MASTER AYUSH versus THE BRANCH MANAGER, RELIANCE GENERAL INSURANCE CO. LTD. & ANR. on 29 March 2022

[2022] 1 S.C.R. 831

MASTER AYUSH

v.

THE BRANCH MANAGER, RELIANCE GENERALINSURANCE CO. LTD. & ANR.

(Civil Appeal Nos. 2205-2206 of 2022)

MARCH 29, 2022

[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]

Motor Vehicles – Compensation – Appellant met with accidentas a five year old boy in 2010 – He suffered injuries and became aparaplegic patient – Appellant not able to move his both legs andhaving complete sensory loss in the legs, urinary incontinence andbowel constipation and bed sore – Rs. 18,24,000/- awarded ascompensation by Motor Accident Claims Tribunal – High Courtreduced compensation to Rs.13,46,805/- – On appeal, held: In termsof the State Notification, the minimum wages payable to a skilledworkman as on the date of the accident was about Rs.3700/- –Compensation, therefore, was to be assessed on the basis of thesaid minimum wages on the assumption that appellant would havebeen able to earn after attaining majority – In addition to skilledminimum wages, appellant would be also entitled to 40% for futureprospects – Total compensation would be Rs.49,93,000/- (comprisingof Rs.11,18,880/- towards loss of future earnings due to permanentdisability for life; Rs.5,74,000/- towards medical expenses;Rs.10,00,000/- towards future medical expenses; Rs.10,00,000/-towards pain, suffering and loss of amenities; Rs.3,00,000/- towardsloss of marriage prospects, Rs.8,00,000/- towards one attendantcharges and Rs.2,00,000/- towards conveyance charges) along withinterest already awarded by the Tribunal and affirmed by the HighCourt i.e. 7.5% p.a. from the date of filing of the claim applicationtill realization.

Motor Vehicles – Compensation – Just Compensation –Determination of damages in personal injury cases – Held: Is noteasy – Mental and physical loss cannot be computed in terms ofmoney but there is no other way to compensate the victim except bypayment of just compensation.

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832SUPREME COURT REPORTS

AAllowing the appeals, the Court

HELD:1. In the present appeal, the minimum wages for2010-11 in the State for employments not covered under any ofthe scheduled employments can be ascertained from thenotification for minimum wages published in the Gazette onB19.02.2007. Hence, as per the same, the minimum wages payableto a skilled workman in 2010-11 is to the tune of Rs. 3708.70. Inthis view, the minimum wages as on the date of accident is roundedoff to Rs.3700/-. The compensation, therefore, is to be assessedon the basis of the said minimum wages on the assumption thatthe appellant would have been able to earn after attaining majority.CIn addition to the skilled minimum wages, the appellant would bealso entitled to 40% for future prospects. Thus, the compensationworks out to be Rs.3700/- plus 40%, which amounts toRs. 5180/- per month. The multiplier of 18 would be applicable inview of the age of the appellant. The loss of future earnings dueDto the Permanent Disability for life thus works out to beRs.11,18,880/-, i.e., (3700+1480=5180) x 12 x 18. [Paras 7, 8, 9and 10][838-F; 839-C-F]

Kajal v. Jagdish Chand and Others (2020) 4 SCC 413– distinguished.E

National Insurance Company Limited v. Pranay Sethi& Ors. (2017) 16 SCC 680: [2017] 13 SCR 100 –relied on.

2. The determination of damages in personal injury casesFis not easy. The mental and physical loss cannot be computed interms of money but there is no other way to compensate thevictim except by payment of just compensation. Therefore, inview of the physical condition, the appellant is entitled to oneattendant for the rest of his life though he may be able to walkwith the help of assistant device. The device also requires to beGreplaced every 5 years. Therefore, it is reasonable to award costof 2 devices i.e., Rs.10 lakhs. The appellant has not only lost hischildhood but also adult life. Therefore, loss of marriage prospectswould also be required to be awarded. The Tribunal had rejectedthe claim of taxi expenses for the reason that the taxi driver hasH

not been produced. It is impossible to produce the numeroustaxi drivers. Still further, the Tribunal should have realized thecondition 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,a sum of Rs.2 lakhs is awarded as conveyance charges.[Para 12][840-A-D]

