//
you're reading...
legal issues

Accident case – M.V. Act – Compensation – father & two minor children while going on motor cycle – car dashed resulting disability of 30% to father & daughter ,20% disability to the son – Lower courts reduced for contributory negligence – granted only less amount towards pain, failed to consider the nutrition and failed to fix the proper income etc., – Apex court held that we can reasonably assume is that the appellant-father would have taken sufficient caution while riding the motorcycle since he was travelling with his two minor children (appellant-minors). Further, upon examining the evidence produced on record, there is no proof showing negligence on the part of the appellant-father. Thus in our view, the contributory negligence apportioned by the High Court at 25% on the appellant-father and 75% on the driver of the offending tractor is erroneous. Thus, we are of the firm conclusion that the negligence is wholly on the part of the driver of the offending tractor since he was driving the heavier vehicle.;father owns 30 bighas of irrigated land in which he was doing agricultural work as per Exhibit-79 Kishtban Khtoni. Keeping in mind the same, the notional income ascertained by the courts below is too less. In our opinion, the appellant-father’s notional income must be at least Rs.5,000/- per month i.e. Rs.60,000/- per annum. Thus, his loss of future income due to 30% permanent disability suffered by him due to the injuries sustained in this accident, taking the appropriate multiplier of 15 (as per Sarla Verma & Ors. v. Delhi Transport Corporation & Anr.[6]), would be Rs.2,70,000/- (15 X [30% of 60,000/-]).; we award Rs.50,000/- towards pain and suffering of the appellant-father. We further award Rs.50,000/- towards loss of amenities undergone by the appellant-father as per the principles laid down in Sri Nagarajappa v. The Divisional Manager, The Oriental Insurance Co. Ltd.[7]. ; it is clear that medical attendants were taken for the appellants’ care for 3 months during their treatment and rest period. The Tribunal and the High Court have erred in not awarding compensation towards the same. Therefore, we award Rs.9,000/- each towards attendant’s charges (Rs.3,000/- per month for each attendant) and Rs. 5,000/- each towards transportation charges.;interest rate at only 6% p.a. and 7.5% p.a. respectively on the total compensation amount instead of 9% p.a. by applying the decision of this Court in Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy[8]. Accordingly, we award the interest @9% p.a. on the compensation determined in these appeals.;Accordingly, we allow these appeals= CIVIL APPEAL NO.8632 OF 2014 (Arising out of SLP(C) NO. 21666 OF 2013) KUMARI KIRAN THR. HER FATHER HARINARAYAN … APPELLANT Vs. SAJJAN SINGH & ORS. … RESPONDENTS = 2014 – Sept.Month – http://judis.nic.in/supremecourt/filename=41905

Accident case – M.V. Act – Compensation – father & two minor children while going on motor cycle – car dashed resulting disability of 30% to father & daughter ,20% disability to the son – Lower courts reduced for contributory negligence – granted only less amount towards pain, failed to consider the nutrition and failed to fix the proper income etc., –  Apex court held that we can reasonably assume is  that  the  appellant-father  would  have  taken sufficient caution while riding the motorcycle since he was travelling  with his two minor  children  (appellant-minors).  Further,  upon  examining  the evidence produced on record, there is no proof  showing  negligence  on  the

part of the appellant-father. Thus in our view, the contributory  negligence apportioned by the High Court at 25% on the appellant-father and 75% on  the driver of the offending tractor is  erroneous. Thus, we are of the firm conclusion that the negligence is  wholly  on the part of the driver of the offending tractor since  he  was  driving  the heavier vehicle.;father owns  30  bighas  of irrigated land in which he was doing agricultural  work  as  per  Exhibit-79 Kishtban Khtoni. Keeping in mind the same, the notional  income  ascertained by the courts below is too less.  In  our  opinion,  the  appellant-father’s notional income must be at least Rs.5,000/- per month i.e.  Rs.60,000/-  per annum. Thus, his loss of future  income  due  to  30%  permanent  disability suffered by him due to the injuries sustained in this accident,  taking  the appropriate multiplier of 15 (as per Sarla Verma & Ors. v.  Delhi  Transport Corporation & Anr.[6]), would be Rs.2,70,000/- (15 X [30% of 60,000/-]).; we  award Rs.50,000/- towards pain and suffering of the appellant-father.  We  further award Rs.50,000/- towards loss of  amenities undergone  by  the  appellant-father as per the principles laid down in Sri Nagarajappa v. The  Divisional

Manager, The Oriental Insurance Co. Ltd.[7].  ; it  is  clear  that medical attendants were taken for the appellants’ care for 3  months  during their treatment and rest period. The Tribunal and the High Court have  erred in  not  awarding  compensation  towards  the  same.  Therefore,  we   award Rs.9,000/- each towards attendant’s charges (Rs.3,000/- per month  for  each attendant) and Rs. 5,000/- each towards transportation charges.;interest rate at only 6% p.a. and 7.5%  p.a.  respectively on the total  compensation  amount  instead  of  9%  p.a.  by  applying  the

decision of this Court in Municipal Corporation of Delhi v.  Association  of Victims of Uphaar Tragedy[8]. Accordingly, we award the  interest  @9%  p.a. on the compensation determined in these appeals.;Accordingly, we allow these appeals=

