Kanika Nagpal @ Jinni v. National Insurance Co. Ltd.
2017-10-10
SERVESH KUMAR GUPTA
body2017
DigiLaw.ai
JUDGMENT : Servesh Kumar Gupta, J. - By means of this appeal the judgment and order dated 20.01.2016 rendered by the Tribunal/II Addl. District Judge, Udham Singh Nagar has been challenged particularly being dissatisfied on the quantum of award as has been granted in the impugned judgment. 2. Having heard, it transpires that the accident occurred on 06.02.2010 at around 01:00 PM when Km. Kanika Nagpal, aged about 10 years, was dashed by the Truck No. UA-AM-9423 in the territorial jurisdiction of district Udham Singh Nagar and as a consequence thereof she was badly injured and taken to the Agrasen hospital at Rudrapur (district headquarter), from where she was shifted to Ram Murti Medical College/Hospital at Bareilly and still further to Sir Ganga Ram hospital at New Delhi (a very-very advance medical center in the national capital), where she remained hospitalized w.e.f. 07.02.2010 to 23.02.2010 i.e. for 17 days. She underwent a long treatment in the hospital as well as thereafter on arrival at her native place to live with her parents. 3. In this whole medical exercise, her right leg was surgically operated and ultimately had become 2 to 3 inch shorter than the normal size. The claim compensation petition was presented on 25.8.2010 by Ms. Kanika Nagpal through her father which has been allowed by the court below granting the compensation to the tune of Rs. 4,86,484/- Such is the amount which the father of the injured was bound to incur during the treatment of his daughter in Sir Ganga Ram hospital alone. So, the grievance is that nothing has been considered by the Tribunal towards the medical expenses incurred in the Agrasen hospital, Ram Murti Medical College at Bareilly and even after bringing the daughter Kanika Nagpal to reside with the parents and pursue her career with this deformity and disability. 4. I am of the view that in such matters no calculative formula can be evolved but all niceties can be observed through a number of factors which can be evaluated from the lower court record. The photograph 23ga/5 of this ill fated girl child is enough to show that on account of this accident, she suffered the grave mental agony and her parents too were constrained for running from pillar to post for the betterment of their minor daughter. 5.
The photograph 23ga/5 of this ill fated girl child is enough to show that on account of this accident, she suffered the grave mental agony and her parents too were constrained for running from pillar to post for the betterment of their minor daughter. 5. The view has been expressed by the Hon'ble Apex Court in similar matters in the case of Master Mallikarjun vs. Divisional Manager, The National Insurance Co. Ltd. & Anr. reported in AIR 2014 Supreme Court 736. It would be worthwhile to reproduce the excerpts of such judgment as under: 8. 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. 6. 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. 7.
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. 7. 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. Various papers are enough to show that she was incapacitated atleast by 10 percent to her right leg and some later time remained hospitalized in Sita Ram Bhartiya Institute of Science and Research w.e.f 09.6.2011 to 10.6.2011. 8. It has been argued by the learned counsel of the respondent/Insurance Company that neither in the pleadings nor in the oral testimony such Institute has been referred anywhere. I feel that in the motor accident claim cases the requirement to prove a particular fact is not on the same yardstick as is needed for a criminal or a civil case and applying the principals under the Indian Evidence Act so strictly. If the papers of a reputed institute are produced in order to show prima facie genuineness then I think such papers should have acceptability. 9. I redetermine the compensation as under: 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/deformity. Discomfort, inconvenience Rs. 2,00,000/- and loss of earnings to the parents during the period of hospitalization and running from pillar to post. Expenses incurred for the same. Medical and incidental Rs. 4,86,484/- expenses during the period of hospitalization Future medical expenses for Rs.
and loss of amenities in life on account of permanent disability/deformity. Discomfort, inconvenience Rs. 2,00,000/- and loss of earnings to the parents during the period of hospitalization and running from pillar to post. Expenses incurred for the same. Medical and incidental Rs. 4,86,484/- expenses during the period of hospitalization Future medical expenses for Rs. 1,00,000/- correction of the mal union of fracture and incidental expenses for such treatment Total 10,86,484/- All this amount shall be exigible from the Insurance Company along with 6% per annum from the date of the petition till the amount is actually paid. Amount already deposited shall be adjusted.