Vikas. vs Sachida Nand Dubey & Others
2011 Latest Caselaw 4296 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 02.09.2011

+             MAC APPEAL No. 793/2011

VIKAS.                                         ...........Appellant
                         Through:    Mr. Manish Maini, Advocate.

                   Versus

SACHIDA NAND DUBEY & OTHERS                      ..........Respondents
                 Through: Nemo


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. The Award impugned is the Award dated 25.04.2011

whereby a total compensation of Rs.1,93,000/- had been awarded

in favour of the petitioner/injured who was a child victim. The

victim i.e. master Vikas had sustained injuries on 17.08.2006 in an

accident; oral and documentary evidence was led; the aforenoted

amount had been awarded in favour of the petitioner.

2. This appeal has been impugned on the following three

grounds; it is stated that the „loss of matrimonial prospects‟,

„permanent disability‟ suffered by the petitioner as also the

notional income calculated at Rs.15,000/- per annum was on

wrong premise; even if minimum wages criteria would have been

applied, the income of the child would have been more than

Rs.3,000/- per month, the impugned Award not having being dealt

with this contention in the right perspective and holding that the

petitioner is entitled only to Rs.15,000/- per annum which was

notified in the second Schedule in the year 1994; impugned Award

suffers from an infirmity and is liable to be set aside.

3. The facts are not in dispute. It is not in dispute that master

Vikas was aged 9 years on the date of accident. Claim Petition had

been filed under Section 166 of the Motor Vehicle Act. In the case

of R.K. Malik and another Vs. V. Kiran Pal and others AIR 2009 SC

2506, guidelines have been laid down by the Apex Court to award

compensation in the case of a child victim. This was a death case;

notional income of Rs.15,000/- per annum was taken to be the

criteria for children under 15 years of age; by adhering to this

figure as contained in the second Schedule of the Motor Vehicles

Act to which the correct multiplier of 15 was applied; this has

been correctly considered by the Tribunal; taking notional income

of Rs.15,000/- per annum, the multiplier of 15 has been applied

and after giving the benefit of 50% disability which has been

suffered by the victim (having been suffered a crush injuries on

his left leg and traumatic compound fracture of the distal end

tibia) the figure of `15,000/-X15 further multiplied by 50/100; the

Apex Court in JT (2010) 13 SC 38 Raj Kumar Vs. Ajay Kumar had

laid down the formula for assessment of compensation payable in

a case of permanent disability. In the instant case, disability

suffered by the child victim was 50%. A sum of Rs.1,12,000/- has

been awarded on account of this disability suffered by the

petitioner; this was on account of the future prospects which have

been curtailed of the petitioner.

4. The Award has also awarded a sum of `8,500/- for the

medical expenses incurred by the victim; this was in view of the

bills which have been filed on record which were in the sum of

`8,402.48 paise. Compensation for „pain and sufferings‟ and „loss

of amenities‟ has been awarded @ `15,000/-; „special diet and

conveyance‟ has been awarded in the sum of `7,000/-; `50,000/-

has been awarded for „loss of childhood play‟. These factors had

been factored after going through the injuries which had been

suffered by the victim; 50% disability had been noted in the right

lower limb and this was evidenced in the testimony of PW-1 who

had also deposed that skin grafting of the right lower limb had

also been required; there was a partial loss of squatting also

because of a stiff ankle. All these factors were rightly considered

in the correct perspective keeping in view the guidelines laid

down by the Apex Court in the case of R.K. Malik (Supra) and the

judgment of Raj Kumar (Supra). Submission of learned counsel for

the petitioner that separate amounts under the head of

„permanent disability‟ and „loss of matrimonial prospects‟ has not

been considered is thus of no consequence as the impugned

award has taken into account the „loss of earning capacity of the

child due to disability‟ for which a sum of `1,12,000/- has been

awarded; as noted supra for „loss of childhood play‟ `50,000/- has

been awarded; these are covered by the heads now pleaded i.e.

„loss of matrimonial prospects‟ and „permanent disability‟ and

merely because there is a juxtaposition of words and phrases

which are covered by a different phraseology it does not mean

that the petitioner would be entitled to compensation under

separate heads on these counts again. In case a separate head is

made for „loss of matrimonial prospects‟ and „permanent

disability‟ it would definitely overlap the compensation awarded

under the heads of "loss of earning capacity due to disability" and

„loss of childhood play‟.

5. In the case of child a victim minimum wages have not to be

taken into account and this has been held by the Apex Court in the

case of R.K. Malik (Supra). In these circumstances, notional

income @ `15,000/- per annum was rightly applied; impugned

Award suffers from no infirmity.

6. Dismissed.

INDERMEET KAUR, J.

SEPTEMBER 02, 2011 a