Therefore,

the appellant-minor daughter and the appellant-father were  determined  with

30% permanent disability and the  appellant-minor-son  was  determined  with

20% permanent disability by the doctor who had treated them.=

Upon  thorough  examination  of

the facts and legal evidence on record in the present  case,  it  cannot  be

said  that  the  appellant-father  was  rash  and  negligent  just  on   the

assumption made by the Tribunal that the collision occurred  in  the  middle

of  the  road  since  the  two  vehicles  were  approaching  from   opposite

directions of the road. However, the only aspect of the case  on  hand  that

we can reasonably assume is  that  the  appellant-father  would  have  taken

sufficient caution while riding the motorcycle since he was travelling  with

his two minor  children  (appellant-minors).  Further,  upon  examining  the

evidence produced on record, there is no proof  showing  negligence  on  the

part of the appellant-father. Thus in our view, the contributory  negligence

apportioned by the High Court at 25% on the appellant-father and 75% on  the

driver of the offending tractor is  erroneous  keeping  in  view  the  legal

principles laid down by this Court on this  aspect  in  the  above  referred

case. Thus, we are of the firm conclusion that the negligence is  wholly  on

the part of the driver of the offending tractor since  he  was  driving  the

heavier vehicle. Therefore, we set aside the 25% contributory negligence  on

the part of the appellant-father as apportioned by the High Court.

the courts  below  have  erred  in  ascertaining  the  notional

income of appellant-father at Rs.1,500/-  per  month  i.e.  Rs.18,000/-  per

annum.  On  examining  the  facts,   evidence   produced   on   record   and

circumstances of the case on hand, the appellant-father owns  30  bighas  of

irrigated land in which he was doing agricultural  work  as  per  Exhibit-79

Kishtban Khtoni. Keeping in mind the same, the notional  income  ascertained

by the courts below is too less.  In  our  opinion,  the  appellant-father’s

notional income must be at least Rs.5,000/- per month i.e.  Rs.60,000/-  per

annum. Thus, his loss of future  income  due  to  30%  permanent  disability

suffered by him due to the injuries sustained in this accident,  taking  the

appropriate multiplier of 15 (as per Sarla Verma & Ors. v.  Delhi  Transport

Corporation & Anr.[6]), would be Rs.2,70,000/- (15 X [30% of 60,000/-]).

The courts below have erred in awarding an amount  of  Rs.  5000/-  only

towards pain and suffering caused to the appellant-father due to the  motor-

vehicle accident. The award towards non-pecuniary heads must be  ascertained

after careful reflection upon the facts and circumstances  of  the  case  on

hand  as  opined  by  this  Court  in  this  aspect  in  R.D.   Hattangadi’s

case(supra). Therefore, keeping in mind the loss suffered by the  appellant-

father due to 30% permanent disability and  circumstances  of  the  case  on

hand and principles laid down by this Court in  the  above  case,  we  award

Rs.50,000/- towards pain and suffering of the appellant-father.  We  further

award Rs.50,000/- towards loss of  amenities  undergone  by  the  appellant-

father as per the principles laid down in Sri Nagarajappa v. The  Divisional

Manager, The Oriental Insurance Co. Ltd.[7].

We  are  of  the  opinion,  that  the  appellants  without  doubt  need

sufficient nutrition in  order  to  ensure  their  good  health,  especially

considering the appellant-minors who are just over 10 and 15 years  of  age.

As the Tribunal and the High Court have erred in awarding  a  meagre  amount

of Rs.3,000/- to each  one  of  the  appellants  towards  special  food  and

nutrition, instead we award Rs.10,000/- each towards the same.

17. In our considered view of the facts  of  the  case,  it  is  clear  that

medical attendants were taken for the appellants’ care for 3  months  during

their treatment and rest period. The Tribunal and the High Court have  erred

in  not  awarding  compensation  towards  the  same.  Therefore,  we   award

Rs.9,000/- each towards attendant’s charges (Rs.3,000/- per month  for  each

attendant) and Rs. 5,000/- each towards transportation charges.

18. The compensation awarded to the appellants towards medical  expenses  by

the Tribunal and enhancement of the same by the High Court to the appellant-

father is maintained.

19. Further, we are of the view that the Tribunal and the  High  Court  have

erred in granting interest rate at only 6% p.a. and 7.5%  p.a.  respectively

on the total  compensation  amount  instead  of  9%  p.a.  by  applying  the

decision of this Court in Municipal Corporation of Delhi v.  Association  of

Victims of Uphaar Tragedy[8]. Accordingly, we award the  interest  @9%  p.a.

on the compensation determined in these appeals.

