Gujarat High Court

Niranjankumar Girishbhai Patel vs Babubhai Hirabhai Vathela on 3 July, 2023

Bench: Gita Gopi

     C/FA/2708/2022                               JUDGMENT DATED: 03/07/2023




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2708 of 2022

FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
===============================================
   Whether Reporters of Local Papers may be allowed
 1                                                  NO
   to see the judgment ?
 2 To be referred to the Reporter or not ?                                NO
   Whether their Lordships wish to see the fair copy of
 3                                                      NO
   the judgment ?
   Whether this case involves a substantial question of
 4 law as to the interpretation of the Constitution of  NO
   India or any order made thereunder ?
===============================================
          NIRANJANKUMAR GIRISHBHAI PATEL
                             Versus
              BABUBHAI HIRABHAI VATHELA
=================================================
Appearance:
MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 2
NOTICE UNSERVED for the Defendant(s) No. 1
=================================================

CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 03/07/2023

                            ORAL JUDGMENT

1. Admit. Learned advocate Mr. Maulik Shelat waives service

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for the respondent No. 3 - insurance company. Though served,

none appears for the respondent No. 2 and the notice to the

respondent No. 1 has remained unserved. Nonetheless, the

respondent Nos. 1 an 2 had not appeared before the learned Tribunal

also.

2. Considering the controversy involved in the matter, with the

consent of the learned advocates for the parties present, the appeal is

taken up for final hearing today.

3. This is an appeal under Section 173 of the Motor Vehicles Act,

1988 arising out of the judgment and award dated 29.11.2011

rendered by the learned Motor Accident Claims Tribunal

(Auxiliary), Banaskantha at Deesa (the Tribunal) in Motor Accident

Claim Petition No. 3 of 2013 (claim petition), whereby, the Tribunal

was pleased to dismiss the said claim petition.

4. The present appeal is filed by the appellant - original injured

claimant inter alia contending that the Tribunal has erred in

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dismissing the claim petition merely on the ground of technical error

which had cropped up in the claim petition as well as in the

deposition of the appellant - claimant, exh. 21 qua the registration

number of the offending vehicle, which was wrongly mentioned as

'GJ-8-M-7583' instead of 'GJ-8-N-7583', while the Tribunal has not

considered the fact that the accident had occurred by motorcycle

bearing registration No. 'GJ-8-N-7583', as is evident from the FIR,

exh. 22, Panchnama, exh. 23 and the RC Book, exh. 39.

4.1 Another ground which has been raised is that, there was a

typographical error in the name of the appellant, as was mentioned

as 'Niranjan Kumar Girishbhai Patel', instead of 'Niraj

Girishkumar Patel', which could be verified from the Voter ID Card

of the appellant, produced vide exh. 38 and that, the respondent -

insurance company had not raised any specific defence in the

Written Statement regarding non-involvement of the vehicle in

question and that the Tribunal ought not to have dismissed the claim

petition on the ground of minor discrepancy.

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5. Learned advocate Mr. Vishal C. Mehta for the appellant -

injured claimant has submitted that when the claim petition was

filed, the appellant - claimant was a minor, aged about 15 years and

the claim petition was filed by his father. There was an error in the

middle series of the vehicle number where, instead of 'N', in the

claim petition as well as in the deposition of the appellant -

claimant, it was typed as ''M', while, in the FIR and in the

Panchnama, the middle series is mentioned as 'N'. The learned

advocate for the appellant submits that the owner of the vehicle

being GJ-8-N-7583 was joined as opponent No. 2 and the driver,

involved in the accident, was joined as opponent No. 1 in the claim

petition and none of them had denied the involvement of the vehicle

as the claim petition was proceeded ex parte.

6. Countering the arguments, learned advocate Mr. Maulik J.

Shelat for the respondent - insurance company submitted that the

father of the appellant - claimant had no personal knowledge about

the vehicle involved in the accident and as per his FIR, he had

received the information of the vehicle from the crowd, which fact

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itself is stated in the FIR. He further stated that the father, as a

guardian, was required to be vigilant in giving instructions for

drafting the claim petition and further, the claimant, after attaining

majority, has given his deposition, who himself could have prayed

for amendment in the plaint and could have given deposition

accordingly. He submitted that, now, the insurance company would

have to suffer because of the negligence on the part of the claimant.

7. Having heard the learned advocates for the respective parties

and perusing the impugned judgment and award, it appears that the

Tribunal has rejected the claim petition observing that the claimant

apparently failed to prove the facts and issues. Further, it is

observed that the issue of injury also became suspicious and

doubtful as the claimant and his father had failed to convince the

Tribunal about the involvement of the actual vehicle in the alleged

accident and who was actually injured due to the alleged vehicle and

thus, the Tribunal has come to the conclusion that the issues

remained under ambiguity and thus, it also became doubtful that the

injuries sustained to the claimant were actually on account of the

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accident.

