KAJAL versus JAGDISH CHAND & ORS.

[2020] 3 S.C.R. 622

[2020] 3 S.C.R.

KAJAL

JAGDISH CHAND & ORS.

(Civil Appeal No. 735 of 2020)

BFEBRUARY 05, 2020

[L. NAGESWARA RAO AND DEEPAK GUPTA, JJ.]

Motor Vehicles Act, 1988 – Just compensation – Personalinjury cases – Victim (minor) was travelling on tractor with herparents when it was hit by truck – She suffered serious injuriesCresulting in damage to her brain – Disability was assessed as 100%– Disability certificate stated that as per assessment her I.Q. is lessthan 20% of child of her age and her social age is only of 9month old child – Motor Accident Claims Tribunal (MACT) awardedRs.11,08,501/- and held that since there was violation of terms ofDpolicy, the insurance company would pay the amount but would beentitled to recover the same from the owner – High Court enhancedit to Rs.25,78,501/- – On appeal, held: Injuries cause deprivationto the body which entitles the claimant to claim damages – Damagesmay vary according to the gravity of the injuries sustained by theclaimant in an accident – Compensation should neither be assessedEvery conservatively, nor assessed in so liberal fashion so as tomake it bounty to the claimant – Court while assessing thecompensation should have regard to the degree of deprivation andthe loss caused by such deprivation – Such compensation is what istermed as just compensation – Rs.62,27,000/- is awarded to theFclaimant, inter alia under expenses relating to treatment;hospitalization and transportation; loss of earnings (familymembers); loss of future earnings; pain, suffering & loss ofamenities etc., with interest @7.5% p.a. from the date of filing ofthe claim petition till payment of the amount – Insurance companyentitled to adjust the amount already paid and to recover the amountGfrom the owner in terms of the award of MACT, which was notchallenged either before High Court or Supreme Court – Amountawarded is more than the amount claimed – In motor accident claimpetitions, the Court must award just compensation and, in case, thejust compensation is more than the amount claimed, that must beHawarded especially where the claimant is minor.

Motor Vehicles Act, 1988 – Minor Claimant – Compensation– Guidelines for investment of – Discussed.

Motor Vehicles Act, 1988 – Compensation – Grant of interest– Held: Normally interest should be granted from the date of filingof the petition and if in appeal enhancement is made the interestshould again be from the date of filing of the petition– Only if theappeal is filed after an inordinate delay by the claimants, or thedecision of the case has been delayed on account of negligence ofthe claimant, in such exceptional cases the interest may be awardedfrom later date – While doing so, the tribunals/High Courts mustgive reasons why interest is not being paid from the date of filing ofthe petition.

Disposing of the appeal, the Court

HELD:1.1 Expenses relating to treatment, hospitalization,medicines, transportation etc.

Injuries cause deprivation to the body which entitles theclaimant to claim damages. The damages may vary according tothe gravity of the injuries sustained by the claimant in an accident.On account of the injuries, the claimant may suffer consequentiallosses such as (i) loss of earning; (ii) expenses on treatment whichmay include medical expenses, transportation, special diet,attendant charges etc., (iii) loss or diminution to the pleasures oflife by loss of particular part of the body, and (iv) loss of futureearning capacity. Damages can be pecuniary as well as non-pecuniary, but all have to be assessed in Rupees and Paise. Thecourt has to make judicious attempt to award damages, so as tocompensate the claimant for the loss suffered by the victim. Onthe one hand, the compensation should not be assessed veryconservatively, but on the other hand, compensation should alsonot be assessed in so liberal fashion so as to make it bountyto the claimant. The court while assessing the compensationshould have regard to the degree of deprivation and the losscaused by such deprivation. Such compensation is what is termedas just compensation. The compensation or damages assessedfor personal injuries should be substantial to compensate theinjured for the deprivation suffered by the injured throughouthis/her life. They should not be just token damages. [Paras 5,6][629-D-H]

A1.2 Expenses relating to treatment, hospitalization,medicines, transportation etc.There is no dispute with regard tothe long period of treatment and hospitalisation of this younggirl. Limiting the amount only to the bills which have been paidin the name of the claimant only, would not be reasonable.Therefore, the amount payable for actual medical expenses isBincreased from Rs.1,38,501/- to Rs.2,00,000/-. The amountawarded for transportation at Rs.50,000/- is reasonable.Therefore, under this head Rs.2,50,000/- is awarded.[Para 19][634-E, G]

