Bombay High Court
The New India Assurance Co. Ltd vs Shweta Dilip Mehta And Ors on 14 December, 2009
Author: S. A. Bobde
Bench: S. A. Bobde, S. J. Kathawalla
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 969 OF 2008
WITH
FIRST APPEAL NO. 1262 OF 2008.
The New India Assurance Co. Ltd. ...Appellant
Vs.
Shweta Dilip Mehta and Ors. ...Respondents
WITH
Shweta Dilip Mehta
ig ...Appellant
Vs.
Muralidhar Shankar Khare & Ors. ...Respondents.
....
Mr. Sameer Tambekar, for Respondent Nos. 1 & 2 in F. A. 1262 of 2008.
Mr. S. M. Dange, Responent No.3 in F. A. 1262 of 2008 & for Appellant,
in F.A. No.969 of 2008.
Mr. Tejpal S. Ingale for Respondent No.1 in F.A. 969 of 2008.
....
CORAM : S. A. BOBDE &
S. J. KATHAWALLA, JJ.
RESERVED ON : 5TH DECEMBER 2009.
PRONOUNCED ON : 14TH DECEMBER 2009.
JUDGMENT (Per S. A. Bobde, J.)
1. The present appeals arise from the order of the Motor Accidents Claims Tribunal (hereinafter referred to as "the Tribunal") at Sangli, in Petition No. 323/1993, decided on 16.8.2007. At the outset, we ::: Downloaded on - 09/06/2013 15:24:34 ::: 2 must mention that the Learned Advocate for the Insurance Co.
(original Respondent No. 3 before the Tribunal; hereinafter referred to as "respondent") has not pressed their appeal before us and has been allowed to withdraw it. The facts in brief are that one Dilip Shah was proceeding to Kohlapur along with his family and the family of his close friend, Dilip Mehta, in a Maruti 800 car bearing Registration No. MH-01-A/122. In all, 6 persons were travelling in the car. On 2.5.1993, at about 6-30 a.m., the car met with an accident near Itkari Phata when a truck, bearing Registration No. MHF-6469, which was travelling in the opposite direction, collided with it. As a result, the driver, Mr. Dilip Shah, died instantaneously, while the other passengers were severely injured. Ms. Shweta Dilip Mehta (hereinafter referred to as the "appellant"), aged 11 years at the time, was rendered paraplegic i.e. her entire body from waist - down is paralysed since the day of the accident and doctors assess her permanent disablement to an extent of 80 - 90 per cent.
2. It seems that initially the police in fact registered an offence against the driver of the Maruti 800 for rash and negligent driving. The Tribunal having examined the evidence on record found that the accident occurred due to the sudden detachment of the two front wheels along with the axle of the truck. Consequently, the truck driver lost control and collided head - on with the Maruti 800. This ::: Downloaded on - 09/06/2013 15:24:34 ::: 3 detachment of the front wheels occurred because the truck was old and not properly maintained. We find from the evidence before us that the Tribunal has come to a correct conclusion in this regard and the accident did not occur due to any fault of the driver of the Maruti 800, in which the girl was travelling, but occurred due to the negligent maintenance of the truck. In any case, whether or not the truck driver or owner was negligent has not been specifically contended before us by the respondent.
3. The present appeals relate to the Tribunal's award of compensation, u/s 166 of the Motor Vehicles Act, 1988, to the appellant by the Tribunal, which was claimed against the respondent. The appellant had initially filed a claim for Rs. 20 lakh in 1993, but amended the plaint on 4.2.2006 to a claim of Rs. 91 lakh. The Tribunal, as per its judgment dated 16.8.2007, awarded the appellant Rs. 21, 23, 848/-, computed under various heads, for both pecuniary and non-pecuniary losses, caused by the accident. The appellant submits that this award was inadequate to meet all the expenses incurred and likely to be incurred and presses her claim for Rs. 91 lakh before us. We must mention here that an effort was made for settlement of the claim, however, it failed and we hence proceed to calculate the quantum of compensation which is to be awarded to the appellant.
::: Downloaded on - 09/06/2013 15:24:34 ::: 44. The process of determining compensation by the Court is an essentially practical task and can never be an exact science. Perfect compensation is hardly possible, more so in claims of injury and disability. As rightly pointed out in H. West & Sons Ltd. v.
Shepherd [(1958) ACJ 504 (H. L)]:
"...money cannot renew a physical frame that has been battered."
