MASTER AYUSH vs THE BRANCH MANAGER, RELIANCE GENERAL INSURANCE CO. LTD

MASTER AYUSH vs THE BRANCH MANAGER, RELIANCE GENERAL INSURANCE CO. LTD

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2205-2206 OF 2022
(ARISING OUT OF SLP (CIVIL) NOS. 7238-39 of 2021)
MASTER AYUSH .....APPELLANT(S)
VERSUS
THE BRANCH MANAGER, RELIANCE GENERAL
INSURANCE CO. LTD. & ANR.

.....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1. The present appeal has been preferred by a 5 years’ old victim of road
accident which occurred on 21.9.2010, challenging the order of the
High Court dated 7.9.2020 awarding a compensation of Rs.13,46,805/-,
as against Rs. 18,24,000/- awarded by the learned Motor Accident
Claims Tribunal1
.
2. The grievance is with respect to the inadequate amount of
compensation on account of the injuries suffered by the appellant. The
appellant is a paraplegic patient. The appellant has examined Dr.
Amithish Narayana as PW-2 and Dr. S. Adanthya as PW-3. Dr. Adanthya
1 For short, the ‘Tribunal’
1
is a medical specialist from National Institute of Mental Health &
Neurosciences, Bangalore. The discharge summary issued by the
hospital is Exh. P/10. As per the discharge certificate, the appellant is
not able to move both his legs and had complete sensory loss in the
legs, urinary incontinence, bowel constipation and bed sore. The
appellant was aged about 5 years as on the date of the accident,
hence has lost his childhood and is dependent on others for his routine
work. PW-2 Dr. Amithish Narayana has issued disability certificate
Exh.P/12. He is the Head of the Department at the Kasturba Medical
College Hospital, Mangalore. The said certificate reads as thus:
“KMC Hospital 30.04.2013
Tuesday
To Whomsoever It May Concern
This is to certify that Master Ayush V/8yrs S/o Vedava
(Resident of BC Road) is a known case of Traumatic Paraplegia
following T 10-11 spinal cord lesion due to RTA. He is not able to
walk due to poor motor and sensory recovery in LL muscles.
He shows significant sinking astasia attitude and collapses
on standing. As per the Disability certificate, he has 100%
permanent physical impairment and will not be able to walk.
Since following therapy, partial recovery has taken place
in both motor and sensory aspects up to pelvic girdle level.
Further recovery is impossible. Therefore he is been advised to
use Advanced Reciprocating Gait Orthosis (ARGO) with bilateral
elbow crutches.
After the use of Advanced Reciprocating Gait Orthosis
(ARGO) with bilateral elbow crutches he can perform
independent ambulation.
This is a great achievement for his future life as this
device gives him controlled mobility capacity.
2
With best wishes and blessings for his good progress.
Sd/-
Dr. Amitesh Narayan
Professor & HOD
Department of Physiotherapy
K.M.C. Hospital
Ambedkar Circle, Mangalore-575001
Email: amitesh.mpth@yahoo.com
Mob: 9448039380”
3. The High Court and the Tribunal assessed the compensation under
different heads as produced below:
High Court Tribunal
Sl. No. Particulars Amount Amount
1 Disability Rs.2,25,000/- Rs. 2,26,000/-
2 Pain and suffering Rs.1,00,000/- Rs. 1,20,000/-
3 Loss of amenities Rs.1,05,000/- Rs. 2,00,000/-
4 Medical expenses Rs.1,61,805/- Rs. 5,74,000/-
5 Future medical expenses i.e.
towards purchase of device
Rs.5,00,000/- Rs. 5,00,000/-
6 Attendant charges Rs.70,000/- Rs. 15,000/-
7 Conveyance charges Rs.70,000/- Rs. 20,000/-
8 Food and nourishment Rs.70,000/- Rs. 20,000/-
9. Towards Loss of marriage
prospectus
N.A Rs. 1,00,000/-
10. Towards loss of childhood N.A Rs. 50,000/-
Total Rs.13,46,805/- Rs. 18,24,000/-
4. Learned counsel for the appellant argued that the medical expenses
itself were to the tune of Rs.5,73,700/- as per Ex. P11, whereas the
High Court has only awarded a sum of Rs.1,61,805/-. The High Court
had maintained awarding a sum of Rs 5,00,000/- for future medical
expenses, i.e., towards purchase of device to be used by the appellant,
but as per the statement of PW2- Dr. Amitesh Narayana, the device
3
bears weight only up to 25 kilograms and has to be replaced every 5
years. The conveyance charges were awarded by the Tribunal as
Rs.20,000/- which was enhanced to Rs.70,000/- by the High Court.
