Cout can grant compensation more than claimed when the claimant is a minor
In view of the above, we award a sum of Rs.62,27,000/ to the claimant under the following heads :
S.No Heads Amount (i) Expenses relating to treatment, hospitalisation and transportation
Rs. 2,50,000/
(ii) Loss of earnings (family members)
Rs. 51,000/
(iii) Loss of future earnings Rs.14,66,000/
(iv) Attendant charges Rs.21,60,000/
(v) Pain, suffering, loss of amenities Rs.15,00,000/
(vi) Loss of Marriage prospects Rs. 3,00,000/
(vii) Future medical treatment Rs. 5,00,000/
This amount shall carry an interest @7.5% p.a. from the date of filing of the claim petition till payment/deposit of the amount.
Obviously, the insurance company shall be entitled to adjust the amount already paid. Further, the insurance company shall also be entitled to recover the amount from the owner in terms of
the award of the MACT, which has not been challenged either
before the High Court or us.
We are aware that the amount awarded by us is more than the amount claimed. However, it is well settled law that in motor accident claim petitions, the Court must award just compensation and, in case, the just compensation is more than the amount claimed, that must be awarded especially where the claimant is a minor.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 735 OF 2020
(Arising out of Special Leave Petition (C) No.15504 OF 2019)
KAJAL …APPELLANT(S)
Versus
JAGDISH CHAND & ORS. …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.
1. Kajal was a bright young girl. She used to attend school,
play with her friends and lead a normal life like any other child.
Unfortunately, on 18th October, 2007, while Kajal was travelling
on a tractor with her parents, the tractor was hit by a truck
which was driven rashly. In the said accident, Kajal suffered
serious injuries resulting in damage to her brain. This has had
very serious consequences on her. She was examined at the Post
Graduate Institute of Medical Education and Research,
1
Chandigarh (PGI, Chandigarh for short), for assessment of her
disability. According to the said report, because of head injury
Kajal is left with a very low I.Q. and severe weakness in all her
four limbs, suffers from severe hysteria and severe urinary
incontinence. Her disability has been assessed as 100%.
2. Dr. Chhabra (PW4), who was one of the members of the
Board which issued the disability certificate (Ex.P6) stated that
as per the assessment her I.Q. is less than 20% of a child of her
age and her social age is only of a 9 month old child. This means
that Kajal while lying on the bed will grow up to be an adult with
all the physical and biological attributes which a woman would
get on attaining adulthood, including menstruation etc., but her
mind will remain of a 9 month old child. Basically, she will not
understand what is happening all around her.
3. How does one assess compensation in such a case? 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 Motor Vehicles Act, 1988 (for short the Act). The
Act requires determination of payment of just compensation and
2
it is the duty of the court to ensure that she is paid compensation
which is just.
4. Kajal through her father filed a claim petition, under the
Act. The Motor Accident Claims Tribunal (MACT for short)
awarded Rs.11,08,501/ and held that since there was violation
of the terms of policy the insurance company would pay the
amount but would be entitled to recover the same from the
owner. The High Court enhanced the award amount to
Rs.25,78,501/ under the following heads:
Heads High Court
Age 12
Multiplier
Income (taken to be) Rs. 15,000/
Disability 100%
Loss of income and permanent
disability compensation
Rs. 2,70,000/
Pain, suffering loss of amenities Rs. 3,00,000/
Attendant charges Rs. 3,20,000/
(Rs.2500 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/
Aggrieved by the award the claimant is before this Court.
5. The principles with regard to determination of just
compensation contemplated under the Act are well settled.
3
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 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 nonpecuniary, but all have to be assessed in Rupees and Paise.
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, 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
4
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.
7. There are numerous cases where the principles for grant of
compensation have been enunciated. It would be relevant to
quote pertinent observations from a few.
8. In Phillips v. Western Railway Co.
1
, Field, J., while
emphasizing that damages must be full and adequate, held thus:
"You cannot put the plaintiff back again into his original
position, but you must bring your reasonable common
sense to bear, and you must always recollect that this is
the only occasion on which compensation can be given.
The plaintiff can never sue again for it. You have,
therefore, now to give him compensation once and for all.
He has done no wrong, he has suffered a wrong at the
hands of the defendants and you must take care to give
him full fair compensation for that which he has
suffered." Besides, the Tribunals should always
remember that the measures of damages in all these
cases "should be such as to enable even a tortfeasor to
say that he had amply atoned for his misadventure".
9. In the case of Mediana2
, Lord Halsbury held:
"Of course the whole region of inquiry into damages is
one of extreme difficulty. You very often cannot even lay
down any principle upon which you can give damages;
nevertheless, it is remitted to the jury, or those who
stand in place of the jury, to consider what compensation
in money shall be given for what is a wrongful act. Take
the most familiar and ordinary case: how is anybody to
measure pain and suffering in moneys counted? Nobody
1 (1874) 4 QBD 406
2 [1900] AC 113
5
can suggest that you can by any arithmetical calculation
establish what is the exact amount of money which
would represent such a thing as the pain and suffering
which a person has undergone by reason of an accident.
In truth, I think it would be very arguable to say that a
person would be entitled to no damages for such thing.
What manly mind cares about pain and suffering that is
past? But, nevertheless, the law recognizes that as a
topic upon which damages may be given."
10. The following observations of Lord Morris in his speech in H.
West & Son Ltd. v. Shephard3
, are very pertinent:
"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. All that Judges and courts can do is to award
sums which must be regarded as giving reasonable
compensation. In the process there must be the
endeavour to secure some uniformity in the general
method of approach. By common assent awards must be
reasonable and must be assessed with moderation.