However, making a monetary assessment of the injury suffered is the only process devised to compensate the victim. The process of making such an assessment, whether in case of death or injury, is provided in section 168 of the Motor Vehicles Act, 1988, which requires that the Tribunals constituted under the Act determine compensation, which appears to be 'just.' Thus the Act vests a wide discretion upon the Tribunals. The decision of the Hon'ble Apex Court, in Divisional Controller, KSRTC v. Mahadeva Shetty [2003 ACJ 1775 (SC)] needs mention here:
"It has to be borne in mind that compensation for life and limb can hardly be weighed in golden scales...The quantum of damages fixed should be in accordance with the injury.
An injury may bring about many consequences like loss of earning capacity, loss of mental pleasure and many such ::: Downloaded on - 09/06/2013 15:24:34 ::: 5 consequential losses. A person becomes entitled to damages for the mental and physical loss, his or her life may have been shortened or that he or she cannot enjoy life which has been curtailed because of physical handicap. The normal expectation of life is impaired....
...Every method or mode adopted for assessing compensation has to be considered in the background of 'just' compensation, which is the pivotal consideration.
Though by the use of the expression, 'which appears to be just', a wide discretion is vested on the tribunal, the determination has to be rational, to be done with a judicious approach, and not the outcome of whims, wild guesses, and arbitrariness." (para 15)
5. The Hon'ble Apex Court in R. D. Hattangadi v. Pest Control (India) Pvt. Ltd. [1995 ACJ 366 (SC)] posited certain principles to be followed:
"While fixing the amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary 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 non pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate the two ::: Downloaded on - 09/06/2013 15:24:34 ::: 6 concepts, pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning;
(iii) other material loss. So far as non-pecuniary damages are concerned, they may include (i) damage 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 the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
6. With these broad principles in mind, we proceed to examine the appellant's claim for enhancement of the compensation awarded to her by the Tribunal. The Tribunal's award is split up as follows:
Expense Amount (Rs.)
1] Amount spent by claimant till date of Tribunal award 1, 23, 848/-
2] Towards physical pains and mental shock 2, 00, 000/-
3] Towards loss of amenities of life 1, 00, 000/-
4] Towards inevitable expenses 10, 00, 000/-
5] Towards loss of future income 7, 00, 000/-
::: Downloaded on - 09/06/2013 15:24:34 :::
7
TOTAL 21, 23, 848/-
The Tribunal also awarded different rates of interest which is as follows:
(i) 12% p. a. from filing of the petition till 31.12.2002.
(ii) 7.5% p. a. from 1.1.2003 to 31.12.2006.
(iii) 10% p. a. from 1.1.2007 till realization of the amount.
We proceed to deal with the amount awarded under each head and examine whether the amount thereby awarded is 'just' as hereunder:
1] The amount already spent by claimant till date of Tribunal award
7. The Tribunal in paragraph 25 of its order has provided the split up of the amount of Rs. 1, 23, 848/- awarded to the claimant. The Learned Tribunal arrived at this amount based on the receipts of medical and other inevitable expenses, incurred by the claimant, until the date of its award. We find that the Learned Tribunal has arrived at this figure in a proper and reasoned manner, based on evidence. The amount awarded under this head does not call for any interference.
2] Towards Physical Pains and Mental Shock ::: Downloaded on - 09/06/2013 15:24:34 ::: 8
8. The Learned Advocate for the Appellant has contended before us that the Learned Tribunal erred in awarding Rs. 2 lakh as compensation under this head. He contends that the Learned Tribunal ought to have awarded compensation separately towards 'physical pains' and 'mental shock and suffering' i.e. these ought to be treated as separate heads for compensation. He further submits that the appellant ought to be awarded Rs. 5 lakh under each of these heads.
