Case BriefsHigh Courts

Bombay High Court: Addressing a dispute with regard to the percentage of permanent disability and determination of compensation, Shrikant D. Kulkarni, J., remarked that determination of a just compensation cannot be equated to be a bonanza.

The Appellant was serving as a cleaner on the appellant’s vehicle which was punctured on a highway and hence parked by the side of the road. When the appellant was replacing the tyre a truck drove in a rash and negligent manner and gave dash to the Tata Tempo vehicle which was in stationary condition and caused the accident.

Due to the above, the appellant was taken to the hospital for treatment. It was stated that the right leg of the appellant got crushed and it came to be amputed. Further, even his left leg was damaged badly.

Hence, the owner of the vehicle lodged an FIR against the truck driver.

Appellant filed injury claim under Section 166 of the Motor Vehicles Act, 1988 and sought compensation assessed at Rs 60 lakhs. Though the claim was allowed partly.

Aggrieved with the decision, the present appeal was preferred for the enhancement of compensation.

Analysis, Law and Decision


High Court expressed that it is the statutory duty of the tribunal and the Court as well to award “just compensation”.

Further, the Bench added that, the concept of ‘just compensation’ obviously suggests application of fair and equitable principles and a reasonable approach on the part of the Tribunals and courts. This reasonableness on the part of the tribunal and the Court must be on a large peripheral field.

Additionally, the Court stated that the impact of amputation of leg on the earning capacity of the appellant/claimant needed deep consideration.

Due to amputation of right leg of the appellant, certainly he is unable to discharge his work and job as a Cleaner on the vehicle. It has severe impact on the earning capacity of the appellant/claimant. 

In the case of Jakir Hussein v. Sabir, (2015) 7 SCC 252, it is held by the Supreme Court that though the claimant is suffering from permanent disability of 30% and 50%, the tribunal cannot overlook that it is a case of 100% functional disability. It is a case of amputation of one leg.

In the present matter, the Tribunal did not consider the severe impact on the income of the claimant due to amputation of the right leg below the thigh and left leg badly damaged.

In cases of motor accidents leading to injuries and disablements, it is a well settled principle that a person must not only be compensated for his physical injury, but also for the non-pecuniary losses which he has suffered due to the injury.

The Court observed that the purpose of compensation under the Motor Vehicles Act is to fully and adequately restore the aggrieved to the position prior to the accident.

Hence, the tribunal had committed an error in accepting the permanent disability of the claimant at 45% when it is a case of 100% loss of earning capacity due to amputation of leg. Therefore, the compensation needed to be re-assessed.

High Court concluded that respondents are liable to pay the enhanced amount of compensation jointly and severally with interest @ 7%. [Akshay v. Kailas Vitthalrao Shinde, 2022 SCC OnLine Bom 830, decided on 18-4-2022]


Advocates before the Court:

Mr Sanket S. Kulkarni and Mr Mukeshkumar R. Singh, Advocates for appellant Mr V.P. Savant, Advocate for respondents no.1

Mr Abhijit G. Choudhari, Advocate for respondent no.2

Case Briefs

Supreme Court: The Division Bench of S. Abdul Nazeer* and Krishna Murari, JJ., held that neither the percentage of deduction for personal expenses be governed by a rigid rule or formula of universal application nor does it depends upon the basis of relationship of the claimant with the deceased.

Passing a landmark decision, the Bench granted compensation to mother-in-law of the deceased considering her to be of the dependents of the deceased. The Bench remarked,

“It is not uncommon in Indian Society for the mother-in-law to live with her daughter and son-in-law during her old age and be dependent upon her son-in-law for her maintenance.”

Through the impugned judgment, the High Court of Kerala had scaled down the amount of compensation payable to the appellants and thereby modified the award passed by the Motor Accident Claims Tribunal.

Factual Matrix

The appellants had filed the claim petition before the Tribunal seeking compensation on account of the death of one N. Venugopalan Nair in a motor vehicle accident. Noticing that the deceased had four dependants, the Tribunal awarded a total sum of Rs.73,18,971 towards loss of dependency making the total sum Rs.74,50,971 towards compensation with interest at 7.5 per cent per annum.