C1.3 Loss of earnings

The appellant placed material to show that the minimumwages payable to skilled workman is Rs.4846/- per month. Thiswould be the minimum amount which she would have earned onbecoming major. Adding 40% for the future prospects, it worksDto be Rs.6784.40/- per month, i.e., 81,412.80 per annum. Applyingthe multiplier of 18 it works out to Rs.14,65,430.40, which isrounded off to Rs.14,66,000/-. Further, in the hospital the claimantwould have had at least two attendants, and taking the cost ofeach at Rs.500/- per day for 51 days, Rs.51,000/- is awarded toher. [Paras 20, 21][635-B-C, F]E

1.3 Attendant Charges

The cost of one attendant is assessed at Rs.5,000/- andshe will require two attendants which works out to Rs.10,000/-per month, which comes to Rs.1,20,000/- per annum, and usingFthe multiplier of 18 it works out to Rs.21,60,000/- for attendantcharges for her entire life. [Para 25][637-D]

1.4 Pain, Suffering and Loss of Amenities

The courts or the tribunals assessing the compensation inGa case of 100% disability, especially where there is mentaldisability also, should take liberal view of the matter whenawarding compensation. In the peculiar facts and circumstancesof the case even after taking very conservative view of thematter an amount payable for the pain and suffering of this childshould be at least Rs.15,00,000/. [Paras 26, 27][638-A, D]H

1.4 Loss of marriage prospects

The Tribunal has awarded Rs.3,00,000/- for loss of marriageprospects. No reason to interfere with this finding. [Paras 28][638-E]

1.5 Future medical treatment

Keeping in view her young age and assuming she wouldlive another 50-60 years, it would not be unjust to award herRs.5,00,000/- for future medical expenses. [Paras 29][638-G]

1.6 How the compensation should be invested?

The tribunal while awarding the compensation stated thatthe amount payable to the share of the minor victim would bekept in Fixed Deposit till she attains the age of 18 years. TheHigh Court while enhancing the amount of compensation directedthat the enhanced amount be paid to the appellant within 45 days.This is totally contrary to the guidelines laid down by SupremeCourt in General Manager, Kerala State Road TransportCorporation, Trivandrum v. Susamma Thomas and Ors. Theseguidelines protect the rights of the minors, claimants who areunder some disability and also widows and illiterate person whomay be deprived of the compensation paid to them in lump sumby unscrupulous elements. These victims may not be able toinvest their monies properly and in such cases the MACT aswell the High courts must ensure that investments are made innationalised banks to get high rate of interest. The interest inmost cases is sufficient to cover the monthly expenses. In specialcases, for reasons to be given in writing, the MACT or the trialcourt may release such amount as is required. These guidelinesare reiterated and it is directed that they should be followed byall the tribunals and High Courts to ensure that the money of thevictims is not frittered away. [Para 30][638-H; 639-A; 640-D-F]

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

A1.7 Interest

Normally interest should be granted from the date of filingof the petition and if in appeal enhancement is made the interestshould again be from the date of filing of the petition. It is only ifthe appeal is filed after an inordinate delay by the claimants, orBthe decision of the case has been delayed on account of negligenceof the claimant, in such exceptional cases the interest may beawarded from later date. However, while doing so, the tribunals/High Courts must give reasons why interest is not being paidfrom the date of filing of the petition. Therefore, the entire amountof compensation including the amount enhanced by SupremeCCourt shall carry an interest of 7.5% per annum from the date offiling of the claim petition till payment/deposit of the amount.[Para 31][641-B-C]

1.8 Relief

DRs.62,27,000/- is awarded to the claimant. This amount shallcarry an interest @7.5% p.a. from the date of filing of the claimpetition till payment/deposit of the amount. The insurancecompany shall be entitled to adjust the amount already paid.Further, the insurance company shall also be entitled to recoverthe amount from the owner in terms of the award of the MACT,Ewhich has not been challenged either before the High Court orus. The amount awarded is more than the amount claimed.However, in motor accident claim petitions, the Court must awardjust compensation and, in case, the just compensation is morethan the amount claimed, that must be awarded especially whereFthe claimant is minor. [Paras 32, 33][641-D, G-H; 642-A]

M/s Concord of India Insurance Co. Ltd. v. NirmalaDevi and others 1980 ACJ 55 (SC); R.D. Hattangadiv. Pest Control (India) Pvt. Ltd. (1995) 1 SCC 551 :[1995] 1 SCR 75; Raj Kumar v. Ajay Kumar and OthersG(2011) 1 SCC 343 : [2010] 13 SCR 179; K. Suresh v.New India Assurance Company Ltd. and Ors. (2012)12 SCC 274 : [2012] 11 SCR 414 – relied on.