7.1 The Tribunal, while reaching to the conclusion, has referred to

the discrepancy in the middle series of the vehicle number where, in

the claim petition as well as in the deposition of the claimant, the

claimant has referred the number of the motorcycle involved in the

accident as 'GJ-8-M-7583', while, in the FIR as well as in the

Panchnama, which are supported by the RC Book and the Insurance

Policy, the motorcycle number referred is 'GJ-8-N-7583'. In the

opinion of this Court, in case of any doubt and/or suspicion, the

learned Tribunal could have invited the information under Form 54

and could, on its own, call the Investigating Officer to verify the

facts. The only difference which could be found is about series

number in the registration number of the offending vehicle, where,

in the claim petition it was noted as 'GJ-8-M-7583', while actually,

in the FIR, Insurance Policy and in the RC Book, the same reflects

as 'GJ-8-N-7583'. This discrepancy cannot be considered as major

so as to effect the fundamental cause for claiming the compensation

where, the Tribunal could have invited the claimant to make

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amendment in the claim petition by actually verifying the series

number. The respondent Nos. 1 and 2 - original opponent Nos. 1

and 2 had not preferred to appear before the Tribunal nor the facts

had been contradicted. They were ordered to be proceeded ex parte.

7.2 Another, ground, which was raised by the Tribunal was the

name of the minor. The father of the appellant had referred him as

'Niranjan Kumar', while actually, the Tribunal has noted that in

Voter ID card, exh. 38, the name of the injured claimant is

mentioned as 'Patel Niraj Girishbhai'. In the opinion of this Court,

the said fact could have been self verified by the Tribunal. It is

pertinent to note here that, the Tribunal has mentioned the said

document viz. Voter ID Card to be 'Aadhar Card' in the impugned

judgment and award.

7.3 The learned advocate for the appellant has submitted that,

while filing the deposition affidavit, the injured claimant has written

his actual and real name i.e. 'Patel Niraj Girishbhai'. The Tribunal

should have placed reliance on the deposition then to the name in the

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claim petition. The Tribunal, in the impugned judgment and award,

has reflected the affidavit of the claimant, exh. 21, which is of 'Niraj

Girishkumar Patel'. It was on record, there would, thereby, be no

discrepancy in the name as has been supported by the Voter ID Card,

exh. 38. The observations, which are made by the Tribunal in the

impugned judgment and award for dismissal of the claim petition of

a minor, where those discrepancies could have been verified and

confirmed on the documents placed on record themselves i.e. RC

Book and the insurance policy and the Tribunal could have removed

the suspicion and doubt by reading the documents produced on

record, moresowhen, it was a case of a minor injured. The Tribunal

ought not to have taken such a technical view which itself is not

significant as the documents from the police or by way of Form 54

or the documents, as produced on record, were self explanatory.

7.4 At this juncture, it would be apposite to refer to the decision of

the Apex Court in Jai Prakash v. M/s. National Insurance Co. Ltd.

and Ors., (2010) 2 SCC 607, wherein, it is held as under:

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"4. The third problem relates to the procedural delays in adjudication/settlement of claims by Motor Accidents Claims Tribunals (for short `Tribunals') and consequential hardship to the victims and their families. In cases where the accident victim dies, the family - usually the widow and children - loses its sole bread winner and are virtually driven to the streets. Many a time, the widow and children are forced to take up unaccustomed manual labour for their survival, the children foregoing their education. Payment of compensation without delay will help them to sustain themselves and pick up the threads to live with dignity.

4.1) Most of the accident victims (who are injured) are not able to access quality medical treatment for want of funds, as their earning capacity is either permanently lost or is put on hold on account of the injuries. They get the compensation only after the treatment and after a contested trial. Many a time lack of treatment or inadequate treatment for want of funds, itself converts what could have been a temporary disability into permanent disability for the victim, thereby increasing the compensation payable. The Insurance Companies know full well that timely payment of compensation or timely better treatment of the victims can ultimately reduce the quantum of compensation payable by them. The insurance companies also know that they will have to ultimately reimburse the cost of medical treatment of the accident victim with interest. But still they fail to extend timely aid to the injured victims, but wait for the injured to file a claim petition, after completing the treatment at his own cost.