In appeal the High Court held that the appellant 4, i. e. mother-in-law of the deceased was not a legal representative of the deceased. Similarly, without denying the fact that the deceased was a meritorious person who possessed the qualification of M.Sc. M.Phil and was availing the monthly salary of Rs.83,831, the High Court took the monthly income of the deceased as Rs.40,000/for the purpose of calculation of loss of dependency opining that the deceased was aged 52 years at the time of the accident, hence he would not have earned the same monthly income after his retirement.

Accordingly, the High Court awarded compensation of Rs.23,65,728 towards loss of dependency for preretiral period and a sum of Rs.22,40,000 towards loss of dependency for postretiral period. In total, a sum of Rs.48,39,728 was awarded as compensation by the High Court.

Observation and Analysis

Whether the High Court was justified in precluding the mother-in-law of the deceased as his legal representative?

The MV Act does not define the term ‘legal representative’. Generally, ‘legal representative’ means a person who in law represents the estate of the deceased person and includes any person or persons in whom legal right to receive compensatory benefit vests. A ‘legal representative’ may also include any person who intermeddles with the estate of the deceased; such person does not necessarily have to be a legal heir. Hence, the Bench observed,

“In our view, the term ‘legal representative’ should be given a wider interpretation for the purpose of Chapter XII of MV Act and it should not be confined only to mean the spouse, parents and children of the deceased.”

Opining that the As MV Act is a benevolent legislation, therefore, it calls for a liberal and wider interpretation to serve the real purpose underlying the enactment and fulfil its legislative intent, the Bench held that in order to maintain a claim petition, it is sufficient for the claimant to establish his loss of dependency.

Reliance was placed on Gujarat SRTC v. Ramanbhai Prabhatbhai, (1987) 3 SCC 234, by the Bench, wherein it had been held that, “We should remember that in an Indian family brothers, sisters and brothers’ children and sometimes foster children live together and they are dependent upon the breadwinner of the family and if the breadwinner is killed on account of a motor vehicle accident, there is no justification to deny them compensation relying upon the provisions of the Fatal Accidents Act, 1855.”

Hence, considering that the mother-in-law of the deceased was staying with the deceased and his family members since a long time and was dependent on him for her shelter and maintenance, the Bench held that she might not be a legal heir of the deceased, but she certainly suffered on account of his death. Therefore, the Bench declared that she was a “legal representative” under Section 166 of the MV Act and was entitled to maintain a claim petition.

Whether the High Court was justified in applying a split multiplier?

The deceased was aged 52 years at the time of the accident and was working as an Assistant Professor on a monthly salary of Rs.83,831. Considering that the deceased was a Selection Grade Lecturer in Mathematics and was a subject expert, the Bench stated that evidence on record also shows that there is acute shortage of lecturers in Mathematics for appointment in colleges and retired Mathematics Professors are  appointed in so many colleges.

It is common knowledge that the teachers, especially Mathematics teachers, are employed even after their retirement in coaching centers. They may also hold private tuition classes. This would increase their income manifold after retirement.”

In the above backdrop, the Bench rejected the findings of High Court that the deceased’s income would necessarily reduce after his retirement, the Bench held that at the time of calculation of the income, the Court has to consider the actual income of the deceased and addition should be made to take into account future prospects. Accordingly, it was held that the High Court was not justified in applying split multiplier in the instant case by bifurcating the deceased’s income as pre- retirement and post-retirement.

What is the amount of compensation that should be awarded to the appellants?

The deceased was aged 52 years at the time of his death and had a permanent job. The annual income of the deceased was Rs.10,00,572, which after income tax deduction came to Rs.8,87,148.

Relying on the decision in National Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC 680, the Bench added additional 15% of his actual salary towards future prospectus, which made the actual salary of the deceased as Rs.1,33,072.

Since the deceased was 52 years at the time of his death, the applicable multiplier was ‘11’.  Similarly, considering that he had four dependants, following compensation was granted to the dependants: (i) Towards Loss of dependency Rs.84,16,815 ( ii) Loss of Estate Rs.16,500 iii) Funeral Expenses Rs.16,500 (iv) Spousal Consortium Rs.44,000 ( v) Parental Consortium Rs.88,000. Total Rs.85,81,815 was granted as compensation along with interest at the rate of 7.5% per annum.