Gobald Motor Service Ltd. v. R.M.K. Veluswami AIR1962 SC 1 : [1962] SCR 929; Municipal Corporation

of Delhi v. Subhagwati and Ors., 1966 ACJ 57; U.P.State Road Transport Corporation and Ors. v. TrilokChandra and Ors. (1996) 4 SCC 362 : [1996] 2 Suppl.SCR 443; Sandeep Khanduja v. Atul Dande and Ors.(2017) 3 SCC 351; Mallikarjun v. Divisional Manager,The National Insurance Company Limited and Ors.2013 (10) SCALE 668 – referred to.

Phillips v. Western Railway Co. (1874) 4 QBD 406;Mediana [1900] AC 113; H. West & Son Ltd. v.Shephard 1963 2 WLR 1359; Ward v. James (1965) 1All ER 563; Taylor v. O’Connor 1971 AC 115 –referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 735 of2020.

From the Judgment and Order dated 05.04.2018 of the High Courtfor the States of Punjab & Haryana at Chandigarh in CM No. 23736 of2017 in FAO No. 4863 of 2010.

Dhruv Gautam, Ms. Charu Ambwani, Advs. for the Appellant.

S.L. Gupta, Kuldeep Singh Tomar, Varinder Kumar Sharma,Ms. Gunjan Sharma, Bikas Chandra, Advs. for the Respondents.

628SUPREME COURT REPORTS

AThe Judgment of the Court was delivered byDEEPAK GUPTA, J.

1. Kajal was bright young girl. She used to attend school, playwith her friends and lead normal life like anyother child. Unfortunately,on 18[th] October, 2007, while Kajal was travelling on tractor with herBparents, the tractor was hit by truck which was driven rashly. In thesaid accident, Kajal suffered serious injuries resulting in damage to herbrain. This has had very serious consequences on her. She was examinedat the Post Graduate Institute of Medical Education and Research,Chandigarh (PGI, Chandigarh for short), for assessment of her disability.CAccording to the said report, because of head injury Kajal is left with avery low I.Q. and severe weakness in all her four limbs, suffers fromsevere hysteria and severe urinary incontinence. Her disability has beenassessed as 100%.

2. Dr. Chhabra(PW-4), who was one of the members of the BoardDwhich issued the disability certificate (Ex.P6) stated that as per theassessment her I.Q. is less than 20% of child of her age and her socialage is only of 9 month old child. This means that Kajal while lying onthe bed will grow up to be an adult with all the physical and biologicalattributes which woman would get on attaining adulthood, includingmenstruation etc., but her mind will remain of 9 month old child.EBasically, she will not understand what is happening all around her.

3. How does one assess compensation in such case? No amountof money can compensate this child for the injuries suffered by her. Shecan never be put back in the same position. However, compensation hasto be determined in terms of the provisions of Motor Vehicles Act, 1988F(for short the Act). The Act requires determination of payment of justcompensation and it is the duty of the court to ensure that she is paidcompensation which is just.

4. Kajal through her father filed claim petition, under the Act.TheMotor Accident Claims Tribunal (MACT for short) awardedGRs.11,08,501/- and held that since there was violation of the terms ofpolicy the insurance company would pay the amount but would be entitledto recover the same from the owner. The High Court enhanced theaward amount to Rs.25,78,501/- under the following heads:

Aggrieved by the award the claimant is before this Court.

5. The principles with regard to determination of just compensationcontemplated under the Act are well settled. Injuries cause deprivationto the body which entitles the claimant to claim damages. The damagesmay vary according to the gravity of the injuries sustained by the claimantin an accident. On account ofthe injuries, the claimant may sufferconsequential losses such as (i) loss of earning; (ii) expenses on treatmentwhich may include medical expenses, transportation, special diet,attendant charges etc., (iii) loss or diminution to thepleasures of life byloss of particular part of the body, and (iv) loss of future earningcapacity. Damages can be pecuniary as well as non-pecuniary, but allhave to be assessed in Rupees and Paise.

6. It is impossible to equate human suffering and personaldeprivation with money. However, this is what the Act enjoins upon thecourts to do. The court has to make judicious attempt to award damages,so as to compensate the claimant for the loss suffered by the victim. Onthe one hand, the compensation should not be assessed veryconservatively, but on the other hand, compensation should also not beassessed in so liberal fashion so as to make it bounty to the claimant.The court while assessing the compensation should have regard to thedegree of deprivation and the loss caused by such deprivation. Suchcompensation is what is termed as just compensation.The compensationor damages assessed forpersonal injuries should be substantial tocompensate the injured for the deprivation suffered by the injuredthroughout his/her life. They should not be just token damages.