20. In the result, the appellants shall be entitled  to  compensation  under

the different heads as per the following table:

|    |Particulars       |Kumari Kiran     |Master Sachin    |Harinarayan      |

|1.  |Loss of future    |-                |-                |Rs.2,70,000/-    |

|    |income due to     |                 |                 |                 |

|    |disability        |                 |                 |                 |

|2.  |Pain and suffering|Rs.1,00,000/-    |Rs.1,00,000/-    |Rs.50,000/-      |

|3.  |Agony to parents  |Rs.25,000/-      |Rs.25,000/-      |-                |

|4.  |Medical Expenses  |Rs.69,844/-      |Rs.84,876/-      |Rs.1,86,154/-    |

|5.  |Attendant         |Rs.9,000/-       |Rs.9,000/-       |Rs.9,000/-       |

|6.  |Transportation    |                 |                 |                 |

|    |                  |Rs.5,000/-       |Rs.5,000/-       |Rs.5,000/-       |

|7.  |Special diet and  |Rs.10,000/-      |Rs.10,000/-      |Rs.10,000/-      |

|    |nutrition         |                 |                 |                 |

|8.  |Permanent         |Rs.3,00,000/-    |Rs.3,00,000/-    |Rs.50,000/-      |

|    |Disability/       |                 |                 |                 |

|    |loss of amenities |                 |                 |                 |

|9.  |Future medical    |Rs.25,000/-      |Rs.25,000/-      |-                |

|    |expenses          |                 |                 |                 |

|    |TOTAL             |Rs.5,43,844/-    |Rs.5,58,876/-    |Rs.5,80,154/-    |

Thus,  the  total  compensation  payable  to  all  the  appellants  by   the

respondent Insurance Company will be as per the total  amount  indicated  in

the preceding table with interest @ 9%  from  the  date  of  filing  of  the

application till the date of payment.

21. Accordingly, we allow these appeals with the following directions:

C.A.@SLP(c) no.21666 of 2013

The  respondent  Insurance  Company   is  directed  to  deposit  a  sum  of

Rs.4,00,000/- with proportionate interest for a period of 3 years  with  the

liberty to the appellant-minor, Kumari Kiran to withdraw the same by  filing

an application for her education, development and welfare;

The remaining amount of Rs.1,43,844/- with proportionate interest  shall  be

paid to the appellant-minor through her father by way  of  either  a  demand

draft or deposited with the  Motor  Accidents  Claims  Tribunal  within  six

weeks from the date of receipt of the copy of this judgment.

C.A.@SLP(c) no. 21670 of 2013

The  respondent  Insurance  Company  is  directed  to  deposit  a   sum   of

Rs.4,00,000/- with proportionate interest for a period of 3 years  with  the

liberty to the appellant (who may have become a major)  Sachin  to  withdraw

the same by  filing  an  application  for  his  education,  development  and

welfare;

The remaining amount of Rs.1,58,876/- with proportionate interest  shall  be

paid to him by way of either a demand draft  or  deposited  with  the  Motor

Accidents Claims Tribunal within six weeks from the date of receipt  of  the

copy of this judgment.

C.A.@SLP(c) no. 21671 of 2013

The respondent Insurance Company is directed to either pay Rs.5,80,154/-  by

way of demand draft/drafts in favour of the appellant-father Harinarayan  or

deposit the same with  interest  as  awarded,  before  the  Motor  Accidents

Claims Tribunal after deducting the amount already  paid,  if  any,  to  the

appellant within six weeks from the date of receipt  of  the  copy  of  this

judgment.

All the appeals are allowed in the terms as indicated in the  table  above

with interest. No costs.

2014 – Sept.Month – http://judis.nic.in/supremecourt/filename=41905

|NON REPORTABLE |

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8632 OF 2014
(Arising out of SLP(C) NO. 21666 OF 2013)
KUMARI KIRAN THR. HER FATHER
HARINARAYAN … APPELLANT

Vs.

SAJJAN SINGH & ORS. … RESPONDENTS

WITH

CIVIL APPEAL NO.8633 OF 2014
(Arising out of SLP(C) NO. 21670 OF 2013)

AND
CIVIL APPEAL NO.8634 OF 2014
(Arising out of SLP(C) NO. 21671 OF 2013)
J U D G M E N T
V. GOPALA GOWDA, J.

Leave granted in all the special leave petitions.

2. These appeals have been filed by the appellants against the common
Judgment and order dated 06.11.2012 passed in Misc. Application Nos. 2575
of 2010, 2574 of 2010 and 2579 of 2010 by the High Court of Judicature of
Madhya Pradesh, Principal Bench at Jabalpur, urging various grounds. Civil
Appeals arising out of SLP(c) Nos. 21666 of 2013 and 21670 of 2013 have
been filed by Kumari Kiran and Master Sachin respectively, through their
father Harinarayan as they are minors, while Civil Appeal arising out of
SLP(c) No. 21671 of 2013 has been filed by the appellant Harinarayan.

