Compensation towards caregiver - Medical Attendant charges (Bystandercharges) and future Treatment cost
The defence of the insurance company for keeping the said sum at that negligible level is that no evidence had been led as regards expenses incurred towards any medical attendant. But going by the work the victim was doing and his physical state of being resulting from his injuries, conclusion has to be inevitable that he required and still requires caregiver roundtheclock and round the year to remain barely functional. Judging by the stratum of the society he comes from, it would be irrational to expect that he would have been in a position to directly engage a caregiver after his accident. It would not be an unreasonable assumption that his family members must have had to fit into that role. They could perform the role of caregiver only by diverting their own time from any form of gainful employment which could have generated some income. We proceed on the same assumption on his requirement of continued medical treatment postdischarge from the hospital. There is observation in the judgment of the High Court that he was undergoing treatment in “Aarogya Keralam” Palliative Caring Scheme. We are of the opinion that Rs.7,00,000/ ought to be awarded as lumpsum, composite amount for medical attendant charges and future medical treatment. In the case of Kajal vs. Jagdish Chand & Ors. [(2020) 4 SCC 413] for attendant charges, Page 12 of 16 a Bench of twoJudges of this Court has held that the multiplier methodology ought to be applied. On the other hand, in the case of Parminder Singh (supra) a lumpsum amount has been awarded. In the facts of the given case, we are of the opinion that award of lumpsum would be the proper course considering the fact that the first appellant was a daily labourer. In traumatic times after his accident, his family was unlikely to maintain detailed records of the expenses incurred.
We accordingly modify the award as made by the High
Court and direct the respondentinsurance company to make
Page 14 of 16
payment as compensation under the following heads (which also
includes the heads under which sums were awarded by the
Tribunal and the High Court) :
Compensation Heads Amount (in Rs.)
Compensation for permanent disability
and loss of future earning
9,40,800
Medical Attendant charges (Bystander
charges) and future Treatment cost
7,00,000
Pain and suffering 3,00,000
Medicines & Treatment charges 68,000
Transportation Charges 6,000
Extra Nourishment 1500
Damage to Clothing 500
Loss of Amenities 10,000
Total 20, 26,800
11. The aforesaid sum will carry interest @ 9% per annum.
[NonReportable]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2855 OF 2020
(arising out of Special Leave Petition (Civil) No.2131 of 2018)
Lalan D. @ Lal & Anr. ..…Appellant(s)
Vs.
The Oriental Insurance Company Ltd. …Respondent(s)
J U D G M E N T
ANIRUDDHA BOSE, J.
The appellants before us are a victim of a road accident and
his wife. The first appellant is the victim. The accident occurred
on 31st December 2003 while the victim was riding his bicycle
along the side of AlappuzhaKolam highway. At the time of
institution of the claim petition before the Motor Accidents
Claims Tribunal, Alappuzha under Section 166 of the Motor
Vehicles Act, 1988 (the Act), out of which this appeal arises, the
first appellant was unconscious and was represented by his wife
as the legal guardian and next friend. She was also a coPage 1 of 16
applicant before the Tribunal. It was claimed before the forum of
first instance that the victim was skilled labourer in a building
construction project. His date of birth is 20th May 1969. Before
the Tribunal, his age at the time of accident was found to be
above 34 years. He suffered, interalia, head injury causing brain
concussion, brain stems injury, diffuse axonial injury on left side.
He had to undergo extensive treatment in two hospitals, being
Medical College Hospital, Vandanam, Alappuzha and thereafter
at Medical Trust Hospital, Ernakulam. He had to spend about six
weeks in these two hospitals. Thereafter also his treatment
continued. The claim was not contested by the first respondent –
the owner of the vehicle and was decided exparte against him.
Before us also, it was only the insurance company who contested
the appeal. The first respondent was deleted from the array of the
parties by an order of this Court passed on 9th April, 2019. The
Tribunal found involvement of the vehicle registered as KL2/No.9779. Rash and negligent driving by the driver of that
vehicle was also proved. As regards condition of the first
appellant, the Tribunal, in its award, found that the victim had
“right aided Hemiparalesis and there is weakness on the other
side also. He is completely bed ridden and he could not speak
Page 2 of 16
properly and he has some mental problem also. Tube was fitted
for the passage of urine……”. The Tribunal in its award made on
20th January, 2009 assessed permanent disability of the
appellant to be 50%.
