sides and perusing the record has considered 95% physical
disability by observing the certificate, that there has been a
permanent damage in the neck, vertebra, and fracture on the legs and
even a fracture on the head. The doctor who treated the claimant -
injured was not examined, Dr. Rajendra Trivedi, Neurosurgeon,
gave evidence, who assessed the extent of permanent disability, as
noted in Raj Kumar (supra) that evidence to that effect can be relied
upon by the learned Tribunal for assessing the loss of earning
capacity, which would be with reference to the evidence in entirety.
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The learned Tribunal, here in this case, has evaluated the evidence
and observed that though the treatment had been given to the
injured, he is still in semi conscious state and he is suffering tremors
in his hands and in lower limbs and is not in a position to even look
after his daily needs and therefore, had considered 100% functional
disability. This Court does not find any reason not to appreciate the
assessment so made.
7.9 The learned Tribunal has assessed the notional income of
Rs.36,000/-. In the case of Kajal (supra), it was considered that the
child would have worked and earned more than the notional income,
and her loss of income, was considered on the basis of minimum
wages. In the instant case, the injured was studying in Science
Stream in standard XI, his disability has been assessed as 100%.
The Apex Court, in the case of Kajal (supra), has not found notional
income as justifiable and reliance was placed on the materials placed
on record of minimum wages payable to the skilled workmen. Here,
in this case too, the injured child would have studied further and
could have worked and earned. Thus, at least minimum wages of
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the semi-skilled workmen on the date of accident being 12.12.2017
could be considered as per the Minimum Wage Schedule prevalent
in the State to be assessed as Rs.8,154/- per month. Adding 40% to
the future prospects, the amount would come to Rs.11,416/- per
month, therefore, the annual income would be Rs.1,36,992/-. By
adopting the multiplier of 18, with 100% functional disability, the
total amount toward future loss of income would come to
Rs.24,65,856/-.
7.10 The claimant minor in a bedridden condition would not be in a
position to look after his daily needs where there is lack of mobility
in his lower limbs and is facing tremors in hands. In the case of
Kajal (supra), the amount under the head of Attendant Charges was
awarded by the High Court of Rs.2,500/- per month for 44 years.
The Apex Court has observed that, it was not a proper system.
Multiplier system is used to balance out various factors and had
considered that, when compensation is paid in lump sum, the Court
has always followed the multiplier system and had, thus, considered
that the multiplier system should be followed not only for
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determining the compensation on account of loss of income but also
for determining the attendant charges etc. and that system was
recognised by the Hon'ble Supreme Court in Gobald Motor
Service Ltd. v. R.M.K. Veluswami, AIR 1962 SC 1. 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 to ensure better justice between the
parties, and the award results for 'just compensation' within the
meaning of the Act. Keeping the age of the claimant in mind, the
multiplier adopted was 18, having observed that the claimant girl
was severely suffering from incontinence, that she did not have
control over the bodily functions like passing urine and faeces,
under that condition as she grows older, she will not be able to
handle her own needs and that, she would require attendant virtually
for 24 hours a day, an attendant, who though may not be medically
trained but must be capable of handling a child who is bedridden,
who would ensure that the child does not suffer from bedsores,
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necessity of two attendants was noted. Thus, placing reliance on a
notification of the wages for skilled labourer, the cost of one
attendant at Rs.5,000/- was assessed and the child Kajal was granted
the attendant charges per month as Rs.10,000/- for two attendants,
which came to Rs.1,20,000/- per annum. Using the multiplier of 18,
the attendant charges for her entire life was assessed as
Rs.21,60,000/- to take care of one of the pecuniary damages.
7.11 Here, in the instant case, the child also would be in need of an
attendant, who would also be facing the incapacity to deal with his
daily needs since he is in paraplegic condition of the lower limbs and
suffering tremor in hands. Considering the minimum wages as the
time of accident as Rs.8,000/- per month for single attendant, and
applying the multiplier of 18, under the head of Attendant Charges,
the claimant would be entitled to receive Rs.17,28,000/-.
7.12 The actual medical expense, as proved on record, is
Rs.13,34,153/-. The claimant would be in need of future medical
treatment, though the doctor examined to prove the disability, is
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skeptical about any improvement in physical condition of the
claimant, however, there may be conditions that, because of lack of
strength in the body, he may suffer some other complications.