3. The necessary relevant facts are stated as under:

On 04.06.2009, Kumari Kiran and her brother Master Sachin (the pillion
riders, hereinafter referred to as the appellant-minors) were going on a
motor cycle to their village Shujalpur from Bhopal with their father
Harinarayan, (rider of the motor cycle, hereinafter referred to as the
appellant-father). While on their way, a tractor bearing No. MP13K1981
driven by Sajjan Singh (respondent No.1), collided with the motor cycle on
which the appellants were riding. Due to the impact of this collision the
appellants fell down and sustained grievous injuries. After medical
examination, it was concluded that all the three appellants had fractured
their femur, tibia and fibula bones on their right leg and had to undergo
an operation at National Hospital Bhopal where a rod and a ring were
implanted on each one of their right leg. Upon further medical examination,
it was found that the right leg of all the three appellants had become one
inch shorter due to the injuries caused to them in the accident. Therefore,
the appellant-minor daughter and the appellant-father were determined with
30% permanent disability and the appellant-minor-son was determined with
20% permanent disability by the doctor who had treated them.

4. A First Information Report was lodged in Mandi Shujalpur Police Station
against the driver (respondent No.1) of the offending tractor under
Sections 279, 337, and 338 of the Indian Penal Code (in short ‘I.P.C.’).

5. The appellants filed a claim petitions before the Motor Accident Claims
Tribunal, Bhopal. The Tribunal after considering the facts, evidence
produced on record and the circumstances of the case, apportioned
contributory negligence at 50% on the part of the appellant-father who was
riding the motorcycle on which the appellant-minors were the pillion riders
and 50% on the driver of the offending tractor.

6. The Tribunal vide its award dated 19.03.2010 ascertained the
compensation due to the appellants as per the calculations stated in the
table below:
| |Particulars |Kumari Kiran |Master Sachin |Harinarayan |
|1. |Notional |Rs.15,000/- p.a. |Rs.15,000/- p.a. |Rs.18,000/- p.a. |
| |income | | | |
|2. |Multiplier |15 |15 |15 |
|3. |Income for |Rs.2,25,000/-(Rs.|Rs.2,25,000/- |Rs.2,70,000/-(Rs.|
| |whole life |15,000/- X 15) |(Rs.15,000/- X |18,000/- X 15) |
| | | |15) | |
|4. |Future loss |Rs.67,500/-(30% |Rs.45,000/-(20% |Rs.81,000/-(30% |
| |of income due|of Rs.2,25,000/-)|of Rs.2,25,000/-)|of Rs.2,70,000/-)|
| |to permanent | | | |
| |disability | | | |
|5. |Agony |Rs.5,000/- |Rs.5,000/- |Rs.5,000/- |
|6. |Diet |Rs.3,000/- |Rs.3,000/- |Rs.3,000/- |
|7. |Medical |Rs.69,844/- |Rs. 84,876/- |Rs.1,51,154/- |
| |expenses | | | |
|8. |Loss of |- |- |Rs.4,500/- |
| |income | | | |
|9. |Total |Rs.1,45,344/- |Rs.1,37,876/- |Rs.2,44,654/- |
| |compensation | | |(Rounded off to |
| |under all | | |Rs.2,44,500/-) |
| |heads | | | |
|10 |50% deduction|Rs.72,672/- |Rs.68,938/- |Rs.1,22,250/- |
| |towards | | | |
| |contributory | | | |
| |negligence | | | |
|11 |TOTAL |Rs.72,672/- |Rs.68,938/- |Rs.1,22,250/- |

The Tribunal awarded an interest at the rate of 6% p.a. on the total
compensation.

7. Being aggrieved by the common award passed by the Tribunal, the
appellants filed M.A. Nos. 2575 of 2010, 2574 of 2010 and 2579 of 2010
before the High Court of Madhya Pradesh at Jabalpur. After considering the
facts, evidence on record and circumstances of the case, the High Court
held that the appellant-minors who were the pillion riders cannot be held
for contributory negligence as apportioned by the Tribunal even if their
appellant-father who was the motorcyclist was at fault. Therefore, the High
Court set aside the deduction arising out of the contributory negligence
from the compensation determined towards the permanent disability for the
appellant-minors. The High Court also reduced the contributory negligence
on the part of appellant-father (motorcyclist) from 50% to 25%. Further,
the High Court enhanced the compensation of the appellant-minor daughter by
Rs. 30,000/-, the appellant-minor-son by Rs.25,000/- and the appellant-
father by Rs.65,000/- (Rs.30,000/- lump sum and Rs.35,000/- towards medical
expenses) to be paid with an interest @ Rs.7.5% per annum vide its impugned
judgment and order dated 06.11.2012. Aggrieved by the impugned Judgment and
order, the appellants filed these appeals.

