Madras High Court

Harini(Minor) vs Pooja Malhotra on 4 March, 2024

Author: Krishnan Ramasamy

Bench: Krishnan Ramasamy

                                                                                        C.M.A.No.1351 of 2022


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 04.03.2024

                                                        CORAM

                                  THE HON'BLE MR. JUSTICE KRISHNAN RAMASAMY

                                                C.M.A.No.1351 of 2022

                  Harini(minor)
                  (rep. by mother and next friend S.Geetha)            ...Appellant/petitioner

                                                           Vs

                  1.Pooja Malhotra
                  2.United India Insurance Co. Ltd.,
                    Silingi Building, New no.134, Old no.40-45,
                   Greams Road, Chennai-600 006.                         ......Respondents


                  Prayer:
                            Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles
                  Act, 1988, to set aside the judgment and decree made in MCOP.No.3744 of
                  2017 dated 22.01.2022 on the file of the Motor Accident Claims Tribunal, III
                  Judge, Court of Small Causes, Chennai.


                                        For Appellant      : Ms.Ramya V. Rao

                                        For Respondent     : Ms.R.Rathna Thara for R2



                  1/14


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                                                                                            C.M.A.No.1351 of 2022


                                                            JUDGMENT

This Civil Miscellaneous Appeal has been filed by the appellant, seeking

enhancement of the compensation awarded by the Tribunal vide order dated

dated 22.01.2022 in M.C.O.P.No.3744 of 2017.

2. On 29.05.2017 at about 17.30 hours, when the minor claimant, the

appellant herein, as a pedestrian, was proceeding at behind Santhome Church

Service Road, the 1st respondent's vehicle bearing Registration No.TN-01-AY-

7508 came in a rash and negligent manner and dashed against the claimant. As

a result of which, the claimant sustained grievous injuries all over her body. The

claimant moved a petition before the Tribunal, seeking compensation of

Rs.1,00,00,000/-.

3. On consideration of both oral and documentary evidence, the Tribunal

had awarded the compensation on the following heads:

                              S.No                Particulars          Compensation (Rs.)
                              1      Disability                                     2,00,000
                              2      Medical Expenses                               7,18,600
                              3      Pain and Sufferings                              50,000
                              4      Transport & extra nourishment                    20,000





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                              S.No              Particulars          Compensation (Rs.)
                                     Expenses
                              5      Loss of amenities                               50,000
                              6      Attendant charges                                10500
                              7      Loss of Education                                20000
                                     Total                                       10,69,100/-

4. The learned counsel for the appellant/claimant would submit that at the

time of accident, the claimant had sustained head injury, diffused axonal injury,

multiple focal Hemorrhage and multiple grievous injuries all over her body and

the Doctor, who treated the claimant had assessed disability at 40%. She

would further submit that the disability of diffuse axonal injury is worsening

day- by- day and also the Curvature of the spine (SPO-2) was dropped. She

pointed out that at the time of accident, the claimant was aged 4 years and now,

she is 9 years of old.

5. However, on earlier occasion, considering the fact that the disability

certificate Ex.C1 was hand written and not clear as regards the disability

assessed at 40% whether it is permanent or partial, this Court vide order, dated

24.07.2023, referred the claimant girl to the Medical Board in order to

determine her disability.

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6. Pursuant to the direction of this Court, the Medical Board examined

the claimant and filed a report dated 28.11.2023, wherein, the disability is

assessed as follows:

“Post traumatic sequelae-Diffuse axonal injury Locomotor disability – 60% (Sixty percent)

7. Now, by referring to the above mentioned Report and Disability

Certificate (Ex.C1), the learned counsel for the appellant would submit that the

disability of the claimant has been increasing day-by-day as the child grows,

consequently the disability is also growing. Considering this aspect, the Medical

Board has assessed the disability at 60%. The learned counsel would further

point out that this disability continues and it will have considerable impact when

the claimant girl attains puberty. While so, the Tribunal, without considering all

these aspects, has simply determined the compensation towards disability by

fixing the same at 40% and applying the per centage method (Rs.5000/- for

each per centage), which is very low. Therefore, she would contend that

considering the nature of the injuries and disability sustained by the claimant,

the Tribunal ought to have adopted multiplier method instead of per centage

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method. Hence, she would urge this Court to adopt the multiplier method and

determine the just and reasonable compensation. She would further submit that

no amount has been awarded towards 'future medical expenses' and also

towards 'loss of marital prospects' and hence, she urged this Court to grant the

compensation under these heads.

