Master Ayush v. Branch Manager, Reliance General Insurance Company Limited And Another

The Judgment of the Court was delivered by

Hemant Gupta, J.— The present appeal has been preferred by a 5-year-old victim of road accident which occurred on 21-9-2010, challenging the order of the High Court dated 7-9-2020 2020 SCC OnLine Kar 3441 awarding a compensation of Rs 13,46,805, as against Rs 18,24,000 awarded by the learned Motor Accident Claims Tribunal (for short “the Tribunal”).

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 is a medical specialist from National Institute of Mental Health & Neurosciences, Bangalore. The discharge summary issued by the hospital is Ext. 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 sores. 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.

3. PW 2 Dr Amithish Narayana has issued disability certificate Ext. P/12. He is the Head of the Department at the Kasturba Medical College Hospital, Mangalore. The said certificate reads as thus:

“KMC Hospital

30-4-2013

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.

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”

4. 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 prospects NA Rs 1,00,000 10. Towards loss of childhood NA Rs 50,000 Total Rs 13,46,805 Rs 18,24,000

5. The learned counsel for the appellant argued that the medical expenses itself were to the tune of Rs 5,73,700 as per Ext. P-11, 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 PW 2 Dr Amitesh Narayana, the device 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 Ext. 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.

6. 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.

7. It was also argued that in a judgment reported as Kajal v. Jagdish Chand (2020) 4 SCC 413, the injured was a 12-year-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-month-old child. This Court had recognised 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:(, 421 & 426, paras 6, 12 & 27)

“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.

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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.

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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. 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. Hers 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.”

8. 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.

9. 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 19-2-2007:

“24. Employment not covered in any of the Scheduled Employments

Notification No. KAE 79 LMW 2005 dated 17-3-2006

Published in Gazette dated 19-2-2007

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 1-4-2010 to 31-3-2011

SCHEDULE

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.”

10. 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.

11. 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 Co. Ltd. v. Pranay Sethi (2017) 16 SCC 680.

12. 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) × 12 × 18.

13. 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 (2020) 4 SCC 413 who was confined to bed with mental age of 9-month-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.

14. 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 realised 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 that was the only option available to them. Accordingly, we award a sum of Rs 2 lakhs as conveyance charges.

15. 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 (2020) 4 SCC 413 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) × 12 × 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 (3700×12×18) = 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

16. 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 realisation.

17. Since the appellant is a minor, in view of the judgment of this Court in Kerala, SRTC v. Susamma Thomas (1994) 2 SCC 176, 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.

18. The appeals thus stand allowed accordingly with costs throughout.