8. It was contended by Mr. Awadesh Kumar Singh, the learned counsel for the
appellants that:
The compensation awarded to the appellants under the heads of loss of
future income was inadequate by taking notional income as only Rs.15,000/-
per annum for the appellant-minors and Rs.18,000/- per annum for the
appellant-father;
No compensation has been awarded towards the medical attendants who
attended the appellants to take care of them for a period of 3 months
treatment after the accident;
Compensation for permanent disability should have been awarded after
considering the enormity of suffering, pain and agony loss of enjoyment of
life of the appellants by relying on the principle laid down by this Court
in Subulaxmi Vs. M.D., Tamil Nadu State Transport Corporation and Anr.[1]
in which, this Court has held thus:-
“5. At the outset, it is requisite to be stated that the facts as have been
adumbrated are not in dispute. Therefore, first we shall advert to the
issue whether the High Court was justified in awarding compensation on a
singular head relating to permanent disability and loss of future earning.
In K. Suresh v. New India Assurance Co. Limited and Anr. 2012 (10) SCALE
516, after referring to Ramesh Chandra v. Randhir Singh (1990) 3 SCC 723
and B. Kothandapani v. Tamil Nadu State Transport Corporation Limited
(2011) 6 SCC 420, this Court expressed the view that compensation can be
granted towards permanent disability as well as loss of future earnings,
for one head relates to the impairment of person’s capacity and the other
relates to the sphere of pain and suffering and loss of enjoyment of life
by the person himself. The Bench also relied upon Laxman v. Divisional
Manager, Oriental Insurance Co. Limited and Anr. 2012 ACJ 191, wherein it
has been laid down thus:
The ratio of the above noted judgments is that if the victim of an accident
suffers permanent or temporary disability, then efforts should always be
made to award adequate compensation not only for the physical injury and
treatment, but also for the pain, suffering and trauma caused due to
accident, loss of earnings and victim’s inability to lead a normal life and
enjoy amenities, which he would have enjoyed but for the disability caused
due to the accident.
Thus, the view expressed by the High Court on this score is not
sustainable.”

9. After considering the contentions of the learned counsel for both the
parties, we are of the view that the courts below have failed to follow the
principles as laid down by this Court in the case of Subulaxmi (supra) in
awarding compensation under a singular head towards permanent disability
and loss of future earning to the appellant-minors and appellant-father.

10. It is stated that the appellant-minors were just 10 and 15 years old
at the time of the accident. They have undergone immense physical pain and
suffering as well as mental shock and trauma at a very tender age. The
trauma undergone by the appellant-minors due to the motor accident could
have a severe and long-lasting effect. The appellant-minors and their
parents will have to make arrangements to support their disability in the
future. No amount of monetary benefit will compensate for the suffering
and pain that the appellant-minors have to endure to overcome the probable
shackles of their disability in the future. The appellant-father suffers
from 30% permanent disability due to the shortening of his right leg by one
inch after injuries sustained by them in the motor vehicle accident. Both
the children are suffering from permanent disability due to this motor
vehicle accident. The appellant-father has and continues to undergo loss,
pain and suffering in many ways due to this accident. Therefore, when the
question of compensation arises in the case of permanent disablement
suffered by the appellants due to a motor accident, we refer to the
principles laid down by this Court in the case of R.D. Hattangadi vs Pest
Control (India) Pvt. Ltd[2], wherein it was held as under:-
“9.Broadly speaking while fixing an amount of compensation payable to a
victim of an accident, the damages have to be assessed separately as
pecuniary damages 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 two concepts pecuniary damages may include expenses incurred by
the claimant: (i) medical attendance; (ii) loss of earning of profit up to
the date of trial; (iii) other material loss. So far non- pecuniary damages
are concerned, they may include (i) damages for mental and physical shock,
pain and suffering, already suffered or likely to be suffered in 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.”

Therefore, quantification of damages divided under different heads as
mentioned in the above case must be very carefully observed by the courts
while awarding compensation to the victims of motor-vehicle accidents. It
is extremely essential for the courts to consider the two main components
of damages i.e. both pecuniary and non-pecuniary damages as per the
guidelines laid down by this Court in the above case so that the just and
reasonable compensation is awarded to the injured.

11. Further, with respect to just compensation to be awarded to the victims
of motor-vehicle accidents, we refer to the decision of this Court in the
case of Raj Kumar vs Ajay Kumar & Anr. [3], wherein it was held as under:-
“5. The provision of the Motor Vehicles Act, 1988 (`Act’ for short) makes
it clear that the award must be just, which means that compensation should,
to the extent possible, fully and adequately restore the claimant to the
position prior to the accident. The object of awarding damages is to make
good the loss suffered as a result of wrong done as far as money can do so,
in a fair, reasonable and equitable manner. The court or tribunal shall
have to assess the damages objectively and exclude from consideration any
speculation or fancy, though some conjecture with reference to the nature
of disability and its consequences, is inevitable. A person is not only to
be compensated for the physical injury, but also for the loss which he
suffered as a result of such injury. This means that he is to be
compensated for his inability to lead a full life, his inability to enjoy
those normal amenities which he would have enjoyed but for the injuries,
and his inability to earn as much as he used to earn or could have earned.”

Thus, the compensation should be reasonably sufficient so that it equips
the victim to return to their normal life to the maximum possible extent.
The Tribunal and the High Court have failed to show compassion to the
appellant-minors and appellant-father by not examining the above relevant
aspect of the case on hand and not following the guidelines as laid down by
this Court to determine just and reasonable compensation in the cases
referred to supra.