2. Compensation was awarded by the Tribunal under following
heads, applying the multiplier of 17:
Compensation for loss of earning Rs.20,000/
Cost of medicine and treatment charges Rs.68,000/
Transportation charges Rs. 6,000/
Bystander expenses Rs. 6,000/
Extra nourishment Rs. 1,500/
Damage to clothing Rs. 500/
Compensation for pain and suffering Rs.30,000/
Compensation for permanent disability
And loss of earning power Rs.2,55,500/
Compensation for loss of amenities Rs.10,000/
Compensation for future treatment Rs. 2,500/
Total Rs.4,00,000/
3. The victim and his wife appealed to the High Court of Kerala
at Ernakulam seeking enhancement of compensation. The High
Court considered certain additional documents. The appellant
established before the High Court the need to continue his
Page 3 of 16
treatment subsequent to the award of the Tribunal. It was opined
in the judgment of the High Court delivered on 16th March, 2017,
that the condition of the appellant was such that it was more
than sufficient to arrive at a finding that he was virtually lying as
vegetable. The victim had permanent locomotor disability of right
hemiplegia sequelae of head injury which was not likely to
improve. The High Court found that the victim needed a fulltime
caregiver as he was not in a position to move around on free will.
The High Court assessed the degree of disability to be reckoned
as 100% for working out proper compensation and applied the
multiplier of 16 considering his age. We shall reproduce the High
Court’s decision on quantum of compensation in the next
paragraph of this judgment.
4. The Medical Board at the Medical College Hospital,
Alappuzha had certified the victim’s permanent disability to be
50%, which was the basis for assessment of degree of his
disability by the Tribunal. The Tribunal’s award was made, as we
have already indicated, in the year 2009. But considering the
position of the victim, while hearing the appeal in the year 2017,
the High Court attributed the percentage of his disability to be
Page 4 of 16
100%. The High Court enhanced his notional monthly income to
Rs.3500/ per month. In the judgment under appeal, it was
observed and held:
“It is true that the accident was in the
year 2003, but it was on the last day of the
year and by the dawn of the next day, it was to
begin with the year 2004. Evidently, the
injured was maintaining a family of his own,
consisting of his wife, who is the second
appellant/second claimant. By virtue of the
present state of affairs, it can be reasonably
presumed that the wife will not be in a position
to move about for getting some job and she has
to be near her husband throughout, to give
constant care and attention, even for meeting
the calls of nature, for administration of
medicines and for food intake. In the said
circumstance, we find that the notional
monthly income fixed by the Tribunal requires
some modification. We enhance the same to
Rs.3500/ per month. The proper multiplier, as
rightly pointed out by the learned Sr. counsel
appearing for the Insurer is ‘16’; in view of the
date of birth of the injured being 25.9.1969.
On reworking the compensation towards
disability, it comes to Rs.6,72,000/ (3500 x 12
x 16 x 100/100). After giving credit to the sum
of Rs.2,55,000/ awarded by the Tribunal, the
balance comes to Rs.4,17,000/. Since we have
awarded compensation for disability, reckoning
it as 100%, the compensation of loss of earning
awarded by the Tribunal becomes irrelevant
and insignificant and hence the said amount of
Rs.20000/is deleted. Hence the balance
payable comes to Rs.3,97,000/.
The compensation under the heads ‘pain and
suffering’ and towards ‘loss of amenities and
Page 5 of 16
enjoyment in life’ also require some
modification. Taking into the totality of the
facts and circumstances, we award a further
sum of Rs.10,000/ under the head ‘pain and
suffering’ and a sum of Rs.40,000/ towards
loss of amenities and enjoyment in life. Thus,
the total balance compensation comes to
Rs.4,47,000/ (Rupees four lakhs forty seven
thousand only), which shall be satisfied with
interest at the rate of 9% from the date of
petition till realisation, within ‘one month’ from
the date of receipt of a copy of the judgment.”
5. The appellants have asked for further enhancement of
compensation before us. Grievance of the appellants is that the
victim has been undercompensated, having regard to the degree
of injury suffered by him. He has specifically raised the plea for
award of compensation under the head of loss of future
prospects. It is also his case that the High Court erred in law in
applying the multiplier of 16. It has been urged on behalf of the
appellants that the multiplier 17 as per the award of the
Tribunal, should have been retained.
6. On behalf of the insurance company, prayer of the
appellants for enhancement of compensation has been opposed.
It has been argued that there was contributory negligence on the
part of the first appellant in that he was under the influence of
Page 6 of 16
liquor at the time of accident. On that count, they want reduction
of 50% of the compensation from the judgment and order under
appeal. Quantification of his monthly income as Rs.3,500/ has
also been questioned by the insurance company in their counteraffidavit. The case of Sri Ramachandrappa vs. The Manager,
Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13
SCC 236] has been referred to in this regard. On the question as
to what would constitute just compensation, the cases of Arvind
Kumar Mishra vs. New India Assurance Co. Ltd. & Anr. [(2010)
10 SCC 254] and National Insurance Company Ltd. vs.
Kusuma and Anr. [(2011) 13 SCC 306] have been cited on their
behalf. It has also been argued that as he was a construction
worker, he must have had received compensation under the
Building and other Construction Workers Welfare Cess Act, 1966
as also Workmen Compensation Act, 1923. The insurance
company’s case is that personal expenses of the victim ought to
have been taken to be onefourth of the loss of income assessed.
