MASTER MALLIKARJUN Vs DIVNL.MGR.NATIONAL INS.CO.LTD.
Bench: GYAN SUDHA MISRA,KURIAN JOSEPH
Case number: C.A. No.-007139-007139 / 2013
Diary number: 36664 / 2011
Advocates: V. N. RAGHUPATHY Vs
SHALU SHARMA
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7139 OF 2013 [Arising out of S.L.P.(Civil) No. 1676 of 2012]
Master Mallikarjun … Appellant (s)
Versus
Divisional Manager, the National Insurance Company Limited & Anr. … Respondent (s)
J U D G M E N T
KURIAN, J.:
Leave granted.
2. 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
3. Appellant at the age of 12 years was hit by a
motorcycle on 05.06.2006. He suffered the following
injuries: -
a. (Right) lower 1/3 leg deformity, movements restricted diagnosis of fracture.
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b. Two abrasions over left elbow posteriorly over olecrenon both measuring 4x1 cms.
c. Abrasion over dorsal aspect right hand at the basis of index finger.
4. Negligence 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.:
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 cms.
iv.Limitation of right knee movements by 30 %.
v. 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.
5. The surgeon had assessed the disability to the extent
of 34% of right lower limb and 18% to the whole body.
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6. 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.4,500/- Loss of future amenities. Rs.10,000/- Conveyance, food nourishment expenses.
Rs.4,000/-
Future surgery. Rs.10,000/- TOTAL:- Rs.63,500/-
7. On 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.
8. It is unfortunate that both the Tribunal and the High
Court have not properly appreciated the medical
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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. M/s. Pest Control (India) Pvt.
Ltd. and Others1, 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. 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
1 (1995) 1 SCC 551
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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. 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 vs. United Indian Insurance Company
Limited and Another2 is the case of a 12 year old girl
who suffered 90% disability in her left leg. This Court
2 (2008) 7 SCC 613
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granted a lump sum amount of Rs.2,00,000/- on these
heads.
10. In Iranna vs. Mohammadali Khadarsab Mulla and
Another 3 , 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 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.
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
3 2004 ACJ 1396 4 JT 2013 (3) SC 311
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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: -
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
Rs.25,000/-
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hospitalization.
Medical and incidental expenses during the period of hospitalization 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/-
13. The 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.
14. There is no order as to costs.
…………….….. …………J.
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(GYAN SUDHA
MISRA)
.…….. ……………………J.
(KURIAN JOSEPH)
New Delhi; August 26, 2013.
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