Further, lying down on bed continuously may lead to bedsores and
there may be any further complications which would require medical
treatment. Thus, under the head of future medical treatment, this
Court deems it fit to grant Rs.3 lakhs.
7.13 No amount can compensate the Pain, Shock and Sufferings
undergone by a minor claimant. As held in K. Suresh (supra), there
cannot be actual compensation for anguish of the heart or for mental
tribulations. The quintessentiality lies in the pragmatic computation
of the loss sustained which has to be in the realm of realistic
approximation. Having considered the length of hospitalization and
operation and further physical condition, this Court, as a just
compensation under the head of loss of pain, sufferings and loss of
amenities, grants Rs.3 lakh.
7.14 The claimant has lost prospects of marriage. The doctor had
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opined that the claimant would not be in a position to enter into
marital relationship and has totally lost the marriage prospects.
Accordingly, this Court deems it proper to grant Rs.1 lakh under the
said head.
7.15 Keeping in view the longevity, comparing the age of the
claimant and need to carry him in vehicles for treatments, and also
for the money expended for the transportation during the treatment
this Court grants Rs.1 lakh under the head of Special Diet and
Transportation. Thus, the total compensation can be computed as
under:
Head Amount (Rs.)
Future Loss of Income 24,65,856/-
Actual Medical Expense 13,34,153/-
Future Medical Expense 3,00,000/-
Pain, Shock and Suffering and Loss of Amenities 3,00,000/-
Loss of Marriage Prospects 1,00,000/-
Special Diet and Transportation Charges 1,00,000/-
Attendant Charges 17,28,000/-
Total 63,28,009/-
Award of Tribunal (In MACP No. 74 of 2018) 28,07,200/-
Difference (enhanced amount) 35,20,809/-
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7.16 Learned advocate Ms. Pathak, having placed reliance upon a
decision in Oriental Insurance Co. Ltd. v. Champabati Ray and
Others, (2020) 6 Gauhati Law Reports 521, decided on 01.10.2019
and the decision in Oriental Insurance Co. Ltd. v. Malina
Basumatary, MANU/GH/1106/2019, decided on 15.11.2019, of the
Gauhati High Courts, submitted that no interest on the future
prospects can be granted as the same relates to the income which
arises in future. In Champabati Ray's case (supra), it was observed
that in the case of Khusboo Chirania @ Kanta Chirania v. Kamal
Kumar Sovasaria, (2018) 0 Supreme (Gau.) 966 and in the case of
Nasima Begum v. Keramat Ali, (2019) 0 Supreme (Gau.) 507, it
was stated that no interest on future prospects should be given.
While no reason has been enunciated in the above judgments, the
Hon'ble Court, in Champabati Ray's case (supra), has found that
the reason for the same could be the fact that future prospects is
relatable to an income to be received in the future and as such, there
cannot be any loss to the claimant for the payment of future
prospects, at the time the deceased met with the accident and the
reason for awarding interest on the compensation amount, minus the
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future prospects is due to the fact that though the loss of dependency
starts from the date of the accident and the compensation amount is
computed on the date of the award of the Tribunal, interest is
awarded to compensate the loss of money value on account of lapse
of time, such as time taken for the legal proceedings and for the
denial of right to utilize the money when due. The Hon'ble Court,
however, found that the future prospects is with regard to the
probable income to be received in the future and as such, there is no
requirement to compensate the claimant by way of future interest,
for the loss that is to occur in the future, as the future is yet to
happen. Further, future prospects is given for the entire future and as
such, the claimant is getting compensation in a lump-sum under
future prospects prior to the occurrence of future event and thus,
with regard to the future prospects, the Court was of the view that
there cannot be any interest on the future prospects as the same
relates to the income in future.