A7. There are numerous cases where the principles for grant ofcompensation have been enunciated. It would be relevant to quotepertinent observations from few.

8. In Phillips v. Western Railway Co.[1], Field, J., while emphasizingthat damages must be full and adequate, held thus:

“You cannot put the plaintiff back again into his original position,but you must bring your reasonable common sense to bear, andyou must always recollect that this is the only occasion on whichcompensation can be given. The plaintiff can never sue again forit. You have, therefore, now to give himcompensation once andCfor all. He has done no wrong, he has suffered wrong at thehands of the defendants and you must take care to give him fullfair compensation for that which he has suffered.” Besides, theTribunals should always remember that the measures of damagesin all these cases “should be such as to enable even tortfeasorto say that he had amplyatoned for his misadventure”.

9. In the case of Mediana[2], Lord Halsbury held:

“Of course the whole region of inquiry into damages is one ofextreme difficulty. You very often cannot even lay down anyprinciple upon which you can give damages; nevertheless, it isEremitted to the jury, or those who stand in place of the jury, toconsider what compensation in money shall begiven for what is awrongful act. Take the most familiar and ordinary case: how isanybody to measure pain and suffering in moneys counted?Nobody can suggest that you can by any arithmetical calculationestablish what is the exact amount of money which wouldFrepresent such thing as the pain andsuffering which personhas undergone by reason of an accident. In truth, I think it wouldbe very arguable to say that person would be entitled to nodamages for such thing. What manly mind cares about pain andsuffering that is past? But, nevertheless, the law recognizes thatGas topic upon which damages may be given.”

10. The following observations of Lord Morris in his speech in H.West & Son Ltd.v. Shephard[3], are very pertinent:

1 (1874) 4 QBD 4062 [1900] AC 113H3 1963 2 WLR 1359

“Money may be awarded so that something tangible may beprocured to replace something else of the like nature which hasbeen destroyed or lost. But money cannot renew physical framethat has been battered and shattered. All that Judges and courtscan do is to award sums which must be regarded as givingreasonable compensation. In the process there must betheendeavour to secure some uniformity in the general method ofapproach. By common assent awards must be reasonable andmust be assessed with moderation. Furthermore, it is eminentlydesirable that so far as possiblecomparable injuries should becompensated by comparable awards.”

In the same case Lord Devlin observed that the proper approachto the problem was to adopt test as to what contemporary societywould deem to be fair sum, such as would allow the wrongdoer to“hold up his head among his neighbours and say with their approval thathe has done the fair thing”, which should be kept in mind by the court indetermining compensation in personal injury cases.

11. Lord Denning while speaking for the Court of Appeal in thecase of Ward v. James[4], laid down the following three basic principlesto be followed in such like cases:

“Firstly, accessibility: In cases of grave injury, where the body iswrecked or brain destroyed, it is very difficult to assess faircompensation in money, so difficult that the award must basicallybe conventional figure, derived from experience or from awardsin comparable cases. Secondly, uniformity:There should be somemeasure of uniformity in awards so that similar decisions may begiven in similar cases; otherwise there will be great dissatisfactionin the community and much criticism of the administration ofjustice. Thirdly, predictability: Parties should be able to predictwith some measure of accuracy the sum which is likely to beawarded in particularcase, for by this means cases can be settledpeaceably and not brought to court, thing very much to the publicgood.”

12. The assessment of damages in personal injury cases raisesgreat difficulties. It is not easy to convert the physical and mental lossinto monetary terms. There has to be measure of calculated guess

4 (1965) 1 All ER 563

[2020] 3 S.C.R.

Awork and conjecture. An assessment, as best ascan, in the circumstances,should be made.

13. In McGregor’sTreatiseon Damages, 14th Edn., para 1157,referring to heads of damages inpersonal injury actions states:

“The person physically injured may recover both for his pecuniaryBlosses andhis non-pecuniary losses. Of these the pecuniary lossesthemselves comprisetwo separate items, viz., the loss of earningsand other gains which theplaintiff would have made had he notbeen injured and the medical and otherexpenses to which he isput as result of the injury, and the courts havesub-divided theCnon-pecuniary losses into three categories, viz., pain andsuffering,loss of amenities of life and loss of expectation of life.”

14. In M/s Concord of India Insurance Co. Ltd. v. NirmalaDevi and others[5], this Court held:

“2….The determination of the quantum must be liberal, notDniggardly since thelaw values life and limb in free country ingenerous scales.”

