Summary
The Supreme Court enhanced compensation for a seven-year-old girl left with 75% permanent disability (moderate mental retardation, incontinence) after being hit by a car on a zebra crossing from Rs. 11,51,000 to Rs. 50,87,000, treating her disability as 100% for practical purposes and, following Kajal and Master Ayush, using the minimum wage of a skilled workman with future prospects and multiplier 18 and awarding higher sums for pain and suffering, full-time skilled attendant, future treatment and loss of marriage prospects.
Issues
- Whether the compensation awarded by the Tribunal and enhanced by the High Court to a child victim with permanent mental disability was just compensation.
- How loss of earning capacity and attendant charges should be computed for a child claimant.
- What amounts are appropriate for pain and suffering, loss of marriage prospects and future medical treatment.
Provisions considered
- Section 166, Motor Vehicles Act, 1988The claim petition for compensation for injuries in the accident was filed under this section against the driver-cum-owner and the insurer. (¶ 4.2)
- Section 168, Motor Vehicles Act, 1988Through the passage from K. Suresh quoted in Kajal, the Court applied the standard of just compensation, neither a windfall nor a pittance, in reassessing each head. (¶¶ 18, 25)
Held
- Although the disability certificate assessed 75% permanent disability, a child left with the mental capacity of a second-standard pupil, severe apathy and urinary incontinence, dependent on others for life, is to be treated as 100% disabled for practical purposes. (¶¶ 14, 15, 26, 27)
- Following Kajal, loss of earning capacity of a child is to be assessed not on notional income but on the minimum wage of a skilled workman in the State at the time of the accident, with 40% added for future prospects in line with Pranay Sethi and a multiplier of 18; this yielded Rs. 13,18,000. (¶¶ 28, 29, 30, 31, 32, 33)
- Compensation for pain and suffering must reflect that the award is made only once and that courts should take a liberal view in cases of total disability with mental impairment; relying on Kajal, Master Ayush and K.S. Muralidhar, Rs. 15,00,000 was awarded in place of Rs. 1,00,000. (¶¶ 34, 35, 36, 38, 39, 40)
- A claimant who has lost both childhood and adult life, and for whom marriage and child-rearing are near impossible though reproduction is not affected, is entitled to substantial compensation for loss of marriage prospects; Rs. 5,00,000 was awarded. (¶¶ 41, 42, 43)
- The High Court erred in assuming that a part-time unskilled attendant would suffice; the claimant needs a full-time skilled attendant for life, and attendant charges must be computed by the multiplier method on the skilled minimum wage, giving Rs. 9,42,000. (¶¶ 45, 46, 47, 48)
- Given the need for medicines and diapers and the risk of convulsions in cases of mental retardation, future medical treatment was enhanced to Rs. 5,00,000. (¶¶ 49, 50, 51)
- Following Susamma Thomas, since the claimant was a minor at the time of the accident, only part of the award was to be released to her guardian and the rest kept in fixed deposits with monthly interest, subject to withdrawal for major medical expenses with the Tribunal's leave. (¶¶ 56, 57)
Result
Appeal allowed; High Court judgment set aside; total compensation enhanced to Rs. 50,87,000 with interest at 9% per annum from the date of the claim petition; insurer to pay within eight weeks after adjusting amounts paid, inter se liability with the owner left to be decided in accordance with law; Rs. 10,00,000 to be released to the father as guardian and the balance kept in fixed deposits.