3. No compensation is warranted to be payable under theheading “food and nourishment or towards loss of childhood” asit stands subsumed in the compensation assessed under the otherdifferent heads. In view of the judgment in Kajal and otherprinciples of determination of compensation, the totalcompensation comes out to be Rs. 49,93,000/- (comprising ofRs.11,18,880 towards loss of future earnings due to permanentdisability for life; Rs.5,74,000/- towards medical expenses;Rs.10,00,000/- towards future medical expenses i.e. towardspurchase of two assistant devices for walking; Rs.10,00,000/-towards pain, suffering and loss of amenities; Rs.3,00,000/-towards loss of marriage prospects, Rs.8,00,000/- towards oneattendant charges and Rs.2,00,000/- towards conveyance charges)along with interest already awarded by the Tribunal and affirmedby the High Court i.e. 7.5% p.a. from the date of filing of theclaim application till realization. [Paras 13, 14][840-D-H;841-A-B]

Kajal v. Jagdish Chand and Others, (2020) 4 SCC 413

– relied on.

4. Since the appellant is a minor, the amount ofRs.10,00,000/- would be disbursed to the father of the appellantas 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 FixedDeposits Receipts so as to attract the maximum rate of interest.The interest amount shall be payable to the guardian of theappellant every month. It shall be open to the guardian, duringthe minority of the appellant, to seek orders for withdrawal of theamount on the basis of medical opinion, if any major medicalexpenses are required to be incurred. [Para 15][841-B-D]

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AGeneral Manager, Kerala State Road TransportCorporation, Trivandrum v. Susamma Thomas andOthers (1994) 2 SCC 176 – relied on.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2205-C2206 of 2022.

From the Judgment and Order dated 07.09.2020 of the High Courtof Karnataka at Bengaluru in MFA No.3077 of 2014 c/w MFA No.8297of 2014.

DShekhar G. Devasa, Manish Tiwari, Shashi Bhushan Nagar, Ms.Satvisa Pattanayak, M/s Devasa & Co., Advs. for the Appellant.

Ms. Nidhi Sahay, Shashank Manish, Advs. for the Respondents.

The Judgment of the Court was delivered by EHEMANT GUPTA, J.

1. The present appeal has been preferred by a 5 years’ old victimof road accident which occurred on 21.9.2010, challenging the order ofthe High Court dated 7.9.2020 awarding a compensation of Rs.13,46,805/-, as against Rs. 18,24,000/- awarded by the learned Motor AccidentClaims Tribunal[1].F

2. The grievance is with respect to the inadequate amount ofcompensation on account of the injuries suffered by the appellant. Theappellant is a paraplegic patient. The appellant has examined Dr. AmithishNarayana as PW-2 and Dr. S. Adanthya as PW-3. Dr. Adanthya is amedical specialist from National Institute of Mental Health &GNeurosciences, Bangalore. The discharge summary issued by the hospitalis Exh. P/10. As per the discharge certificate, the appellant is not able tomove both his legs and had complete sensory loss in the legs, urinaryincontinence, bowel constipation and bed sore. The appellant was aged H1 For short, the ‘Tribunal’

about 5 years as on the date of the accident, hence has lost his childhoodand is dependent on others for his routine work. PW-2 Dr. AmithishNarayana has issued disability certificate Exh.P/12. He is the Head ofthe Department at the Kasturba Medical College Hospital, Mangalore.The said certificate reads as thus:

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“KMC Hospital

30.04.2013BTuesday

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 Paraplegiafollowing T 10-11 spinal cord lesion due to RTA. He is not able towalk due to poor motor and sensory recovery in LL muscles.

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He shows significant sinking astasia attitude and collapseson standing. As per the Disability certificate, he has 100%permanent physical impairment and will not be able to walk.

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Since following therapy, partial recovery has taken place inboth motor and sensory aspects up to pelvic girdle level. Furtherrecovery is impossible. Therefore he is been advised to useAdvanced Reciprocating Gait Orthosis (ARGO) with bilateralelbow crutches.

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After the use of Advanced Reciprocating Gait Orthosis(ARGO) with bilateral elbow crutches he can perform independentambulation.

This is a great achievement for his future life as this devicegives him controlled mobility capacity.

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With best wishes and blessings for his good progress.