The plea for attendant charges has been resisted on the ground
that no service by any bystander had been proved and no bill for
expenses for surgery or hospitalisation during the last 17 years
Page 7 of 16
had been produced. The insurance company, however, has not
come up in appeal questioning the High Court’s finding on the
heads of compensation and quantum of compensation awarded
under these heads. These submissions of the insurance
company we cannot entertain at this stage while dealing with the
victim’s appeal for enhancement of compensation. Otherwise
also, we do not think these submissions have any legal basis in
the context of the present appeal. The forum of first instance or
the High Court did not return any finding on the first appellant
being under influence of alcohol. In the victim’s appeal, we
cannot permit the insurance company to raise this plea at this
stage. Moreover, submission that the appellant must have drawn
compensation under different welfare statutes is inferential. The
insurance company has not disclosed any evidence to sustain
their stand on this count.
7. The High Court has assessed monthly income of the victim
to be Rs.3500/. This was enhanced from the Tribunal’s
quantification of Rs.2,500/ per month. We do not want to
disturb the finding of the High Court on this point. This is
essentially a finding on question of fact. The respondent
Page 8 of 16
insurance company has cited the case of Mohan Soni vs. Ram
Avatar Tomar & Ors. [(2012) 2 SCC 267] to contend that in the
context of loss of future earning, physical disability resulting
from an accident ought to be judged with reference to the nature
of work being performed by the person suffering the disability.
The approach of the Tribunal as also the High Court in the case
of the victim has been in that line only. The respondents also
sought to rely upon the decision of this Court in the case of Priya
Vasant Kalgutkar vs. Murad Shaikh & Ors. [(2009) 15 SCC 54].
This case, however, relates to computation of compensation for
injuries suffered by a minor. Ratio of this decision has no
application in the facts of this case. We are, however, also of the
opinion that the High Court went wrong in not awarding any sum
under the head of loss of future prospects. In the case of
National Insurance Company Ltd. vs. Pranay Sethi & Ors.
[(2017) 16 SCC 680], a Constitution Bench has opined that the
standardisation of just compensation is to include addition of
future prospects to the income of the victim at the time of
occurrence of the accident. This was a case where the victim had
succumbed to the injuries. The present appeal relates to a victim,
Page 9 of 16
who has survived the accident but his disability has been
assessed to be 100% by the High Court. We confirm this finding
of the High Court. In the case of Parminder Singh vs. New
India Assurance Co. Ltd. & Ors. [(2019) 7 SCC 217], a Bench
comprising of two Judges of this Court found 50% of the income
of the victim was to be assessed as loss of future prospects.
Earlier, this Court broadly took the same view in the case of
Sanjay Verma vs. Haryana Roadways [(2014) 3 SCC 210]. The
course mandated by this Court in the case of Parminder Singh
(supra) is addition to the monthly income of the victim, 50%
thereof as loss of future prospects to arrive at compensation for
loss of income for the purpose of application of the multiplier.
This method of computation is based on sound logic and we
choose to apply the same methodology in this appeal also. The
loss of earning capacity of the first appellant is 100%. On this
basis, his loss of future earning would have to be calculated
treating income of the victim to be Rs.3,500/ per month, to
which loss of future prospects at the rate of 40% thereof is to be
added, which would make it Rs.4900/ per month. This is the
computation method directed by the Constitution Bench in the
Page 10 of 16
case of Pranay Sethi (supra) so far as selfemployed persons are
concerned. We direct addition of 40% as there is no material
before us to prove that the victim had a permanent job. Evidence
before the Tribunal was that he was a skilled labourer in a
building construction project. There was no evidence that he was
on their permanent roll. The multiplier to be applicable in this
case would be 16 following the specification contained in the case
of Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr.
[(2009) 6 SCC 121]. Accordingly, his loss of future earning would
have to be calculated first by multiplying Rs.4,900/ by 12,
which would come to Rs.58,800/ This would be his annual
income. Once multiplier of 16 is applied, his loss of future
earning would come to Rs.9,40,800/, considering that degree of
his disability is 100%. As the appellant has survived though at
present in almost “coma stage” as observed by the High Court, we
reject the insurance company’s plea for making any deduction
towards personal living expenses.
