Appropriate compensation for disability should take care of all the non-pecuniary damages of a minor: Rajasthan High Court

 on 17 01 2021 at 07:18:00 PM HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPURS.B. Civil Miscellaneous Appeal No. 5421 2018HDFC Ergo General Insurance Company Ltd. through Manager Branch Office Plot No. 711 4 K.C. Complex Fourth Floor Daulatbagh Ajmerhaving its Local Office at Office No. 2 Third Floor C 99 Singhvi Upasana Tower Shubhash Marg C Scheme Jaipur Through its Constituted Attorney Non Claimant AppellantVersus1. Khushi D o Shri Kishore Lal Verma Aged About 14 Years B c Koli R o Plot No. 306 34 Gurjar Tiba Nagra DistrictAjmerMinor Through Natural Guardian Father ShriKishorlal Sharma2. Abid Khan S o Shri Hameed Khan B c Pathan R o NayiAbadi Patwariya Road Garoth District Mandsor(Driver Of Truck No. RJ 33 Ga 2056)3. Abhishek Patidar S o Shri Rajendra Kumar Patidar R oBhanipura Road Tehsil Garoth District Mandsor(Owner Of Truck No. RJ 33 GA 2056) Non Claimants RespondentsConnected WithS.B. Civil Miscellaneous Appeal No. 1074 2019Khushi D o Shri Kishor Lal Verma Aged About 14 Years B c KoliR o Plot No. 306 34 Gurjar Teeba Nagra District Ajmer(Vehicle Owner)3. HDFC Ergo General Insurance Company Limited ThroughManager Branch Office Plot No. 711 4 K.C. ComplexFourth Floor Daulatbag AjmerRespondents[CMA 5421 2018]For Insurance Co.: Mr. Virendra Agarwal Advocatewhereby the Tribunal awarded asum of Rs. 6 68 820 as compensation in favour of the claimant.One Appeal S.B. Civil Misc. Appeal No. 5421 2018 has been filedby the Insurance Co. for modification of the judgment and awarddated 4.9.2018 whereas another appeal S.B. Civil Misc. AppealNo. 1074 2019 has been filed by the claimant for enhancement ofcompensation. Alongwith the appeal no. 1074 2019 an applicationunder Section 5 of the Limitation Act has also been filed. The saidapplication is allowed for the reasons mentioned therein and thedelay of 49 days in filing the appeal is condoned. Claimant through her father filed a claim petition underSection 166 of the Motor Vehicles Act 1988 seeking compensationon account of the injuries sustained by her in the motor vehicleaccident which occurred on 1.7.2014. At the very outset learned counsel for the InsuranceCo. has submitted that claimant was 11 years of age. At the time[CMA 5421 2018]of the accident which took place on 01.07.2014 8 persons weresitting in the Car but none of them was examined except theclaimant. The claimant being minor at the time of accident wasincompetent to depose evidence against the Insurance Co. Theclaimant has failed to examine any eye witness to prove thenegligence of the driver. Testimony of the claimant who is the solewitness being minor cannot be relied upon. He further submitsthat so far as quantum of compensation is concerned theClaimant sustained permanent disability to the extent of 34.35%.However to prove the same the Doctor has not been examined.He further submits that as per the judgment of the Hon ble ApexCourt in the case of Master Mallikarjun Versus Divisional Manager The National Insurance Company Limited reported in4RCR295 if the disability is upto 30% 60% then claimantwould be entitled to Rs. 4.00 lakh as compensation but theTribunal has awarded Rs. 6 68 820 as compensation which is onthe higher side. Hence the impugned judgment and award passedby the Tribunal is required to be modified. On the other hand learned counsel for the claimant hassubmitted that on account of accident which took place on1.7.2014 different claim petitions were filed. In some of the claimpetitions the Insurance Co. entered into compromise and this factis well established from the order sheet dated 9.9.2017 of theTribunal. For this reason the Insurance Co. is estopped fromchallenging the judgment and award passed by the Tribunal on theissue of quantum and liability. He further submits that at the timeof deposition the claimant was 15 years of age. At the time ofrecording her statement she was studying in 11th class. She wasmature and she was cross examined also. Out of the total eight[CMA 5421 2018]passengers who were travelling in the Car seven died andclaimant was the only eye witness who remained alive. From herentire statement it does not appear that she was incompetent togive evidence. In her cross examination no question was askedby the counsel for the Insurance Co. which could show that shewas immature and did not understand the questions properly. Shesustained 34.35% permanent disability which is well proved fromEx. 6 issued by the Medical Board of C.H.C. Sanganer. On accountof these injuries her leg was shortened and she is unable to squatand sit cross legged. However Tribunal granted very meageramount compensation hence the said amount requiresenhancement. In support of his arguments learned counsel hasplaced reliance on the judgment of the Hon’ble Supreme Court in I have considered the rival submissions made by thelearned counsel for the parties.The Hon’ble Apex Court in Kumari Kiran Thr. Herfather Harinarayan Vs. Sajjan Singh & Ors. 2015Pvt.