However, it was contended that the enhancement is still less than the
taxi expenses incurred by the appellant. The Tribunal rejected the
claim of taxi expenses produced as EX P-13 amounting to Rs.
1,51,500/- on the ground that the taxi driver had not been produced
and also that why the appellant was taken by a taxi when other modes
of transport were available. Still further, the appellant has been given
Rs.70,000/- as attendant charges and Rs.2,25,000/- towards disability
which are wholly inadequate.
5. PW-1- Krishna Sapalya is the father of the appellant who was working
as Secretary, Gram Panchayat. The learned Tribunal has observed that
the father has not placed any material to show his occupation or
income. We do not agree with such finding of the Tribunal as once he
has stated that he is a Secretary of Gram Panchayat, he has disclosed
his occupation. As a Secretary of Gram Panchayat, he is a government
servant.
6. It was also argued that in a judgment reported as Kajal v. Jagdish
Chand and Others
2
, the injured was a 12 years old girl who had
suffered an injury to the extent that her IQ got less than 20% as
compared to a child of her age and the medical board had assessed
her social age to be only of a 9-months’ old child. This Court had
2 (2020) 4 SCC 413
4
recognized that Schedule II of the Act could be used as a guide for the
multiplier to be applied in each case. This Court in the aforesaid case
held as under:
“6. It is impossible to equate human suffering and personal
deprivation with money. However, this is what the Act enjoins
upon the courts to do. The court has to make a judicious attempt
to award damages, so as to compensate the claimant for the loss
suffered by the victim. On the one hand, the compensation
should not be assessed very conservatively, but on the other
hand, the compensation should also not be assessed in so liberal
a fashion so as to make it a bounty to the claimant. 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 damages assessed for personal injuries should
be substantial to compensate the injured for the deprivation
suffered by the injured throughout his/her life. They should not
be just token damages.
xxx xxx xxx
12. The assessment of damages in personal injury cases raises
great difficulties. It is not easy to convert the physical and
mental loss into monetary terms. There has to be a measure of
calculated guesswork and conjecture. An assessment, as best as
can, in the circumstances, should be made.
xxx xxx xxx
27. One factor which must be kept in mind while assessing the
compensation in a case like the present one is that the claim can
be awarded only once. The claimant cannot come back to court
for enhancement of award at a later stage praying that
something extra has been spent. Therefore, the courts or the
Tribunals assessing the compensation in a case of 100%
disability, especially where there is mental disability also, should
take a liberal view of the matter when awarding the
compensation. While awarding this amount, we are not only
taking the physical disability but also the mental disability and
various other factors. This child will remain bedridden for life.
5
Her mental age will be that of a nine-month-old child. Effectively,
while her body grows, she will remain a small baby. We are
dealing with a girl who will physically become a woman but will
mentally remain a 9-month-old child. This girl will miss out
playing with her friends. She cannot communicate; she cannot
enjoy the pleasures of life; she cannot even be amused by
watching cartoons or films; she will miss out the fun of
childhood, the excitement of youth; the pleasures of a marital
life; she cannot have children who she can love, let alone
grandchildren. She will have no pleasure. Her's is a vegetable
existence. Therefore, we feel in the peculiar facts and
circumstances of the case even after taking a very conservative
view of the matter an amount payable for the pain and suffering
of this child should be at least Rs 15,00,000.”
7. The High Court had assessed, in the aforesaid case, the notional
income of the victim as Rs.15,000/- p.a. which was not found to be
justified by this Court. It was observed that the girl would be entitled to
minimum wages payable to a skilled workman. The appellant was from
the State of Haryana. The minimum wages in that State on the date of
accident were Rs.4846/- per month. In the present appeal, the
minimum wages for 2010-11 in the State of Karnataka for
employments not covered under any of the scheduled employments
can be ascertained from the following extract of notification for
minimum wages published in the Gazette on 19.02.2007:
“24.Employment not covered in any of the Scheduled Employments
Notification No. KAE 79 LMW 2005 dated 17.03.2006
Published in Gazette dated 19.02.2007
Cost of Living Allowance to be paid over and above 2703 points
Cost of Living Index: 3944-2703=1241 points
Minimum wages and VDA from 01-04-2010 to 31-03-2011
6
S C H E D U L E
Sl.
No.
Class of
Employment
Minimum rates of wages payable
for different zones
Basic VDA Total
1 2 3 4 5
1 Highly Skilled 2691.80 1116.90 3808.70
2 Skilled 2591.80 1116.90 3708.70
3 Semi-Skilled 2041.80 1116.90 3158.70
4 Unskilled 1891.80 1116.90 3008.70
VDA: All Categories of employees: 3 paise per point per day over
and above 2703 points.”