With regard to the appellant-minors
12. With respect to compensation towards future loss of income due to
permanent disability for appellant-minors, we refer to the case of Master
Mallikarjun v. Divisional Manager, the National Insurance Company Limited &
Anr.[4], wherein this Court held as under:-

“8. It is unfortunate that both the Tribunal and the High Court have not
properly appreciated the medical evidence available in the case. The age of
the child and deformities on his body resulting in disability, have not
been duly taken note of. As held by this Court in R.D. Hattangadi v. Pest
Control (India) Pvt. Ltd. and Ors. [(1995) 1 SCC 551], while assessing the
non-pecuniary damages, the damages for mental and physical shock, pain and
suffering already suffered and that are likely to be suffered, any future
damages for the loss of amenities in life like difficulty in running,
participation in active sports, etc., damages on account of inconvenience,
hardship, discomfort, disappointment, frustration, etc., have to be
addressed especially in the case of a child victim. For a child, the best
part of his life is yet to come. While considering the claim by a victim
child, it would be unfair and improper to follow the structured formula as
per the Second Schedule to the Motor Vehicles Act for reasons more than
one. The main stress in the formula is on pecuniary damages. For children
there is no income. The only indication in the Second Schedule for non-
earning persons is to take the notional income as Rs. 15,000/- per year. A
child cannot be equated to such a non-earning person. Therefore, the
compensation is to be worked out under the non-pecuniary heads in addition
to the actual amounts incurred for treatment done and/or to be done,
transportation, assistance of attendant, etc. The main elements of damage
in the case of child victims are the pain, shock, frustration, deprivation
of ordinary pleasures and enjoyment associated with healthy and mobile
limbs. The compensation awarded should enable the child to acquire
something or to develop a lifestyle which will offset to some extent the
inconvenience or discomfort arising out of the disability. Appropriate
compensation for disability should take care of all the non-pecuniary
damages. In other words, apart from this head, there shall only be the
claim for the actual expenditure for treatment, attendant, transportation,
etc.

(Emphasis laid by this Court)
The Tribunal has calculated the future loss of income by taking the
notional income of each the appellant-minor as Rs.15,000/- per annum. We
are of the considered view that a child’s notional income cannot be
ascertained as per the figure given for a non-earning individuals in the
second schedule of the Motor Vehicles Act, 1988. As the Tribunal and the
High Court have not followed the principles laid down by this Court in the
above case by awarding loss of future income due to permanent disability,
therefore, we set aside the same. Further, reiterating the same principles
as held in Master Mallikarjun’s case (supra), we award Rs.1,00,000/- each
towards shock, pain and suffering (non-pecuniary head) in place of loss of
future income due to permanent disability. Further, in Master
Mallikarjun case (supra) with respect to compensation for permanent
disability this Court held thus:-

“12. Though, it is difficult to have an accurate assessment of the
compensation in the case of children suffering disability on account of a
motor vehicle accident, having regard to the relevant factors, precedents
and the approach of various High Courts, we are of the view that the
appropriate compensation on all other heads in addition to the actual
expenditure for treatment, attendant, etc., should be, if the disability is
above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs;
upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent
disability upto 10%, it should be Rs.1 lakh, unless there are exceptional
circumstances to take different yardstick…”
Hence, this Court in accordance with the principles laid down by this Court
in the above case (supra), and after examining the facts, evidence on
record and circumstances of the case on hand, we deem it fit and proper to
award Rs.3,00,000/- towards permanent disability of the appellant-minors
viz. Kumari Kiran and Master Sachin, since they have suffered 30% and 20%
permanent disability respectively, due to the shortening of their right leg
by one inch after the injuries sustained in the motor accident. Further,
upon considering the age of appellant-minors, they have a long journey
ahead of them in their lives, during which they along with their parents
will have to endure an immeasurable amount of agony and uncertain medical
expenses due to this motor-vehicle accident. Thus, based on the principles
laid down in the above case, we award Rs.25,000/- each towards agony to
parents and Rs.25,000/- each towards future medical expenses.

With regard to the appellant-father

13. With regard to the apportionment of contributory negligence at 25% on
the part of the appellant-father and 75% on the driver of the offending
tractor as determined by the High Court, we refer to the judgment of this
Court in Juju Kuruvila & Ors. v. Kunjujamma Mohan & Ors.[5] as it is
applicable to facts of the case on hand. In the above case, Joy Kuruvila
(the deceased) had a head-on collision with a bus approaching from the
opposite side. Joy Kuruvila sustained serious injuries and died on the way
to the hospital. The Tribunal found that the accident occurred due to the
rash and negligent driving of the bus driver. It apportioned the
contributory negligence between the driver and the deceased in the ratio of
75:25%. On the basis of the pleadings & evidence on record, in the above
said case, this Court has held thus on the negligence of the driver of the
bus:-
“20.5. The mere position of the vehicles after accident, as shown in a
scene mahazar, cannot give a substantial proof as to the rash and negligent
driving on the part of one or the other. When two vehicles coming from
opposite directions collide, the position of the vehicles and its
direction, etc. depends on a number of factors like the speed of vehicles,
intensity of collision, reason for collision, place at which one vehicle
hit the other, etc. From the scene of the accident, one may suggest or
presume the manner in which the accident was caused, but in the absence of
any direct or corroborative evidence, no conclusion can be drawn as to
whether there was negligence on the part of the driver. In absence of such
direct or corroborative evidence, the Court cannot give any specific
finding about negligence on the part of any individual.

