• Ms. Neelangini Tiwari

Kajal vs Jagdish Chand (2020 Latest Caselaw 114 SC)

CASE

Kajal vs Jagdish Chand


CITATION

2020 Latest Caselaw 114 SC


CORAM

Supreme Court of India

Division Bench - L. Nageswara Rao and Deepak Gupta, JJ.


ALSO KNOWN AS

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POINT OF CONSIDERATION

Access to compensation due to damage caused by accident, true to the extent of the damage is promised under Motor Vehicle Act, 1988, Section 168.


FACTS

  1. Kajal was a bright young girl. She used to attend school, play with her friends and lead a normal life like any other child. Unfortunately, on 18 th October, 2007, while Kajal was travelling on a tractor with her parents, the tractor was hit by a truck which was driven rashly. In the said accident, Kajal suffered serious injuries resulting in damage to her brain. This has had very serious consequences on her.

  2. She was examined at the Post Graduate Institute of Medical Education and Research, Chandigarh (PGI, Chandigarh for short), for assessment of her disability. According to the said report, because of head injury Kajal is left with a very low I.Q. and severe weakness in all her four limbs, suffers from severe hysteria and severe urinary incontinence. Her disability has been assessed as 100%.

  3. Dr. Chhabra (PW4), who was one of the members of the Board which issued the disability certificate (Ex.P6) stated that as per the assessment her I.Q. is less than 20% of a child of her age and her social age is only of a 9 month old child. This means that Kajal 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.

  4. The Motor Accident Claims Tribunal (MACT for short) awarded Rs.11,08,501/- and held that since there was violation of the terms of policy the insurance company would pay the amount but would be entitled to recover the same from the owner. The High Court enhanced the award amount to Rs.25,78,501/under the following heads:

ISSUES RAISED & RATIO


  • Proper compensation for the Expenses relating to treatment, hospitalization, medicines, transportation etc. were not paid on the account that few bills did not contain patient’s name. Was this action justified?

- The High Court under the two heads of medical treatment and transport has awarded Rs.1,88,501/-. Out of this an amount of Rs.1,38,501/- is the actual expense incurred on the treatment of Kajal. One must remember that amongst people who are not Government employees and belong to the poorer strata of society, bills are not retained.

- There is no dispute with regard to the long period of treatment and hospitalisation of this young girl. Immediately after the accident on 18.10.2007, she was admitted at a hospital in Karnal. From there, she was referred to the PGI, Chandigarh, where she remained admitted from 21.10.2007 till 12.11.2007 and, thereafter, she was again admitted in the hospital from 12.11.2007 till 08.12.2007. She was in the hospital for almost 51 days, and both Dr. Sameer Aggarwal (PW-3) from the hospital at Karnal and Dr. Rajesh Chhabra (PW-4), from PGI, Chandigarh, have supported this.

- Limiting the amount only to the bills which have been paid in the name of the claimant only, would not be reasonable. Therefore, the amount payable for actual medical expenses is increased from Rs.1,38,501/- to Rs.2,00,000/-. The amount awarded for transportation at Rs.50,000/- is reasonable. Therefore, under this head we award Rs.2,50,000/-.


  • Both the courts below have not taken into account the future prospects that the appellant could have achieved if the accident did not happen. Without taking that into consideration, is the notional amount of Rs. 15000/- per annum for compensation of loss of earnings justifiable?

- This young girl after studying could have worked and would have earned much more than Rs.15,000/- per annum. the minimum wages payable to a skilled workman is Rs.4846/- per month. The SC held that this would be the minimum amount which she would have earned on becoming a major. Adding 40% for the future prospects, it works to be Rs.6784.40/- per month, i.e., 81,412.80 per annum. Applying the multiplier of 18 it works out to Rs.14,65,430.40, which is rounded off to Rs.14,66,000/-

- According to the SC, the attendees of the claimant who stayed with her during her days at the hospital shall also be compensated for the loss of wages they incurred during that time and the expenses they might have had like food, accommodation, etc. during this period. In the hospital the claimant would have had at least two attendants, and taking the cost of each at Rs.500/- per day for 51 days, SC awarded her Rs.51,000/-.