Furthermore, it is eminently desirable that so far as
possible comparable injuries should be compensated by
comparable awards."
In the same case Lord Devlin observed that the proper approach
to the problem was to adopt a test as to what contemporary
society would deem to be a fair sum, such as would allow the
wrongdoer to "hold up his head among his neighbours and say
with their approval that he has done the fair thing", which
should be kept in mind by the court in determining
compensation in personal injury cases.
3 1963 2 WLR 1359
6
11. Lord Denning while speaking for the Court of Appeal in the
case of Ward v. James4
, laid down the following three basic
principles to be followed in such like cases:
"Firstly, accessibility: In cases of grave injury, where the
body is wrecked or brain destroyed, it is very difficult to
assess a fair compensation in money, so difficult that the
award must basically be a conventional figure, derived
from experience or from awards in comparable cases.
Secondly, uniformity: There should be some measure of
uniformity in awards so that similar decisions may be
given in similar cases; otherwise there will be great
dissatisfaction in the community and much criticism of
the administration of justice. Thirdly, predictability:
Parties should be able to predict with some measure of
accuracy the sum which is likely to be awarded in a
particular case, for by this means cases can be settled
peaceably and not brought to court, a thing very much to
the public good."
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 guess work and conjecture. An assessment, as best
as can, in the circumstances, should be made.
13. In McGregor’s Treatise on Damages, 14th Edn., para 1157,
referring to heads of damages in personal injury actions states:
"The person physically injured may recover both for his
pecuniary losses and his nonpecuniary losses. Of these
the pecuniary losses themselves comprise two separate
items, viz., the loss of earnings and other gains which the
plaintiff would have made had he not been injured and
the medical and other expenses to which he is put as a
4 (1965) 1 All ER 563
7
result of the injury, and the courts have subdivided the
nonpecuniary losses into three categories, viz., pain and
suffering, loss of amenities of life and loss of expectation
of life."
14. In M/s Concord of India Insurance Co. Ltd. v. Nirmala
Devi and others5
, this Court held:
"2….The determination of the quantum must be liberal,
not niggardly since the law values life and limb in a free
country in generous scales."
15. In R.D. Hattangadi v. Pest Control (India) Pvt. Ltd.6
,
dealing with the different heads of compensation in injury cases
this Court held thus:
"9. Broadly speaking, while fixing the amount of
compensation payable to a victim of an accident, the
damages have to be assessed separately as pecuniary
damages and special damages. Pecuniary damages are
those which the victim has actually incurred and which
are capable of being calculated in terms of money;
whereas nonpecuniary damages are those which are
incapable of being assessed by arithmetical calculations.
In order to appreciate two concepts pecuniary damages
may include expenses incurred by the claimant: (i)
medical attendance; (ii) loss of earning of profit up to the
date of trial; (iii) other material loss. So far as nonpecuniary damages are concerned, they may include:
(i) damages for mental and physical shock,
pain and suffering already suffered or likely to
be suffered in the future; (ii) damages to
compensate for the loss of amenities of life
which may include a variety of matters, i.e., on
account of injury the claimant may not be able
to walk, run or sit; (iii) damages for loss of
expectation of life, i.e. on account of injury the
normal longevity of the person concerned is
shortened; (iv) inconvenience, hardship,
5 1980 ACJ 55 (SC)
6 (1995) 1 SCC 551
8
discomfort, disappointment, frustration and
mental stress in life."
16. In Raj Kumar v. Ajay Kumar and Others7
, 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 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.
Nonpecuniary 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 (2011) 1 SCC 343
9
17. In K. Suresh v. New India Assurance Company Ltd.
and Ors.
8
, this Court held as follows :
“2...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. Therefore, Section 168 of the Motor
Vehicles Act, 1988 (for brevity ‘the Act’) stipulates that
there should be grant of “just compensation”. Thus, it
becomes a challenge for a court of law to determine “just
compensation” which is neither a bonanza nor a windfall,
and simultaneously, should not be a pittance.”
18. Applying the aforesaid principles, we now proceed to assess
the compensation.
Expenses relating to treatment, hospitalization, medicines,
transportation etc.
19. The High Court under the two heads of medical treatment
and transport has awarded Rs.1,88,501/. Out of this an
amount of Rs.1,38,501/ is the actual expense incurred on the
treatment of Kajal. One must remember that amongst people
who are not Government employees and belong to the poorer
strata of society, bills are not retained. Some of the bills have
been excluded by the courts below only on the ground that the
name of the patient is not written on the bill. There is no
dispute with regard to the long period of treatment and
8 (2012) 12 SCC 274
10
hospitalisation of this young girl. Immediately after the accident
on 18.10.2007, she was admitted at a hospital in Karnal. From
there, she was referred to the PGI, Chandigarh, where she
remained admitted from 21.10.2007 till 12.11.2007 and,
thereafter, she was again admitted in the hospital from
12.11.2007 till 08.12.2007. She was in the hospital for almost
51 days, and both Dr. Sameer Aggarwal (PW3) from the hospital
at Karnal and Dr. Rajesh Chhabra (PW4), from PGI,
Chandigarh, have supported this. Limiting the amount only to
the bills which have been paid in the name of the claimant only,
would not be reasonable. Therefore, the amount payable for
actual medical expenses is increased from Rs.1,38,501/ to
Rs.2,00,000/. The amount awarded for transportation at
Rs.50,000/ is reasonable. Therefore, under this head we award
Rs.2,50,000/.