20.6. The post mortem report, Ext. A-5 shows the condition of the deceased
at the time of death. The said report reflects that the deceased had
already taken meal and his stomach was half-full and contained rice,
vegetables and meat pieces in a fluid with strong smell of spirit. The
aforesaid evidence, Ext.A-5 clearly suggests that the deceased had taken
liquor but on the basis of the same, no definite finding can be given that
the deceased was driving the car rashly and negligently at the time of the
accident. The mere suspicion based on Ext. B-2 “scene mahazar” and Ext. A-5
post-mortem report cannot take the place of evidence, particularly, when
the direct evidence like PW3 (independent eyewitness), Ext. B-1 (FI
statement) are on record.”

The observations made by this Court in the case of Juju Kuruvila (supra)
surely apply to the fact situation on hand. Upon thorough examination of
the facts and legal evidence on record in the present case, it cannot be
said that the appellant-father was rash and negligent just on the
assumption made by the Tribunal that the collision occurred in the middle
of the road since the two vehicles were approaching from opposite
directions of the road. However, the only aspect of the case on hand that
we can reasonably assume is that the appellant-father would have taken
sufficient caution while riding the motorcycle since he was travelling with
his two minor children (appellant-minors). Further, upon examining the
evidence produced on record, there is no proof showing negligence on the
part of the appellant-father. Thus in our view, the contributory negligence
apportioned by the High Court at 25% on the appellant-father and 75% on the
driver of the offending tractor is erroneous keeping in view the legal
principles laid down by this Court on this aspect in the above referred
case. Thus, we are of the firm conclusion that the negligence is wholly on
the part of the driver of the offending tractor since he was driving the
heavier vehicle. Therefore, we set aside the 25% contributory negligence on
the part of the appellant-father as apportioned by the High Court.
14. Further, the courts below have erred in ascertaining the notional
income of appellant-father at Rs.1,500/- per month i.e. Rs.18,000/- per
annum. On examining the facts, evidence produced on record and
circumstances of the case on hand, the appellant-father owns 30 bighas of
irrigated land in which he was doing agricultural work as per Exhibit-79
Kishtban Khtoni. Keeping in mind the same, the notional income ascertained
by the courts below is too less. In our opinion, the appellant-father’s
notional income must be at least Rs.5,000/- per month i.e. Rs.60,000/- per
annum. Thus, his loss of future income due to 30% permanent disability
suffered by him due to the injuries sustained in this accident, taking the
appropriate multiplier of 15 (as per Sarla Verma & Ors. v. Delhi Transport
Corporation & Anr.[6]), would be Rs.2,70,000/- (15 X [30% of 60,000/-]).
15. The courts below have erred in awarding an amount of Rs. 5000/- only
towards pain and suffering caused to the appellant-father due to the motor-
vehicle accident. The award towards non-pecuniary heads must be ascertained
after careful reflection upon the facts and circumstances of the case on
hand as opined by this Court in this aspect in R.D. Hattangadi’s
case(supra). Therefore, keeping in mind the loss suffered by the appellant-
father due to 30% permanent disability and circumstances of the case on
hand and principles laid down by this Court in the above case, we award
Rs.50,000/- towards pain and suffering of the appellant-father. We further
award Rs.50,000/- towards loss of amenities undergone by the appellant-
father as per the principles laid down in Sri Nagarajappa v. The Divisional
Manager, The Oriental Insurance Co. Ltd.[7].

With regard to all the appellant-claimants

16. We are of the opinion, that the appellants without doubt need
sufficient nutrition in order to ensure their good health, especially
considering the appellant-minors who are just over 10 and 15 years of age.
As the Tribunal and the High Court have erred in awarding a meagre amount
of Rs.3,000/- to each one of the appellants towards special food and
nutrition, instead we award Rs.10,000/- each towards the same.

17. In our considered view of the facts of the case, it is clear that
medical attendants were taken for the appellants’ care for 3 months during
their treatment and rest period. The Tribunal and the High Court have erred
in not awarding compensation towards the same. Therefore, we award
Rs.9,000/- each towards attendant’s charges (Rs.3,000/- per month for each
attendant) and Rs. 5,000/- each towards transportation charges.

18. The compensation awarded to the appellants towards medical expenses by
the Tribunal and enhancement of the same by the High Court to the appellant-
father is maintained.

19. Further, we are of the view that the Tribunal and the High Court have
erred in granting interest rate at only 6% p.a. and 7.5% p.a. respectively
on the total compensation amount instead of 9% p.a. by applying the
decision of this Court in Municipal Corporation of Delhi v. Association of
Victims of Uphaar Tragedy[8]. Accordingly, we award the interest @9% p.a.
on the compensation determined in these appeals.