[N. Jayasree v. Cholamandalam Ms General Insurance Company Ltd., 2021 SCC OnLine SC 967, decided on 25-10-2021]


Kamini Sharma, Editorial Assistant has put this report together


Appearance by:

For the Appellants: Adv. Seshatalpa Sai Bandaru

For the Respondents: Adv.  Chander Shekhar Ashri


*Judgment by: Justice S. Abdul Nazeer               

Case BriefsHigh Courts

Kerala High Court: A. Badharudeen, J., exonerated the insurance company, Bajaj Allianz from liability to pay compensation in a motor accident case. The Bench observed,

“In a three wheeler goods carriage, the driver could not have allowed anybody else to share his seat. No other person whether as a passenger or as a owner of the vehicle is supposed to share the seat of the driver.”

The instant appeal was filed by the insurer-Bajaj Allianz General Insurance Co. Ltd with regard to a motor accident claim. The Insurance Company disputed liability and sought exoneration from liability raising contention that the injured was a gratuitous passenger in a goods vehicle viz., Goods Autorickshaw. Though the appellant sought exoneration, the Tribunal did not allow the same.

The facts of the case were that while the injured was travelling in a Bajaj Goods Autorickshaw along with construction goods to the work site by sitting near the driver of the vehicle and transporting the construction goods, he met with an accident when the said Autorickshaw suddenly turned by its driver. The injured had claimed Rs 1,50,000 as compensation.

The appellant contended that the injured was a gratuitous passenger of the goods vehicle and was travelling in the goods autorickshaw, sharing the seat of the driver where driver alone was permitted to travel.

Hence, the stand of the Tribunal giving the injured the status of a person accompanying the goods carried therein was unsustainable.

In National Insurance Co. Ltd. v. Baljit Kaur, 2004 (1) KLT 938 (SC) = 2004 (2) SCC 1it was held that the term “any person” envisaged under S. 147(1)(b)(i) shall not include any gratuitous passenger, it was held that if the claimant had not been travelling in the vehicle as owner of the goods, he shall not be covered by the policy of insurance.

“No gratuitous passenger can be allowed to travel in a goods vehicle and not even the owner of the vehicle can share the seat of the driver in a goods autorickshaw.”

Hence, the Bench held that, if the claimant had not been travelling in the vehicle as owner of the goods, he shall not be covered by the policy of insurance. In other words, no other person whether a passenger or as a owner of the vehicle was supposed to share the seat of the driver and any such action would be violation of the policy conditions as the policy suggested that the seating capacity of the vehicle involved in the accident was one person and nobody was permitted to travel in the said Goods Autorickshaw, other than the driver.

Observing that the injured was accompanying the Goods Autorickshaw along with construction goods to the work site after sharing the seat of the driver and met with an accident during this course, the Bench allowed the contention raised by the appellant urging full exoneration is to be allowed and contra decision entered into by the Tribunal was stand set aside.

Resultantly, Insurance Company was held not liable to pay the amount and the liability was casted upon the owner of the vehicle. [Bajaj Allianz General Insurance Co. Ltd v. Bheema, 2021 SCC OnLine Ker 4068, decided on 08-11-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Appellant: Adv Sri. Lal George

For the Claimant: Adv Sri. T.B.Shajimon

Case BriefsSupreme Court

Supreme Court: Reminding the Courts that the Motor Vehicles Act is in the nature of social welfare legislation and its provisions make it clear that the compensation should be justly determined, the bench of R. Subhash Reddy and Hrishikesh Roy*, JJ has held that a realistic recompense having regard to the realities of life, both in terms of assessment of the extent of disabilities and its impact including the income generating capacity of the claimant.

Brief Facts

On 13.4.2001, appellant suffered serious injuries when the motorcycle, where the appellant was riding pillion, was hit by a car. Both riders were impacted, resulting in severe head injuries to the appellant. He was bedridden, totally immobilized and initially, remained admitted in the hospital for 191 days. The appellant has also suffered severe impairment of cognitive power with hemiparesis and total aphasia and the prognosis for him is 69% permanent disability.

