MASTER AYUSHversusTHE BRANCH MANAGER, RELIANCE GENERAL INSURANCE CO. LTD. & ANR.

                        [2022] 1 S.C.R. 831                             831


                         MASTER AYUSH                                   A
                                 v.
       THE BRANCH MANAGER, RELIANCE GENERAL
              INSURANCE CO. LTD. & ANR.
               (Civil Appeal Nos. 2205-2206 of 2022)                    B
                         MARCH 29, 2022
  [HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
       Motor Vehicles – Compensation – Appellant met with accident
as a five year old boy in 2010 – He suffered injuries and became a
                                                                        C
paraplegic patient – Appellant not able to move his both legs and
having complete sensory loss in the legs, urinary incontinence and
bowel constipation and bed sore – Rs. 18,24,000/- awarded as
compensation by Motor Accident Claims Tribunal – High Court
reduced compensation to Rs.13,46,805/- – On appeal, held: In terms
of the State Notification, the minimum wages payable to a skilled       D
workman as on the date of the accident was about Rs.3700/- –
Compensation, therefore, was to be assessed on the basis of the
said minimum wages on the assumption that appellant would have
been able to earn after attaining majority – In addition to skilled
minimum wages, appellant would be also entitled to 40% for future
                                                                        E
prospects – Total compensation would be Rs.49,93,000/- (comprising
of Rs.11,18,880/- towards loss of future earnings due to permanent
disability 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/- towards
loss of marriage prospects, Rs.8,00,000/- towards one attendant         F
charges and Rs.2,00,000/- towards conveyance charges) along with
interest already awarded by the Tribunal and affirmed by the High
Court i.e. 7.5% p.a. from the date of filing of the claim application
till realization.
      Motor Vehicles – Compensation – Just Compensation –               G
Determination of damages in personal injury cases – Held: Is not
easy – 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.
                                                                        H
                                831
832            SUPREME COURT REPORTS                      [2022] 1 S.C.R.


A           Allowing the appeals, the Court
             HELD:1. In the present appeal, the minimum wages for
      2010-11 in the State for employments not covered under any of
      the scheduled employments can be ascertained from the
      notification for minimum wages published in the Gazette on
B     19.02.2007. Hence, as per the same, 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.
C
      In addition to the skilled minimum wages, the appellant would be
      also entitled to 40% for future prospects. 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
D     to the Permanent Disability for life thus works out to be
      Rs.11,18,880/-, i.e., (3700+1480=5180) x 12 x 18. [Paras 7, 8, 9
      and 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 cases
F     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, 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
G     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 Tribunal had rejected
      the claim of taxi expenses for the reason that the taxi driver has
H
MASTER AYUSH v. THE BRANCH MANAGER, RELIANCE GENERAL                   833
              INSURANCE CO. LTD. & ANR.

not been produced. It is impossible to produce the numerous            A
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,
a sum of Rs.2 lakhs is awarded as conveyance charges.
                                                                       B
[Para 12][840-A-D]
       3. No compensation is warranted to be payable under the
heading “food and nourishment or towards loss of childhood” as
it stands subsumed in the compensation assessed under the other
different heads. In view of the judgment in Kajal and other
                                                                       C
principles of determination of compensation, the total
compensation comes out to be Rs. 49,93,000/- (comprising of
Rs.11,18,880 towards loss of future earnings due to permanent
disability for life; Rs.5,74,000/- towards medical expenses;
Rs.10,00,000/- towards future medical expenses i.e. towards
purchase of two assistant devices for walking; Rs.10,00,000/-          D
towards pain, suffering and loss of amenities; Rs.3,00,000/-
towards loss of marriage prospects, Rs.8,00,000/- towards one
attendant charges and Rs.2,00,000/- towards conveyance charges)
along with interest already awarded by the Tribunal and affirmed
by the High Court i.e. 7.5% p.a. from the date of filing of the
                                                                       E
claim 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 of                F
Rs.10,00,000/- would be disbursed to the father of the appellant
as his guardian. If however, an amount more than Rs.10,00,000/
- has already been disbursed, the said amount shall not be adjusted.
The rest of the amount would be invested in one or more Fixed
Deposits Receipts so as to attract the maximum rate of interest.
                                                                       G
The interest amount shall be payable to the guardian of the
appellant every month. It shall be open to the guardian, during
the minority of the appellant, to seek orders for withdrawal of the
amount on the basis of medical opinion, if any major medical
expenses are required to be incurred. [Para 15][841-B-D]
                                                                       H
834                 SUPREME COURT REPORTS                       [2022] 1 S.C.R.