20. In the result, the appellants shall be entitled to compensation under
the different heads as per the following table:
| |Particulars |Kumari Kiran |Master Sachin |Harinarayan |
|1. |Loss of future |- |- |Rs.2,70,000/- |
| |income due to | | | |
| |disability | | | |
|2. |Pain and suffering|Rs.1,00,000/- |Rs.1,00,000/- |Rs.50,000/- |
|3. |Agony to parents |Rs.25,000/- |Rs.25,000/- |- |
|4. |Medical Expenses |Rs.69,844/- |Rs.84,876/- |Rs.1,86,154/- |
|5. |Attendant |Rs.9,000/- |Rs.9,000/- |Rs.9,000/- |
|6. |Transportation | | | |
| | |Rs.5,000/- |Rs.5,000/- |Rs.5,000/- |
|7. |Special diet and |Rs.10,000/- |Rs.10,000/- |Rs.10,000/- |
| |nutrition | | | |
|8. |Permanent |Rs.3,00,000/- |Rs.3,00,000/- |Rs.50,000/- |
| |Disability/ | | | |
| |loss of amenities | | | |
|9. |Future medical |Rs.25,000/- |Rs.25,000/- |- |
| |expenses | | | |
| |TOTAL |Rs.5,43,844/- |Rs.5,58,876/- |Rs.5,80,154/- |

Thus, the total compensation payable to all the appellants by the
respondent Insurance Company will be as per the total amount indicated in
the preceding table with interest @ 9% from the date of filing of the
application till the date of payment.

21. Accordingly, we allow these appeals with the following directions:

C.A.@SLP(c) no.21666 of 2013

The respondent Insurance Company is directed to deposit a sum of
Rs.4,00,000/- with proportionate interest for a period of 3 years with the
liberty to the appellant-minor, Kumari Kiran to withdraw the same by filing
an application for her education, development and welfare;

The remaining amount of Rs.1,43,844/- with proportionate interest shall be
paid to the appellant-minor through her father by way of either a demand
draft or deposited with the Motor Accidents Claims Tribunal within six
weeks from the date of receipt of the copy of this judgment.

C.A.@SLP(c) no. 21670 of 2013
The respondent Insurance Company is directed to deposit a sum of
Rs.4,00,000/- with proportionate interest for a period of 3 years with the
liberty to the appellant (who may have become a major) Sachin to withdraw
the same by filing an application for his education, development and
welfare;

The remaining amount of Rs.1,58,876/- with proportionate interest shall be
paid to him by way of either a demand draft or deposited with the Motor
Accidents Claims Tribunal within six weeks from the date of receipt of the
copy of this judgment.

C.A.@SLP(c) no. 21671 of 2013
The respondent Insurance Company is directed to either pay Rs.5,80,154/- by
way of demand draft/drafts in favour of the appellant-father Harinarayan or
deposit the same with interest as awarded, before the Motor Accidents
Claims Tribunal after deducting the amount already paid, if any, to the
appellant within six weeks from the date of receipt of the copy of this
judgment.

All the appeals are allowed in the terms as indicated in the table above
with interest. No costs.

…………………………………………………………J.
[V.GOPALA GOWDA]

………………………………………………………J.
[ADARSH KUMAR GOEL]
New Delhi,
September 11, 2014
ITEM NO.1A-For Judgment COURT NO.12 SECTION IVA

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

CIVIL APPEAL NO.8632 OF 2014
(Arising out of SLP(C) NO. 21666 OF 2013)

KUMARI KIRAN THR. HER FATHER
HARINARAYAN … APPELLANT
Vs.
SAJJAN SINGH & ORS. … RESPONDENTS
WITH
CIVIL APPEAL NO.8633 OF 2014
(Arising out of SLP(C) NO. 21670 OF 2013)

AND
CIVIL APPEAL NO.8634 OF 2014
(Arising out of SLP(C) NO. 21671 OF 2013)

Date : 11/09/2014 These appeals were called on for judgment today.
For Petitioner(s) Mr. Awadhesh Kumar Singh, Adv.
Mr. R. D. Upadhyay,Adv.

For Respondent(s)
Mr. Chander Shekhar Ashri,Adv.
Hon’ble Mr. Justice V.Gopala Gowda pronounced the judgment of the
Bench comprising His Lordship and Hon’ble Mr. Justice Adarsh Kumar Goel.
Leave granted.
The appeals are allowed in terms of the signed order.
(VINOD KUMAR) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed Non-Reportable judgment is placed on the file)
———————–
[1]
[2] (2012)10 SCC 177
[3]
[4] (1995) 1 SCC 551
[5]
[6] (2011)1 SCC 343
[7]
[8] AIR 2014 SC 736
[9]
[10] (2013)9 SCC 166
[11]
[12] (2009)6 SCC 121
[13]
[14]
[15]
[16]

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,658,606 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,846 other followers

Follow advocatemmmohan on WordPress.com