15. In R.D. Hattangadi v. Pest Control (India) Pvt. Ltd.[6], dealingwith the different heads of compensation in injury cases thisCourt heldthus:

“9. Broadly speaking, while fixing the amount of compensationEpayable to avictim of an accident, the damages have to be assessedseparately aspecuniary damages and special damages. Pecuniarydamages are those whichthe victim has actually incurred andwhich are capable of being calculated interms of money; whereasnon-pecuniary damages are those which areincapable of beingFassessed by arithmetical calculations. In order toappreciate twoconcepts pecuniary damages may include expenses incurredbythe claimant: (i) medical attendance; (ii) loss of earning of profitup tothe date of trial; (iii) other material loss.So far as non-pecuniarydamages are concerned, they may include:

G(i) damages for mental and physical shock, pain and sufferingalready suffered or likely to be suffered in the future; (ii)damages to compensate for the loss of amenities of lifewhichmay include variety of matters, i.e., on account of injury

5 1980 ACJ 55 (SC)H6 (1995) 1 SCC 551

theclaimant may not be able to walk, run or sit;(iii) damagesfor loss of expectation of life, i.e. on account of injurythe normallongevity of the person concerned is shortened;(iv)inconvenience, hardship, discomfort, disappointment,frustrationand mental stress in life.”

16. In Raj Kumar v. Ajay Kumar and Others[7], thisCourt laiddown the heads under which compensation is to be awarded forpersonalinjuries.

“6. The heads under which compensation is awarded in personalinjury casesare the following:

Pecuniary damages (Special damages)

(i)Expenses relating to treatment, hospitalization,medicines,transportation, nourishing food, and miscellaneousexpenditure.

(ii) Loss of earnings (and other gains) which the injured wouldhavemade had he not been injured, comprising:

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on account of permanent disability.

(iii) Future medical expenses.

Non-pecuniary damages (General damages)

(iv) Damages for pain, suffering and trauma as consequence oftheinjuries.

(v) Loss of amenities (and/or loss of prospects of marriage).

(vi) Loss of expectation of life (shortening of normal longevity).

In routine personal injury cases, compensation will be awardedonly underheads (i), (ii) (a) and (iv). It is only in serious cases of injury,where thereis specific medical evidence corroborating the evidence ofthe claimant, thatcompensation will be granted under any of the heads(ii)(b), (iii), (v) and(vi) relating to loss of future earnings on account ofpermanent disability,future medical expenses, loss of amenities (and/orloss of prospects ofmarriage) and loss of expectation of life.”

A17. In K. Suresh v. New India Assurance Company Ltd. andOrs.[8], this Court held as follows :

“2...There cannot be actual compensation for anguish of the heartor for mental tribulations. The quintessentiality lies in the pragmaticcomputation of the loss sustained which has to be in the realm ofBrealistic approximation. Therefore, Section 168 of the MotorVehicles Act, 1988 (for brevity ‘the Act’) stipulates that thereshould be grant of “just compensation”. Thus, it becomes achallenge for court of law to determine “just compensation”which is neither bonanza nor windfall, and simultaneously,should not be pittance.”C18. Applying the aforesaid principles, we now proceed to assessthe compensation.

Expenses relating to treatment, hospitalization, medicines,transportation etc.

19. The High Court under the two heads of medical treatmentand transport has awarded Rs.1,88,501/-. Out of this an amount ofRs.1,38,501/- is the actual expense incurred on the treatment of Kajal.One must remember that amongst people who are not Governmentemployees and belong to the poorer strata of society, bills are not retained.ESome of the bills have been excluded by the courts below only on theground that the name of the patient is not written on the bill. There is nodispute with regard to the long period of treatment and hospitalisation ofthis young girl. Immediately after the accident on 18.10.2007, she wasadmitted at hospital in Karnal. From there, she was referred to thePGI, Chandigarh, where she remained admitted from 21.10.2007 tillF12.11.2007 and, thereafter, she was again admitted in the hospital from12.11.2007 till 08.12.2007. She was in the hospital for almost 51 days,and both Dr. Sameer Aggarwal (PW-3) from the hospital at Karnal andDr. Rajesh Chhabra (PW-4), from PGI, Chandigarh, have supportedthis. Limiting the amount only to the bills which have been paid in theGname of the claimant only, would not be reasonable. Therefore, theamount payable for actual medical expenses is increased fromRs.1,38,501/- to Rs.2,00,000/-. The amount awarded for transportationat Rs.50,000/- is reasonable. Therefore, under this head we awardRs.2,50,000/-.