7.17 The concept of future prospective rise in income was
considered in the decision in National Insurance Company Limited
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v. Pranay Sethi & Ors., (2017) 16 SCC 680. While the issue of
future prospective rise in income was urged before the Hon'ble
Supreme Court in Sarla Verma and Ors. v. Delhi Transport
Corporation and Anr., (2009) 6 SCC 121 and on the contention
raised by the parties, the question raised was whether the future
prospects can be taken into account for determining the income of
the deceased? if so, whether pay revisions that occurred during the
pendency of the claim proceedings or appeals therefrom should be
taken into account? After dealing with various judgments of the
Apex Court, it had been held to adopt a rule of thumb and therefore,
the Hon'ble Supreme Court had concluded in paragraph 24 as under:
"11. In Susamma Thomas, this Court increased the income
by nearly 100%, in Sarla Dixit, the income was increased only
by 50% and in Abati Bezbaruah the income was increased by
a mere 7%. In view of imponderables and uncertainties, we
are in favour of adopting as a rule of thumb, an addition of
50% of actual salary to the actual salary income of the
deceased towards future prospects, where the deceased had a
permanent job and was below 40 years. [Where the annual
income is in the taxable range, the words 'actual salary'
should be read as 'actual salary less tax']. The addition should
be only 30% if the age of the deceased was 40 to 50 years.
There should be no addition, where the age of deceased is
more than 50 years. Though the evidence may indicate a
different percentage of increase, it is necessary to standardize
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the addition to avoid different yardsticks being applied or
different methods of calculations being adopted. Where the
deceased was self-employed or was on a fixed salary (without
provision for annual increments etc.), the courts will usually
take only the actual income at the time of death. A departure
therefrom should be made only in rare and exceptional cases
involving special circumstances."
7.18 On the basis of decision in Sarla Verma and Others (supra),
in Pranay Sethi and Others (supra), the Apex Court further
deliberated on the concept of future prospective rise in income for
self-employed and fixed salaried persons and persons above the age
of 50 years, accepting the principle of standardization and to justify
the concept of just compensation as provided under Section 168 of
the Act, has laid down that the same should be determined on the
foundation of fairness, reasonableness, and equitability on
acceptable legal standard, as such determination can never be in
arithmetical exactitude. It can never be perfect. The aim is to
achieve acceptable degree of proximity to arithmetical precision on
the basis of materials brought on record in an individual case. It was
held that conception of "just compensation" has to be viewed
through the prism of fairness, reasonableness and non-violation of
the principle of equitability. Having noted the principle of
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standardization, it was held that there is no rationale not to apply the
said principle to the self-employed or a person who is on a fixed
salary. To follow the doctrine of actual income at the time of death
and not to add any amount with regard to future prospects to the
income for the purpose of determination of multiplicand would be
unjust. The determination of income while computing compensation
has to include future prospects so that the method will come within
the ambit and sweep of just compensation as postulated under
Section 168 of the Act. In paragraphs 58, 59.1, 59.3 and 59.4, it was
observed:
"58. The controversy does not end here. The question still
remains whether there should be no addition where the age of
the deceased is more than 50 years. Sarla Verma thinks it
appropriate not to add any amount and the same has been
approved in Reshma Kumari. Judicial notice can be taken of
the fact that salary does not remain the same. When a person
is in a permanent job, there is always an enhancement due to
one reason or the other. To lay down as a thumb rule that
there will be no addition after 50 years will be an
unacceptable concept. We are disposed to think, there should
be an addition of 15% if the deceased is between the age of 50
to 60 years and there should be no addition thereafter.
Similarly, in case of self-employed or person on fixed salary,
the addition should be 10% between the age of 50 to 60 years.
The aforesaid yardstick has been fixed so that there can be
consistency in the approach by the tribunals and the courts.
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59.1 In view of the aforesaid analysis, we proceed to record
our conclusions:
xxx
59.3 While determining the income, an addition of 50% of
actual salary to the income of the deceased towards future
prospects, where the deceased had a permanent job and was
below the age of 40 years, should be made. The addition
should be 30%, if the age of the deceased was between 40 to
50 years. In case the deceased was between the age of 50 to
60 years, the addition should be 15%. Actual salary should be
read as actual salary less tax.
59.4 In case the deceased was self-employed or on a fixed
salary, an addition of 40% of the established income should
be the warrant where the deceased was below the age of 40
years. An addition of 25% where the deceased was between
the age of 40 to 50 years and 10% where the deceased was
between the age of 50 to 60 years should be regarded as the
necessary method of computation. The established income
means the income minus the tax component."