9. The Learned Tribunal based its decision to award the compensation under the single head of 'physical pains and mental shock' based on the reasoning that 'physical pains is inclusive of mental shock.' Though it is difficult to accept the statement that 'physical pains is inclusive of mental shock', we agree that the compensation for both should be considered under the same head. We recall Lord Denning's observations in Ward v. James [(1965) 1 All E. R. 563] where he states that the process of determining compensation must be such that the awards are both 'assessable' and 'uniform.' 'Assessable' means that the awards are conventional figures based on experience or comparable cases. On the other hand, 'uniform' refers to similar awards in similar cases and circumstances. We find that similar cases have treated 'physical pain' and 'mental shock' as a single head for awarding compensation. In R. D. Hattangadi's case [supra], the Hon'ble Apex Court granted Rs. 1,50, 000/- to a 52 year old advocate, ::: Downloaded on - 09/06/2013 15:24:34 ::: 9 who was rendered paraplegic by a motor accident, under the single head of 'pains and sufferings.' Again in Mahadeva Shetty's case [supra], the claimant was an unmarried mason, rendered paraplegic by a motor accident, and the Hon'ble Apex Court granted Rs. 1, 00, 000/-
under the single head of 'mental agony, pain and suffering.' We also note that the Second Schedule of the Motor Vehicles Act, 1988, in paragraph 4 (i), which deals with General Damages to be awarded in case of injuries and disabilities, refers to 'pain and sufferings' as a single head of General Damages. We may also use the the Second Schedule as a guideline, even while awarding compensation u/s 166 of the Act, as per the decision in S. Kaushanuma Begum v. New India Assurance Co. Ltd. [AIR 2001 SC 485]. We hence find no merit in the contention of the Appellant that 'physical pain' and 'mental shock' ought to be treated as separate heads for compensation.
10. As regards enhancement of the amount of Rs. 2, 00, 000/- awarded under this head, two important points from the above mentioned cases emerge, which ought to be followed in determining compensation. In Mahadeva Shetty's case [supra]:
"A person not only suffers injuries on account of the accident, but also suffers in mind and body on account of the accident throughout his life and a feeling is developed that ::: Downloaded on - 09/06/2013 15:24:34 ::: 10 he is no more a normal man and cannot enjoy the amenities of life as a normal person can." (Para 18) In R. D. Hattangadi's case [supra], the Hon'ble Apex Court laid down that:
"when compensation is to be awarded for pain and sufferings and loss of amenities of life, the special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he has suffered and the effect thereof on his future life."
11. In the present case, the Appellant was only 11 years old at the time of the accident. It needs no mention that on account of the accident, the Appellant has lost out on several pleasures of her childhood and adolescence, including the ability to move, run and play freely, as other children do. She was a bright and promising student, yet her condition may now be an impediment to not only her success, but also everyday ordinary living. Added to this are the physical and mental suffering caused by her medical condition itself, its treatment and the knowledge that she will never be able to lead a normal life. Even looking after personal hygiene has become difficult for her, as the evidence shows.
There is also the loss of expectation of life i.e. the normal lifespan of the person being shortened due to the injury, which causes disappointment and stress. We also bear in mind that if her life expectancy is now 55 ::: Downloaded on - 09/06/2013 15:24:34 ::: 11 years, she must endure this inconvenience, disappointment and suffering for as much as 28 years from now. Keeping in mind the awards under this head to the claimants in the aforementioned cases by the Hon'ble Apex Court, we find it proper to increase the compensation awarded 'towards physical pains and mental shock', to the appellant to Rs. 4, 00, 000/- due to the special circumstances of the case.
3] Towards Loss of Amenities of Life
12. The Tribunal awarded Rs. 1, 00, 000/- under this head against the claim of Rs. 5, 00, 000/- made by the appellant. The Learned Tribunal referred to the aforementioned principle in R. D. Hattangadi's case [supra], and felt this amount was proper considering these aspects. We find that this amount is inadequate. This head must take into account all aspects of a normal life that have been lost due to the injury caused. As per R. D. Hattangadi's case [supra], this includes a variety of matters such as the inability to walk, run or sit etc. We include here too the loss of childhood pleasures such as the free ability to play, dance, run etc, the loss of ability to freely move or travel without assistance. Then, there is the virtual impossibility of marriage as well as a complete loss of the ability to have sex and to have and nurture children. On this count alone, in Mahadeva Shetty's case [supra], the Hon'ble Apex Court had awarded Rs. 50, 000/- where the claimant was a bachelor. In the present ::: Downloaded on - 09/06/2013 15:24:34 ::: 12 case, keeping in mind these factors, and the age and deprivation of the appellant, we increase the sum awarded under this head to Rs. 3, 00, 000/-.
