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Rajasthan High Court · body

2019 DIGILAW 2977 (RAJ)

Mohammed Hussain v. Balkishan Alias Balkrishan

2019-12-12

PRAKASH GUPTA

body2019
JUDGMENT Prakash Gupta, J. - This appeal for enhancement of compensation is directed against the judgment and award dated 16.01.2019 passed by the Motor Accident Claims Tribunal, Additional District and Sessions Judge No.01, Koshangarh, District Ajmer (for short 'the Tribunal'), whereby, the Tribunal awarded a sum of Rs.3,99,946/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition. 2. Learned counsel for the appellant has submitted that amount of compensation granted by the Tribunal was on the lower side. The appellant was aged about 5 years at the time of accident which occurred on 24.10.2015. The appellant had suffered permanent physical disability to the extent of 60%. However, the Tribunal had only granted Rs.3,99,946/- which requires enhancement. In support of his arguments, learned counsel has placed reliance on the judgment of Hon'ble Apex Court in Kumari Kiran Thr. her father Harinarayan Vs. Sajjan Singh & Ors.,2015 1 RAR 87(SC) . 3. On the other hand, learned counsel for the respondent No.3-Insurance Company has opposed the appeal and submitted that the sufficient compensation has already been awarded by the Tribunal. 4. I have considered the rival submissions made by the learned counsel for the parties and perused the material available on record. 5. In Kumari Kiran through her father Harinarayan (supra) Hon'ble Apex Court while dealing with its earlier judgment in case of Master Mallikarjun Vs. Divisional Manger, the National Insurance Company Limited & Another has observed as under:- "With regard to the appellant-minors 12. With respect to compensation towards future loss of income due to permanent disability for appellant-minors, we refer to the case of Master Mallikarjun v. Divisional Manager, the National Insurance Company Limited & Anr.4, wherein this Court held as under:- "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. 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 v. Pest Control (India) Pvt. Ltd. and Ors., (1995) 1 SCC 551 , 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 nonpecuniary 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 4 AIR 2014 SC 736 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. (Emphasis laid by this Court)" The Tribunal has calculated the future loss of income by taking the notional income of each the appellant-minor as Rs.15,000/- per annum. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation, etc. (Emphasis laid by this Court)" The Tribunal has calculated the future loss of income by taking the notional income of each the appellant-minor as Rs.15,000/- per annum. We are of the considered view that a child's notional income cannot be ascertained as per the figure given for a non- 3 earning individuals in the second schedule of the Motor Vehicles Act, 1988. As the Tribunal and the High Court have not followed the principles laid down by this Court in the above case by awarding loss of future income due to permanent disability, therefore, we set aside the same. Further, reiterating the same principles as held in Master Mallikarjun's case (supra), we award Rs.1,00,000/- each towards shock, pain and suffering (non-pecuniary head) in place of loss of future income due to permanent disability. Further, in Master Mallikarjun case (supra) with respect to compensation for permanent disability this Court held thus:- "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 Rs.1 lakh, unless there are exceptional circumstances to take different yardstick..." Hence, this Court in accordance with the principles laid down by this Court in the above case (supra), 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. 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. Further, upon considering the age of appellant minors, they have a long journey ahead of them in their lives, during which they along with their parents will have to endure an immeasurable amount of agony and uncertain medical expenses due to this motor-vehicle accident. Thus, based on the principles laid down in the above case, we award Rs.25,000/- each towards agony to parents and Rs.25,000/- each towards future medical expenses. " x x x x x x x x x x 20. In the result, the appellants shall be entitled to compensation under the different heads as per the following table: Particulars Kumari Kiran Master Sachin Harinarayan 1. 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 of parents Rs. 25,000/- Rs. 25,000/- - 4. Medical Expenses Rs. 69,844/- Rs. 84,876/- Rs. 1,86,154/- 5. Attendant Rs. 9,000/- Rs. 9,000/- Rs. 9,000/- 6. Transportation Rs. 5,000/- Rs. 5,000/- Rs. 5,000/- 7. Special Diet and Nutrition Rs. 10,000/- Rs. 10,000/- Rs. 10,000/- 8. Permanent Disability/loss of amenities Rs. 3,00,000/- Rs. 3,00,000/- Rs. 50,000/- 9. Future Medical Expenses Rs. 25,000/ Rs. 25,000/- - Total Rs. 5,43,844/- Rs. 5,58,876/- Rs. 5,80,154/- Thus, the total compensation payable to all the appellants by the respondent Insurance Company will be as per the total amount indicated in the preceding table with interest @ 9% from the date of filing of the application till the date of payment." 6. The claim-petition had been filed by the appellant under Section 166 of the Motor Vehicle Act, 1988 (for short "the Act of 1988) seeking compensation on account of injuries sustained by him in the motor vehicle accident which occurred on 24.10.2015. As per the permanent disability certificate (Ex.16) the appellant had suffered permanent physical disability to the extent of 60%. Therefore, in view of judgment given in Kumari Kiran through her father Harinarayan (supra), the appellant is entitled to receive Rs.4,00,000/- towards permanent disability/loss of amenities. The amount awarded towards other heads is maintained. Thus, the total amount of compensation receivable by the appellant-claimant comes to Rs.5,29,946/- (400000+100000+4500+25446). 7. Accordingly, this appeal is partly allowed. Therefore, in view of judgment given in Kumari Kiran through her father Harinarayan (supra), the appellant is entitled to receive Rs.4,00,000/- towards permanent disability/loss of amenities. The amount awarded towards other heads is maintained. Thus, the total amount of compensation receivable by the appellant-claimant comes to Rs.5,29,946/- (400000+100000+4500+25446). 7. Accordingly, this appeal is partly allowed. Impugned award dated 16.01.2019 is modified to the extent that the compensation amount receivable by the appellant is Rs.5,29,946/- instead of Rs.3,99,946/- as awarded by the Tribunal. Remaining terms and conditions of the award shall be the same. The Insurance Company shall deposit the enhanced amount along with the interest @ 6% per annum from the date of filing of the claim petition till date of payment with the Tribunal within a period of two months from today. It is ordered that the enhanced amount of the compensation shall be invested in fixed deposit receipt with a nationalised bank for a period of 2 years and the interest accrued thereon shall be paid to the appellant on monthly basis.