7.19 Imponderables and uncertainties have led the Apex Court to
adopt rule of thumb to grant prospective rise in income. Further,
prospects of medical need and the loss to be suffered because of
disability, are to be compensated. The payment of compensation
for damages would not revive the claimant into his original position.
The compensation towards wrongful act in terms of money though
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cannot be decided by the Court, but it may be determined as per the
recognized principles by applying the uniform methodology for the
determination of compensation. On the date of determination of the
compensation, the claimant is being compensated, therefore, the
compensation must be full and final while determining the same, as
claimant cannot sue again for any future loss, all the future
prospective loss has to be determined on the date of judgment and
award passed by the Tribunal.
7.20 As per the recognised principles, damages are to be paid. As
has been laid down in the judgments referred herein above, money
cannot renew a physical frame that has been battered and shattered.
Possible comparable injuries can be compensated by comparable
awards and three basic principles would be: accessibility, uniformity
and predictability to be followed in the like cases. Pecuniary
damages include the loss of earning, medical expense, attendance
charges, transport charges and other material loss, while, the non-
pecuniary damages include the expenses for mental and physical
shock, pain and suffering already suffered or likely to be suffered in
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the future, loss of amenities of life, loss of expectation of life,
inconvenience, hardship, discomfort, disappointment, frustration and
mental stress in life which has been followed in the case of Raj
Kumar (surpa).
7.21 In R. D. Hattangadi (supra), it is observed as under:
"11. In the case Ward v. James, (1965) 1 All ER 563, it was
said:
"Although you cannot give a man so gravely injured
much for his 'lost years', you can, however, compensate
him for his loss during his shortened span, that is,
during his expected 'years of survival'. You can
compensate him for his loss of earnings during that
time, and for the cost of treatment, nursing and
attendance. But how can you compensate him for being
rendered a helpless invalid? He may, owing to brain
injury, be rendered unconscious for the rest of his days,
or, owing to a back injury, be unable to rise from his
bed. He has lost everything that makes life worthwhile.
Money is no good to him. Yet judges and juries have to
do the best they can and give him what they think is fair.
No wonder they find it well nigh insoluble. They are
being asked to calculate the incalculable. The figure is
bound to be for the most part a conventional sum. The
judges have worked out a pattern, and they keep it in
line with the changes in the value of money."
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14. In Halsbury's Laws of England, 4th Edn., Vol. 12
regarding nonpecuniary loss at page 446 it has been said:
"Non-pecuniary loss: the pattern.- Damages awarded
for pain and suffering and loss of amenity constitute a
conventional sum which is taken to be the sum which
society deems fair, fairness being interpreted by the
courts in the light of previous decisions. Thus there has
been evolved a set of conventional principles providing
a provisional guide to the comparative severity of
different injuries, and indicating a bracket of damages
into which a particular injury will currently fall. The
particular circumstances of the plaintiff, including his
age and any unusual deprivation he may suffer, is
reflected in the actual amount of the award.
The fall in the value of money leads to a continuing
reassessment of these awards and to periodic
reassessments of damages at certain key points in the
pattern where the disability is readily identifiable and
not subject to large variations in individual cases."
7.22 Further, in Pranay Sethi (supra), it is observed as under:
"55. Section 168 of the Act deals with the concept of "just
compensation" and the same has to be determined on the
foundation of fairness, reasonableness and equitability on
acceptable legal standard because such determination can
never be in arithmetical exactitude. It can never be perfect.
The aim is to achieve an acceptable degree of proximity to
arithmetical precision on the basis of materials brought on
record in an individual case. The conception of "just
compensation" has to be viewed through the prism of fairness,
reasonableness and non-violation of the principle of
equitability. In a case of death, the legal heirs of the claimants
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cannot expect a windfall. Simultaneously, the compensation
granted cannot be an apology for compensation. It cannot be
a pittance. Though the discretion vested in the tribunal is quite
wide, yet it is obligatory on the part of the tribunal to be
guided by the expression, that is, "just compensation". The
determination has to be on the foundation of evidence brought
on record as regards the age and income of the deceased and
thereafter the apposite multiplier to be applied. The formula
relating to multiplier has been clearly stated in Sarla Verma
(supra) and it has been approved in Reshma Kumari (supra).