4] Towards Inevitable Expenses
13. The appellant claimed before the tribunal a sum of Rs. 17, 458/- at minimum, as recurring inevitable expenses. This expenditure includes the amounts required to be spent for attendants, charges for physiotherapy, salary of a driver, expenditure towards petrol etc. The Learned Tribunal examined the claim and found that there was some element of exaggeration, such as a claim of Rs. 1500/- on a masseur and another Rs. 3000/- as charges for the physiotherapist, which he felt were repetitive. Having considered all the expenses, he concluded that a sum of Rs. 10, 00, 000/- is to be given under this head, so that the amount fetches Rs. 7000 - 8000 a month by way of interest. The appellant contends that this sum is inadequate and ought to be at least Rs. 25, 00, 000/- in order to give an interest of about Rs. 17, 000/- p.m.
14. Inevitable expenses is that burden of expenses, which the injured person is required to incur including the need for nursing, constant attendance, extra nourishment, medical expenses as well as any other expense that may arise in the future. We bear in mind the caveat laid ::: Downloaded on - 09/06/2013 15:24:34 ::: 13 down in Phillps v. Western Railway Co. [1874 4 Q. B. D. 406], which is that this is the only occasion on which the claimant may be awarded compensation, as he cannot sue again for it and hence a full compensation must be given. It is hence important to account for all expenses incurred and likely to be incurred and award reasonable sums for each. It is also important to remember the decreasing money value.
[Nagappa v. Gurudayal Singh; (2003) 2 SCC 274] Lastly, the life expectancy of the injured is to be kept in mind. We feel that life expectancy of the victim in such a case can be reasonably assumed to be at least 55 years, given the advancements in medical science etc. The claimant's age on the date of the accident was 11 years, which means that the remaining period of life expectancy from that date is 44 years i.e. 1993 - 2037.
15. Coming to the expenses, it is clear that the appellant will require an attendant to assist her in her daily activities. However, we cannot accept the submission of the Learned Advocate for the appellant, who first stated that this requires an expenditure of Rs. 20, 000 p. m and later in the Affidavit in rejoinder dated 3.12.2009 submitted that the appellant has two attendants which results in monthly expenditure of Rs. 8500/-. We feel that these are highly exaggerated figures. As stated in R. D. Hattangadi's case [supra], the Court need not be mathematical in calculating expenses on home attendants, but ought to ::: Downloaded on - 09/06/2013 15:24:34 ::: 14 look at circumstances prevailing in society to decide the amount. We feel that the average cost of keeping a home attendant would be about Rs. 2500/- p. m. for the period of life expectancy. Accordingly, the annual expense on an attendant works out to Rs. 30, 000/-. The appellant's condition renders her unable to walk about and she would require a car to get to even the nearest of places. The family would also require employing a driver, as it cannot be expected reasonably that some family member would always be present to drive the vehicle. It is hence necessary to consider the expenses on the driver's salary and petrol and other maintenance expenses. The average driver's salary for this period is at the least Rs. 3000/- p. m. and the average petrol and maintenance expenses as Rs. 2000/- p. m. Accordingly, this works out annually to Rs. 36, 000/- for driver's salary and another Rs. 24, 000/-
annually for petrol and maintenance expenses.
16. Next, we must consider that the appellant requires physiotherapy. The importance of physiotherapy for persons injured in road accidents has already been stressed upon in R. D. Hattangadi's case [supra]. The Learned Advocate for the appellant submits that the appellant requires physiotherapy on every alternate day, which works out to Rs. 3000/- p.
m. We have seen the sums granted towards physiotherapy expenses in other cases and also the bills of physiotherapy expenses already undergone by the appellant. Accordingly, we think it reasonable to ::: Downloaded on - 09/06/2013 15:24:34 ::: 15 consider Rs. 3000/- p.m. as the average expense per sitting throughout the remaining period of physiotherapy. This works out to an annual cost of Rs. 36, 000/-. The Learned Advocate for the appellant has submitted that the family has not employed a nurse for the appellant and hence we find no need to consider cost for nursing. We do accept the Learned Advocates plea for considering recurring medical and sanitary expenses. The decision in Nagappa's case [supra] may be mentioned here:
"The Act does not provide for passing of further award after the final award is passed. Therefore, in a case where injury to a victim requires periodical medical expenses, fresh award cannot be passed or previous award cannot be reviewed when the medical expenses are incurred after finalization of the compensation proceedings...It is not improper to take into account expenditure genuinely and reasonably required to be incurred for future medical treatment. Future medical expenses required to be incurred can be determined only on the basis of fair guesswork after taking into account increase in the cost of medical treatment."