The claimant was 21 years old and was earning around Rs.4,500/- per month from jewellery work when he suffered the accident.

Compensation awarded by Tribunal: Rs.5,74,320/-

Compensation Awarded by Kerala High Court: 14,31,752/

Analysis

On facts

“The 21 year old’s youthful dreams and future hopes were snuffedout by the serious accident. The young man’s impaired condition has certainly impacted his family members. Their resources and strength are bound to be stressed by the need to provide full time care to the claimant. For the appellant to constantly rely on them for stimulation and support is destined to cause emotional, physical and financial fatigue for all stakeholders.”

The Court noticed that while the permanent disability as certified by the doctors stands at 69%,the same by no means, adequately reflects the travails the impaired claimant will have to face all his life. A person therefore is not only to be compensated for the injury suffered due to the accident but also for the loss suffered on account of the injury and his inability to lead the life he led, prior to the life altering event.

The Court held that in cases wherein the claimant is suffering severe cognitive dysfunction and restricted mobility, the Courts should be mindful of the fact that even though the physical disability is assessed at 69%, the functional disability is 100% in so far as claimant’s loss of earning capacity is concerned.

It hence held,

“… the impact on the earning capacity for the claimant by virtue of his 69% disability must not be measured as a proportionate loss of his earning capacity. The earning life for the appellant is over and as such his income loss has to be quantified as 100%. There is no other way to assess the earning loss since the appellant is incapacitated for life and is confined to home.”

The Court, hence, enhanced the compensation to Rs. 27,67,800 to be paid within six weeks. Any amount paid earlier under these heads, may be adjusted during payment to the appellant.

On ‘just compensation’

The Court emphasized that, in cases like the one at hand, the Tribunal and the Courts must be conscious of the fact that the permanent disability suffered by the individual not only impairs his cognitive abilities and his physical facilities but there are multiple other non-quantifiable implications for the victim.

“The very fact that a healthy person turns into an invalid, being deprived of normal companionship, and incapable of leading a productive life, makes one suffer the loss of self-dignity. Such a Claimant must not be viewed as a modern day Oliver Twist, having to make entreaties as the boy in the orphanage in Charles Dickens’s classic, “Please Sir, I want some more”. The efforts must be to substantially ameliorate the misery of the claimant and recognize his actual needs by accounting for the ground realities. The measures should however be in correct proportion.”

It further noted that the plea of the victim suffering from a cruel twist of fate, when asking for some more, is not extravagant but is for seeking appropriate recompense to negotiate with the unforeseeable and the fortuitous twists is his impaired life.

“Therefore, while the money awarded by Courts can hardly redress the actual sufferings of the injured victim (who is deprived of the normal amenities of life and suffers the unease of being a burden on others), the courts can make a genuine attempt to help restore the self-dignity of such claimant, by awarding ‘just compensation’.”

[Jithendran v. The New India Assurance Co., 2021 SCC OnLine SC 983, decided on 27.10.2021]


Counsels:

For Claimant: Advocate A. Karthik,

For Insurance Company: Advocate JPN Shahi


*Judgment by: Justice Hrishikesh Roy

Know Thy Judge | Justice Hrishikesh Roy

Case BriefsHigh Courts

Punjab and Haryana High Court: Anil Kshetarpal, J., denied interfering with the decision of the Motor Accident Claims Tribunal with regard to age assessed by the Tribunal wherein two contradictory evidences were placed to prove the age of the deceased. The Bench stated,

No doubt, there is a difference between the date of birth in the driving license as well as the income-tax record of the deceased-late Sh. Ravinder Kumar, however, neither of them is a document to prove his age.

The issue arose from a common award, passed by the Motor Accident Claims Tribunal, while allowing the claim petitions filed under Section 166 of the Motor Vehicles Act, 1988. The claimants were the widow, two children and aged mother of the deceased Ravinder Kumar, who died in a motor vehicle accident on 11-12-2017. The counsel for the parties had not questioned the findings of the Tribunal with regard to the involvement of the vehicle and rash and negligent driving of respondent 6-Vikram Singh.