  • The attendant charges have been awarded by the High Court @ Rs.2,500/- per month for 44 years, which works out to Rs.13,20,000/-. In this case as the claimant has lost severe amount of body function and has no control on her faeces and urinal discharge, is this amount justified?

- The system used by the HC to determine attendant charges is not a proper system. When compensation is awarded in lump sum, various factors are taken into consideration. When compensation is paid in lump sum, Supreme Court has always followed the multiplier system as it takes into account the various factors such as inflation, the rate of interest payable etc.

- The appellant is severely suffering from incontinence meaning that she does not have control over her bodily functions like passing urine and faeces. As Kajal 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.

- Taking the claimants age into account the SC holds that value of multiplier should be 18 not 44. The claimant has placed before us a notification of the State of Haryana of the year 2010, wherein the wages for skilled labourer is Rs.4846/- per month. SC, therefore, assess the cost of one attendant at Rs.5,000/- and she will require two attendants which works out to Rs.10,000/- per month, which comes to Rs.1,20,000/- per annum, and using the multiplier of 18 it works out to Rs.21,60,000/- for attendant charges for her entire life.


  • Whether the non-pecuniary damages awarded by the HC justified?

- Coming to the non-pecuniary damages under the head of pain, suffering, loss of amenities, the High Court has awarded this girl only Rs.3,00,000/-. In Mallikarjun v. Divisional Manager, The National Insurance Company Limited and Ors. 2013 (10) SCALE 668, this Court while dealing with the issue of award under this head held that it should be at least Rs.6,00,000/-, if the disability is more than 90%. As far as the present case is concerned, in addition to the 100% physical disability the young girl is suffering from severe incontinence, she is suffering from severe hysteria and above all she is left with a brain of a nine-month-old child. This is a case where departure has to be made from the normal rule and the pain and suffering suffered by this child is such that no amount of compensation can compensate.

- 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. While awarding this amount The SC took following into account - the physical disability and the mental disability and various other factors like this child will remain bed-ridden for life. Her mental age will be that of a nine-month-old child. Effectively, while her body grows, she will remain a small baby. We are dealing with a girl who will physically become a woman but will mentally remain a 9-month-old child. 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. Hers is a vegetable existence. Therefore, an amount payable for the pain and suffering of this child should be at least Rs.15,00,000/-.


  • How should the compensation be invested?

- The amount payable to the minors should not be normally released. These guidelines held under in General Manager, Kerala State Road Transport Corporation, Trivandrum v. Susamma Thomas and Ors. (1994) 2 SCC 176

- KAJAL v. JAGDISH CHAND & ORS are to protect the rights of the minors, claimants who are under some disability and also widows and illiterate person who may be deprived of the compensation paid to them in lump sum by unscrupulous elements. These victims may not be able to invest their monies properly and in such cases the MACT as well the High courts must ensure that investments are made in nationalised banks to get a high rate of interest. The interest in most cases is sufficient to cover the monthly expenses. In special cases, for reasons to be given in writing, the MACT or the trial court may release such amount as is required.

- The Supreme Court reiterated these guidelines and directed that they should be followed by all the tribunals and High Courts to ensure that the money of the victims is not frittered away.

- However, said that responsible Governments are required to respect the freedom of the press at all times. Journalists are to be accommodated in reporting and there is no justification for allowing a sword of Damocles to hang over the press indefinitely.

  • What is to be done about the interest to be paid on the compensation amount?

- Section 171 of the Act reads as follows:

171. Award of interest where any claim is allowed. — Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf. Therefore, SC directed that the entire amount of compensation including the amount enhanced by us shall carry an interest of 7.5% per annum from the date of filing of the claim petition till payment/deposit of the amount.

  • Since the amount awarded is higher than the amount claimed, can the respondent make an appeal?

- It is well settled law that 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.



IMPORTANT CASES REFERRED

  1. K. Suresh V. New India Assurance Co.Ltd

  2. R.D. Hattangadi V. Pest Control (India) Pvt. Ltd

  3. Concord Of India Insurance Co Ltd. V. Nirmala Devi And Ors.

  4. Gobald Motor Service Ltd. & Another V. R. M. K. Veluswami & Others


The author is a Bsc (Statistics) student at Kirori Mal College, University of Delhi.

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