It is clear that the condition of the appellant requires her to take constant medication and also use sanitary pads, due to her inability to ::: Downloaded on - 09/06/2013 15:24:34 ::: 16 use the toilet like a normal person. The learned advocate for the appellant has also submitted several hospital bills of treatment already undergone for ITB implantation, right leg fracture etc, upon being put to strict proof of these claims by the respondent. We note that the cost of the ITB implant refills required every 3 months itself is Rs. 2000/-.
The appellant has already, during the course of this appeal suffered a fractured leg once and required an ITB pump to ease her discomfort by loosening her paralysed legs. She has also had to purchase a wheelchair for her movement. We refrain from going into the individual expenses incurred on each of these items. However, we feel that at minimum, a sum of Rs. 5000/- p. m. is required from hereon to account for recurring medical and sanitary expenses of the appellant. Accordingly, it works out to Rs. 60,000/- annually. We cannot accept the submission of the respondent that the appellant's fathers cross - examination has revealed certain mitigating circumstances which we must consider.
Neither can we accept the respondent's submission that there is a good chance of recovery of the appellant. The learned advocate for the respondent himself admitted that there has been no improvement in the appellant's condition since the day of the accident in 1993 till the present date. Her disability has been assessed as a permanent disability of 80 - 90 per cent. We hence reject these submissions of the respondent.
::: Downloaded on - 09/06/2013 15:24:34 ::: 1717. The annual inevitable expenses are hence summed up as:
Expense Amount (Rs.)
1] Attendant 30, 000/-
2] Driver 36, 000/-
3] Petrol and Vehicle Maintenance etc. 24, 000/-
4] Physiotherapy 36, 000/-
5] Recurring medical and sanitary expenses 60, 000/-
TOTAL 1, 86, 000/-
It is already settled in Nagappa's case [supra] that the Court may award a long - term deposit, the interest on which helps meet such recurring inevitable expenses. We assume that the average rate of interest from an FDR for the period of life expectancy is 8% p. a.
Hence, in order to obtain an annual interest of Rs. 1, 86, 000/-, an amount of approximately Rs. 23, 25, 000 would have to be deposited.
The appellant is accordingly awarded such deposit, the interest on which bears up for inevitable expenses during the remaining period of life expectancy.
5] Towards Loss of Future Income
18. The Learned Tribunal computed Rs. 7, 00, 000/- as compensation under this head in order to yield a sum of Rs. 5000/- p. m. as interest, ::: Downloaded on - 09/06/2013 15:24:34 ::: 18 to cover loss of earnings. The Learned Advocate for the appellant contended that this sum may not yield Rs. 5000/- as annual interest, and even if it did, this sum as annual income was pleaded for in the year 1998-99, but at present, it ought to be adjusted for inflation and considered at around Rs. 10,000 - 12,000/- p. m. The Tribunal did not apply the multiplier method, which is the standard practice to calculate loss of income, but instead did so based on an estimate of future earnings of the claimant for the remaining period of life expectancy, and awarded a sum which would yield that amount as interest.
19. The Learned Advocate for the Appellant contended that the multiplier method ought not to be applied in the present case and brought before us the case of Nizam Institute of Medical Sciences v. Prasanth Dhananka & ors. [Civil Appeal No. 4119 of 1999] to press his claim.
In that case, the Hon'ble Apex Court awarded Rs. 25 lakhs towards loss of future income, to a 28 year old I. T. Engineer, rendered paraplegic as a result of medical negligence in carrying out a surgery.
He refers us to paragraph 40 of this judgment, which states as follows:
"The kind of damage that the complainant has suffered, the expenditure that he has incurred and is likely to incur in the future and the possibility that his rise in his chosen field ::: Downloaded on - 09/06/2013 15:24:34 ::: 19 would now be restricted are matters which cannot be taken care of under the multiplier method."
20. We have considered this proposition at length. The Hon'ble Apex Court has held that the Multiplier Method ensures a 'just' compensation, while making for uniformity and certainty of awards, and has frowned upon High Courts which had deviated from the method, especially for claims made u/s 163-A of the Motor Vehicles Act. [KSRTC v.
Susamma Thomas (AIR 1994 SC 1631)] The Hon'ble Apex Court has further stated in S. Kaushanuma Begum v. New India Assurance Co.
