Sikkim High Court
The Branch Manager, Shriram General ... vs Dil Maya Rai And Ors on 20 February, 2025
Author: Meenakshi Madan Rai
Bench: Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
DATED : 20th February, 2025
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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MAC App. No.04 of 2024
Appellant : The Branch Manager,
Shriram General Insurance Company Limited
versus
Respondents : Dil Maya Rai and Others
Appeal under Section 173 of the Motor Vehicles Act, 1988
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Appearance
Mr. Rahul Rathi, Advocate for the Appellant.
Mr. Sushant Subba, Advocate for the Respondents No.1 and 2.
Mr. Mahesh Subba, Advocate for the Respondent No.3.
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JUDGMENT (ORAL)
Meenakshi Madan Rai, J.
1. The Respondent No.1, who was the Claimant No.1
before the Learned Motor Accidents Claims Tribunal (hereinafter,
"MACT") is a 51 year old lady, injured victim of a vehicular
accident, which occurred on 23-10-2020. On that day, she was
working by the roadside, when a Mahindra Bolero vehicle, driven
by the Respondent No.3 hit her, on account of which she lost vision
in both her eyes. A Certificate of Disability was issued by the
Department of Ophthalmology, HC, HS & FW Department, District
Hospital Gyalshing, Government of Sikkim, dated 24-01-2022,
certifying that she has sustained 90% permanent physical
impairment due to the above circumstance. The Respondent No.2
is the Power of Attorney holder for the Respondent No.1. The
Learned MACT granted a total compensation of ₹ 32,46,000/-
(Rupees thirty two lakhs and forty six thousand) only, to the
Respondent No.1.
The Branch Manager, Shriram General Insurance Company Limited vs. Dil Maya Rai and Others
2. Aggrieved by the computation of compensation and
assailing it, Learned Counsel for the Appellant urges that the
computation is erroneous for the reason that, although the loss of
earnings has been calculated @ ₹ 300/- (Rupees three hundred)
only, per day, for the period October, 2020, to June, 2022,
however her daily wages were placed at and calculated @ ₹ 500/-
(Rupees five hundred) only, for the period July, 2022, to October,
2023, without the Respondent No.1 having made any claims in her
averments. While doing so the MACT relied upon a Notification of
the Labour Department, Government of Sikkim, dated 11-07-2022,
sans pleadings, disregarding the fact that the accident had
occurred prior in time to the issuance of the Notification thereby
causing serious prejudice to the Appellant-Insurance Company and
an error in computation.
(i) Further, while calculating the compensation, the "total
annual income" has been computed as ₹ 4,29,000/- (Rupees four
lakhs and twenty nine thousand) only, by calculating ₹ 300/-
(Rupees three hundred) only, per day, for "twenty-one months"
and @ ₹ 500/- (Rupees five hundred) only, per day, for "sixteen
months", resulting in a clear error in calculating the loss of income
"per annum". The compensation is accordingly required to be
modified. Learned Counsel for the Appellant however had no
argument with the sum of ₹ 1,00,000/- (Rupees one lakh) only,
granted by the Learned MACT towards "Pain and Suffering" nor
were any other grounds pressed in Appeal.
3. Learned Counsel for the Respondents No.1 and 2, while
admitting that there has been an error with regard to the net
annual income projected by the Learned MACT as ₹ 4,29,000/-
The Branch Manager, Shriram General Insurance Company Limited vs. Dil Maya Rai and Others
(Rupees four lakhs and twenty nine thousand) only, which is in fact
not the annual income, however apart from that, there is no reason
for the Appellant to assail the invocation of the Notification dated
11-07-2022 supra by the Learned MACT for calculating loss of
income @ ₹ 500/- (Rupees five hundred) only, per day. The award
may be modified only to the extent of setting aside the calculation
with regard to the annual income.
4. Learned Counsel for the Respondent No.3 had no
specific submissions to advance.