4.2) The Legislature tried to reduce the period of pendency of claim cases and quicken the process of determination of compensation by making two significant changes in the Act, by Amendment Act 54 of 1994, making it mandatory for registration of a motor accident claim within one month of receipt of first information of the accident, without the claimants having to file a claim petition. Sub-section (6) of section 158 of the Act provides:

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"As soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer-in-charge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and insurer".

Sub-section (4) of Section 166 of the Act reads thus:- "The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section 158 as an application for compensation under this Act".

Rule 150 of Central Motor Vehicle Rules, 1989 prescribes the form (No.54) of the Police Report required to be submitted under section 158(6) of the Act.

4.3) This Court in General Insurance Council v. State of A.P. [2007 (12) SCC 354] emphasised the need for implementing the aforesaid provisions. This Court directed:

"It is, therefore, directed that all the State Governments and the Union Territories shall instruct all police officers concerned about the need to comply with the requirement of Section 158(6) keeping in view the requirement indicated in Rule 150 and in Form 54, Central Motor Vehicles Rules, 1989. Periodical checking shall be done by the Inspector General of Police concerned to ensure that the requirements are being complied with. In case there is non-compliance, appropriate action shall be taken against the erring officials. The Department of Road Transport and

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Highways shall make periodical verification to ensure that action is being taken and in case of any deviation immediately bring the same to the notice of the State Governments/Union Territories concerned so that necessary action can be taken against the officials concerned."

4.4) But unfortunately neither the police nor the Motor Accidents Claims Tribunals have made any effort to implement these mandatory provisions of the Act. If these provisions are faithfully and effectively implemented, it will be possible for the victims of accident and/or their families to get compensation, in a span of few months. There is, therefore, an urgent need for the concerned police authorities and Tribunals to follow the mandate of these provisions.

Problem (iv)

5. Courts have always been concerned that the full compensation amount does not reach and benefit the victims and their families, particularly those who are uneducated, ignorant, or not worldly-wise. Unless there are built-in safeguards they may be deprived of the benefit of compensation which may be the sole source of their future sustenance. This court has time and again insisted upon measures to ensure that the compensation amount is appropriately invested and protected and not frittered away owing to ignorance, illiteracy and susceptibility to exploitation. [See Union Carbide Corporation v. Union of India - 1991 (4) SCC 584 and General Manager, Kerala State Road Transport Corporation v. Susamma Thomas - 1994 (2) SCC 176]. But in spite of the directions in these cases, the position continues to be far from unsatisfactory and in many cases unscrupulous relatives, agents and touts are taking away a big chunk of the compensation, by ingenious methods. Reports of Amicus Curiae

6. In this background, to find some solutions, on 9.9.2008,

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this Court requested Shri Gopal Subramaniam, to assist the Court as Amicus Curiae. The learned amicus curiae with his usual thoroughness and commitment has examined the issues and submitted a series of reports and has also made several suggestions for consideration. He has also referred to and relied on a series of zealous directions issued by a learned Single Judge of the Delhi High Court to expedite and streamline the adjudication of motor vehicle claims and disbursement of compensation.

7. Having considered the nature of the problems and taking note of the several suggestions made by the learned Amicus Curiae and after hearing, we propose to issue a set of directions to the police authorities and Claims Tribunals. We also propose to make some suggestions for implementation by Insurance Companies and some suggestions for the consideration of the Parliament and the Central Government. Directions to Police Authorities

8. The Director General of Police of each State is directed to instruct all Police Stations in his State to comply with the provisions of Section 158(6) of the Act. For this purpose, the following steps will have to be taken by the Station House Officers of the jurisdictional police stations: (i) Accident Information Report in Form No. 54 of the Central Motor Vehicle Rules,1989 (`AIR' for short) shall be submitted by the police (Station House Officer) to the jurisdictional Motor Vehicle Claims Tribunal, within 30 days of the registration of the FIR. In addition to the particulars required to be furnished in Form No. 54, the police should also collect and furnish the following additional particulars in the AIR to the Tribunal: (i) The age of the victims at the time of accident; (ii) The income of the victim; (iii) The names and ages of the dependent family members. (ii) The AIR shall be accompanied by the attested copies of the FIR, site sketch/mahazar/photographs of the place of occurrence, driving licence of the driver, insurance policy (and if necessary, fitness certificate) of the vehicle and postmortem report (in case of death) or the Injury/Wound

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certificate (in the case of injuries). The names/addresses of injured or dependent family members of the deceased should also be furnished to the Tribunal. (iii) Simultaneously, copy of the AIR with annexures thereto shall be furnished to the concerned insurance company to enable the Insurer to process the claim. (iv) The police shall notify the first date of hearing fixed by the Tribunal to the victim (injured) or the family of the victim (in case of death) and the driver, owner and insurer. If so directed by the Tribunal, the police may secure their presence on the first date of hearing.