[supra] as follows:
"...though formulated for the purpose of s.163-A, this method is a safer guidance at arriving at the amount of compensation than any other method. Courts must hence lean to adopt the structured formula provided in the Second Schedule."
The Andhra Pradesh High Court has also expressed a similar view in the case of L. K. Kousalyadevi v. Commissioner, Municipal Corporation of Hyderabad [2007 ACJ 301 (AP)] stating that while awarding compensation u/s 166, the Second Schedule can be taken as a guideline. Even in Mahadeva Shetty's case [supra], the Hon'ble Apex ::: Downloaded on - 09/06/2013 15:24:34 ::: 20 Court ultimately applied the Multiplier Method to determine compensation for 'loss of future income.'
21. We feel that objective of the Motor Vehicles Act laying down a structured formula and utilizing the Multiplier Method is to bring about uniformity in the compensation amounts awarded by Courts.
This Court has earlier recognized this method to be logically and legally well established in United India Insurance Co. Ltd. v.
Mandatai [1995 (1) TAC 68 (Bom)]. We distinguish the judgment in Nizam's case [supra] from the present matter before us, based on the fact that this is a case of disability caused by motor accident and not medical negligence. The circumstances of a case of medical negligence where a doctor did not do things which he ought to have done or did things he ought not to have done and the circumstances of a road accident are very different. It must be remembered that the legislature has enacted the Motor Vehicles Act, 1988, with the object of recognizing the principles of fault and no - fault liability with respect to motor accidents and bringing uniformity in compensation awards for such cases. However, it is not so with medical negligence cases, where liability and compensation has always been determined by the Courts themselves, having regard to the peculiar facts of each case. We therefore cannot accept the argument that the Multiplier ::: Downloaded on - 09/06/2013 15:24:34 ::: 21 Method need not be applied in this case, based on the decision in Nizam's case [supra].
22. The choice of the multiplier is as per the Second Schedule of the Motor Vehicles Act, determined by the age of the victim and annual income. The calculation is then of what is the capital sum, which if invested at an appropriate rate of interest would yield the annual income by way of interest. There are however several errors in the multiplier scale given in the Second Schedule table. For instance, the compensation for a victim upto 15 years and earning Rs. 3000/- p. a. is given as Rs. 60, 000/- which implies that the multiplier ought to be 20 and not 15 as per the Schedule. In any case, for claims under Section 166 of the MV Act, the Hon'ble Apex Court in Sarla Verma v. DTC [(2009) 6 SCC 127 at 139] held that the multiplier to be used is as per the scale prepared in U.P. SRTC v. Trilok Chandra [(1996) 4 SCC 362] and clarified in New India Assurance Co. Ltd. v. Charlie [(2005) 10 SCC 720] which reads as:
Age (years) Multiplier Scale 15 - 20 18 21 - 25 18 26 - 30 17 31 - 35 16 36 - 40 15 41 - 45 14 ::: Downloaded on - 09/06/2013 15:24:34 ::: 22 46 - 50 13 51 - 55 11 56 - 60 09 61 - 65 07 Above 65 05
23. In the present case, the appellant was only 11 years of age at the time of the accident. However, the aforementioned table, laid down in Sarla's case [supra], does not specify the multiplier to be applied in such a case, i.e. where the victim is below 15 years of age. We feel that this is an inadvertence rather than an intended exclusion.
The Second Schedule of the Motor Vehicles Act itself specifies a multiplier of '15' to be applied for victims who are under 15 years of age. It cannot be said that victims below the age of 15 years are to be excluded from receiving compensation under the head of 'loss of future income' merely because a multiplier has not been specified for such age group. It is obvious that 'loss of future income' as a head of compensation applies to all persons, whether earning or not at the time. A child who is rendered permanently disabled due to an accident loses the capacity to earn for himself and his family, in the same manner as a working adult, and in fact, often loses such capacity for a longer period than such adult. Courts have merely sought to interpret and clarify the Second Schedule, on account of the several errors in it, and in the interests of justice. However, no ::: Downloaded on - 09/06/2013 15:24:34 ::: 23 judgement of the Hon'ble Apex Court explicitly suggests excluding a category or age group from receiving compensation under this head. We hence find no reason to exclude calculating compensation under this head for the victim in the present matter.
