published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40696
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.
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.
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 |Rs.4,000/- |
|expenses. | |
|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 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 Others[1],
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 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 Another[2] 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 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 Another[4],
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 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 |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 and loss |Rs.25,000/- |
|of earnings to the parents during | |
|the period of hospitalization. | |
|Medical and incidental expenses |Rs.25,000/- |
|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/- |
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.
(GYAN SUDHA MISRA)
.……..……………………J.
(KURIAN JOSEPH)
New Delhi;
August 26, 2013.
-----------------------
[1] (1995) 1 SCC 551
[2] (2008) 7 SCC 613
[3] 2004 ACJ 1396
[4] JT 2013 (3) SC 311
-----------------------
REPORTABLE
-----------------------
8
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.
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.
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 |Rs.4,000/- |
|expenses. | |
|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 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 Others[1],
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 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 Another[2] 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 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 Another[4],
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 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 |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 and loss |Rs.25,000/- |
|of earnings to the parents during | |
|the period of hospitalization. | |
|Medical and incidental expenses |Rs.25,000/- |
|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/- |
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.
(GYAN SUDHA MISRA)
.……..……………………J.
(KURIAN JOSEPH)
New Delhi;
August 26, 2013.
-----------------------
[1] (1995) 1 SCC 551
[2] (2008) 7 SCC 613
[3] 2004 ACJ 1396
[4] JT 2013 (3) SC 311
-----------------------
REPORTABLE
-----------------------
8
