Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4795 OF 2009
(Arising out of SLP (C) No.18494 of 2007)
Priya Vasant Kalgutkar … Appellant
Versus
Murad Shaikh & Ors. … Respondents
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. Appellant is a young girl. She met with an accident on or about
20.9.1999 while she was aged only 9 years. In the said accident she suffered
the following injuries, as stated in the application filed on her behalf before
the Motor Accidents Claims Tribunal :
1. There is swelling deformity & fracture of
rd
middle 3 of Lt. thigh (femur shaft).
2. Abrasion over left frontal region.
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3. Abrasion over Rt. Lateral aspect.”
3. She was treated by two doctors. According to one of them, namely,
Dr. Mukund, who examined himself as PW3, she suffered 10% to 15% of
disability whereas according to the other doctor, Dr. Shivanand, she suffered
20% to 25% of physical disability in her left lower limb.
An amount of Rs.3,00,000/- was claimed by her by way of
compensation in the claim petition before the Motor Accidents Claims
Tribunal under Section 166 of the Motor Vehicles Act, 1988 (hereinafter
called and referred to for the sake of brevity as ‘the Act’). The Tribunal,
however, having regard to the evidences brought on record, opining that
permanent disability suffered by her would be 10%, a sum of Rs.40,000/-
awarded on the said ground. The total amount of compensation determined
was a sum of Rs.72,785/- details of which are as under :
“Rs.18,000/- towards pain and sufferings
and agony, Rs. 12,460 towards diet and attendant
charges and Rs.323/- were awarded towards
medical expenses.”
4. On an appeal preferred thereagainst, the High Court, without
assigning any reason, enhanced the amount of compensation to
Rs.1,12,000/-, stating :
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“Petitioner could be awarded Rs.30,000/- for pain
and agony, Rs.10,000/- for medical and incidental
expenses relating to treatment, Rs.15,000/- for loss
of amenities and discomfort on account of
disability, Rs.27,000/- (1500 X 18) for loss of
future earnings on account of disability and
Rs.20,000/- for loss of marriage prospects on
account of disability. In all, the petitioner is
entitled to the compensation of Rs.1,12,000/- as
against Rs.72,785/- awarded by the Tribunal. On
the enhanced compensation, the interest payable
shall be 6% p.a. from the date of petition till
payment.”
5. Appellant being aggrieved by and dissatisfied therewith is before us.
6. Mr. P.V.V. Shetty, learned senior counsel appearing on behalf of the
appellant, would contend that the High Court committed a serious error in
awarding only a sum of Rs.1,12,000/- without taking into consideration her
prospect of marriage. The amount of compensation on the basis of notional
income should not have been determined, urging that even if she was to
work as a labourer, she would have earned at Rs.4,000/- per month.
7. Indisputably, she was a child at that time. She had no earning. What
amount could be awarded towards future loss of earning or prospective loss
of earning could not have been determined on the basis of any legal
principle. Compensation for the injuries suffered by a person in a motor
vehicle accident can be determined either on the basis of the actual damages
suffered or upon application of the structured formula. Although for the
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purpose of invoking the provisions of Section 163A of the Act, a legal
principle may be found in the Second Schedule thereof. The Second
Schedule provides that where no income is proved, notional income for the
purpose of payment of compensation to those who had no income prior to
accident, a sum of Rs.15,000/- per annum would be considered as the
multiplicand. The multiplier which was required to be applied would be 15.
Paragraph 4 and 5 of the said Schedule reads as under :
“ 4. General damages in case of injuries and
disabilities—
(i) Pain and sufferings :
(a) Grievous injuries
Rs.5,000
(b) Non-grievous injuries Rs.1,000
(ii) Medical expenses—actual expenses
Incurred supported by bills/vouchers
But not exceeding as onetime
Payment Rs.15,000
5. Disability in non-fatal accidents—
The following compensation shall be payable in case
of disability to the victim arising out of non-fatal
accidents :
Loss of income, if any, for actual period of
disablement not exceeding fifty-two weeks.
PLUS either of the following :
(a) In case of permanent total disablement the
amount payable shall be arrived at by
multiplying the annual loss of income by the
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Multiplier applicable to the age on the date of
determining the compensation, or
(b) In case of permanent partial disablement such
percentage of compensation which would have
been payable in the case of permanent total
disablement as specified under item (a) above.
Injuries deemed to result in permanent total
disablement/permanent partial disablement and
percentage of loss or earning capacity shall be as per
Schedule I under Workmen’s Compensation Act,
1923.”
8. Thus, under the head of disability in non-fatal accident, the amount of
compensation can be determined only on that basis.
