Kurian Joseph, J.— Leave granted. What 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 this case.
The undisputed facts
2. The appellant at the age of 12 years was hit by a motorcycle on 5-6-2006. He suffered the following injuries:
(a) Right lower 1/3 leg deformity, movements restricted diagnosis of fracture.
(b) Two abrasions over left elbow posteriorly over olecranon both measuring 4 × 1 cm.
(c) Abrasion over dorsal aspect right hand at the base of index finger.
3. The negligence of the rider was proved. The child was treated as inpatient from 5-6-2006 to 1-8-2006, for 58 days. He was operated on 24-6-2006. Six months after the discharge, he was seen by the doctor on 15-2-2007 for follow up. It is in evidence that the patient had the following discomforts/disabilities i.e:
(i) 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 cm.
(iv) Limitation of right knee movements by 30%.
(v) Muscle power around right knee Grade IV against Grade V.
(vi) Limitation of right ankle movement by 20%.
(vii) Muscle power around (right) ankle is Grade IV against Grade V.
(viii) Check X-ray No. 3791 dated 15-2-2007 shows disunited fracture of right tibia with plate and screw fixation in situ. Mal union fracture of right tibia.
4. The surgeon had assessed the disability to the extent of 34% of right lower limb and 18% to the whole body.
5. The 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 amount Pain and suffering Rs 25,000 Inconvenience caused to parents Rs 10,000 Medical expenses Rs 4500 Loss of future amenities Rs 10,000 Conveyance, food nourishment expenses Rs 4000 Future surgery Rs 10,000 Total Rs 63,500
6. On approaching the High Court MFA No. 1146 of 2008, 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. The appellant still not satisfied, filed this special leave petition.
7. It is unfortunate that both the Tribunal and the High Court have 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 v. Pest Control (India) (P) Ltd. (1995) 1 SCC 551, while assessing the non-pecuniary 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, 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.
8. 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 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 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 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. The appropriate compensation for disability should take care of all the non-pecuniary damages. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation, etc.
9. Sapna v. United India Insurance Co. Ltd. (2008) 7 SCC 613 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.
10. In Iranna v. Mohammadali Khadarsab Mulla 2004 ACJ 1396 (Kar), 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.
11. In Michael v. Oriental Insurance Co. Ltd. (2013) 14 SCC 774, JT (2013) 3 SC 311, 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.
12. Though 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 up to 30% to the whole body, Rs 3 lakhs; up to 60%, Rs 4 lakhs; up to 90%, Rs 5 lakhs and above 90%, it should be Rs 6 lakhs. For permanent disability up to 10%, it should be Rs 1 lakh, unless there are exceptional circumstances to take a different yardstick.
13. In the instant case, the disability is to the tune of 18%. The appellant had a longer period of hospitalisation 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:
Head Compensation amount Pain and suffering already 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. Rs 3,00,000 Discomfort, inconvenience and loss of earnings to the parents during the period of hospitalisation. Rs 25,000 Medical and incidental expenses during the period of hospitalisation for 58 days. Rs 25,000 Future medical expenses for correction of the mal union of fracture and incidental expenses for such treatment. Rs 25,000 Total Rs 3,75,000
14. The impugned judgment of the High Court in Mallikarjun v. Vasantha Kumar MFA 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% p.a from the date of the petition. The first respondent, the 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.
15. The appeal is allowed as above. There is no order as to costs.
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