Loss of earnings
20. Both the courts below have held that since the girl was a
young child of 12 years only notional income of Rs.15,000/ per
annum can be taken into consideration. We do not think this is
a proper way of assessing the future loss of income. This young
girl after studying could have worked and would have earned
11
much more than Rs.15,000/ per annum. Each case has to be
decided on its own evidence but taking notional income to be
Rs.15,000/ per annum is not at all justified. The appellant has
placed before us material to show that the minimum wages
payable to a skilled workman is Rs.4846/ per month. In our
opinion this would be the minimum amount which she would
have earned on becoming a major. Adding 40% for the future
prospects, it works to be Rs.6784.40/ per month, i.e.,
81,412.80 per annum. Applying the multiplier of 18 it works out
to Rs.14,65,430.40, which is rounded off to Rs.14,66,000/
21. Though the claimant would have been entitled to separate
attendant charges for the period during which she was
hospitalised, we are refraining from awarding the same because
we are going to award her attendant charges for life. At the
same time, we are clearly of the view that the tortfeasor cannot
take benefit of the gratuitous service rendered by the family
members. When this small girl was taken to PGI, Chandigarh,
or was in her village, 23 family members must have
accompanied her. Even if we are not paying them the attendant
charges they must be paid for loss of their wages and the
amount they would have spent in hospital for food etc. These
12
family members left their work in the village to attend to this
little girl in the hospital at Karnal or Chandigarh. In the hospital
the claimant would have had at least two attendants, and taking
the cost of each at Rs.500/ per day for 51 days, we award her
Rs.51,000/.
Attendant charges
22. The attendant charges have been awarded by the High
Court @ Rs.2,500/ 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. Veluswami9
. The multiplier system factors in the
inflation rate, the rate of interest payable on the lump sum
9 AIR 1962 SC 1
13
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.
23. It would be apposite at this stage to refer to the observation
of Lord Reid in Taylor v. O’Connor10:
"Damages to make good the loss of dependency over a
period of years must be awarded as a lump sum and that
sum is generally calculated by applying a multiplier to
the amount of one year's dependency. That is a perfectly
good method in the ordinary case but it conceals the fact
that there are two quite separate matters involved, the
present value of the series of future payments, and the
discounting of that present value to allow for the fact that
for one reason or another the person receiving the
damages might never have enjoyed the whole of the
benefit of the dependency. It is quite unnecessary in the
ordinary case to deal with these matters separately.
Judges and counsel have a wealth of experience which is
an adequate guide to the selection of the multiplier and
any expert evidence is rightly discouraged. But in a case
where the facts are special, I think, that these matters
must have separate consideration if even rough justice is
to be done and expert evidence may be valuable or even
almost essential. The special factor in the present case is
the incidence of Income Tax and, it may be, surtax."
24. This Court has reaffirmed the multiplier method in various
cases like Municipal Corporation of Delhi v. Subhagwati
10 1971 AC 115
14
and Ors.
11
, U.P. State Road Transport Corporation and Ors.
v. Trilok Chandra and Ors.
12
, Sandeep Khanduja v. Atul
Dande and Ors.13
. This Court has also recognised that
Schedule II of the Act can be used as a guide for the multiplier to
be applied in each case. Keeping the claimant’s age in mind, the
multiplier in this case should be 18 as opposed to 44 taken by
the High Court.
25. Having held so, we are clearly of the view that the basic
amount taken for determining attendant charges is very much
on the lower side. We must remember that this little girl is
severely suffering from incontinence meaning that she does not
have control over her bodily functions like passing urine and
faeces. As she grows older, she will not be able to handle her
periods. She requires an attendant virtually 24 hours a day.
She requires an attendant who though may not be medically
trained but must be capable of handling a child who is bed
ridden. She would require an attendant who would ensure that
she does not suffer from bed sores. The claimant has placed
before us a notification of the State of Haryana of the year 2010,
11 1966 ACJ 57
12 (1996) 4 SCC 362
13 (2017) 3 SCC 351
15
wherein the wages for skilled labourer is Rs.4846/ per month.
We, therefore, assess the cost of one attendant at Rs.5,000/
and she will require two attendants which works out to
Rs.10,000/ per month, which comes to Rs.1,20,000/ per
annum, and using the multiplier of 18 it works out to
Rs.21,60,000/ for attendant charges for her entire life. This
takes care of all the pecuniary damages.
Pain, Suffering and Loss of Amenities
26. Coming to the nonpecuniary 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. Divisional
Manager, The National Insurance Company Limited and
Ors.
14, 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
14 2013 (10) SCALE 668
16
from the normal rule and the pain and suffering suffered by this
child is such that no amount of compensation can compensate.
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 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. 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
17
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/.
Loss of marriage prospects
28. The Tribunal has awarded Rs.3,00,000/ for loss of
marriage prospects. We see no reason to interfere with this
finding.
Future medical treatment
29. The claimant has been awarded only Rs.2,00,000/ under
this head. This amount is a pittance. Keeping in view the
nature of her injuries and the fact that she is bedridden this
child is bound to suffer from a lot of medical problems. True it
is that there is no evidence in this regard but there can hardly
be such evidence. She may require special mattress which will
have to be changed frequently. In future as this girl grows, she
may face many other medical issues because of the injuries
suffered in the accident. Keeping in view her young age and
18
assuming she would live another 5060 years, it would not be
unjust to award her Rs.5,00,000/ for future medical expenses.
How the compensation should be invested?
30. The tribunal while awarding the compensation had stated
that the amount payable to the share of Kajal would be kept in a
Fixed Deposit till she attains the age of 18 years. The High
Court while enhancing the amount of compensation has directed
that the enhanced amount be paid to the appellant within 45
days. This is totally contrary to the guidelines laid down by this
Court in General Manager, Kerala State Road Transport
Corporation, Trivandrum v. Susamma Thomas and Ors.