The insurance company contended that the Tribunal erred in assessing the compensation by taking the age of the deceased to be 48 years on the basis of the post mortem report as the income-tax returns filed by the deceased stated that he was born on 02-02-1966 and therefore, his age on the date of accident was 51 years.

While the driving license produced by the appellants showed that the deceased was born on 24-04-1970 and hence was 47 years old.

Considering the arguments of both the parties, the Bench held that no doubt, there was a difference between the date of birth in the driving license as well as the income-tax record of the deceased-late Sh.Ravinder Kumar, however, neither of them was a document to prove his age as the insurance company except giving suggestion that the age of the deceased was 51 years at the time of his death, did not lead any evidence. Furthermore, the post mortem report also proved that the age of the deceased was 49 years at the time of the accident, hence, the Bench denied to disturb the finding of the Tribunal.

Rejecting the submission of the claimants that the Tribunal erred in relying upon the income-tax returns for the year 2016-17 rather than of 2017-18, the Bench opined that since the accident took place on 11-12-2017, and the claimants failed to disclose the date on which the income-tax return for the year 2017-18 was filed; the Tribunal had rightly relied upon the income-tax return of the immediate preceding year i.e. 2016-17. In the light of the above, the appeals were found to be without merits and were dismissed. [New India Assurance Company Ltd. v. Ranju, 2021 SCC OnLine P&H 1783, decided on 16-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Mr. Vipul Sharma, Advocate

for Mr. Paul S. Saini, Advocate

for the appellant (In FAO-7145-2019) and

for respondent No.3 (In FAO-305-2020).

Mr. Shakti Mehta, Advocate

for the appellant (In FAO-305-2020) and

for respondent No.1 to 4 (In FAO-7145-2019)

Case BriefsHigh Courts

Bombay High Court: S.M. Modak, J., dealt with some significant issues in a claim petition wherein a widow is earning and has prospects of remarriage.

The present matter dealt with a very interesting issue involving an appeal about the entitlement of widow to the compensation who got remarried during the pendency of petition before Motor Accident Claims Tribunal.

What is the effect of a marriage of widow on her right to claim compensation on account of the death of her husband in a vehicular accident?

Whether due to marriage, her right vanishes?

Further, the issue is whether an earning wife can be said to be dependent of her husband?

MACT did not reject the widow’s claim but allotted less share to her. Insurance company on being aggrieved with the same, came in appeal, wherein the submissions were as follows:

  • the widow was working since the beginning and she was earning separately and as such, she is not depending on the income of her deceased husband and
  • she lost her right to compensation on account of remarriage during the pendency of the petition.

Decision, Law and Analysis

Bench laid down the focus on the following issues:

a] Whether separate earnings of the widow has got any bearing on her right to claim compensation?

b] Whether remarriage of widow dis-entitles her from claiming compensation?

ISSUE OF DEPENDENCY & REMARRIAGE

Bench observed that though the tribunal had outrightly rejected the ground of remarriage, but it apportioned the amount of compensation lesser in comparison to the 2 children and mother.

While analyzing the issue, it was also stated that

The widow is certainly one of the heirs on which property of a Hindu devolves as per intestate succession. Now, it is interesting to see how the word ‘dependent’ has evolved. It has been judicially recognized that –

a] age of the deceased,

b] income of the deceased and

c] number of dependents

are 3 factors to be considered while fixing the quantum of compensation. From his earning the deceased will spend on himself and on his near relatives/dependents. So when a person dies in a vehicular accident, dependents/near relatives losses the amount contributed by the deceased towards them.

Supreme Court has laid down guidelines on how to calculate contribution to personal expenses and contribution towards dependents. It depends upon the status of the deceased (married/unmarried) and on the number of dependents.

More the number of dependents, lesser will be the contribution towards personal expenses.

Bench in view of the above discussion noted the fact that the eligibility of dependency does not come first, it comes later while arriving at the quantum of compensation. Issue of ‘legal representative’ will come first while entertaining the claim petitions.

Supreme Court in the decision of Manjuri Bera v. Oriental Insurance Company Ltd., (2007) 10 SCC 643, held that even married daughter residing with husband (though not dependent on the income of the father) being legal representative is entitled to claim compensation under Section 140 (no faulty liability) of the Motor Vehicle Act.

