Rushi @ Ruchi Thapa vs M/S Oriental Insurance Co. Ltd

2024 INSC 837 Non-Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. ………………. OF 2024 (@ SPECIAL LEAVE PETITION (C) NO. 6176 OF 2023)

Miss Rushi @ Ruchi Thapa, through her father, Sri Dhan Bahadur Thapa … Appellant

Versus

M/s. Oriental Insurance Co. Ltd. and Another … Respondents

JUDGMENT

SANJAY KUMAR, J

1. Leave granted.

2. On 13.04.2013, when she was still a child of less than twelve

years of age, the appellant was involved in an accident that left her

permanently disabled to the extent of 75%. The vehicle in which she was

travelling with her father was hit by the Max Pick Up Van bearing Signature Not Verified Digitally signed by Deepak Guglani Date: 2024.11.05

Registration No. AS-01CC-3349. In the result, she suffers from severe 16:27:03 IST Reason:

Hemiparesis in her left upper and lower limbs. 1

3. MAC Case No. 1431 of 2014 was filed on her behalf by her father,

Dhan Bahadur Thapa, before the Motor Accident Claims Tribunal No. 3,

Kamrup (Metro), Guwahati (for brevity, ‘the MACT’). M/s. Oriental

Insurance Company Limited, with which the offending Max Pick Up Van

was stated to have been insured, was arrayed as Opposite Party No. 1

while the owner and driver of the said Van were shown as Opposite Parties

No. 2 and 3. By judgment dated 23.02.2018, the MACT held that the

vehicle in question was duly insured with M/s. Oriental Insurance Company

Limited by its owner, Opposite Party No. 2, and that the driver, Opposite

Party No. 3, who possessed a valid Driving License at the relevant time,

had caused the accident due to rash and negligent driving.

4. The MACT then considered the issue of compensation in the light

of the material placed before it. Apropos the disability suffered by the

appellant, the MACT took note of the fact that the Disability Certificate

dated 12.07.2017 (Ext.8) quantified her permanent disability at 75% but

chose to reduce it to 50%, opining that there was possibility of improvement

in her condition. Further, though a sum of ₹13 lakh was claimed for the

medical treatment of the appellant, her father could produce bills only for

the sum of ₹84,771/-. The MACT, therefore, acted upon the bills so

produced. As regards determination of the loss of earnings of the appellant,

2 the MACT opined that a child could not be equated to a ‘Non-earning

person’ in Clause 6 in the Second Schedule to the Motor Vehicles Act,

1988, whose notional income was to be taken as ₹15000/- per annum. In

all, the MACT determined that a sum of ₹5,59,771/-, along with interest

thereon @ 7.5% per annum from the date of filing of the claim petition till

realization, was to be paid by the insurance company. The break-up of the

MACT’s quantification reads as under:

No. Head Amount (in Rupees)

1. Pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience 4,00,000/- and discomfort, etc., and loss of amenities in life on account of permanent disability 2. Discomfort, inconvenience and loss of earning to the parents during the period of 25,000/- hospitalization. 3. Medical and incidental expenses 84,771/-

4. Future medical expenses, including 50,000/- physiotherapy, etc. TOTAL = 5,59,771/-

5. Dissatisfied with this compensation, the appellant, through her

father, filed an appeal in MACApp./539/2018 before the Gauhati High

Court. By judgment dated 20.02.2023, a learned Judge of the Gauhati High

Court disposed of the said appeal, enhancing the compensation to

3 ₹18,97,371/-. The learned Judge was of the opinion that the appellant’s

permanent disability, as per Ext.8 disability certificate, ought to have been

accepted and accordingly assessed the same as 75%. The learned Judge

placed reliance on the decision of this Court in Master Ayush vs. Branch

Manager, Reliance General Insurance Company Limited and another 1,

which involved determination of compensation payable to a five-year old

victim of a road accident, and held that compensation in that regard was to

be assessed as per the minimum wages on the assumption that the victim

would have been able to earn after attaining adulthood. The learned Judge,

accordingly, took note of the minimum wages payable to unskilled labour at

the time of the accident, i.e., ₹169 per day, and computed the notional loss

of income of the appellant as ₹5,070/- per month. The multiplier was taken

as 15 in terms of the age of the appellant and the loss of earnings was

worked out as ₹9,12,600/- (₹5070X12x15). In addition thereto, the learned

Judge held that a sum of ₹3 lakh was payable for pain, suffering and loss

of amenities; and a further sum of ₹3 lakh was payable towards loss of

marriage prospects. The learned Judge, however, confirmed that the

medical expenses would be as per the bills produced, i.e., ₹84,771/-. In all,

the learned Judge determined the compensation payable to the appellant

1 (2022) 7 SCC 738

4 as ₹18,97,371/-. The interest component was left intact. The break-up of

the learned Judge’s quantification is as under:

No. Head Amount (in Rupees)

1. Medical and hospitalization expenses 84,771/- 2. Pain, suffering and loss of amenities 3,00,000/- 3. Loss of marriage prospects 3,00,000/- 4. Future medical treatment 3,00,000/- 5. Loss of future earnings 9,12,600/- (Income x Multiplier) (₹5,070x12x15)

TOTAL = 18,97,371/-

The learned Judge directed that a sum of ₹5,59,771/- should be

immediately released to the appellant’s father and the rest of the amount

should be invested in one or more fixed deposit(s) so as to attract the

maximum rate of interest.