A               General Manager, Kerala State Road Transport
                Corporation, Trivandrum v. Susamma Thomas and
                Others (1994) 2 SCC 176 – relied on.
                                      Case Law Reference
      [2017] 13 SCR 100                     relied on              Para 9
B
      (2020) 4 SCC 413                      distinguished          Para 11
      (2020) 4 SCC 413                      relied on              Para 13
      (1994) 2 SCC 176                      relied on              Para 15
            CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2205-
C
      2206 of 2022.
            From the Judgment and Order dated 07.09.2020 of the High Court
      of Karnataka at Bengaluru in MFA No.3077 of 2014 c/w MFA No.8297
      of 2014.
D           Shekhar 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

E               HEMANT GUPTA, J.
             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
F     Claims Tribunal1.
            2. The grievance is with respect to the inadequate amount of
      compensation on account of the injuries suffered by the appellant. The
      appellant is a paraplegic patient. The appellant has examined Dr. Amithish
      Narayana as PW-2 and Dr. S. Adanthya as PW-3. Dr. Adanthya is a
      medical specialist from National Institute of Mental Health &
G
      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

      1
H         For short, the ‘Tribunal’
MASTER AYUSH v. THE BRANCH MANAGER, RELIANCE GENERAL                          835
     INSURANCE CO. LTD. & ANR. [HEMANT GUPTA, J.]

about 5 years as on the date of the accident, hence has lost his childhood    A
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        B
                                                            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           C
      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.             D
            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.
                                                                              E
           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.                                 F
             With best wishes and blessings for his good progress.
             Sd/-
             Dr. Amitesh Narayan
             Professor & HOD
                                                                              G
             Department of Physiotherapy
             K.M.C. Hospital
             Ambedkar Circle, Mangalore-575001
             Email: amitesh.mpth@yahoo.com
             Mob: 9448039380"                                                 H
836            SUPREME COURT REPORTS                          [2022] 1 S.C.R.


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




B




C




D
             4. Learned counsel for the appellant argued that the medical
      expenses itself were to the tune of Rs.5,73,700/- as per Ex. P11, whereas
      the High Court has only awarded a sum of Rs.1,61,805/-. The High
      Court had maintained awarding a sum of Rs 5,00,000/- for future medical
      expenses, i.e., towards purchase of device to be used by the appellant,
E
      but as per the statement of PW2- Dr. Amitesh Narayana, the device
      bears weight only up to 25 kilograms and has to be replaced every 5
      years. The conveyance charges were awarded by the Tribunal as
      Rs.20,000/- which was enhanced to Rs.70,000/- by the High Court.
      However, it was contended that the enhancement is still less than the
F     taxi expenses incurred by the appellant. The Tribunal rejected the claim
      of taxi expenses produced as EX P-13 amounting to Rs. 1,51,500/- on
      the ground that the taxi driver had not been produced and also that why
      the appellant was taken by a taxi when other modes of transport were
      available. Still further, the appellant has been given Rs.70,000/- as
      attendant charges and Rs.2,25,000/- towards disability which are wholly
G
      inadequate.
            5. PW-1- Krishna Sapalya is the father of the appellant who was
      working as Secretary, Gram Panchayat. The learned Tribunal has
      observed that the father has not placed any material to show his
      occupation or income. We do not agree with such finding of the Tribunal
H
MASTER AYUSH v. THE BRANCH MANAGER, RELIANCE GENERAL                             837
     INSURANCE CO. LTD. & ANR. [HEMANT GUPTA, J.]