Sd/-Dr. Amitesh NarayanProfessor & HODDepartment of PhysiotherapyK.M.C. HospitalAmbedkar Circle, Mangalore-575001Email: [REDACTED]: [REDACTED]"

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A3. The High Court and the Tribunal assessed the compensationunder different heads as produced below:

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4. Learned counsel for the appellant argued that the medicalexpenses itself were to the tune of Rs.5,73,700/- as per Ex. P11, whereasthe High Court has only awarded a sum of Rs.1,61,805/-. The HighCourt had maintained awarding a sum of Rs 5,00,000/- for future medicalexpenses, i.e., towards purchase of device to be used by the appellant,Ebut as per the statement of PW2- Dr. Amitesh Narayana, the devicebears weight only up to 25 kilograms and has to be replaced every 5years. The conveyance charges were awarded by the Tribunal asRs.20,000/- which was enhanced to Rs.70,000/- by the High Court.However, it was contended that the enhancement is still less than theFtaxi expenses incurred by the appellant. The Tribunal rejected the claimof taxi expenses produced as EX P-13 amounting to Rs. 1,51,500/- onthe ground that the taxi driver had not been produced and also that whythe appellant was taken by a taxi when other modes of transport wereavailable. Still further, the appellant has been given Rs.70,000/- asattendant charges and Rs.2,25,000/- towards disability which are whollyGinadequate.

5. PW-1- Krishna Sapalya is the father of the appellant who wasworking as Secretary, Gram Panchayat. The learned Tribunal hasobserved that the father has not placed any material to show hisoccupation or income. We do not agree with such finding of the TribunalH

as once he has stated that he is a Secretary of Gram Panchayat, he hasdisclosed his occupation. As a Secretary of Gram Panchayat, he is agovernment servant.

6. It was also argued that in a judgment reported as Kajal v.Jagdish Chand and Others[2], the injured was a 12 years old girl whohad suffered an injury to the extent that her IQ got less than 20% ascompared to a child of her age and the medical board had assessed hersocial age to be only of a 9-months’ old child. This Court had recognizedthat Schedule II of the Act could be used as a guide for the multiplier tobe applied in each case. This Court in the aforesaid case held as under:

“6. It is impossible to equate human suffering and personaldeprivation with money. However, this is what the Act enjoinsupon the courts to do. The court has to make a judicious attemptto award damages, so as to compensate the claimant for the losssuffered by the victim. On the one hand, the compensation shouldnot be assessed very conservatively, but on the other hand, thecompensation should also not be assessed in so liberal a fashionso as to make it a bounty to the claimant. The court while assessingthe compensation should have regard to the degree of deprivationand the loss caused by such deprivation. Such compensation iswhat is termed as just compensation. The compensation ordamages assessed for personal injuries should be substantial tocompensate the injured for the deprivation suffered by the injuredthroughout his/her life. They should not be just token damages.

12. The assessment of damages in personal injury cases raisesgreat difficulties. It is not easy to convert the physical and mentalloss into monetary terms. There has to be a measure of calculatedguesswork and conjecture. An assessment, as best as can, in thecircumstances, should be made.

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27. One factor which must be kept in mind while assessing thecompensation in a case like the present one is that the claim canbe awarded only once. The claimant cannot come back to courtfor enhancement of award at a later stage praying that something A

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Aextra has been spent. Therefore, the courts or the Tribunalsassessing the compensation in a case of 100% disability, especiallywhere there is mental disability also, should take a liberal view ofthe matter when awarding the compensation. While awarding thisamount, we are not only taking the physical disability but also themental disability and various other factors. This child will remainBbedridden for life. Her mental age will be that of a nine-month-oldchild. Effectively, while her body grows, she will remain a smallbaby. We are dealing with a girl who will physically become awoman but will mentally remain a 9-month-old child. This girl willmiss out playing with her friends. She cannot communicate; sheCcannot enjoy the pleasures of life; she cannot even be amused bywatching cartoons or films; she will miss out the fun of childhood,the excitement of youth; the pleasures of a marital life; she cannothave children who she can love, let alone grandchildren. She willhave no pleasure. Her’s is a vegetable existence. Therefore, wefeel in the peculiar facts and circumstances of the case evenDafter taking a very conservative view of the matter an amountpayable for the pain and suffering of this child should be at leastRs 15,00,000.”