Punjab and Haryana High Court in Kartar Kaur. v. Manoj Kumar, 2014 SCC OnLine P&H 25130 held that

“Dis-entitling a woman on account of remarriage would go against the proposal of remarriage of widow after the death of the husband. Taking such drastic view would discourage the remarriage after the death of the husband.”

Similarly in National Insurance Company Ltd. v. Nidhi Goel, 2018 SCC OnLine P&H 6920, it is observed that –

“accepting the proposition of Insurance Company would militate against the right of widow to remarry and it would not be in public interest or in the interest of the Society at large.”

In view of the above decisions it can be found that a consistent view has been taken by all the Courts, that remarriage does not disqualify the widow from claiming compensation.

Continuing with the above analysis, Bench added that

the tribunal should consider the situation prevailing when the cause of action arises. At the time when the accident took place, the widow is the legal representative of the deceased, certainly, she is entitled to claim compensation. What we do is to determine the amount of compensation and its apportionment amongst the eligible persons. So when a widow approaches the Tribunal, she wants to exercise her right which has become part of her estate.

Hence, the Court agreed with the consistent view taken by the Courts.

APPLICATION OF MEASURES

In accordance with Supreme Court guidelines to have uniformity in arriving at the income, it can be stated that if the deceased is having 2-3 dependents, it is presumed that he spends 1/3rd on his personal expenses. If the deceased is having 4-6 dependents, it is presumed that he spends 1⁄4th of his income on his personal expenses.

CRUCIAL ISSUE

When she is having a separate income, whether the widow can be said to be depending on the income of the deceased?

There are two aspects with respect to the above issue:

One is deciding the percentage for personal expenses and towards the contribution of dependents.

Second is the apportionment of compensation which comes later.

As per the guidelines of the Supreme Court given in various judgments, if wife is considered as one of the dependents, then there is a tendency to spend more on an individual and percentage of spending on dependents will be less. If number of dependents is more, there is tendency to spend less on an individual and spend more on dependents.

In the instant case, Court observes that both the spouses are earning. Monthly salary available of the deceased is Rs 23, 431. Where salary of widow Pushpa (for the month of January 2014) had come to Rs 40,044.

Bench expressed that, Separate earning of the widow does not relieve the deceased husband from contributing towards the expenses.

To the above observation Court added that if the evidence on the point of spending by every individual spouse could have been available, this Court might have deleted the widow from the list of dependents.

Hence the Court affirmed the percentage of distribution arrived by the tribunal.

Therefore, High Court opined that case for deleting the widow from list of dependents is not made out by the Insurance Company and remarriage will divest the widow from her right to claim compensation.

APPORTIONMENT

Mother of the deceased was also having two earning sons. It is also their responsibility, so why she shall be given 30%? In fact, more attention towards the two children of the deceased should have been paid.

High Court felt that the widow does not deserve to get Rs 4,00,000 as she was already earning and prospects of re-marriage were there. She also had received service benefits of deceased and amount of L.I.C partially.

Amount was apportioned in the following manner:

Widow Rs 2,00,000  

50% of remaining amount of Rs 40,13,000 after deducting Rs 7,00,000

Son Rs 16, 56, 500
Daughter Rs 16,56,500
Mother Rs 5,00,000

[Bajaj Allianz General Insurance Company Ltd. v. Pushpa Narayan Khurde, First Appeal No. 1379 of 2018, decided on 18-12-2020]

Case BriefsSupreme Court

Supreme Court: In a case involving an accident that left a bright young girl with 100% disability i.e. a very low I.Q. and severe weakness in all her four limbs, severe hysteria and severe urinary incontinence, the bench of L. Nageswara Rao and Deepak Gupta, JJ awarded a compensation of around Rs. 63, 00, 000 but showed dismay over the life that lies ahead for the girl and said,

“How does one assess compensation in such a case? No amount of money can compensate this child for the injuries suffered by her. She can never be put back in the same position.”