[CMA 5421 2018]Ltd. and Ors.1 SCC551] while assessing thenon pecuniary damages the damages for mental andphysical shock pain and suffering already sufferedand that are likely to be suffered any future damagesfor the loss of amenities in life like difficulty inrunning participation in active sports etc. damageson account of inconvenience hardship discomfort disappointment frustration etc. have to beaddressed especially in the case of a child victim. Fora child the best part of his life is yet to come. Whileconsidering the claim by a victim child it would beunfair and improper to follow the structured formulaas per the Second Schedule to the Motor Vehicles Actfor reasons more than one. The main stress in theformula is on pecuniary damages. For children thereis no income. The only indication in the SecondSchedule for non earning persons is to take thenotional income as Rs.15 000 per year. A childcannot be equated to such a non earning person.Therefore the compensation is to be worked outunder the non pecuniary heads in addition to theactual amounts incurred for treatment done and or tobe done transportation assistance of attendant etc.The main elements of damage in the case of childvictims are the pain shock frustration deprivation ofordinary pleasures and enjoyment associated withhealthy and mobile limbs. The compensation awardedshould enable the child to acquire something or todevelop a lifestyle which will offset to some extent theinconvenience or discomfort arising out of thedisability. Appropriate compensation for disabilityshould take care of all the non pecuniary damages. Inother words apart from this head there shall only bethe claim for the actual expenditure for treatment attendant transportation etc.[CMA 5421 2018]The Tribunal has calculated the future loss of income bytaking the notional income of each the appellant minoras Rs.15 000 per annum. We are of the consideredview that a child’s notional income cannot beascertained as per the figure given for a non earningindividuals in the second schedule of the Motor VehiclesAct 1988. As the Tribunal and the High Court have notfollowed the principles laid down by this Court in theabove case by awarding loss of future income due topermanent disability therefore we set aside the same.Further reiterating the same principles as held inMaster Mallikarjun’s casewe awardRs.1 00 000 each towards shock pain and suffering(non pecuniary head) in place of loss of future incomedue to permanent disability. Further in MasterMallikarjun casewith respect to compensationfor permanent disability this Court held thus: “12. Though it is difficult to have an accurateassessment of the compensation in the case ofchildren suffering disability on account of amotor vehicle accident having regard to therelevant factors precedents and the approachof various High Courts we are of the view thatthe appropriate compensation on all otherheads in addition to the actual expenditure fortreatment attendant etc. should be if thedisability is above 10% and upto 30% to thewhole body Rs.3 lakhs upto 60% Rs.4 lakhs upto 90% Rs.5 lakhs and above 90% it shouldbe Rs.6 lakhs. For permanent disability upto10% it should be Rs.1 lakh unless there areexceptional circumstances to take differentyardstick...”Hence this Court in accordance with the principleslaid down by this Court in the above caseand after examining the facts evidence on record andcircumstances of the case on hand we deem it fit and[CMA 5421 2018]proper to award Rs.3 00 000 towards permanentdisability of the appellant minors viz. Kumari Kiranand Master Sachin since they have suffered 30% and20% permanent disability respectively due to theshortening of their right leg by one inch after theinjuries sustained in the motor accident. Further upon considering the age of appellant minors theyhave a long journey ahead of them in their lives during which they along with their parents will haveto endure an immeasurable amount of agony anduncertain medical expenses due to this motor vehicleaccident. Thus based on the principles laid down inthe above case we award Rs.25 000 each towardsagony to parents and Rs.25 000 each towardsfuture medical expenses. “xxxxxxxxxxx20. As a result the appellants shall be entitled tocompensation under the different heads as per thefollowing table:ParticularsKumari KiranMaster SachinHarinarayan1.Loss of future income due to disability Rs.2 70 000 2.Pain and suffering Rs.1 00 000 Rs.1 00 000 Rs.50 000 3.Agony to parentsRs.25 000 Rs.25 000 4.Medical ExpensesRs.69 844 Rs.84 876 Rs.1 86 154 5.AttendantRs.90 000 Rs.9 000 Rs.9 000 6.TransportationRs.5 00 Rs.5 000 Rs.5 000 7.Special Diet and NutritionRs.10 000 Rs.10 000 Rs.10 000 8.Permanent Disability loss of amenitiesRs.50 000 Rs.50 000 Rs.50 000 9.Future Medical ExpensesRs.25 000 Rs.25 000 TotalRs.5 43 844 Rs.5 58 876 Rs.5 80 154 [CMA 5421 2018]Thus the total compensation payable to all theappellants by the respondent Insurance Company willbe as per the total amount indicated in the precedingtable with interest @ 9% from the date of filing ofthe application till the date of payment.”There is no dispute that the appellant was 15 years oldat the time of recording her statement. The disability certificate(Ex.6) has been issued by the Board of Doctors. Perusal thereofreveals that the appellant had suffered permanent physicaldisability to the extent of 34.35%. It is mentioned in the saidcertificate that due to the injuries sustained by the appellant there is restricted movement of her hips and knee joints rightelbow disability in walking. Rather she is unable to squat & sitcross legged. This permanent disability of 34.35% has been saidto be in relation to whole body. Hence in view of the decisiongiven in Kumari Kiran’s caseappellant was entitled toreceive Rs.4 00 000 towards permanent disability loss ofamenities and was also entitled to receive Rs.1 00 000 towardspain and suffering as the appellant had remained under treatmentfor about 21 days. Thus the appellant was entitled to receiveRs.1 00 000 + Rs.4 00 000 + Rs.4 18 820 towards other heads as awarded by the Tribunal = Rs.9 18 820 .Taking into consideration the fact that in other claimpetitions filed on account of the same accident the Insurance Co.has entered into a compromise age of the claimant at the time[CMA 5421 2018]of recording her statement her statement and more particularlythe fact that out of the eight passengers travelling in the car seven died and claimant only remained alive and she sustainednumber of injuries I find no force in the argument of Mr. VirendraAgarwal that claimant was incompetent to give evidence againstthe Insurance Co. Accordingly the appeal filed the Insurance Co.fails and the same is hereby dismissed. However in view of the facts and circumstances asmentioned above the appeal filed by the claimant is partlyallowed. Impugned award dated 4.09.2018 passed by the Tribunalis modified to the extent that claimant would be entitled to receiveRs.9 18 820 as compensation instead of Rs.6 68 820 asawarded by the Tribunal. Other terms and conditions of the awardshall remain unchanged. The Insurance Company shall deposit theenhanced amount along with interest @ 6% p.a. from the date offiling the claim petition till the date of payment with the tribunalwithin a period of two months from today. The enhanced amountalong with interest shall be invested by the tribunal in fixeddeposit with a nationalised bank for a period of two years and theinterest accrued thereon shall be paid to the claimant on monthlybasis. J.DK 14 15 

Summary: Appropriate compensation for disability should take care of all the non-pecuniary damages. 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. This assertion was made by the Rajasthan High Court Jaipur Bench presided over by J. Prakash Gupta in the case of HDFC Ergo General Insurance Company Ltd., Ajmer vs. Khushi, Abid Khan and Abhishek Patidar [S.B. Civil Miscellaneous Appeal No. 5421/2018] connected with Khushi vs. Abid Khan, Abhishek Patidar and HDFC Ergo General Insurance Company Limited, Ajmer [S.B. Civil Miscellaneous Appeal No. 1074/2019]. In the present case, the claimant was travelling with seven others when their vehicle met with an accident. She was the sole survivor and was 15 years of age when her statement was recorded. She filed for the compensation from the insurance company. The insurance company declining the claim pleaded that she was minor and her statement could not be relied upon. The claimant on the other hand, filed for the enhancement of the amount of compensation which was supposed to be provided by the insurance company to her. The honorable court in the present case declared, “in view of the facts and circumstances, as mentioned above, the appeal filed by the claimant is partly allowed. The claimant would be entitled to receive Rs.9,18,820/- as compensation instead of Rs.6,68,820/- as awarded by the Tribunal. Other terms and conditions of the award shall remain unchanged. The Insurance Company shall deposit the enhanced amount along with interest @ 6% p.a. from the date of filing the claim petition till the date of payment”. The Apex Court in the case Kumari Kiran through her father Harinarayan Vs. Sajjan Singh &amp; Ors. 2015 (1) R.A.R.87 (SC) held, “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.” Hence, this Court in accordance with the principles laid down by this Court and after examining the facts, evidence on record and circumstances of the case on hand, we deem it fit and proper to award Rs.3,00,000/- towards permanent disability of the appellant-minors viz. Kumari Kiran and Master Sachin, since they have suffered 30% and 20% permanent disability respectively, due to the shortening of their right leg by one inch after the injuries sustained in the motor accident.”