Minor Jignesh Somaji Marwadi (Bhil) vs Rajubhai Mangaji Thakor

Gita Gopi, J

The minor claimant, aged about 5 years through the guardian and next friend, had filed MACP no.699/16 owing to the injuries sustained in a vehicular accident which had occurred on 29.2.2016. The injured minor was walking on the road and at that time, the motorcycle bearing registration no.GJ-7 BD-1418 came in an excessive speed in a rash and negligent manner and hit the minor and as a result sustained serious injuries including the fracture. The learned Tribunal on consideration of the facts on record and appreciating the documents to the extent had held opponent no.1 driver of the motorcycle solely negligent for the accident.

Ms. Pooja Hotchandani, learned advocate for the appellant stated that the minor suffered serious injuries and parents had expended a lot for the treatment of the child and the learned Tribunal awarded an amount of Rs.75,000/- towards medical expenses. The disability certificate was produced at Exh.48 and the Doctor had opined of 7% permanent partial impediment in relation to the body as a whole and since the consent purshis at Exh.47 was moved to consider 5% disability for the body as a whole, the learned Tribunal has accepted the same. Ms. Hotchandani submitted that the learned Tribunal was required to grant the compensation in accordance to the judgment in the case of Master Mallikarjun Vs. Divisional Manager, The National Insurance Company Limited & Anr., reported in AIR 2014 SC 736, wherein the yardstick has been laid down to compensate the minor injured.

Mr. Karia, learned advocate for the respondent no.3 – insurance Company stated that the learned Tribunal has granted Rs.75,000/- for medical expenses and amount under the head of pain, shock and suffering, special diet, attendant and transportation and for future economic loss has been assessed and had been granted in accordance to the evidence and thus, submitted that the compensation amount granted is just and reasonable.

In the case of Master Mallikarjun (supra), it has been observed by the Hon'ble Apex Court, while considering the claim by a victim child, has categorically held that it would be unfair and improper to follow the structured formula as per the Second Schedule to the MV Act for more than one reasons. The relevant observations are as under:-

“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.

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.”

It has been brought to the notice that the yardstick which has been laid in the case of Master Mallikarjun (supra) has not been followed by the Tribunal. In Paragraph 12 of the judgment, the Hon'ble Apex Court has laid down the slab to be followed in the case of minor sustaining permanent disability.

“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 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.”

Since the injury of the minor is assessed as 5% for the body as a whole and the disability comes below 10% and in accordance to the decision in the case of Master Mallikarjun (supra) upto 10% permanent disability, the claimants could be granted Rs.1,00,000/-. Accordingly, in the present case, the minor claimant is required to be compensated. The medical expenses is also required to be granted and the amount expended by the parents under the special diet, attendant and transportation as assessed is Rs.7,000/- by the Tribunal, which is required to be affirmed. Thus, the compensation would be as under:-

Rs.1,00,000/-

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.75,000/-

Medical expenses

Rs.7,000/-

Special diet, attendant and transportation

= Rs.1,82,000/-

Total compensation

As the Tribunal has granted compensation of Rs.1,08,000/- with interest at the rate of 7.5% per annum, the appellant-original claimant would be entitled to the enhanced amount of compensation of Rs.74,000/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. The insurance Company is directed to deposit the said amount within eight weeks from the date of receipt of writ of this Court.

The impugned judgment and award be modified accordingly. The appeal is partly allowed. Registry is directed to send the record and proceedings back to the Tribunal, if received.