7. The High Court had assessed, in the aforesaid case, the notionalincome of the victim as Rs.15,000/- p.a. which was not found to beEjustified by this Court. It was observed that the girl would be entitled tominimum wages payable to a skilled workman. The appellant was fromthe State of Haryana. The minimum wages in that State on the date ofaccident were Rs.4846/- per month. In the present appeal, the minimumwages for 2010-11 in the State of Karnataka for employments not coveredFunder any of the scheduled employments can be ascertained from thefollowing extract of notification for minimum wages published in theGazette on 19.02.2007:

“24.Employment not covered in any of the Scheduled Employments Notification No. KAE 79 LMW 2005 dated 17.03.2006GPublished in Gazette dated 19.02.2007

Cost of Living Allowance to be paid over and above 2703 pointsCost of Living Index: 3944-2703=1241 points Minimum wages and VDA from 01-04-2010 to 31-03-2011

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839MASTER AYUSH v. THE BRANCH MANAGER, RELIANCE GENERALINSURANCE CO. LTD. & ANR. [HEMANT GUPTA, J.]

S C H E D U L E

VDA: All Categories of employees: 3 paise per point per dayover and above 2703 points.”

8. Hence, as per the above extract, the minimum wages payableto a skilled workman in 2010-11 is to the tune of Rs. 3708.70. In thisview, the minimum wages as on the date of accident is rounded off toRs.3700/-. The compensation, therefore, is to be assessed on the basisof the said minimum wages on the assumption that the appellant wouldhave been able to earn after attaining majority.

9. In addition to the skilled minimum wages, the appellant wouldbe also entitled to 40% for future prospects in view of the judgment ofthis Court in National Insurance Company Limited v. Pranay Sethi& Ors[3].

10. Thus, the compensation works out to be Rs.3700/- plus 40%,which amounts to Rs.5180/- per month. The multiplier of 18 would beapplicable in view of the age of the appellant. The loss of future earningsdue to the Permanent Disability for life thus works out to beRs.11,18,880/-, i.e., (3700+1480=5180) x 12 x 18.

11. As per the medical certificate produced by the appellant, withAdvanced Reciprocating Gait Orthosis (ARGO) with bilateral elbowcrutches, the appellant can perform independent ambulation. Therefore,the condition of the appellant is not entirely comparable to Kajal whowas confined to bed with mental age of 9 months’ old child. The appellantherein is not able to move his both legs and had complete sensory loss inthe legs, urinary incontinence and bowel constipation and bed sore.

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3 (2017) 16 SCC 680

A12. The determination of damages in personal injury cases is noteasy. The mental and physical loss cannot be computed in terms ofmoney but there is no other way to compensate the victim except bypayment of just compensation. Therefore, we find that in view of thephysical condition, the appellant is entitled to one attendant for the restof his life though he may be able to walk with the help of assistantBdevice. 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 appellanthas not only lost his childhood but also adult life. Therefore, loss ofmarriage prospects would also be required to be awarded. The learnedTribunal has rejected the claim of taxi expenses for the reason that theCtaxi driver has not been produced. It is impossible to produce thenumerous taxi drivers. Still further, the Tribunal should have realized thecondition of the child who had complete sensory loss in the legs.Therefore, if the parents of the child have taken him in a taxi, probablythat was the only option available to them. Accordingly, we award a sumof Rs.2 lakhs as conveyance charges.D

13. No compensation is warranted to be payable under the heading“food and nourishment or towards loss of childhood” as it standssubsumed in the compensation assessed under the other different heads.In view of the judgment in Kajal and other principles of determination ofcompensation, the amount payable would be as under:

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14. Hence, the compensation comes out to be Rs. 49,93,000/-along with interest already awarded by the Tribunal and affirmed by theHigh Court i.e. 7.5% p.a. from the date of filing of the claim applicationtill realization.

15. Since the appellant is a minor, in view of the judgment of thisCourt in General Manager, Kerala State Road Transport Corporation,Trivandrum v. Susamma Thomas and Others[4], the amount ofRs.10,00,000/- would be disbursed to the father of the appellant as hisguardian. If however, an amount more than Rs.10,00,000/- has alreadybeen disbursed, the said amount shall not be adjusted. The rest of theamount would be invested in one or more Fixed Deposits Receipts so asto attract the maximum rate of interest. The interest amount shall bepayable to the guardian of the appellant every month. It shall be open tothe guardian, during the minority of the appellant, to seek orders forwithdrawal of the amount on the basis of medical opinion, if any majormedical expenses are required to be incurred.

16. The appeals thus stand allowed accordingly with coststhroughout.

Bibhuti Bhushan Bose

Appeals allowed.

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