Master Mallikarjun v. Divisional Manager, the National Insurance Company Limited & Anr.

Judgment

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7139 of 2013. From the Judgment & Order datd 9.07.2010 of the High Court of Karnataka at Bangalore in M.F.A. No. 1146 of 2008 (M.V.) V.N. Raghupathy for the Appellant. S.L. Gupta, Ram Ashray, Shyam Sunder Gupta, Shalu Sharma, Rajesh Mahale, Krutin R. Joshi for the Respondents. The Judgment of the Court was delivered by KURIAN, J.

1Leave granted.

2What is the just and fair compensation to be awarded to a child, who suffered disability in a motor accident, is the main point arising for consideration in t~is case. THE UNDISPUTED FACTS

3Appellant at the age of 12 years was hit by a motorcycle on 05.06.2006. He suffered the following injuries: - (Right) lower 1/3 leg deformity, movements restricted diagnosis of fracture. Two abrasions over left elbow posteriorly over olecrenon both measuring 4x1 ems. Abrasion over dorsal aspect right hand at the basis of index finger.

4Negligence of the rider was proved. The child was treated as inpatient from 05.06.2006 to 01.08.2006, for 58 days. He was operated on 24.06.2006. Six months after the discharge, he was seen by the doctor on 15.02.2007 for follow up. It is in evidence that the patient had the following discomforts/ disabilities, i.e.: Patient walks with limp on to the right side. ii. Puckered scar on and aspect of middle 1/3 of (Right) leg with operated scar on either side. iii. Shortening of right lower limb by 1.5 ems. iv. Limitation of right knee movements by 30 %. MASTER MALLIKARJUN v. DIVINL. MGR., NATIONAL 273 INS. COMPANY LIMITED [KURIAN, J.] Muscle power around right knee Gr.IV against Gr.V. vi. Limitation of right ankle movement by 20%. vii. Muscle power around (right) ankle is Gr. IV against Gr.V. viii. Check X ray No. 3791 dated 15.02.2007 shows disunited fracture of right tibia with plate and screw fixation in situ. Mal union fracture of right tibia.

5The surgeon had assessed the disability to the extent of 34% of right lower limb and 18% to the whole body.

6The Motor Accidents Claims Tribunal in a petition filed claiming compensation to the tune of Rs.4,00,000/-, awarded compensation to the tune of Rs.63,500/- under the following heads:- HEAD COMPENSATION AMOUNl Pain and suffering. Rs.25,000/- Inconvenience caused to parents. Rs.10,000/- Medical expenses. Rs.4,500/- Loss of future amenities. Rs.10,000/- Conveyance, food nourishment. Rs.4,000/- expenses Future surgery. Rs.10,000/- TOTAL:- Rs.63,500/-

7On approaching the High Court, the compensation was enhanced to Rs.1,09,500/-. The enhancement was mainly under the head "Loss of future amenities" wherein the appellant was awarded Rs.50,000/-. Appellant still not satisfied, filed this Special Leave Petition.

8It is unfortunate that both the Tribunal and the High Court A h.ave not properly appreciated the medical evidence available in the case. The age of the child and deformities on his body resulting in disability, have not been duly taken note of. As held by this Court in R.D. Hattangadi vs. Mis. Pest Control (India) Pvt. Ltd. and Others1, while assessing the non-pecuniary B damages, the damages for mental and physical shock, pain and suffering already suffered and that are likely to be suffered, any future damages for the loss of amenities in life like difficulty in running, participation in active sports, etc., damages on account of inconvenience, hardship, discomfort, c disappointment, frustration, etc., have to be addressed especially in the case of a child victim. For a child, the best part of his life is yet to come.

While considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the Second Schedule to the Motor Vehicles Act 0 for reasons more than one. The main stress in .the formula is on pecuniary damages. For children there is no income. The only indication in the Second Schedule for non-earning persons is to take the notional income as Rs.15,000/- per year. A child cannot be equated to such a non-earning person. Therefore, the compensation is to be worked out under the non-pecuniary E heads in addition to the actual amounts incurred for treatment done and/or to be done, transportation, assistance of attendant, etc. The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs.

The F compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. Appropriate compensation for disability should take care of all the non-pecuniary damages. In other words, apart G from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation, etc.

9Sapna vs. United Indian Insurance Company Limited H 1. (1995)1SCC551. MASTER MALLIKARJUN v. DIVINL. MGR., NATIONAL 275 INS. COMPANY LIMITED rKURIAN, J.] and Anothe~ is the case of a 12 year old girl who suffered 90% disability in her left leg. This Court granted a lump sum amount of Rs.2,00,000/- on these heads.

10In lranna vs. Mohammadali Khadarsab Mui/a and Another, a Division Bench of the Karnataka High Court granted an amount of Rs.4,00,000/- on these heads to the child who suffered 80% permanent disability.

11In Kum. Michael vs. Regional Manager, Oriental Insurance Company Limited and Another4, this Court considered the case of an eight year old child suffering a fracture on both legs with total disability only to the tune of 16%. It was held that the child should be entitled to an amount of Rs.3,80,000/- on these counts.

12Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows: - 2. (2008) 1 sec 613. 3. 2004 ACJ 1396.

4. JT 2013 (3) SC 311. SUPREM:: COURT REPORTS [2013] 8 $.C.R. HEAD COMPENSATION AMOUN1 Pain and suffering already Rs.3,00,000/- undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, and discomforts, etc., and loss of amenities in life on account of permanent disability. Discomfort, inconvenience Rs.25,000/- and loss of earnings to the parents during the period of hospitalization. Medical and incidental Rs.25,000/- expenses during the period of hospitalization for 58 days. Future medical expenses for Rs.25,000/- correction of the mal union of fracture and incidental expenses for such treatment. TOTAL:- Rs.3,75,000/-

13The impugned judgment of the High Court in M.F.A. No. 1146 of 2008 is accordingly modified. The claimant will be entitled to a total compensation of Rs.3, 75,000/- along with interest @ 6% per annum from the date of the petition. First respondent - Insurance Company is directed to deposit the enhanced compensation with interest as above within two months from today. On such deposit, it will be open to the appellant to approach the Tribunal for appropriate orders on withdrawal. The appeal is allowed as above.

14There is no order as to costs. B.B.B. Appeal allowed.