The age and income, as stated earlier, have to be established
by adducing evidence. The tribunal and the Courts have to
bear in mind that the basic principle lies in pragmatic
computation which is in proximity to reality. It is a well
accepted norm that money cannot substitute a life lost but an
effort has to be made for grant of just compensation having
uniformity of approach. There has to be a balance between the
two extremes, that is, a windfall and the pittance, a bonanza
and the modicum. In such an adjudication, the duty of the
tribunal and the Courts is difficult and hence, an endeavour
has been made by this Court for standardization which in its
ambit includes addition of future prospects on the proven
income at present. As far as future prospects are concerned,
there has been standardization keeping in view the principle
of certainty, stability and consistency. We approve the
principle of "standardization" so that a specific and certain
multiplicand is determined for applying the multiplier on the
basis of age."
7.23 In R. D. Hattangadi (supra), the case observed of a claimant
who had started a practice as an Advocate and the future loss of
earning had been calculated only for 10 years, applying the
multiplier of 16. The Attendant Charges had been allowed only for
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20 years with one Attendant. It was held that multiplier method was
required to be adopted. The multiplier method has been recognized
as most realistic and reasonable because it has been decided looking
to the age, inflation rate, uncertainty of life and other realistic needs.
7.24 The multiplier method involves the ascertainment of loss of
dependency or the multiplicand having regard to the circumstances
of the case and capitalizing the multiplicand by an appropriate
multiplier. The multiplier would be applied to the annual sum for
each item of future loss and damage. The annual sum would be the
multiplicand. The equation, the multiplier multiplies the
multiplicand would yield the total sum of damages for the item of
loss and damage concerned, and according to the multiplier theory,
the likely future loss is assessed by multiplying the likely loss due to
occur every year with a multiplier which indicates a number of years
for which the loss is likely to continue. The multiplier is a figure
representing the number of years by which, the annual loss (the
multiplicand) is multiplied to reflect the period over which, the loss
is likely to be suffered.
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7.25 In a serious case of injury where the compensation is to be
granted, where there is specific medical evidence, corroborating the
evidence of the claimant, the compensation will be granted under the
loss of future earnings on account of permanent disability, for future
medical expenses, loss of amenities and loss of prospect of marriage,
loss of expectations of life (shortening of normal longevity) as has
been held in the decision in Raj Kumar (surpa). The cause for the
claimant would get crystallized on the date of filing the petition.
The entitlement of future expenses, though decided on the date of
judgment and award, is on the cause which arose by filing the
petition for compensation.
7.26 The concept of future prospective rise in income considered in
the judgments of Pranay Sethi (supra) and the Sarla Verma
(supra), is on acceptance of principle of standardization. The rate of
interest on the dependency loss and/or future loss of income is to be
assessed from the date of claim petition. Section 171 of the Act
makes it clear that when any Claims Tribunal allows the claim for
compensation under the MV Act, such Tribunal may direct that in
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addition to the amount of compensation, simple interest shall also be
paid at such rate and from such date not earlier than the date of
making the claim as it may specify in this behalf. Interest awarded is
payable on the entire amount awarded, from the date of filing of
application till realization.
7.27 In the case of Kajal (supra), by referring to Section 171 of the
MV Act, it has been observed:
"Interest
31. xxx
Normally interest should be granted from the date of filing of
the petition and if in appeal enhancement is made
the interest should again be from the date of filing of the
petition. It is only if the appeal is filed after an inordinate
delay by the claimants, or the decision of the case has
been delayed on account of negligence of the claimant, in
such exceptional cases the interest may be awarded from a
later date. However, while doing so, the tribunals/High
Courts must give reasons why interest is not being paid from
the date of filing of the petition. Therefore, we direct that the
entire amount of compensation including the amount
enhanced by us shall carry an interest of 7.5% per annum
from the date of filing of the claim petition till
payment/deposit of the amount."
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7.28 Thus, reliance on Gauhati High Court judgment would not be
of much assistance to the insurance company.
7.29 Section 149(1) of the MV Act makes it amply clear that once a
Certificate of Insurance is issued under Sub-section (3) of Section
147, then despite that the insurer may be entitled to avoid or cancel
the policy, it shall pay to the person entitled to the benefit of the
decree any sum not exceeding the sum assured payable thereunder,
as if he was judgment debtor, in respect of the liability, together with
any amount payable in respect of costs and any sum payable in
respect of interest on that sum by virtue of an enactment relating to
interest on judgments.