15
,
wherein it has been held clearly that the amount payable to the
minors should not be normally released. The guidelines in this
case were as follows :
“17….(i) The Claims Tribunal should, in the case of minors,
invariably order the amount of compensation awarded to
the minor be invested in long term fixed deposits at least
till the date of the minor attaining majority. The expenses
incurred by the guardian or next friend may, however, be
allowed to be withdrawn;
(ii) In the case of illiterate claimants also the Claims Tribunal
should follow the procedure set out in (i) above, but if
lump sum payment is required for effecting purchases of
any movable or immovable property such as, agricultural
implements, rickshaw, etc., to earn a living, the Tribunal
may consider such a request after making sure that the
15 (1994) 2 SCC 176
19
amount is actually spent for the purpose and the demand
is not a ruse to withdraw money;
(iii) In the case of semiliterate persons the Tribunal should
ordinarily resort to the procedure set out at (i) above
unless it is satisfied, for reasons to be stated in writing,
that the whole or part of the amount is required for
expanding and existing business or for purchasing some
property as mentioned in (ii) above for earning his
livelihood, in which case the Tribunal will ensure that the
amount is invested for the purpose for which it is
demanded and paid;
(iv) In the case of literate persons also the Tribunal may
resort to the procedure indicated in (i) above, subject to
the relaxation set out in (ii) and (iii) above, if having regard
to the age, fiscal background and strata of society to
which the claimant belongs and such other
considerations, the Tribunal in the larger interest of the
claimant and with a view to ensuring the safety of the
compensation awarded to him thinks it necessary to do
order;
(v) In the case of widows the Claims Tribunal should
invariably follow the procedure set out in (i) above;
(vi) In personal injury cases if further treatment is necessary
the Claims Tribunal on being satisfied about the same,
which shall be recorded in writing, permit withdrawal of
such amount as is necessary for incurring the expenses
for such treatment;
(vii) In all cases in which investment in long term fixed
deposits is made it should be on condition that the Bank
will not permit any loan or advance on the fixed deposit
and interest on the amount invested is paid monthly
directly to the claimant or his guardian, as the case may
be;
(viii) In all cases Tribunal should grant to the claimants
liberty to apply for withdrawal in case of an emergency. To
meet with such a contingency, if the amount awarded is
substantial, the Claims Tribunal may invest it in more
than one Fixed Deposit so that if need be one such F.D.R.
can be liquidated….”
These guidelines protect the rights of the minors, claimants who
are under some disability and also widows and illiterate person
who may be deprived of the compensation paid to them in lump
20
sum by unscrupulous elements. These victims may not be able
to invest their monies properly and in such cases the MACT as
well the High courts must ensure that investments are made in
nationalised banks to get a high rate of interest. The interest in
most cases is sufficient to cover the monthly expenses. In
special cases, for reasons to be given in writing, the MACT or the
trial court may release such amount as is required. We reiterate
these guidelines and direct that they should be followed by all
the tribunals and High Courts to ensure that the money of the
victims is not frittered away.
Interest
31. The High Court enhanced the amount of compensation by
Rs.14,70,000/ and awarded interest @ 7.5% per annum but
directed that the interest of 7.5% shall be paid only from the
date of filing of the appeal. This is also incorrect. We are
constrained to observe that the High Court was not right in
awarding interest on the enhanced amount only from the date of
filing of the appeal. Section 171 of the Act reads as follows :
“171. Award of interest where any claim is allowed.—
Where any Claims Tribunal allows a claim for
compensation made under this Act, such Tribunal may
direct that in addition to the amount of compensation
21
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.”
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.
Relief
32. In view of the above, we award a sum of Rs.62,27,000/
to the claimant under the following heads :
S.No
.
Heads Amount
22
(i) Expenses relating to treatment,
hospitalisation and
transportation
Rs. 2,50,000/
(ii) Loss of earnings (family
members)
Rs. 51,000/
(iii) Loss of future earnings Rs.14,66,000/
(iv) Attendant charges Rs.21,60,000/
(v) Pain, suffering, loss of amenities Rs.15,00,000/
(vi) Loss of Marriage prospects Rs. 3,00,000/
(vii) Future medical treatment Rs. 5,00,000/
This amount shall carry an interest @7.5% p.a. from the date of
filing of the claim petition till payment/deposit of the amount.
Obviously, the insurance company shall be entitled to adjust the
amount already paid. Further, the insurance company shall
also be entitled to recover the amount from the owner in terms of
the award of the MACT, which has not been challenged either
before the High Court or us.
33. We are aware that the amount awarded by us is more than
the amount claimed. However, it is well settled law that in
motor accident claim petitions, the Court must award just
compensation and, in case, the just compensation is more than
23
the amount claimed, that must be awarded especially where the
claimant is a minor.
34. The insurance company shall deposit the enhanced amount
before the MACT in terms of the judgment after deducting the
amount already paid by the insurance company within a period
of 3 months from today. The MACT shall keep the entire
amount in a fixed deposit in a nationalised bank, for a period of
5 years, giving highest rate of interest. The interest payable on
this amount shall be released on quarterly basis to the father of
the child. This amount shall be spent for paying the attendants
and for the care of the child alone. Even after 5 years since this
child for all intents and purpose shall remain a person under a
disability, the MACT shall keep renewing the amount on these
terms. We, however, further direct that in case the parents or
the guardian moves an application for release of some amount to
meet some special medical expenses, then MACT may consider
release of the same.
35. The appeal is disposed of in the aforesaid terms. No order
as to costs. Pending application(s), if any, also stand(s)
disposed of.
24
...................................J.
(L. Nageswara Rao)
...................................J.