H8 (2012) 12 SCC 274

Loss of earnings

20. Both the courts below have held that since the girl was ayoung child of 12 years only notional income of Rs.15,000/- per annumcan be taken into consideration. We do not think this is proper way ofassessing the future loss of income. This young girl after studying couldhave worked and would have earned much more than Rs.15,000/- perannum. Each case has to be decided on its own evidence but takingnotional income to be Rs.15,000/- per annum is not at all justified. Theappellant has placed before us material to show that the minimum wagespayable to skilled workman is Rs.4846/- per month. In our opinion thiswould be the minimum amount which she would have earned on becominga major. Adding 40% for the future prospects, it works to be Rs.6784.40/- per month, i.e., 81,412.80 per annum. Applying the multiplier of 18 itworks out to Rs.14,65,430.40, which is rounded off to Rs.14,66,000/-

21. Though the claimant would have been entitled to separateattendant charges for the period during which she was hospitalised, weare refraining from awarding the same because we are going to awardher attendant charges for life. At the same time, we are clearly of theview that the tortfeasor cannot take benefit of the gratuitous servicerendered by the family members. When this small girl was taken to PGI,Chandigarh, or was in her village, 2-3 family members must haveaccompanied her. Even if we are not paying them the attendant chargesthey must be paid for loss of their wages and the amount they wouldhave spent in hospital for food etc. These family members left theirwork in the village to attend to this little girl in the hospital at Karnal orChandigarh. In the hospital the claimant would have had at least twoattendants, and taking the cost of each at Rs.500/- per day for 51 days,we award her Rs.51,000/-.

Attendant charges

22. The attendant charges have been awarded by the High Court@ Rs.2,500/- per month for 44 years, which works out toRs.13,20,000/-. Unfortunately, this system is not proper system.Multiplier system is used to balance out various factors. Whencompensation is awarded in lump sum, various factors are taken intoconsideration. When compensation is paid in lump sum, this Court hasalways followed the multiplier system. The multiplier system should befollowed not only for determining the compensation on account of loss

DEF

Aof income but also for determining the attendant charges etc. This systemwas recognised by this Court in Gobald Motor Service Ltd. v. R.M.K.Veluswami[9]. The multiplier systemfactors in the inflation rate, the rateof interest payable on the lump sum award, the longevity of the claimant,and also other issues such as the uncertainties of life. Out of all thevarious alternative methods, the multiplier method has been recognisedBas the most realistic and reasonable method. It ensures better justicebetween the parties and thus results in award of ‘just compensation’within the meaning of the Act.

23. It would be apposite at this stage to refer to the observation ofLord Reid in Taylor v. O’Connor[10]:C

“Damages to make good the loss of dependency over period ofyears must be awarded as lump sum and that sum is generallycalculated by applying multiplier to the amount of one year’sdependency. That is perfectly good method in the ordinary casebut it conceals the fact that there are two quiteseparate mattersDinvolved, the present value of the series of future payments, andthe discounting of that present value to allow for the fact that forone reason or another the person receiving the damages mightnever have enjoyed the whole of the benefit of the dependency. Itis quite unnecessary in the ordinary case to deal with these mattersEseparately. Judges and counsel have wealth of experience whichis an adequate guide to the selection of the multiplier and anyexpert evidence is rightly discouraged. But in case where thefacts are special, I think, that these matters must have separateconsideration if even rough justice is to be done and expert evidencemay be valuable or even almost essential. The special factor inFthepresent case is the incidence of Income Tax and, it maybe,surtax.”

24. This Court hasreaffirmed the multiplier method in various caseslike Municipal Corporation of Delhi v. Subhagwati and Ors.[11], U.P.State Road Transport Corporation and Ors. v. Trilok Chandra andGOrs.[12], Sandeep Khanduja v. Atul Dande and Ors.[13]. This Court hasalso recognised that Schedule II of the Act can be used as guide for

9 AIR 1962 SC 110 1971 AC 11511 1966 ACJ 5712 (1996) 4 SCC 362H13 (2017) 3 SCC 351

the multiplierto be applied in each case. Keeping the claimant’s age inmind, the multiplier in this case should be 18 as opposed to 44 taken bythe High Court.

25. Having held so, we are clearly of the view that the basicamount taken for determining attendant charges is very much on thelower side. We must remember that this little girl is severely sufferingfrom incontinence meaning that she does not have control over her bodilyfunctions like passing urine and faeces. As she grows older, she will notbe able to handle her periods. She requires an attendant virtually 24hours day. She requires an attendant who though may not be medicallytrained but must be capable of handling child who is bed ridden. Shewould require an attendant who would ensure that she does not sufferfrom bed sores. The claimant has placed before us notification of theState of Haryana of the year 2010, wherein the wages for skilled laboureris Rs.4846/- per month. We, therefore, assess the cost of one attendantat Rs.5,000/- and she will require two attendants which works out toRs.10,000/- per month, which comes to Rs.1,20,000/- per annum, andusing the multiplier of 18 it works out to Rs.21,60,000/- for attendantcharges for her entire life. This takes care of all the pecuniary damages.