The girl was travelling on a tractor with her parents and the tractor was hit by a truck which was driven rashly. As per the assessment, the accident has left her with an I.Q. less than 20% of a child of her age and her social age is only of a 9-month-old child. This means that she, while lying on the bed will grow up to be an adult with all the physical and biological attributes which a woman would get on attaining adulthood, including menstruation etc., but her mind will remain of a 9-month-old child. Basically, she will not understand what is happening all around her.

The Court said that the amount awarded by it was more than the amount claimed, however, in motor accident claim petitions, the Court must award just compensation and, in case, the just compensation is more than the amount claimed, that must be awarded especially where the claimant is a minor.

“We must remember that this little girl is severely suffering from incontinence meaning that she does not have control over her bodily functions like passing urine and faeces. As she grows older, she will not be able to handle her periods. She requires an attendant virtually 24 hours a day. She requires an attendant who though may not be medically trained but must be capable of handling a child who is bed ridden. She would require an attendant who would ensure that she does not suffer from bed sores.”

Another factor that the Court took note of was that 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 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 compensation.

The Court noticed,

“This girl will miss out playing with her friends. She cannot communicate; she 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.”

The Court, hence, directed that

  • the insurance company shall deposit the enhanced amount before the MACT in terms of the judgment after deducting the amount already paid by the insurance company within a period of 3 months.
  • The MACT shall keep the entire amount in a fixed deposit in a nationalised bank, for a period of 5 years, giving highest rate of interest. The interest payable on this amount shall be released on quarterly basis to the father of the child.This amount shall be spent for paying the attendants and for the care of the child alone.
  • Even after 5 years since this child for all intents and purpose shall remain a person under a disability, the MACT shall keep renewing the amount on these terms.
  • In case the parents or the guardian moves an application for release of some amount to meet some special medical expenses, then MACT may consider release of the same.

[Kajal v. Jagdish Chand, 2020 SCC OnLine SC 127, decided on 05.02.2020]

Case BriefsHigh Courts

Patna High Court: S. Kumar, J. dismissed the appeal filed by the insurance company on the grounds that the parties were liable severally as well as jointly. Although the company had the right to recover such compensation paid from the other party involved in the accident for which insurance was being claimed.

A miscellaneous appeal was filed under Section 173 of Motor Vehicle Act by the appellant against the Judgment and Award passed by the 1st Additional District Judge-cum-Motor Accident Claim Tribunal, Saran at Chapra in Claim Case No. 22 of 2002, by which the learned Claims Tribunal directed the appellant to pay a sum of Rs 3,50,000 to the claimant with interest @ 6 % per annum from the date of claim case till its realization.

The claimant was the husband of one Parwati Devi who died in a motor accident while travelling on a Commander Jeep which collided with another Commander Jeep on 19-09-2001 at about 10:00 PM The deceased was seriously injured and while she was being taken to hospital she succumbed to the injuries. An FIR was instituted under Sections 279, 338 and 304-A of the Penal Code against the drivers of both the vehicles and after investigation the police found the case to be true against drivers of both vehicles.

The appellant had appeared and had filed their written statement in which they denied the claim of claimants. The tribunal, after having examined the material brought on as evidence, held that the deceased died due to rash and negligent driving by the drivers of both vehicles and there was composite negligence on part of both the drivers. The Tribunal had further held that it was a case of composite negligence and the claimant was entitled to claim the compensation amount from either the owner or the insurer of the vehicle and had directed the appellant who was the insurer, to pay compensation.

High Court did not find any error or infirmity in the order passed by the tribunal and as such present appeal was dismissed as a liability to pay the compensation was joint and as well as several. However, since there was a specific finding of the tribunal that there was composite negligence on part of drivers of both the vehicles as such the appellant was entitled to recover 50% of the compensation amount paid to the claimant from the owner /insurer of the other offending vehicle.

In view of the above noted facts, the instant appeal was dismissed with the directions that the insurance company had to pay the balance claim amount with interest @ 6% from the date of presentation of claim till its realization within one month from the receipt of a copy of order passed by the court with a right of recovery of 50% of the compensation amount so paid from the owner /insurer of the other offending vehicle.[New India Assurance Co. Ltd v. Kanchan Bhagat, 2019 SCC OnLine Pat 1737, decided on 02-09-2019]