(Deepak Gupta)
New Delhi
February 05, 2020
25
In view of the above, we award a sum of Rs.62,27,000/ to the claimant under the following heads :
S.No Heads Amount (i) Expenses relating to treatment, hospitalisation and transportation
Rs. 2,50,000/
(ii) Loss of earnings (family members)
Rs. 51,000/
(iii) Loss of future earnings Rs.14,66,000/
(iv) Attendant charges Rs.21,60,000/
(v) Pain, suffering, loss of amenities Rs.15,00,000/
(vi) Loss of Marriage prospects Rs. 3,00,000/
(vii) Future medical treatment Rs. 5,00,000/
This amount shall carry an interest @7.5% p.a. from the date of filing of the claim petition till payment/deposit of the amount.
Obviously, the insurance company shall be entitled to adjust the amount already paid. Further, the insurance company shall also be entitled to recover the amount from the owner in terms of
the award of the MACT, which has not been challenged either
before the High Court or us.
We are aware that the amount awarded by us is more than the amount claimed. However, it is well settled law that in motor accident claim petitions, the Court must award just compensation and, in case, the just compensation is more than the amount claimed, that must be awarded especially where the claimant is a minor.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 735 OF 2020
(Arising out of Special Leave Petition (C) No.15504 OF 2019)
KAJAL …APPELLANT(S)
Versus
JAGDISH CHAND & ORS. …RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.
1. Kajal was a bright young girl. She used to attend school,
play with her friends and lead a normal life like any other child.
Unfortunately, on 18th October, 2007, while Kajal was travelling
on a tractor with her parents, the tractor was hit by a truck
which was driven rashly. In the said accident, Kajal suffered
serious injuries resulting in damage to her brain. This has had
very serious consequences on her. She was examined at the Post
Graduate Institute of Medical Education and Research,
1
Chandigarh (PGI, Chandigarh for short), for assessment of her
disability. According to the said report, because of head injury
Kajal is left with a very low I.Q. and severe weakness in all her
four limbs, suffers from severe hysteria and severe urinary
incontinence. Her disability has been assessed as 100%.
2. Dr. Chhabra (PW4), who was one of the members of the
Board which issued the disability certificate (Ex.P6) stated that
as per the assessment her I.Q. is less than 20% of a child of her
age and her social age is only of a 9 month old child. This means
that Kajal while lying on the bed will grow up to be an adult with
all the physical and biological attributes which a woman would
get on attaining adulthood, including menstruation etc., but her
mind will remain of a 9 month old child. Basically, she will not
understand what is happening all around her.
3. How does one assess compensation in such a case? 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 Motor Vehicles Act, 1988 (for short the Act). The
Act requires determination of payment of just compensation and
2
it is the duty of the court to ensure that she is paid compensation
which is just.
4. Kajal through her father filed a claim petition, under the
Act. The Motor Accident Claims Tribunal (MACT for short)
awarded Rs.11,08,501/ and held that since there was violation
of the terms of policy the insurance company would pay the
amount but would be entitled to recover the same from the
owner. The High Court enhanced the award amount to
Rs.25,78,501/ under the following heads:
Heads High Court
Age 12
Multiplier
Income (taken to be) Rs. 15,000/
Disability 100%
Loss of income and permanent
disability compensation
Rs. 2,70,000/
Pain, suffering loss of amenities Rs. 3,00,000/
Attendant charges Rs. 3,20,000/
(Rs.2500 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/
Aggrieved by the award the claimant is before this Court.
5. The principles with regard to determination of just
compensation contemplated under the Act are well settled.
3
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 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 nonpecuniary, but all have to be assessed in Rupees and Paise.
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, 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
4
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.
7. There are numerous cases where the principles for grant of
compensation have been enunciated. It would be relevant to
quote pertinent observations from a few.
8. In Phillips v. Western Railway Co.
1
, Field, J., while
emphasizing that damages must be full and adequate, held thus:
"You cannot put the plaintiff back again into his original
position, but you must bring your reasonable common
sense to bear, and you must always recollect that this is
the only occasion on which compensation can be given.
The plaintiff can never sue again for it. You have,
therefore, now to give him compensation once and for all.
He has done no wrong, he has suffered a wrong at the
hands of the defendants and you must take care to give
him full fair compensation for that which he has
suffered." Besides, the Tribunals should always
remember that the measures of damages in all these
cases "should be such as to enable even a tortfeasor to
say that he had amply atoned for his misadventure".
9. In the case of Mediana2
, Lord Halsbury held:
"Of course the whole region of inquiry into damages is
one of extreme difficulty. You very often cannot even lay
down any principle upon which you can give damages;
nevertheless, it is remitted to the jury, or those who
stand in place of the jury, to consider what compensation
in money shall be given for what is a wrongful act. Take
the most familiar and ordinary case: how is anybody to
measure pain and suffering in moneys counted? Nobody
1 (1874) 4 QBD 406
2 [1900] AC 113
5
can suggest that you can by any arithmetical calculation
establish what is the exact amount of money which
would represent such a thing as the pain and suffering
which a person has undergone by reason of an accident.
In truth, I think it would be very arguable to say that a
person would be entitled to no damages for such thing.
What manly mind cares about pain and suffering that is
past? But, nevertheless, the law recognizes that as a
topic upon which damages may be given."
10. The following observations of Lord Morris in his speech in H.
West & Son Ltd. v. Shephard3
, are very pertinent:
"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. All that Judges and courts can do is to award
sums which must be regarded as giving reasonable
compensation. In the process there must be the
endeavour to secure some uniformity in the general
method of approach. By common assent awards must be
reasonable and must be assessed with moderation.