24. We note the mathematical progression of the multiplier values, in the aforementioned schedule, as explained in Sarla's case [supra]:
"We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared be applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 - 20 and 20 - 25 years), reduced by one unit every five years, that is M - 17 for 26 to 30 years, M -16 for 31 to 35 years, M - 15 for 36 to 40 years, M - 14 for 41 to 45 years and M - 13 for 46 to 50 years, then reduced by two units for every five years, that is, M - 11 for 51 to 55 years, M - 9 for 56 - 60 years, M -
7 for 61 to 65 years and M - 5 for above 65 years."
As per this progression, the multiplier in the present case, for a victim below 15 years of age ought to have been 19. However, we are also bound by the judgment in Trilok Chandra's case [supra], where the Hon'ble Apex Court held that even in cases under section 166 of the Act, the maximum multiplier to be applied is 18, which was an increase ::: Downloaded on - 09/06/2013 15:24:34 ::: 24 from the existing maximum value of 16 that was laid down earlier in Susamma Thomas's case [supra]. The cap of '18' as the maximum multiplier that may be applied in any case has been reiterated in Sarla's case [supra] as well. Hence we conclude that irrespective of the mathematical progression in the schedule, the maximum multiplier that may be applied is 18, even if the victim is below 15 years. Thus, in the present case, the multiplier to be applied for computing 'loss of future income' for the victim is 18.
25. To compute the compensation, we will have to assume an annual income in this case, as the appellant did not work at the time of the accident, being only 11 years old. The Second Schedule specifies Rs. 15, 000/- per annum to be assumed as income in case of non - earning victims. However, we find this sum wholly inadequate in the present time. Moreover, the appellant was a bright student who seemed to be set for a successful future, prior to the accident. In fact, inspite of the accident, the appellant has managed to complete her M. Com. which itself is testimony to her potential. We feel that taking all contingencies, calamities and disadvantages that may have occurred in the appellant's normal future into account, to consider an annual income of 1, 00, 000/-
is reasonable. Applying the multiplier of 18 to this amount, the appellant is entitled to Rs. 18, 00, 000/- as compensation towards loss of future ::: Downloaded on - 09/06/2013 15:24:34 ::: 25 income, which, if deposited at standard interest rates, would accrue an interest approximately equal to the assumed annual income.
26. To sum up, the appellant is entitled to compensation as follows:
Expense Amount (Rs.) 1] Amount spent by claimant till date of Tribunal award 1, 23, 848/-
2] Towards physical pains and mental shock 4, 00, 000/-
3] Towards loss of amenities of life 3, 00, 000/-
4] Towards inevitable expenses 23, 25, 000/-
5] Towards loss of future income 18, 00, 000/-
TOTAL 49, 48, 848/-
27. We hence direct the respondent to pay the appellant the difference in the compensation awarded herein as against the amount of Rs. 21, 23, 848/- already paid according to the order of the Tribunal. The rate of interest on this increased amount is to be the same as the rates decided by the Tribunal, i.e. 12% from date of filing of petition till 31.12.2002;
7.5% from 1.1.2003 to 31.12.2006; 10% from 1.1.2007 till realization of the amount. Out of this entire compensation amount of Rs. 49, 48, 848/-, the amounts abovementioned for the purposes of 'inevitable expenses' and 'loss of future income' shall be deposited in an annual fixed deposit in a nationalized bank. The claimant will be entitled to draw interest on ::: Downloaded on - 09/06/2013 15:24:34 ::: 26 the deposit at the end of each year, to be applied for the said purposes, and the amount shall then be re-deposited for further terms of one year.
In case of urgent need it shall be open to the claimant to move the Tribunal for release of any part of the amount in deposit. The Tribunal shall consider the request for withdrawal and release only such sum as is necessary to meet the need. No other advance or withdrawal of any kind shall be permitted, by the appellant, her parents, guardians, or any other person, without the order of the Tribunal. This is to ensure that none of these amounts are misused, instead of being applied for the appellant's well - being. It shall also be open to the appellant to approach the Tribunal for variance of the order relating to the fixed deposit, if any other scheme would fetch better returns and also provide regular and permanent income. The amount awarded shall be deposited by the respondent within a period of four weeks from today, after adjusting the amount already deposited.
28. The appeal is allowed to the extent indicated. Parties to bear their own costs. There shall be refund of Court fees as per Rules on the withdrawn appeal.
Order Accordingly.
(S. A. BOBDE, J.) (S. J. KATHAWALLA, J.) ::: Downloaded on - 09/06/2013 15:24:34 :::