8. In reply, the learned counsel for the 2nd respondent/Insurance Company

would submit that the amount awarded by the Tribunal is just and fair and the

same may be confirmed. She submits that in any event, if this Court is going to

apply multiplier method, Rs.5000/- may be taken towards notional income

instead of any other higher amount including future prospects. Further, she

submits that with regard to the other heads, any reasonable compensation may

be awarded in accordance with the dictum of the Hon'ble Apex Court.

9. Heard the learned counsel for the appellant and the respondent and also

perused the materials available on record.

10. In the present case, originally, the disability certificate (Ex.C1) was

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issued by the Doctor, who treated the claimant wherein, he assessed 40%

disability under impression that there would be improvement and recovery from

the disability positively because the claimant was 4 years at the time of accident.

Depending upon the growth of the child, the Doctor anticipated that the

disability will go down. But on the other hand, it is worsening day-by-day and

there is no improvement at all. Pursuant to the direction of this Court, even the

Medical Board, after examining the claimant, filed a report dated 28.12.2023,

stating that 'Post traumatic sequelae -Diffuse axonal injury Locomotor disability

is 60%. Therefore, it is clear that the disability assessed when the claimant was

at the age of 4 years was 40% and thereafter, it has been increasing and now it

has reached to 60%. This would go to establish that there was no improvement

and the disability is keep on increasing simultaneously along with the growth of

the claimant and as rightly pointed out by the learned counsel for the claimant

that it has been worsening day-by-day and it would have certainly considerable

impact when the claimant attains puberty. Further, the Carvature of the Spine

(SPO-2) was dropped and with this disability, even the marital prospects of the

claimant will also get affected. Further, in future, the claimant has to definitely

incur some expenses in view of continuous increase in the disability. However,

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unfortunately, the Tribunal, without considering all these aspects, has simply

adopted per centage method by fixing Rs.5000/- (per each centage) and

awarded a sum of Rs.2,00,000/- taking 40% as functional disability, which in

the opinion of this Court is too low and the same requires to be re-determined

and enhanced appropriately.

11. In an accident, if a person losses a limb or eye or spinal cord or

sustains an injury of grievous nature, the Court while computing damages for

the loss of organs or physical injury, does not value a limb or eye or spinal cord

in isolation, but only values the totality of the harm which the loss has entailed

towards loss of amenities of life and infliction of pain and suffering, the loss

of the good things of life, joys of life and the positive infliction of pain and

distress. In the present case, as observed above, it is not in dispute that the

claimant suffered disability though initially at 40%, which has been increasing

simultaneously upon the growth of the claimant and at present it reached to 60%

as could be seen from the Report submitted by the Medical Board and in future

also, it continues. Therefore, taking into consideration of these aspects and also

the loss of good things and joy of life sustaining by the claimant in her life time

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and since the disability is worsening day by day and as the Medical Board

assessed the functional disability at 60%, this Court is inclined to award the

compensation by taking 60% as functional disability.

12. Generally, by following the dictum of the Hon'ble Apex Court in

Sarla Verma case, the Tribunals and the Courts used to adopt the multiplier

method while computing the compensation in respect of motor accident cases

where death occurred. Recently, the Kerala High Court in “Oriental Insurance

Co. Ltd. V. Abdul Khader, 2023 SCC OnLine Ker 5686, decided on 27-07-

2023] has categorically held that while computing compensation in motor

accident cases, the multiplier method proposed by the Supreme Court in “Sarla

Verma v. Delhi Transport Corporation (2009) 6 SCC 121” remains applicable

even if the accident resulted in serious injuries instead of death. In para 11, it

has been observed as under:

“11. It is true that Sarla Verma (supra), Reshma Kumari (supra) and Pranay Sethi (supra), they are all dealing with death cases. The moot question is whether the dictum as regards the multiplier method laid down in Sarla Verma (supra), approved in Reshma Kumari (supra) and reiterated by the Constitution bench in Pranay Sethi (supra), would undergo any change, if the result of the

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accident is an injury, instead of a death. This Court is of the definite opinion that it would not. The very purpose of adopting the multiplier method in Sarla Verma (supra) is to do away with the considerable variation and inconsistency in assessing compensation and also to bring uniformity and consistency. In Sarla Verma (supra), the Honourable Supreme Court had gone to the extent of holding that, even if the evidence may indicate a different percentage of increase, it is necessary to standardise to avoid different yardsticks being applied or different methods of calculation being adopted. It is this logic, which has been approved in Reshma Kumari (supra) and reiterated in Pranay Sethi (supra). In Pranay Sethi (supra) as indicated earlier, the Honourable Supreme Court specifically concurred with Sarla Verma (supra) and Reshma Kumari (supra) and opined that following the multiplier method will subserve the cause of justice, avoiding unnecessary contentions before the Tribunals and Courts. If this be the logic for adopting the multiplier method, can any change in the legal position be conceded for the reason that the result of the accident is an injury - especially in cases of serious injuries as available in the present case - instead of a death? The answer to the above question is surely negative, in the estimation of this Court, having regard to the logic and purpose behind adopting the multiplier method.”