Furthermore, it is eminently desirable that so far as
possible comparable injuries should be compensated by
comparable awards."
In the same case Lord Devlin observed that the proper approach
to the problem was to adopt a test as to what contemporary
society would deem to be a fair sum, such as would allow the
wrongdoer to "hold up his head among his neighbours and say
with their approval that he has done the fair thing", which
should be kept in mind by the court in determining
compensation in personal injury cases.
3 1963 2 WLR 1359
6
11. Lord Denning while speaking for the Court of Appeal in the
case of Ward v. James4
, laid down the following three basic
principles to be followed in such like cases:
"Firstly, accessibility: In cases of grave injury, where the
body is wrecked or brain destroyed, it is very difficult to
assess a fair compensation in money, so difficult that the
award must basically be a conventional figure, derived
from experience or from awards in comparable cases.
Secondly, uniformity: There should be some measure of
uniformity in awards so that similar decisions may be
given in similar cases; otherwise there will be great
dissatisfaction in the community and much criticism of
the administration of justice. Thirdly, predictability:
Parties should be able to predict with some measure of
accuracy the sum which is likely to be awarded in a
particular case, for by this means cases can be settled
peaceably and not brought to court, a thing very much to
the public good."
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 guess work and conjecture. An assessment, as best
as can, in the circumstances, should be made.
13. In McGregor’s Treatise on Damages, 14th Edn., para 1157,
referring to heads of damages in personal injury actions states:
"The person physically injured may recover both for his
pecuniary losses and his nonpecuniary losses. Of these
the pecuniary losses themselves comprise two separate
items, viz., the loss of earnings and other gains which the
plaintiff would have made had he not been injured and
the medical and other expenses to which he is put as a
4 (1965) 1 All ER 563
7
result of the injury, and the courts have subdivided the
nonpecuniary losses into three categories, viz., pain and
suffering, loss of amenities of life and loss of expectation
of life."
14. In M/s Concord of India Insurance Co. Ltd. v. Nirmala
Devi and others5
, this Court held:
"2….The determination of the quantum must be liberal,
not niggardly since the law values life and limb in a free
country in generous scales."
15. In R.D. Hattangadi v. Pest Control (India) Pvt. Ltd.6
,
dealing with the different heads of compensation in injury cases
this Court held thus:
"9. Broadly speaking, while fixing the amount of
compensation payable to a victim of an accident, the
damages have to be assessed separately as pecuniary
damages and special damages. Pecuniary damages are
those which the victim has actually incurred and which
are capable of being calculated in terms of money;
whereas nonpecuniary damages are those which are
incapable of being assessed by arithmetical calculations.
In order to appreciate two concepts pecuniary damages
may include expenses incurred by the claimant: (i)
medical attendance; (ii) loss of earning of profit up to the
date of trial; (iii) other material loss. So far as nonpecuniary damages are concerned, they may include:
(i) damages for mental and physical shock,
pain and suffering already suffered or likely to
be suffered in the future; (ii) damages to
compensate for the loss of amenities of life
which may include a variety of matters, i.e., on
account of injury the claimant may not be able
to walk, run or sit; (iii) damages for loss of
expectation of life, i.e. on account of injury the
normal longevity of the person concerned is
shortened; (iv) inconvenience, hardship,
5 1980 ACJ 55 (SC)
6 (1995) 1 SCC 551
8
discomfort, disappointment, frustration and
mental stress in life."
16. In Raj Kumar v. Ajay Kumar and Others7
, 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 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.
Nonpecuniary 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 (2011) 1 SCC 343
9
17. In K. Suresh v. New India Assurance Company Ltd.
and Ors.
8
, this Court held as follows :
“2...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. Therefore, Section 168 of the Motor
Vehicles Act, 1988 (for brevity ‘the Act’) stipulates that
there should be grant of “just compensation”. Thus, it
becomes a challenge for a court of law to determine “just
compensation” which is neither a bonanza nor a windfall,
and simultaneously, should not be a pittance.”
18. Applying the aforesaid principles, we now proceed to assess
the compensation.
Expenses relating to treatment, hospitalization, medicines,
transportation etc.
19. The High Court under the two heads of medical treatment
and transport has awarded Rs.1,88,501/. Out of this an
amount of Rs.1,38,501/ is the actual expense incurred on the
treatment of Kajal. One must remember that amongst people
who are not Government employees and belong to the poorer
strata of society, bills are not retained. Some of the bills have
been excluded by the courts below only on the ground that the
name of the patient is not written on the bill. There is no
dispute with regard to the long period of treatment and
8 (2012) 12 SCC 274
10
hospitalisation of this young girl. Immediately after the accident
on 18.10.2007, she was admitted at a hospital in Karnal. From
there, she was referred to the PGI, Chandigarh, where she
remained admitted from 21.10.2007 till 12.11.2007 and,
thereafter, she was again admitted in the hospital from
12.11.2007 till 08.12.2007. She was in the hospital for almost
51 days, and both Dr. Sameer Aggarwal (PW3) from the hospital
at Karnal and Dr. Rajesh Chhabra (PW4), from PGI,
Chandigarh, have supported this. Limiting the amount only to
the bills which have been paid in the name of the claimant only,
would not be reasonable. Therefore, the amount payable for
actual medical expenses is increased from Rs.1,38,501/ to
Rs.2,00,000/. The amount awarded for transportation at
Rs.50,000/ is reasonable. Therefore, under this head we award
Rs.2,50,000/.