5. Having heard the opposing parties at length and
considered the submissions, it is apposite to notice as pointed out
by Learned Counsel for both parties that, indubitably there is an
error in the computation of compensation as the net annual income
for both phases reflected above would not be ₹ 4,29,000/- (Rupees
four lakhs and twenty nine thousand) only, the computation having
been erroneously added for twenty-one months @ ₹ 300/- (Rupees
three hundred) only, per day and sixteen months @ ₹ 500/-
(Rupees five hundred) only, per day.
(i) That having been said, considering that at the time of
the accident she was actually earning ₹ 300/- (Rupees three
hundred) only, per day, it would be in the fairness of things to
compute her income @ ₹ 9,000/- per month. Hence, compensation
for loss of income would be as follows;
₹ 9000/- x 12 months = ₹ 1,08,000/- per annum
₹ 1,08,000/- x 11
[Multiplier of '11' adopted - in terms of = ₹ 11,88,000/-
Paragraph 42 of the Judgment of Sarla
Verma (Smt) and Others vs. Delhi
Transport Corporation and Another
: (2009) 6 SCC 121]
(ii) 10% addition, i.e., ₹ 1,18,800/- (₹ 11,88,000/- x
10%) is made towards future prospects in terms of the decision in
The Branch Manager, Shriram General Insurance Company Limited vs. Dil Maya Rai and Others
National Insurance Company Limited vs. Pranay Sethi and Others
wherein it was inter alia held that;
"59. In view of the aforesaid analysis, we
proceed to record our conclusions:
59.1. .......................................................
59.2. .......................................................
59.3. .......................................................
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.
59.5. .......................................................
59.6. .......................................................
59.7. .......................................................
59.8. ......................................................."
[emphasis supplied]
(iii) Resultant, loss of earnings and future prospects add
upto ₹ 13,06,800/- [₹ 11,88,000/- + ₹ 1,18,800/-].
6. While considering compensation under the head of
"Pain and Suffering", reference is made to the observation of the
Supreme Court in Kajal vs. Jagdish Chand and Others2 which held as
follows;
"Pain, suffering and loss of amenities
26. Coming to the non-pecuniary damages under
the head of pain, suffering, loss of amenities, the High
Court has awarded this girl only Rs 3,00,000.
In Mallikarjun v. National Insurance Co. Ltd. [(2014)
14 SCC 396], this Court while dealing with the issue
of award under this head held that it should be at
least Rs. 6,00,000, if the disability is more than 90%.
As far as the present case is concerned, in addition to
the 100% physical disability, the young girl is
suffering from severe incontinence, she is suffering
from severe hysteria and above all she is left with a
brain of a nine-month-old child. This is a case where
departure has to be made from the normal rule and
the pain and suffering suffered by this child is such
that no amount of compensation can compensate."
(2017) 16 SCC 680
(2020) 4 SCC 413
The Branch Manager, Shriram General Insurance Company Limited vs. Dil Maya Rai and Others
The Supreme Court having analysed thus, thereafter went on
to award ₹ 15,00,000/- (Rupees fifteen lakhs) only, under the head
of "pain and suffering". Bearing in mind the facts and
circumstances of this case and the age of the Respondent No.1
unarguably being 51, I am of the considered view that ₹
6,00,000/- (Rupees six lakhs) only, would suffice to compensate
her for "Pain and Suffering". I hasten to add that this Court is not
oblivious of the fact that no amount of monetary compensation can
recoup the physical loss and mental trauma experienced by her
while having to live and cope with the blindness, depriving her of
her normal life, however keeping in mind a myriad of
circumstances, the amount will at least augment her day to day
expenses. The Learned MACT had granted ₹ 1,00,000/- (Rupees
one lakhs) only, for Pain and Suffering, in light of the foregoing
discussions the amount now stands escalated to ₹ 6,00,000/-
(Rupees six lakhs) only.