C] First Appeal No. 1494 of 2023:
8. One of the claimant is the father of deceased - Shubham
Mehurbhai Dangar, a pillion rider on motorcycle bearing registration
No. GJ-04-AB-7994, a minor aged 16 years. Motor Accident Claim
Petition No. 75 of 2018 was filed which is under challenge. Elder
brother of Shubham too had died in the accident and Motor Accident
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Claim Petition No. 76 of 2018 was registered for compensation.
9. Advocate Mr. Hakim has urged the Court to grant
compensation in the case of the deceased minor on the proposition of
law, laid down in Kajal (supra) and to consider the dependency loss
on the basis of the Minimum Wage Schedule and calculation be
made following Pranay Sethi (supra) and Magma General
Insurance Company Limited v. Nanu Ram alias Chuhru Ram &
Ors., (2018) 18 SCC 130.
9.1 The application of judgment of Kajal (supra) is to the facts
when the injured-claimant has suffered permanent disability, leading
to functional disability. Disability refers to lack of ability to perform
an activity in the manner considered normal for a human being.
Permanent disability can be either partial or total. Partial permanent
disability refers to a person's mobility to perform all the duties and
bodily function that he could perform before the accident, though he
is able to perform some of them and is still able to engage in some
gainful activity. Total permanent disability disables a person to
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perform any avocation or employment related activities as a result of
accident and would be almost dependent on other to attend his day to
day routine. A case of child, who losses his earning capacity
because of total permanent disability, and has to have a life
depending on others, for the injured, the concept of pecuniary and
non-pecuniary damages has to be considered, while in case of
deceased minor, dependency loss has to be assessed keeping in mind
the child as a non-earning person.
10. Learned advocate Ms. Pathak has placed reliance on a decision
in Meena Devi v. Nunu Chand Mahto @ Nemchand Mahto and
Others, 2022 ACJ 2478, where the deceased was falling in the age
group of 10-15 years and also in case of Kurvan Ansari @ Kurvan
Ali and Another v. Shyam Kishore Murmu and Another, (2022) 1
SCC 317, where, the notional income of the child was considered as
Rs.25,000/- and applying the multiplier of 15, dependency loss was
calculated as Rs.3,75,000/- and adding Rs.55,000/- in conventional
heads, awarded compensation of Rs.4,70,000/-, Advocate Ms.
Pathak submitted that identical view has been taken by this Court in
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such cases.
10.1 Deceased Shubham, at the time of accident, was a student. His
mother had died prior to his death on 02.05.2017. The claimants are
his father and sister. The School Leaving Certificate shows date of
birth of Shubham as 18.09.2003 and accordingly, his age as
considered by the Tribunal is 14 years and 03 months and thus, as
laid down in the case of Sarla Verma (supra), multiplier would be
15. The learned Tribunal has considered the notional income as
Rs.36,000/-. Adding 40% prospective rise in income, the annual
income would assess to Rs.50,400/-. The learned Tribunal has
deducted 50% towards personal expenses of the deceased and has
granted the amount of Rs.3,78,000/- (Rs.25,200 x 15) by considering
the the dependency of Rs.25,200/-.
10.2 In Kishan Gopal and Another v. Lala and Others, 2013 ACJ
2594, it is observed:
"35. The relevant portion of clause No. 6 states as under:
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"6. Notional income for compensation to those who
had no income prior to accident-
(a) Non-earning persons - Rs.15,000/- p.a."
The aforesaid clause of the Second Schedule to Section 163-A
of the MV Act, is considered by this Court in the case of Lata
Wadhwa v. State of Bihar while examining the tortuous
liability of the tortfeasor has examined the criteria for
awarding compensation for death of children in accident
between age group of 10 to 15 years and held in the above
case that the compensation shall be awarded taking the
contribution of the children to the family at Rs.12,000/- p.a.
and multiplier 11 has been applied taking the age of the father
and then under the conventional heads the compensation of
Rs.25,000/- was awarded. Thus, a total sum of Rs.1,57,000/-
was awarded in that case.