6. Claiming that the compensation determined by the learned Judge

was still on the lower side, the appellant chose to file the present appeal

through her father. She quantified her total claim under various heads at

₹71,80,000/-. M/s. Oriental Insurance Company Limited, respondent No. 1

before us, is represented by learned counsel. The owner of the vehicle,

respondent No. 2, did not choose to appear despite service of notice. The

5 driver of the vehicle, respondent No. 3, stood deleted from the array of

parties at the risk of the appellant, vide order dated 20.03.2024.

7. On 13.09.2024, upon hearing the learned counsel for the parties,

this Court directed them to submit their respective computations of the

damages/compensation. Both parties accordingly filed their computation

statements. The insurance company, while asserting that the compensation

determined by the High Court was just and proper, stated that token

compensation, between ₹4 lakh to ₹5 lakh, may be awarded towards

attendant charges. The appellant, however, filed a statement computing her

total claim, aggregating to ₹48,68,000/- under various heads.

8. At this stage, we may note that this Court had occasion to consider

a similar case involving a twelve-year-old child in Kajal v. Jagdish Chand

and others2. In that case, the child had suffered 90% permanent disability

due to the accident. The argument before this Court was that as the child

was just twelve years of age, notional income of ₹15,000/- per annum

should be adopted. However, this Court rejected this argument and

adopted the minimum wages payable to a skilled workman for quantifying

the notional loss of earnings of the child. In the case on hand, the High

Court adopted the minimum wages payable to unskilled labour, i.e., ₹169

per day, but there is no justification for the same as the appellant was a 2 (2020) 4 SCC 413

6 school-going child at the time of her accident. The minimum wages payable

to a skilled workman, as per the Notification dated 01.03.2013 of the

Government of Assam, stood at ₹175 per day, which is more acceptable.

On that basis, the notional loss of income of the appellant would work out

to ₹5,250/- per month and the multiplier applicable would be 15,

considering her age at the time of the accident. In effect, the notional loss

of earnings would work out to ₹9,45,000/- (₹5250X12x15). The High Court

failed to consider the loss of future prospects @ 40% of the monthly salary,

in terms of the law laid down by this Court in Kajal (supra). Therefore, a

further sum of ₹3,78,000/- (₹2100X12x15) would be payable to the

appellant under that head. The sum of ₹3 lakh computed by the High Court

for pain, suffering and loss of amenities is just and warrants no

interference. Similarly, the compensation of ₹3 lakh for loss of marriage

prospects is sufficient. However, though the High Court calculated

compensation for future medical treatment as ₹3 lakh, we are of the

opinion that the same would be deficient, given the nature of the permanent

disability suffered by the appellant. She would be entitled to ₹5 lakh under

this head, as claimed by her in her computation statement. Further,

attendant charges would also have to be considered as the appellant would

be helpless without assistance. In Kajal (supra), this Court opined that the

7 multiplier method would be the most realistic and reasonable method for

this purpose. The monthly expense for one attendant was quantified as

₹5,000/-. Adopting the same, the appellant would be entitled to ₹9 lakh

under this head. Though, the claim for ₹13 lakh towards the expenses

incurred for treatment and hospitalization is reiterated, the fact remains that

the appellant’s father could produce bills only for ₹84,771/-. We are,

therefore, not inclined to accept this claim without proof. In effect, the

appellant is held entitled to the following compensation:

No. Head Amount (in Rupees) 1. Loss of earnings 9,45,000/- (Income x Multiplier) (₹5,250x12x15) 2. Loss of future prospects 3,78,000/- (40% of ₹5,250/-) (₹2,100x12x15) 3. Attendant charges for lifetime 9,00,000/- (₹5,000x12x15) 4. Pain, suffering and loss of amenities 3,00,000/- 5. Loss of marriage prospects 3,00,000/- 6. Future medical treatment 5,00,000/- 7. Medical and hospitalization expenses 84,771/- TOTAL = 34,07,771/-

9. The insurance company shall also pay interest @ 7.5% on the

balance amount payable, as determined by us above, from the date of

institution of the claim petition till the date of deposit by it before the Motor

8 Accident Claims Tribunal No. 3, Kamrup (Metro), Guwahati. The said

amount shall be placed in one or more fixed deposit(s) in nationalized

bank(s) for terms which would earn the maximum interest. Such interest

shall be disbursed to the appellant or her father on monthly basis. It would,

however, be open to the appellant or her father to approach the said

Tribunal for release of a larger sum of money, if any requirement arises and

the same is demonstrated to the satisfaction of the Tribunal. Such

application, if filed, shall be considered by the Tribunal on the facts

obtaining and in accordance with law.

The appeal is allowed to the extent indicated above.

Parties shall bear their own costs.

..…………………..,J (SANJIV KHANNA)

.…………………..,J (SANJAY KUMAR)

November 5, 2024;

New Delhi.

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