9. We may, however, notice that in Lata Wadhwa v. State of Bihar
[(2001) 8 SCC 197], this Court held :
“ 11. So far as the award of compensation in case
of children is concerned, Shri Justice Chandrachud
has divided them into two groups, the first group
between the age group of 5 to 10 years and the
second group between the age group of 10 to 15
years. In case of children between the age group of
5 to 10 years, a uniform sum of Rs.50,000 has
been held to be payable by way of compensation,
to which the conventional figure of Rs.25,000 has
been added and as such to the heirs of the 14
children, a consolidated sum of Rs.75,000 each,
has been awarded. So far as the children in the age
group of 10 to 15 years, there are 10 such children
who died on the fateful day and having found their
contribution to the family at Rs .12,000 per annum,
11 multiplier has been applied, particularly,
depending upon the age of the father and then the
conventional compensation of Rs.25,000 has been
added to each case and consequently, the heirs of
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each of the deceased above 10 years of age, have
been granted compensation to the tune of
Rs.1,57,000 each. In case of the death of an infant,
there may have been no actual pecuniary benefit
derived by its parents during the child’s lifetime.
But this will not necessarily bar the parents’ claim
and prospective loss will found a valid claim
provided that the parents establish that they had a
reasonable expectation of pecuniary benefit if the
child had lived. This principle was laid down by
the House of Lords in the famous case of Taff Vale
Rly. v. Jenkins and Lord Atkinson said thus:
“… all that is necessary is that a reasonable
expectation of pecuniary benefit should be
entertained by the person who sues. It is
quite true that the existence of this
expectation is an inference of fact — there
must be a basis of fact from which the
inference can reasonably be drawn; but I
wish to express my emphatic dissent from
the proposition that it is necessary that two
of the facts without which the inference
cannot be drawn are, first, that the deceased
earned money in the past, and, second, that
he or she contributed to the support of the
plaintiff. These are, no doubt, pregnant
pieces of evidence, but they are only pieces
of evidence; and the necessary inference
can, I think, be drawn from circumstances
other than and different from them.”
At the same time, it must be held that a mere
speculative possibility of benefit is not sufficient.
Question whether there exists a reasonable
expectation of pecuniary advantage is always a
mixed question of fact and law. There are several
decided cases on this point, providing the
guidelines for determination of compensation in
such cases but we do not think it necessary for us
to advert, as the claimants had not adduced any
materials on the reasonable expectation of
pecuniary benefits, which the parents expected. In
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case of a bright and healthy boy, his performances
in the school, it would be easier for the authority to
arrive at the compensation amount, which may be
different from another sickly, unhealthy, rickety
child and bad student, but as has been stated
earlier, not an iota of material was produced before
Shri Justice Chandrachud to enable him to arrive at
a just compensation in such cases and, therefore,
he has determined the same on an approximation.
Mr. Nariman, appearing for TISCO on his own,
submitted that the compensation determined for
the children of all age groups could be doubled, as
in his view also, the determination made is grossly
inadequate. Loss of a child to the parents is
irrecoupable, and no amount of money could
compensate the parents. Having regard to the
environment from which these children were
brought, their parents being reasonably well-placed
officials of Tata Iron and Steel Company, and on
considering the submission of Mr. Nariman, we
would direct that the compensation amount for the
children between the age group of 5 to 10 years
should be three times. In other words, it should be
Rs.1.5 lakhs, to which the conventional figure of
Rs.50,000 should be added and thus the total
amount in each case would be Rs.2.00 lakhs. So
far as the children between the age group of 10 to
15 years, they are all students of Class VI to Class
X and are children of employees of TISCO.
TISCO itself has a tradition that every employee
can get one of his children employed in the
Company. Having regard to these facts, in their
case, the contribution of Rs.12,000 per annum
appears to us to be on the lower side and in our
considered opinion, the contribution should be
Rs.24,000 and instead of 11 multiplier, the
appropriate multiplier would be 15. Therefore, the
compensation, so calculated on the aforesaid basis
should be worked out to Rs.3.60 lakhs, to which an
additional sum of Rs.50,000 has to be added, thus
making the total amount payable at Rs.4.10 lakhs
for each of the claimants of the aforesaid deceased
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children.”
Even by that standard, the amount of compensation granted by the
High Court appears to be adequate in absence of any evidence having
brought on record as to the actual damages.
10. The appeal is dismissed. In the facts and circumstances of the case,
however, there shall be no order as to costs.
……………………………….J.
[S.B. Sinha]
..…………………………..…J.
[Cyriac Joseph]
New Delhi;
July 29, 2009