36. After noting the submission made on behalf of TISCO in
Lata Wadhwa case that the compensation determined for the
children of all age groups could be double as in its view the
determination made was grossly inadequate and the
observation was further made that loss of children is
irrecoupable and no amount of money could compensate the
parents. Having regard to the environment from which the
children referred to in that case were brought up, their
parents being reasonably well-placed officials of TISCO, it
was directed that the compensation amount for the children
between the age group of 5 to 10 years should be three times.
In other words, it should be Rs.1.5 lakhs to which under the
conventional heads a sum of Rs.50,000/- should be added and
thus total amount in each case would be Rs.2 lakhs.
37. Further, in Lata Wadhwa case it was observed that in so
far as the children of age group between 10 to 15 years are
concerned, they are all students of Class VI to Class X and are
children of employees of TISCO and one of the children was
employed in the Company in the said case having regard to
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the fact the contribution of the deceased child was taken
Rs.12,000/- p.a. appears to be on the lower side and held that
the contribution of such children should be Rs.24,000/- p.a.
38. In our considered view, the aforesaid legal principle
laid down in Lata Wadhwa case with all fours is applicable to
the facts and circumstances of the case in hand having regard
to the fact that the deceased was 10 years old, who was
assisting the appellants in their agricultural occupation which
is an undisputed fact. We have also considered the fact that
the rupee value has come down drastically from the year
1994, when the notional income of the non-earning member
prior to the date of accident was fixed at Rs.15,000/-. Further,
the deceased boy, had he been alive would have certainly
contributed substantially to the family of the appellants by
working hard.
39. In view of the aforesaid reasons, it would be just and
reasonable for us to take his notional income at Rs.30,000/-
and further taking the young age of the parents, namely the
mother who was about 36 years old, at the time of accident, by
applying the legal principles laid down in the case of Sarla
Verma v. DTC, the multiplier of 15 can be applied to the
multiplicand. Thus, 30,000 x 15 = 4,50,000 and 50,000/-
under conventional heads towards loss of love and affection,
funeral expenses, last rites as held in Kerala SRTC v.
Susamma Thomas, which is referred to in Lata Wadhwa case
and the said amount under the conventional heads is awarded
even in relation to the death of children between 10 to 15
years old. In this case also we award Rs.50,000/- under
conventional heads. In our view, for the aforesaid reasons the
said amount would be fair, just and reasonable compensation
to be awarded in favour of the appellants."
10.3 In Kishan Gopal and Another (supra), the Hon'ble Supreme
Court, by referring the facts of the case of minor aged about 10
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years, had considered the notional income as Rs.30,000/- by
applying multiplier of 15, considered Rs.4,50,000/- as dependency
loss and Rs.50,000/- has been considered under the conventional
heads for loss of love and affection, funeral expense and last rites, as
was held in General Manager, Kerala State Road Transport
Corporation v. Susamma Thomas, 1994 ACJ 1 (SC), which is
referred to in Lata Wadhwa and Ors. v. State of Bihar and Ors.,
(2001) 1 SCC 197.
11. In Meena Devi v. Nunu Chand Mahto @ Nemchand Mahto
and Others, (2023) 1 SCC 204, the Hon'ble Supreme Court, in
paragraphs 10 to 13, has observed as under:
"10. Thus relying upon the observation, it is said that in
place of issuing any guidelines for determination of
compensation in case of death of a child, it may be left open to
be decided in the facts and circumstances of each case. In the
case of M.S. Grewal (supra), 14 school students died due to
drowning in a river. This Court noticing that the students
were belonging to upper middle class background, however
awarded the compensation to the tune of Rs. 5,00,000/-.
Thereafter in the case of Kishan Gopal (supra), a child aged
about 10 years died in a road accident took place on
19.7.1992, this Court made departure from the IInd Schedule
of M.V. Act and accepted the notional income of Rs. 30,000/-
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in place of Rs. 15,000/- applying the analogy that the value of
rupee has come down drastically since 1994 when the
notional income of Rs. 15000/- was fixed in IInd Schedule of
the MV Act. However accepting the notional income as
Rs.30,000/- and as per the age of the parents i.e. 36 years, the
loss of dependency was calculated applying the multiplier of
15 at Rs. 4,50,000/- and a sum of Rs. 50,000/- was awarded
under conventional heads awarding a total sum of
compensation of Rs. 5,00,000/-.