8. Hence, as per the above extract, the minimum wages payable to a
skilled workman in 2010-11 is to the tune of Rs. 3708.70. In this view,
the minimum wages as on the date of accident is rounded off to
Rs.3700/-. The compensation, therefore, is to be assessed on the basis
of the said minimum wages on the assumption that the appellant
would have been able to earn after attaining majority.
9. In addition to the skilled minimum wages, the appellant would be also
entitled to 40% for future prospects in view of the judgment of this
Court in National Insurance Company Limited v. Pranay Sethi &
Ors
3
.
10. Thus, the compensation works out to be Rs.3700/- plus 40%, which
amounts to Rs.5180/- per month. The multiplier of 18 would be
applicable in view of the age of the appellant. The loss of future
earnings due to the Permanent Disability for life thus works out to be
Rs.11,18,880/-, i.e., (3700+1480=5180) x 12 x 18.
3 (2017) 16 SCC 680
7
11. As per the medical certificate produced by the appellant, with
Advanced Reciprocating Gait Orthosis (ARGO) with bilateral elbow
crutches, the appellant can perform independent ambulation.
Therefore, the condition of the appellant is not entirely comparable to
Kajal who was confined to bed with mental age of 9 months’ old child.
The appellant herein is not able to move his both legs and had
complete sensory loss in the legs, urinary incontinence and bowel
constipation and bed sore.
12. The determination of damages in personal injury cases is not easy. The
mental and physical loss cannot be computed in terms of money but
there is no other way to compensate the victim except by payment of
just compensation. Therefore, we find that in view of the physical
condition, the appellant is entitled to one attendant for the rest of his
life though he may be able to walk with the help of assistant device.
The device also requires to be replaced every 5 years. Therefore, it is
reasonable to award cost of 2 devices i.e., Rs.10 lakhs. The appellant
has not only lost his childhood but also adult life. Therefore, loss of
marriage prospects would also be required to be awarded. The learned
Tribunal has rejected the claim of taxi expenses for the reason that the
taxi driver has not been produced. It is impossible to produce the
numerous taxi drivers. Still further, the Tribunal should have realized
the condition of the child who had complete sensory loss in the legs.
Therefore, if the parents of the child have taken him in a taxi, probably
8
that was the only option available to them. Accordingly, we award a
sum of Rs.2 lakhs as conveyance charges.
13. No compensation is warranted to be payable under the heading “food
and nourishment or towards loss of childhood” as it stands subsumed
in the compensation assessed under the other different heads. In view
of the judgment in Kajal and other principles of determination of
compensation, the amount payable would be as under:
Head Amount
A Loss of future earnings due to the
Permanent Disability for life
(3700 + 1480=5180) x 12 x 18
Rs.11,18,880/-
B Medical expenses Rs.5,74,000/-
C Future medical expenses i.e.
towards purchase of 2 devices
Rs.10,00,000/-
D Pain, suffering and Loss of amenities Rs.10,00,000/-
E Loss of Marriage prospects Rs.3,00,000/-
F One Attendant charges
(3700x12x18)=7,99,200/- rounded
off
Rs.8,00,000/-
G Conveyance charges Rs.2,00,000/-
Total Rs.49,92,880/-
Rounded off Rs.49,93,000/-
14. Hence, the compensation comes out to be Rs. 49,93,000/- along with
interest already awarded by the Tribunal and affirmed by the High
Court i.e. 7.5% p.a. from the date of filing of the claim application till
realization.
9
15. Since the appellant is a minor, in view of the judgment of this Court in
General Manager, Kerala State Road Transport Corporation,
Trivandrum v. Susamma Thomas and Others
4
, the amount of
Rs.10,00,000/- would be disbursed to the father of the appellant as his
guardian. If however, an amount more than Rs.10,00,000/- has already
been disbursed, the said amount shall not be adjusted. The rest of the
amount would be invested in one or more Fixed Deposits Receipts so
as to attract the maximum rate of interest. The interest amount shall
be payable to the guardian of the appellant every month. It shall be
open to the guardian, during the minority of the appellant, to seek
orders for withdrawal of the amount on the basis of medical opinion, if
any major medical expenses are required to be incurred.
16. The appeals thus stand allowed accordingly with costs throughout.
.............................................J.
(HEMANT GUPTA)
.............................................J.
(V. RAMASUBRAMANIAN)
NEW DELHI;
MARCH 29, 2022.
4 (1994) 2 SCC 176
10

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