MASTER MALLIKARJUNversusDIVISIONAL MANAGER, THE NATIONAL INSURANCE COMPANY LIMITED & ANR.

                         [2013] 8 S.C.R. 268


A                     MASTER MALLIKARJUN
                                   v.
      DIVISIONAL MANAGER, THE NATIONAL INSURANCE
                 COMPANY LIMITED & ANR.
               (Civil Appeal No. 7139 of 2013)

B                         AUGUST 26, 2013

      [GYAN SUDHA MISRA AND KURIAN JOSEPH, JJ.]

        Motor Vehicles Act, 1988 - s.166 - Compensation claim
c - By child victim who suffered disability in a motor accident -
    Held: 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 - The main
    stress in the formula is on pecuniary damages - For children
D   there is no income - Only indication in the Second Schedule
    for non-earning persons is to take the notional income as
    Rs. 15, 0001- per year - A child cannot be equated to such a
    non-earning person - Therefore, compensation is to be worked
    out under the non-pecuniary heads in addition to the actual
E   amounts incurred for treatment done and/or to be done,
    transportation, assistance of attendant, etc. - Main elements
    of damage in case of child victims are 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
F   a lifestyle which will offset to some extent the inconvenience
    or discomfort arising out of the disability - In case of children
    suffering disability on account of a motor vehicle accident,
    appropriate compensation on all other heads in addition to
    the actual expenditure for treatment, attendant, etc., should
G   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

H                                 268
     MASTER MALLIKARJUN v. DIVINL. MGR., NATIONAL 269
               INS. COMPANY LIMITED

    exceptional circumstances to take different yardstick - In the     A
    instant case, the disability was to the tune of 18% -- Appellant
    had a longer period of hospitalization for about two months
    causing a/so inconvenience and loss of earning to the parents
    -Appellant, hence, would be entitled to get total compensation
    of Rs.3, 75,0001-along with interest@ 6% per annum from the        B
    date of the petition.

          The appellant, a 12 year old child, was hit by a
    motorcycle. He suffered various injuries. The surgeon
    assessed·the disability of appellant to the extent of 34%          C
    of right lower limb and 18% to the whole body. The Motor
    Accidents Claims Tribunal in a petition filed by appellant
    claiming compensation to the tune of Rs.4,00,000/-,
    awarded compensation of Rs.63,500/-.The High Court
    enhanced the compensation to Rs.1,09,500/. Appellant
    still not satisfied, came before this Court.                       D

         What is the just and fair compensation to be awarded
    to a child, who suffered disability in a motor accident, was
    the main point arising for consideration in the instant
    appeal.                                                            E

         Allowing the appeal, the Court

         HELD: 1.1. 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           F
    deformities on his body resulting in disability, have not
    been duly taken note of. 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          G
    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
                                                                       H



l
    270     SUPREME COURT REPORTS              [2013] 8 S.C.R.


A 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
B 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
c 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
0
    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
E 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. [Para 8] [274-A-G]

F      1.2. 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, the
G 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
H
MASTER MALLIKARJUN v. DIVINL. MGR., NATIONAL 271
          INS. COMPANY LIMITED
lakhs. For permanent disability upto 10%, it should be            A
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             B
appellant, hence, would be entitled to get total
compensation of Rs.3,75,000/-.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. [Para 12 and 13] (275-D-G; 276-F-G]                     c
    R.D. Hattangadi vs. Mis. Pest Control (India) Pvt. Ltd. and
Others (1995) 1 sec 551: 1995 (1) SCR 75 - relied on.

    Sapna vs. United Indian Insurance Company Limited and
Another (2008) 7 SCC 613: 2008 (8) SCR 791; lranna vs.            D
Mohammadali Khadarsab Mui/a and Another 2004 ACJ
1396 and Kum. Michael vs. Regional Manager, Oriental
Insurance Company Limited and Another JT 2013 (3) SC
311 - referred to.
                                                                  E
                     Case Law Reference:
    1995 (1) SCR 75           relied on             Para 8
    2008 (8) SCR 791          referred to           Para 9
    2004 ACJ 1396             referred to           Para 10       F
    JT 2013 (3) SC 311        referred to           Para 11
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7139 of 2013.
                                                                  G
    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.
                                                                  H
    272           SUPREME COURT REPORTS              [2013] 8 S.C.R.


A       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. 1. Leave granted.
B
         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 t~is case.

C 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
D                  restricted diagnosis of fracture.

           b.      Two abrasions over left elbow posteriorly over
                   olecrenon both measuring 4x1 ems.

           c.      Abrasion over dorsal aspect right hand at the basis
E                  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
F 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.

G          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 %.
H
MASTER MALLIKARJUN v. DIVINL. MGR., NATIONAL 273
     INS. COMPANY LIMITED [KURIAN, J.]
     v.      Muscle power around right knee Gr.IV against Gr.V.       A

     vi.     Limitation of right ankle movement by 20%.

     vii.    Muscle power around (right) ankle is Gr. IV against
             Gr.V.
                                                                      B
     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         C
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:-                                                               D

HEAD                               COMPENSATION AMOUNl

Pain and suffering.                         Rs.25,000/-
Inconvenience caused to parents.            Rs.10,000/-               E
Medical expenses.                           Rs.4,500/-
Loss of future amenities.                   Rs.10,000/-
Conveyance, food nourishment.               Rs.4,000/-
 expenses                                                             F
Future surgery.                             Rs.10,000/-

TOTAL:-                                     Rs.63,500/-

     7. On approaching the High Court, the compensation was           G
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   H
    274       SUPREME COURT REPORTS                  [2013] 8 S.C.R.


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
    for reasons more than one. The main stress in .the formula is
0
    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.

          9. Sapna 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%            A
disability in her left leg. This Court granted a lump sum amount
of Rs.2,00,000/- on these heads.

     10. In 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                B
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                C
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           D
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         E
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   F
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: -
                                                                          G


2.   (2008) 1 sec 613.
3.   2004 ACJ 1396.
4.   JT 2013 (3) SC 311.
                                                                          H
    276       SUPREM:: COURT REPORTS            [2013] 8 $.C.R.


A    HEAD                            COMPENSATION AMOUN1

    Pain and suffering already                 Rs.3,00,000/-
    undergone and to be
    suffered in future, mental
    and physical shock,
B   hardship, inconvenience,
    and discomforts, etc., and
    loss of amenities in life on
    account of permanent
    disability.
c   Discomfort, inconvenience                  Rs.25,000/-
    and loss of earnings to the
    parents during the period of
    hospitalization.
    Medical and incidental                     Rs.25,000/-
D
    expenses during the period of
    hospitalization for 58 days.
    Future medical expenses for                Rs.25,000/-
    correction of the mal union of
E   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.
F 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
G 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.

H   B.B.B.                                       Appeal allowed.