Loss of earnings
20. Both the courts below have held that since the girl was a
young child of 12 years only notional income of Rs.15,000/ per
annum can be taken into consideration. We do not think this is
a proper way of assessing the future loss of income. This young
girl after studying could have worked and would have earned
11
much more than Rs.15,000/ per annum. Each case has to be
decided on its own evidence but taking notional income to be
Rs.15,000/ per annum is not at all justified. The appellant has
placed before us material to show that the minimum wages
payable to a skilled workman is Rs.4846/ per month. In our
opinion this would be the minimum amount which she would
have earned on becoming a major. Adding 40% for the future
prospects, it works to be Rs.6784.40/ per month, i.e.,
81,412.80 per annum. Applying the multiplier of 18 it works out
to Rs.14,65,430.40, which is rounded off to Rs.14,66,000/
21. Though the claimant would have been entitled to separate
attendant charges for the period during which she was
hospitalised, we are refraining from awarding the same because
we are going to award her attendant charges for life. At the
same time, we are clearly of the view that the tortfeasor cannot
take benefit of the gratuitous service rendered by the family
members. When this small girl was taken to PGI, Chandigarh,
or was in her village, 23 family members must have
accompanied her. Even if we are not paying them the attendant
charges they must be paid for loss of their wages and the
amount they would have spent in hospital for food etc. These
12
family members left their work in the village to attend to this
little girl in the hospital at Karnal or Chandigarh. In the hospital
the claimant would have had at least two attendants, and taking
the cost of each at Rs.500/ per day for 51 days, we award her
Rs.51,000/.
Attendant charges
22. The attendant charges have been awarded by the High
Court @ Rs.2,500/ 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. Veluswami9
. The multiplier system factors in the
inflation rate, the rate of interest payable on the lump sum
9 AIR 1962 SC 1
13
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.
23. It would be apposite at this stage to refer to the observation
of Lord Reid in Taylor v. O’Connor10:
"Damages to make good the loss of dependency over a
period of years must be awarded as a lump sum and that
sum is generally calculated by applying a multiplier to
the amount of one year's dependency. That is a perfectly
good method in the ordinary case but it conceals the fact
that there are two quite separate matters involved, the
present value of the series of future payments, and the
discounting of that present value to allow for the fact that
for one reason or another the person receiving the
damages might never have enjoyed the whole of the
benefit of the dependency. It is quite unnecessary in the
ordinary case to deal with these matters separately.
Judges and counsel have a wealth of experience which is
an adequate guide to the selection of the multiplier and
any expert evidence is rightly discouraged. But in a case
where the facts are special, I think, that these matters
must have separate consideration if even rough justice is
to be done and expert evidence may be valuable or even
almost essential. The special factor in the present case is
the incidence of Income Tax and, it may be, surtax."
24. This Court has reaffirmed the multiplier method in various
cases like Municipal Corporation of Delhi v. Subhagwati
10 1971 AC 115
14
and Ors.
11
, U.P. State Road Transport Corporation and Ors.
v. Trilok Chandra and Ors.
12
, Sandeep Khanduja v. Atul
Dande and Ors.13
. This Court has also recognised that
Schedule II of the Act can be used as a guide for the multiplier to
be applied in each case. Keeping the claimant’s age in mind, the
multiplier in this case should be 18 as opposed to 44 taken by
the High Court.
25. Having held so, we are clearly of the view that the basic
amount taken for determining attendant charges is very much
on the lower side. We must remember that this little girl is
severely suffering from incontinence meaning that she does not
have control over her bodily functions like passing urine and
faeces. As she grows older, she will not be able to handle her
periods. She requires an attendant virtually 24 hours a day.
She requires an attendant who though may not be medically
trained but must be capable of handling a child who is bed
ridden. She would require an attendant who would ensure that
she does not suffer from bed sores. The claimant has placed
before us a notification of the State of Haryana of the year 2010,
11 1966 ACJ 57
12 (1996) 4 SCC 362
13 (2017) 3 SCC 351
15
wherein the wages for skilled labourer is Rs.4846/ per month.
We, therefore, assess the cost of one attendant at Rs.5,000/
and she will require two attendants which works out to
Rs.10,000/ per month, which comes to Rs.1,20,000/ per
annum, and using the multiplier of 18 it works out to
Rs.21,60,000/ for attendant charges for her entire life. This
takes care of all the pecuniary damages.
Pain, Suffering and Loss of Amenities
26. Coming to the nonpecuniary 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. Divisional
Manager, The National Insurance Company Limited and
Ors.
14, 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
14 2013 (10) SCALE 668
16
from the normal rule and the pain and suffering suffered by this
child is such that no amount of compensation can compensate.
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 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. 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
17
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/.
Loss of marriage prospects
28. The Tribunal has awarded Rs.3,00,000/ for loss of
marriage prospects. We see no reason to interfere with this
finding.
Future medical treatment
29. The claimant has been awarded only Rs.2,00,000/ under
this head. This amount is a pittance. Keeping in view the
nature of her injuries and the fact that she is bedridden this
child is bound to suffer from a lot of medical problems. True it
is that there is no evidence in this regard but there can hardly
be such evidence. She may require special mattress which will
have to be changed frequently. In future as this girl grows, she
may face many other medical issues because of the injuries
suffered in the accident. Keeping in view her young age and
18
assuming she would live another 5060 years, it would not be
unjust to award her Rs.5,00,000/ for future medical expenses.
How the compensation should be invested?
30. The tribunal while awarding the compensation had stated
that the amount payable to the share of Kajal would be kept in a
Fixed Deposit till she attains the age of 18 years. The High
Court while enhancing the amount of compensation has directed
that the enhanced amount be paid to the appellant within 45
days. This is totally contrary to the guidelines laid down by this
Court in General Manager, Kerala State Road Transport
Corporation, Trivandrum v. Susamma Thomas and Ors.
