Judgement of the day: Kajal v. Jagdish Chand & Ors.

FACTS OF THE CASE:

On 18th 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. She was examined at the Post Graduate Institute of Medical Education and Research, Chandigarh for assessment of her disability. According to the said report, because of head injury Kajal was left with a very low I.Q. and severe weakness in all her four limbs, suffered from severe hysteria and severe urinary incontinence. Her disability had been assessed as 100%. Dr. Chhabra (PW4), who was one of the members of the Board which issued the disability certificate (Ex.P 6) 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. Kajal through her father filed a claim petition, under the Act. The Motor Accident Claims Tribunal (MACT) 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/-. Aggrieved by the award the claimant reached the Supreme Court.


ISSUE:

Whether the compensation provided by the High Court to the claimant is just and reasonable.


JUDGEMENT:

The Hon’ble Supreme Court observed that:

Injuries cause deprivation to the body which entitles the claimant to claim damages. The damages may vary according to the gravity of the injuries sustained by the claimant in an accident. On account of the injuries, the claimant may suffer consequential losses such as (i) loss of earning; (ii) expenses on treatment which may include medical expenses, transportation, special diet, attendant charges etc., (iii) loss or diminution to the pleasures of life by loss of a particular part of the body, and (iv) loss of future earning capacity. Damages can be pecuniary as well as non pecuniary, but all have to be assessed in Rupees and Paise.


It is impossible to equate human suffering and personal deprivation with money. However, this is what the Motor Vehicles Act, 1988 enjoins upon the courts to do. The court has to make a judicious attempt to award damages, so as to compensate the claimant for the loss suffered by the victim. On the one hand, the compensation should not be assessed very conservatively, but on the other hand, compensation should also not be assessed in so liberal a fashion so as to make it a bounty to the claimant. The court while assessing the compensation should have regard to the degree of deprivation and the loss caused by such deprivation. Such compensation is what is termed as just compensation. The compensation or damages assessed for personal injuries should be substantial to compensate the injured for the deprivation suffered by the injured throughout his/her life. They should not be just token damages.

The assessment of damages in personal injury cases raises great difficulties. It is not easy to convert the physical and mental loss into monetary terms. There has to be a measure of calculated guess work and conjecture. An assessment, as best as can, in the circumstances, should be made.


One must remember that amongst people who are not Government employees and belong to the poorer strata of society, bills are not retained. Limiting the amount only to the bills which have been paid in the name of the claimant only, would not be reasonable.


The tortfeasor cannot take benefit of the gratuitous service rendered by the family members.


The multiplier system should be followed not only for determining the compensation on account of loss of income but also for determining the attendant charges etc. The multiplier system factors in the inflation rate, the rate of interest payable on the lump sum award, the longevity of the claimant, and also other issues such as the uncertainties of life. Out of all the various alternative methods, the multiplier method has been recognised as the most realistic and reasonable method. It ensures better justice between the parties and thus results in award of ‘just compensation’ within the meaning of the Motor Vehicles Act, 1988.


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.


Normally interest should be granted from the date of filing of the petition and if in appeal enhancement is made the interest should again be from the date of filing of the petition. It is only if the appeal is filed after an inordinate delay by the claimants, or the decision of the case has been delayed on account of negligence of the claimant, in such exceptional cases the interest may be awarded from a later date. However, while doing so, the tribunals/High Courts must give reasons why interest is not being paid from the date of filing of the petition.


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.

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