11. Recently in the case of Kurvan Ansari @ Kurvan Ali and
Anr. v. Shyam Kishore Murmu and Another, (2022) 1 SCC
317, wherein a child aged about 7 years died in a road
accident took place on 6.9.2004, this Court taking notional
income as Rs. 25,000/-, applying the multiplier of 15,
calculated the loss of dependency as Rs. 3,75,000/- and
adding Rs. 55,000/- in conventional heads, awarded Rs.
4,70,000/-.
12. In view of the foregoing decisions, it is apparent that in
the cases of child death, the notional income of Rs. 15,000/- as
specified in the IInd Schedule of M.V. Act has been enhanced
on account of devaluation of money and value of rupee
coming down from the date on which the IInd Schedule of
M.V. Act was introduced and the said notional income was
treated as Rs. 30,000/- in the case of Kishan Gopal (supra)
and Rs. 25,000/- in Kurvan Ansari (supra) in age group of 10
and 7 years respectively.
13. Thus applying the ratio of the said judgments, looking to
the age of the child in the present case i.e. 12 years, the
principles laid down in the case of Kishan Gopal (supra) are
aptly applicable to the facts of the present case. As per the
ocular statement of the mother of the deceased, it is clear that
deceased was a brilliant student and studying in a private
school. Therefore, accepting the notional earning Rs. 30,000/-
including future prospect and applying the multiplier of 15 in
view of the decision of this Court in Sarla Verma (supra), the
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loss of dependency comes to Rs. 4,50,000/- and if we add Rs.
50,000/- in conventional heads, then the total sum of
compensation comes to Rs. 5,00,000/-. As per the judgment of
MACT, lump sum compensation of Rs. 1,50,000/- has been
awarded, while the High Court enhanced it to Rs. 2,00,000/-
up to the value of the Claim Petition. In our view, the said
amount of compensation is not just and reasonable looking to
the computation made hereinabove. Hence, we determine the
total compensation as Rs. 5,00,000/- and on reducing the
amount as awarded by the High Court i.e. Rs. 2,00,000/-, the
enhanced amount comes to Rs. 3,00,000/-."
11.1 In Meena Devi (supra), the child died in a road accident was
aged about 12 years. The Hon'ble Apex Court after applying the
ratio laid down in Kurvan Ansari @ Kurvan Ali & Another (supra),
and the principle laid down in Kishan Gopal and Another (supra),
accepting the notional earning of Rs.30,000/-, including the future
prospect and by applying the multiplier 15, in view of the decision in
Sarla Verma (supra), assessed the loss of dependency as
Rs.4,50,000/-, and further Rs.50,000/- was added in conventional
head, and, thus total compensation of Rs.5,00,000/- was granted.
11.2 This Court considers that the present matter in which the age
of deceased minor was 14 years and 03 months at the time of
accident, should be placed at the same pedestal, as has been
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observed in cases of Kishan Gopal and Another (supra) and
Meena Devi (supra). The notional earning of the child including the
future prospect is required to be considered as Rs.30,000/- and by
applying multiplier of 15 as laid down in Sarla Verma (supra), the
loss of dependency is required to be assessed as Rs.4,50,000/-, and
Rs.50,000/- is to be granted under conventional heads and thus, this
Court considers that in total compensation of Rs.5,00,000/- would be
an equitable, just and reasonable compensation for the claimants.
The Tribunal has granted compensation of Rs.4,99,000/- and
accordingly, the enhanced amount would be Rs.1,000/- (Rs.5,00,000
- 4,99,000/-).
D] Conclusion:
12. For the forgoing observations and discussion, both the appeals
succeed and are accordingly, allowed in part. The impugned
judgment and award of the Tribunal is hereby modified to the
aforesaid extent. The difference amount of Rs.35,20,809/- and
Rs.1,000/-, in the respective appeal, shall be deposited within a
period of 08 (eight) weeks. The insurance company is directed to
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pay the total compensation amount with 7.5% interest per annum,
from the date of claim petitions till realization. R&P received, be
transmitted back forthwith.
[ Gita Gopi, J. ]
hiren
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