13. Following the above and the very purpose of adopting the multiplier

method in Sarla Verma (supra) is to do away with the considerable variation

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and inconsistency in assessing the compensation and also to bring uniformity

and consistency and further taking note of the injuries sustained by the claimant

minor girl which are grievous in nature and the disability has been worsening

day-by-day and increasing simultaneously along with the growth of the

claimant, this Court is inclined to adopt the multiplier method.

14. The Hon'ble Apex Court, for the accident occurred in the year of

2007 has taken minimum wages as notional income of the minor child and

further, added 40% as future prospects. In the present case, the accident

occurred in the year 2017. However, the minimum wages appears to be on the

higher side, this Court is inclined to fix Rs.6000/- as notional income of the

appellant/minor girl and by adding 40% towards future prospects, it would be at

a sum of Rs.8400 (6000+2400). It is settled law that so far as minors are

concerned, since they are non earning members and there is no occasion for

them to spend money towards their personal expenses and therefore, there

cannot be any deduction towards their personal expenses. In the present case,

admittedly, the appellant is the minor and hence, no amount towards the

personal expenses can be deducted. At the time of accident, the minor child was

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about 4 years old, therefore, the multiplier applicable is 15. Taking into

consideration the functional disability at 60%, the loss towards disability is

determined as follows:

Rs.8400 x 60/100 x 12 x 15 = Rs.9,07,200/-

15.The amount awarded for pain and sufferings awarded by the Tribunal

at a sum of Rs.50000/- appears to be low and hence, this Court feels it

appropriate to enhance the same to Rs.75,000/-. The compensation awarded by

the Tribunal in respect of other heads, in the opinion of this Court, is just and

reasonable and therefore, the same stands confirmed. No amount was awarded

towards future prospects, therefore, taking into consideration that the disability

is worsening day-by-day and increasing simultaneously along with the growth of

the appellant which would have considerable impact on the appellant throughout

her life, I am inclined to grant Rs.1,00,000/- towards future medical expenses

and Rs.1,00,000/- towards loss of amenities and marital prospectus.

16. Accordingly, the compensation awarded by the Tribunal is modified

as follows:

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S.No Particulars Compensation Compensation awarded by the awarded by this Tribunal Court (Rs.) (Rs.) 1 Disability 2,00,000 9,07,200 2 Medical Expenses 7,18,600 7,18,600 3 Pain and Sufferings 50000 75,000 4 Transport Expenses & Extra 20,000 20,000 nourishment 5 Future Medical Expenses Nil 1,00,000 6 Attendant charges 10,500 10500 7 Loss of amenities 50000 50000 8 Loss of education 20000 20000 9 Loss of amenities and marital Nil 1,00,000 prospectus.

Total 10,69,100 20,01,300

17. Accordingly, the award amount stands enhanced from a sum of

Rs.10,69,100/- to Rs.20,01,300/-.

18. In the result, this Civil Miscellaneous Appeal is partly allowed and the

2nd respondent is directed to deposit total enhanced compensation amount of

Rs.20,01,300/- along with interest and costs, less the amount already deposited,

if any, within a period of 6 weeks from the date of receipt of a copy of this

judgment, to the credit of MCOP.No.3744 of 2017 on the file of the Motor

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Accident Claims Tribunal, III Judge, Court of Small Causes, Chennai. Further,

the claimant shall pay necessary Court fee, if any, on the enhanced

compensation.

19. The learned counsel for the appellant would submit that already

Rs.10,69,100/- has been withdrawn by the mother of the appellant towards the

medical expenses incurred for the appellant. Now the remaining entire amount

(after the deposit being made by the 2nd respondent) shall be deposited in any

one of the Nationalized Banks under the cumulative deposit of the natural

guardian and next friend i.e., mother of the appellant minor. After attaining

majority of the appellant minor, the entire amount shall be transferred to the

account of the appellant namely, Harini. No costs.