Pain, Suffering and Loss of Amenities

26. Coming to the non-pecuniary damages under the head of pain,suffering, loss of amenities, the High Court has awarded this girl onlyRs.3,00,000/-. In Mallikarjun v. Divisional Manager, The NationalInsurance Company Limited and Ors.[14], this Court while dealing withthe issue of award under this head held that it should be at leastRs.6,00,000/-, if the disability is more than 90%. As far as the presentcase is concerned, in addition to the 100% physical disability the younggirl is suffering from severe incontinence, she is suffering from severehysteria and above all she is left with brain of nine month old child.This is case where departure has to be made from the normal rule andthe pain and suffering suffered by this child is such that no amount ofcompensation can compensate.

27. One factor which must be kept in mind while assessing thecompensation in case like the present one is that the claim can beawarded only once. The claimant cannot come back to court forenhancement of award at later stage praying that something extra has

638SUPREME COURT REPORTS

Abeen spent. Therefore, the courts or the tribunals assessing thecompensation in case of 100% disability, especially where there ismental disability also, should take liberal view of the matter whenawarding compensation. While awarding this amount we are not onlytaking the physical disability but also the mental disability and variousother factors. This child will remain bed-ridden for life. Her mental ageBwill be that of nine month old child. Effectively, while her body grows,she will remain small baby.We are dealing with girl who will physicallybecome woman but will mentally remain 9 month old child. This girlwill miss out playing with her friends. She cannot communicate; shecannot enjoy the pleasures of life; she cannot even be amused by watchingCcartoons or films; she will miss out the fun of childhood, the excitementof youth; the pleasures of marital life;she cannot have children whoshe can love let alone grandchildren. She will have no pleasure. Her’s isa vegetable existence. Therefore, we feel in the peculiar facts andcircumstances of the case even after taking very conservative view ofthe matter an amount payable for the pain and suffering of this childDshould be at least Rs.15,00,000/-.

Loss of marriage prospects

28. The Tribunal has awarded Rs.3,00,000/- for loss of marriageprospects. We see no reason to interfere with this finding.

EFuture medical treatment

29. The claimant has been awarded only Rs.2,00,000/- under thishead. This amount is pittance. Keeping in view the nature of her injuriesand the fact that she is bed-ridden this child is bound to suffer from lotof medical problems. True it is that there is no evidence in this regard butFthere can hardly be such evidence. She may require special mattresswhich will have to be changed frequently. In future as this girl grows,she may face many other medical issues because of the injuries sufferedin the accident. Keeping in view her young age and assuming she wouldlive another 50-60 years, it would not be unjust to award herGRs.5,00,000/- for future medical expenses.

How the compensation should be invested?

30. The tribunal while awarding the compensation had stated thatthe amount payable to the share of Kajal would be kept in Fixed Deposittill she attains the age of 18 years. The High Court while enhancing the

amount of compensation has directed that the enhanced amount be paidto the appellant within 45 days. This is totally contrary to the guidelineslaid down by this Court in General Manager, Kerala State RoadTransport Corporation, Trivandrum v. Susamma Thomas and Ors.[15],wherein it has been held clearly that the amount payable to the minorsshould not be normally released. The guidelines in this case were asfollows :

“17….(i) The Claims Tribunal should, in the case of minors,invariably order the amount of compensation awarded to the minorbe invested in long term fixed deposits at least till the date of theminor attaining majority. The expenses incurred by the guardianor next friend may, however, be allowed to be withdrawn;

(ii) In the case of illiterate claimants also the Claims Tribunalshould follow the procedure set out in (i) above, but if lump sumpayment is required for effecting purchases of any movable orimmovable property such as, agricultural implements, rickshaw,etc., to earn living, the Tribunal may consider such requestafter making sure that the amount is actually spent for the purposeand the demand is not ruse to withdraw money;

(iii) In the case of semi-literate persons the Tribunal shouldordinarily resort to the procedure set out at (i) above unless it issatisfied, for reasons to be stated in writing, that the whole or partof the amount is required for expanding and existing business orfor purchasing some property as mentioned in (ii) above for earninghis livelihood, in which case the Tribunal will ensure that the amountis invested for the purpose for which it is demanded and paid;