15
,
wherein it has been held clearly that the amount payable to the
minors should not be normally released. The guidelines in this
case were as follows :
“17….(i) The Claims Tribunal should, in the case of minors,
invariably order the amount of compensation awarded to
the minor be invested in long term fixed deposits at least
till the date of the minor attaining majority. The expenses
incurred by the guardian or next friend may, however, be
allowed to be withdrawn;
(ii) In the case of illiterate claimants also the Claims Tribunal
should follow the procedure set out in (i) above, but if
lump sum payment is required for effecting purchases of
any movable or immovable property such as, agricultural
implements, rickshaw, etc., to earn a living, the Tribunal
may consider such a request after making sure that the
15 (1994) 2 SCC 176
19
amount is actually spent for the purpose and the demand
is not a ruse to withdraw money;
(iii) In the case of semiliterate persons the Tribunal should
ordinarily resort to the procedure set out at (i) above
unless it is satisfied, for reasons to be stated in writing,
that the whole or part of the amount is required for
expanding and existing business or for purchasing some
property as mentioned in (ii) above for earning his
livelihood, in which case the Tribunal will ensure that the
amount is invested for the purpose for which it is
demanded and paid;
(iv) In the case of literate persons also the Tribunal may
resort to the procedure indicated in (i) above, subject to
the relaxation set out in (ii) and (iii) above, if having regard
to the age, fiscal background and strata of society to
which the claimant belongs and such other
considerations, the Tribunal in the larger interest of the
claimant and with a view to ensuring the safety of the
compensation awarded to him thinks it necessary to do
order;
(v) In the case of widows the Claims Tribunal should
invariably follow the procedure set out in (i) above;
(vi) In personal injury cases if further treatment is necessary
the Claims Tribunal on being satisfied about the same,
which shall be recorded in writing, permit withdrawal of
such amount as is necessary for incurring the expenses
for such treatment;
(vii) In all cases in which investment in long term fixed
deposits is made it should be on condition that the Bank
will not permit any loan or advance on the fixed deposit
and interest on the amount invested is paid monthly
directly to the claimant or his guardian, as the case may
be;
(viii) In all cases Tribunal should grant to the claimants
liberty to apply for withdrawal in case of an emergency. To
meet with such a contingency, if the amount awarded is
substantial, the Claims Tribunal may invest it in more
than one Fixed Deposit so that if need be one such F.D.R.
can be liquidated….”
These guidelines protect the rights of the minors, claimants who
are under some disability and also widows and illiterate person
who may be deprived of the compensation paid to them in lump
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sum by unscrupulous elements. These victims may not be able
to invest their monies properly and in such cases the MACT as
well the High courts must ensure that investments are made in
nationalised banks to get a high rate of interest. The interest in
most cases is sufficient to cover the monthly expenses. In
special cases, for reasons to be given in writing, the MACT or the
trial court may release such amount as is required. We reiterate
these guidelines and direct that they should be followed by all
the tribunals and High Courts to ensure that the money of the
victims is not frittered away.
Interest
31. The High Court enhanced the amount of compensation by
Rs.14,70,000/ and awarded interest @ 7.5% per annum but
directed that the interest of 7.5% shall be paid only from the
date of filing of the appeal. This is also incorrect. We are
constrained to observe that the High Court was not right in
awarding interest on the enhanced amount only from the date of
filing of the appeal. Section 171 of the Act reads as follows :
“171. Award of interest where any claim is allowed.—
Where any Claims Tribunal allows a claim for
compensation made under this Act, such Tribunal may
direct that in addition to the amount of compensation
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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.”
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.
Relief
32. In view of the above, we award a sum of Rs.62,27,000/
to the claimant under the following heads :
S.No
.
Heads Amount
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(i) Expenses relating to treatment,
hospitalisation and
transportation
Rs. 2,50,000/
(ii) Loss of earnings (family
members)
Rs. 51,000/
(iii) Loss of future earnings Rs.14,66,000/
(iv) Attendant charges Rs.21,60,000/
(v) Pain, suffering, loss of amenities Rs.15,00,000/
(vi) Loss of Marriage prospects Rs. 3,00,000/
(vii) Future medical treatment Rs. 5,00,000/
This amount shall carry an interest @7.5% p.a. from the date of
filing of the claim petition till payment/deposit of the amount.
Obviously, the insurance company shall be entitled to adjust the
amount already paid. Further, the insurance company shall
also be entitled to recover the amount from the owner in terms of
the award of the MACT, which has not been challenged either
before the High Court or us.
33. We are aware that the amount awarded by us is more than
the amount claimed. However, it is well settled law that in
motor accident claim petitions, the Court must award just
compensation and, in case, the just compensation is more than
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the amount claimed, that must be awarded especially where the
claimant is a minor.
34. The insurance company shall deposit the enhanced amount
before the MACT in terms of the judgment after deducting the
amount already paid by the insurance company within a period
of 3 months from today. The MACT shall keep the entire
amount in a fixed deposit in a nationalised bank, for a period of
5 years, giving highest rate of interest. The interest payable on
this amount shall be released on quarterly basis to the father of
the child. This amount shall be spent for paying the attendants
and for the care of the child alone. Even after 5 years since this
child for all intents and purpose shall remain a person under a
disability, the MACT shall keep renewing the amount on these
terms. We, however, further direct that in case the parents or
the guardian moves an application for release of some amount to
meet some special medical expenses, then MACT may consider
release of the same.
35. The appeal is disposed of in the aforesaid terms. No order
as to costs. Pending application(s), if any, also stand(s)
disposed of.
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...................................J.
(L. Nageswara Rao)
...................................J.
(Deepak Gupta)
New Delhi
February 05, 2020
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