as once he has stated that he is a Secretary of Gram Panchayat, he has           A
disclosed his occupation. As a Secretary of Gram Panchayat, he is a
government servant.
       6. It was also argued that in a judgment reported as Kajal v.
Jagdish Chand and Others2, the injured was a 12 years old girl who
had suffered an injury to the extent that her IQ got less than 20% as            B
compared to a child of her age and the medical board had assessed her
social age to be only of a 9-months’ old child. This Court had recognized
that Schedule II of the Act could be used as a guide for the multiplier to
be applied in each case. This Court in the aforesaid case held as under:
         “6. It is impossible to equate human suffering and personal             C
         deprivation with money. However, this is what the Act enjoins
         upon the courts to do. The court has to make a judicious attempt
         to award damages, so as to compensate the claimant for the loss
         suffered by the victim. On the one hand, the compensation should
         not be assessed very conservatively, but on the other hand, the
         compensation should also not be assessed in so liberal a fashion        D
         so as to make it a bounty to the claimant. The court while assessing
         the compensation should have regard to the degree of deprivation
         and the loss caused by such deprivation. Such compensation is
         what is termed as just compensation. The compensation or
         damages assessed for personal injuries should be substantial to         E
         compensate the injured for the deprivation suffered by the injured
         throughout his/her life. They should not be just token damages.
                xxx                     xxx                      xxx
         12. The assessment of damages in personal injury cases raises
         great difficulties. It is not easy to convert the physical and mental   F
         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
                                                                                 G
         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

2
    (2020) 4 SCC 413                                                             H
838            SUPREME COURT REPORTS                           [2022] 1 S.C.R.


A           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
B
            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
C           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
D
            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
E     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
F     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
G
            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
H
MASTER AYUSH v. THE BRANCH MANAGER, RELIANCE GENERAL                          839
     INSURANCE CO. LTD. & ANR. [HEMANT GUPTA, J.]

                               SCHEDULE                                       A




                                                                              B




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

       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          D
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.                                                                       E

      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.                             F

       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     G
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.


3
    (2017) 16 SCC 680                                                         H
840             SUPREME COURT REPORTS                           [2022] 1 S.C.R.


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




F




G




H
MASTER AYUSH v. THE BRANCH MANAGER, RELIANCE GENERAL                           841
     INSURANCE CO. LTD. & ANR. [HEMANT GUPTA, J.]

         14. Hence, the compensation comes out to be Rs. 49,93,000/-           A
along with interest already awarded by the Tribunal and affirmed by the
High Court i.e. 7.5% p.a. from the date of filing of the claim application
till realization.
       15. Since the appellant is a minor, in view of the judgment of this
Court in General Manager, Kerala State Road Transport Corporation,             B
Trivandrum v. Susamma Thomas and Others 4, the amount of
Rs.10,00,000/- would be disbursed to the father of the appellant as his
guardian. If however, an amount more than Rs.10,00,000/- has already
been disbursed, the said amount shall not be adjusted. The rest of the
amount would be invested in one or more Fixed Deposits Receipts so as
to attract the maximum rate of interest. The interest amount shall be          C
payable to the guardian of the appellant every month. It shall be open to
the guardian, during the minority of the appellant, to seek orders for
withdrawal of the amount on the basis of medical opinion, if any major
medical expenses are required to be incurred.
      16. The appeals thus stand allowed accordingly with costs                D
throughout.

Bibhuti Bhushan Bose                                        Appeals allowed.

                                                                               E




                                                                               F




                                                                               G




4
    (1994) 2 SCC 176                                                           H