Master Ayush v. The Branch Manager, Reliance General Insurance Co. Ltd. & Anr.

1. The present appeal has been preferred by a 5 years’ old victim of road accident which occurred on 21.9.2010, challenging the order of the 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 Accident Claims Tribunal[1].

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

1 For short, the ‘Tribunal’ 2022 INSC 364 is a medical specialist from National Institute of Mental Health & Neurosciences, Bangalore. The discharge summary issued by the hospital is Exh. 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 sore. 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. PW-2 Dr. Amithish Narayana has issued disability certificate Exh.P/12. He is the Head of the Department at the Kasturba Medical College Hospital, Mangalore. The said certificate reads as thus: “KMC Hospital 30.04.2013 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”

3. The High Court and the Tribunal assessed the compensation under different heads as produced below: High Court Tribunal

┌───────────────────────────────────────────────────────────────────────────────────────┐
│                                                    High Court       Tribunal          │
│

┌─────────────────────────────────────────────────────────────────────────────────────┐
│                                            SCHEDULE                                 │
│                  Sl.         Class of         Minimum rates of wages payable        │
│                  No.       Employment                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.”                                            │
│ 8.       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.                     │
│ 9.       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 Company Limited v. Pranay Sethi &              │
│          Ors3.                                                                      │
│ 10.      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) x 12 x 18.                          │
│ 3     (2017) 16 SCC 680                                                             │
└─────────────────────────────────────────────────────────────────────────────────────┘

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. xxx xxx xxx

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. 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.”

7. 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. 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 19.02.2007: “24.Employment not covered in any of the Scheduled Employments Notification No. KAE 79 LMW 2005 dated 17.03.2006 Published in Gazette dated 19.02.2007 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 01-04-2010 to 31-03-2011 S C H E D U L E Sl. No. Class of Employment Minimum rates of wages payable for different zones Basic VDA Total 1 2 3 4 5

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.”

8. 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.

9. 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 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 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) x 12 x 18.

11. 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 who was confined to bed with mental age of 9 months’ 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.

12. 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 realized 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.