8. We also find that there was no compensation awarded
towards expenses for a caregiver barring a paltry sum of
Rs.6,000/ as bystander expenses. The defence of the insurance
Page 11 of 16
company for keeping the said sum at that negligible level is that
no evidence had been led as regards expenses incurred towards
any medical attendant. But going by the work the victim was
doing and his physical state of being resulting from his injuries,
conclusion has to be inevitable that he required and still requires
caregiver roundtheclock and round the year to remain barely
functional. Judging by the stratum of the society he comes from,
it would be irrational to expect that he would have been in a
position to directly engage a caregiver after his accident. It would
not be an unreasonable assumption that his family members
must have had to fit into that role. They could perform the role of
caregiver only by diverting their own time from any form of
gainful employment which could have generated some income.
We proceed on the same assumption on his requirement of
continued medical treatment postdischarge from the hospital.
There is observation in the judgment of the High Court that he
was undergoing treatment in “Aarogya Keralam” Palliative Caring
Scheme. We are of the opinion that Rs.7,00,000/ ought to be
awarded as lumpsum, composite amount for medical attendant
charges and future medical treatment. In the case of Kajal vs.
Jagdish Chand & Ors. [(2020) 4 SCC 413] for attendant charges,
Page 12 of 16
a Bench of twoJudges of this Court has held that the multiplier
methodology ought to be applied. On the other hand, in the case
of Parminder Singh (supra) a lumpsum amount has been
awarded. In the facts of the given case, we are of the opinion that
award of lumpsum would be the proper course considering the
fact that the first appellant was a daily labourer. In traumatic
times after his accident, his family was unlikely to maintain
detailed records of the expenses incurred.
9. Under the head pain and suffering the High Court has
awarded a sum of Rs.40,000/. The appellants want this sum to
be raised to Rs.6,00,000/ relying on a judgment of this Court in
the case of Mallikaarjun Vs. Divisional Manager, National
Insurance Company Ltd. & Anr. [(2014) 14 SCC 396]. In the
case of Kajal (supra), where the victim was a young girl of 12
years having suffered 100% disability, the amount awarded was
Rs.15,00,000/ under the heads pain and suffering and loss of
amenities. But this judgment qualified such award with a caveat
that the sum was awarded in peculiar facts and circumstances of
the case. In the case of Raj Kumar vs. Ajay Kumar & Anr.
[(2011) 1 SCC 343] it has been observed that when compensation
Page 13 of 16
is awarded by treating loss of future earning capacity to be 100%
or even anything more than 50% the need to award
compensation separately under the head of loss of amenities or
loss of expectation of life may disappear. As a result, only a token
or nominal amount may have to be awarded under those heads.
It is a fact that in the cases of Kajal (supra) and
Mallikaarjun (supra), the victims were minor children. Their loss
of income and permanent disability compensation were computed
treating their income to be Rs.15,000/ per annum. So far as the
present appeal is concerned, the High Court has assessed the
annual income to be Rs.42,000/ (Rs.3500x12). But this very fact
cannot altogether deprive the victim from compensation under
the head pain and suffering. The High Court had awarded
Rs.10,000/only under this head. We assess the same to be
Rs.3,00,000/. Considering the observations made in the case of
Raj Kumar (supra), to which we have already referred, we reduce
the sum awarded by the High Court under the head loss of
amenities from Rs.40,000/ to Rs.10,000/.
10. We accordingly modify the award as made by the High
Court and direct the respondentinsurance company to make
Page 14 of 16
payment as compensation under the following heads (which also
includes the heads under which sums were awarded by the
Tribunal and the High Court) :
Compensation Heads Amount (in Rs.)
Compensation for permanent disability
and loss of future earning
9,40,800
Medical Attendant charges (Bystander
charges) and future Treatment cost
7,00,000
Pain and suffering 3,00,000
Medicines & Treatment charges 68,000
Transportation Charges 6,000
Extra Nourishment 1500
Damage to Clothing 500
Loss of Amenities 10,000
Total 20, 26,800
11. The aforesaid sum will carry interest @ 9% per annum.
Upon adjusting the sum already paid, the amount we have
awarded shall be released to the appellants. Interest on the
differential sum shall be computed from the date of filing of the
application under Section 166 of the Act. The said amount shall
be invested in an interest bearing fixed deposit account of a
Nationalised Bank for a period of one year in the name of the first
appellant within eight weeks. The appellants shall be entitled to
withdraw the interest therefrom on a regular basis during the
Page 15 of 16
tenure of the fixed deposit. Thereafter, the entire sum shall be
paid over to the appellants.
12. The appeal is disposed of in the above terms. Pending
applications, if any, shall stand disposed of. There shall be no
order as to costs.
……………………………….J.
(Sanjay Kishan Kaul)
……………………………….J.
(Ajay Rastogi)
……………………………….J.
(Aniruddha Bose)
New Delhi,
Dated: 17th September, 2020.
Page 16 of 16