(iv) In the case of literate persons also the Tribunal may resort tothe procedure indicated in (i) above, subject to the relaxation setout in (ii) and (iii) above, if having regard to the age, fiscalbackground and strata of society to which the claimant belongsand such other considerations, the Tribunal in the larger interestof the claimant and with view to ensuring the safety of thecompensation awarded to him thinks it necessary to do order;

(v) In the case of widows the Claims Tribunal should invariablyfollow the procedure set out in (i) above;

ABC

(vi) In personal injury cases if further treatment is necessary theClaims Tribunal on being satisfied about the same, which shall berecorded in writing, permit withdrawal of such amount as isnecessary for incurring the expenses for such treatment;

(vii) In all cases in which investment in long term fixed deposits isBmade it should be on condition that the Bank will not permit anyloan or advance on the fixed deposit and interest on the amountinvested is paid monthly directly to the claimant or his guardian,as the case may be;

(viii) In all cases Tribunal should grant to the claimants liberty toCapply for withdrawal in case of an emergency. To meet with sucha contingency, if the amount awarded is substantial, the ClaimsTribunal may invest it in more than one Fixed Deposit so that ifneed be one such F.D.R. can be liquidated….”

These guidelines protect the rights of the minors, claimants whoDare under some disability and also widows and illiterate person who maybe deprived of the compensation paid to them in lump sum byunscrupulous elements. These victims may not be able to invest theirmonies properly and in such cases the MACT as well the High courtsmust ensure that investments are made in nationalised banks to get ahigh rate of interest. The interest in most cases is sufficient to cover theEmonthly expenses. In special cases, for reasons to be given in writing,the MACT or the trial court may release such amount as is required.We reiterate these guidelines and direct that they should be followed byall the tribunals and High Courts to ensure that the money of the victimsis not frittered away.FInterest31. The High Court enhanced the amount of compensation byRs.14,70,000/- and awarded interest @ 7.5% per annum but directedthat the interest of 7.5% shall be paid only from the date of filing of theappeal. This is also incorrect. We are constrained to observe that theGHigh Court was not right in awarding interest on the enhanced amountonly from the date of filing of the appeal. Section 171 of the Act reads asfollows :

“171. Award of interest where any claim is allowed.—Whereany Claims Tribunal allows claim for compensation made under

this Act, such Tribunal may direct that in addition to the amount ofcompensation simple interest shall also be paid at such rate andfrom such date not earlier than the date of making the claim as itmay specify in this behalf.”

Normally interest should be granted from the date of filing of thepetition and if in appeal enhancement is made the interest should againbe from the date of filing of the petition. It is only if the appeal is filedafter an inordinate delay by the claimants, or the decision of the casehas been delayed on account of negligence of the claimant, in suchexceptional cases the interest may be awarded from later date.However, while doing so, the tribunals/High Courts must give reasonswhy interest is not being paid from the date of filing of the petition.Therefore, we direct that the entire amount of compensation includingthe amount enhanced by us shall carry an interest of 7.5% per annumfrom the date of filing of the claim petition till payment/deposit of theamount.

Relief

32. In view of the above, we award sum of Rs.62,27,000/- tothe claimant under the following heads :

This amount shall carry an interest @7.5% p.a. from the date offiling of the claim petition till payment/deposit of the amount. Obviously,the insurance company shall be entitled to adjust the amount alreadypaid. Further, the insurance company shall also beentitled to recover theamount from the owner in terms of the award of the MACT, which hasnot been challenged either before the High Court or us.

33. We are aware that the amount awarded by us is more thanthe amount claimed. However, it is well settled law that in motor accidentclaim petitions, the Court must award just compensation and, in case,the just compensation is more than the amount claimed, that must beawarded especially where the claimant is minor.

B34. The insurance company shall deposit the enhanced amountbefore the MACT in terms of the judgment after deducting the amountalready paid by the insurance company within period of 3 months fromtoday. The MACT shall keep the entire amount in fixed deposit in anationalised bank, for period of 5 years, giving highest rate of interest.The interest payable on this amount shall be released on quarterly basisCto the father of the child. This amount shall be spent for paying theattendants and for the care of the child alone. Even after 5 years sincethis child for all intents and purpose shall remain person under disability,the MACT shall keep renewing the amount on these terms. We, however,further direct that in case the parents or the guardian moves an applicationDfor release of some amount to meet some special medical expenses,then MACT may consider release of the same.

35. The appeal is disposed of in the aforesaid terms. No order asto costs. Pending application(s), if any, also stand(s) disposed of.

Divya Pandey

Appeal disposed of.