7. It is worthwhile noticing that although the Respondent
No.1 suffered 90% injuries, no compensation was granted by the
Learned MACT to her, under the head of "Attendant charges" as
done in Kajal (supra). The Supreme Court while considering
compensation under such head had held as follows;
"Attendant charges
22. The attendant charges have been awarded by
the High Court @ Rs 2500 per month for 44 years,
which works out to Rs 13,20,000. Unfortunately, this
system is not a proper system. Multiplier system is
used to balance out various factors. When
compensation is awarded in lump sum, various
factors are taken into consideration. When
compensation is paid in lump sum, this Court has
always followed the multiplier system. The multiplier
system should be followed not only for determining
the compensation on account of loss of income but
also for determining the attendant charges, etc. This
system was recognised by this Court in Gobald Motor
Service Ltd. v. R.M.K. Veluswami [AIR 1962 SC 1]. The
The Branch Manager, Shriram General Insurance Company Limited vs. Dil Maya Rai and Others
multiplier system factors in the inflation rate, the rate
of interest payable on the lump sum award, the
longevity of the claimant, and also other issues such
as the uncertainties of life. Out of all the various
alternative methods, the multiplier method has been
recognised as the most realistic and reasonable
method. It ensures better justice between the parties
and thus results in award of "just compensation"
within the meaning of the Act."
(i) In light of the afore-extracted observation of the
Supreme Court and that at Paragraphs 23, 24 and 25 of Kajal
(ibid), the Respondent No.1 being 51 years at the time of accident,
it would be appropriate to place attendant charges at ₹ 7,56,000/-
(Rupees seven lakhs and fifty-six thousand) only, @ ₹ 9,000/- per
month, for a period of seven years, till she attains the age of 58.
8. I am also of the considered view that a sum of ₹
4,00,000/- (Rupees four lakhs) only, ought to be awarded for
"future medical treatment" in light of the observation made in Kajal
(ibid) at Paragraph 29.
(i) ₹ 3,11,933/- (Rupees three lakhs, eleven thousand,
nine hundred and thirty three) only, has admittedly already been
paid by Respondent No.3, the owner of the vehicle to the
Respondent No.1 towards medical expenses and thereby requires
no further discussions as no party has made any further
submission on this aspect.
9. Consequently, the compensation granted by the
Learned MACT is set aside and the amount which is found to be
"just compensation" is computed as follows;
Loss of Earnings and Future Prospects ₹ 13,06,800.00
Add Pain, Suffering and Loss of Amenities (+) ₹ 6,00,000.00
[in terms of the Judgment of Kajal (supra)]
Add Future Medical Expenses (+) ₹ 4,00,000.00
[in terms of the Judgment of Kajal (supra)]
Add Attendant Charges (+) ₹ 7,56,000.00
[in terms of the Judgment of Kajal (supra)]
Total = ₹ 30,62,800.00
(Rupees thirty lakhs, sixty two thousand and eight hundred) only.
The Branch Manager, Shriram General Insurance Company Limited vs. Dil Maya Rai and Others
10. This Court has in all matters of motor accident cases
uniformly awarded interest rate @ 9%. Consequently, interest of
7% imposed by the Learned MACT is set aside and in its stead 9%
interest is imposed on the award, which shall be effective from the
date of filing of the Claim Petition before the Learned MACT, i.e.,
30-05-2022, till full realisation of the compensation amount.
11. The Appellant-Insurance Company is directed to pay
the above compensation with interest as ordered, to the
Respondent No.1, within one month from today, failing which, it
shall pay simple interest @ 12% per annum, from the date of filing
of the Claim Petition, till full realisation.
12. Amounts, if any, already paid by the Appellant-
Insurance Company to the Respondent No.1, shall be duly
deducted from the awarded compensation. This does not include
the medical expenses of Respondent No.1 paid by the Respondent
No.3.
13. Appeal allowed and disposed of with the above
modifications.
14. No order as to costs.
15. Copy of this Judgment be sent forthwith to the Learned
MACT for information along with its records.
( Meenakshi Madan Rai )
Judge
20-02-2025
Approved for reporting : Yes
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