9. To avoid any administrative difficulties in immediate implementation of sections 158(6) of the Act, we permit such implementation to be carried out in three stages. In the first stage, all police stations/claims Tribunals in the NCT Region and State Capital regions shall implement the provisions by end of April 2010. In the second stage, all the police stations/claims Tribunals in district headquarters regions shall implement the provisions by the end of August 2010. In the third stage, all police stations/Claims Tribunals shall implement the provisions by the end of December, 2010. The Director Generals shall ensure that necessary forms and infrastructural support is made available to give effect to Section 158 (6) of the Act.

10. Section 196 of the Act provides that whoever drives a motor vehicle or causes or allows a motor vehicle to be driven in contravention of the provisions of Section 146 shall be punishable with imprisonment which may be extended to three months, or with fine which may extend to Rs. 1000/-, or with both. Though the statute requires prosecution of the driver and owner of uninsured vehicles, this is seldom done. Thereby a valuable deterrent is ignored. We therefore direct the Director Generals to issue instructions to prosecute drivers and owners of uninsured vehicles under Section 196 of the Act.

11. The Transport Department, Health Department and

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other concerned departments shall extend necessary co- operation to the Director-Generals to give effect to Section 158 (6).

Directions to the Claims Tribunals

12. The Registrar General of each High Court is directed to instruct all Claims Tribunals in his State to register the reports of accidents receive under Section 158 (6) of the Act as applications for compensation under Section 166 (4) of the Act and deal with them without waiting for the filing of claim applications by the injured or by the family of the deceased. The Registrar General shall ensure that necessary Registers, forms and other support is extended to the Tribunal to give effect to Section 166 (4) of the Act.

13. For complying with section 166(4) of the Act, the jurisdictional Motor Accident Claims Tribunals shall initiate the following steps:

(a) The Tribunal shall maintain an Institution Register for recording the AIRs which are received from the Station House Officers of the Police Stations and register them as miscellaneous petitions. If any private claim petitions are directly filed with reference to an AIR, they should also be recorded in the Register.

(b) The Tribunal shall list the AIRs as miscellaneous petitions. It shall fix a date for preliminary hearing so as to enable the police to notify such date to the victim (family of victim in the event of death) and the owner, driver and insurer of the vehicle involved in the accident. Once the claimant/s appear, the miscellaneous application shall be converted to claim petition. Where a claimant/s file the claim petition even before the receipt of the AIR by the Tribunal, the AIR may be tagged to the claim petition.

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(c) The Tribunal shall enquire and satisfy itself that the AIR relates to a real accident and is not the result of any collusion and fabrication of an accident (by any `Police Officer - Advocate - Doctor' nexus, which has come to light in several cases).

(d) The Tribunal shall by a summary enquiry ascertain the dependent family members/legal heirs. The jurisdictional police shall also enquire and submit the names of the dependent legal heirs.

(e) The Tribunal shall categories the claim cases registered, into those where the insurer disputes liability and those where the insurer does not dispute the liability.

(f) Wherever the insurer does not dispute the liability under the policy, the Tribunal shall make an endeavour to determine the compensation amount by a summary enquiry or refer the matter to the Lok Adalat for settlement, so as to dispose of the claim petition itself, within a time frame not exceeding six months from the date of registration of the claim petition.

(g) The insurance companies shall be directed to deposit the admitted amount or the amount determined, with the claims tribunals within 30 days of determination. The Tribunals should ensure that the compensation amount is kept in Fixed deposit and disbursed as per the directions contained in General Manager, KSRTC v. Susamma Thomas [1994 (2) SCC 176].

(h) As the proceedings initiated in pursuance of Section 158(6) and 166(4) of the Act, are different in nature from an application by the victim/s under Section 166(1) of the Act, Section 170 will not apply. The insurers will therefore be entitled to assist the Tribunal

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(either independently or with the owners of the vehicles) to verify the correctness in regard to the accident, injuries, age, income and dependents of the deceased victim and in determining the quantum of compensation.

14. The aforesaid directions to the Tribunals are without prejudice to the discretion of each Tribunal to follow such summary procedure as it deems fit as provided under Section 169 of the Act. Many Tribunals instead of holding an inquiry into the claim by following suitable summary procedure, as mandated by Section 168 and 169 of the Act, tend to conduct motor accident cases like regular civil suits. This should be avoided. The Tribunal shall take an active role in deciding and expeditious disposal of the applications for compensation and make effective use of Section 165 of the Evidence Act, 1872, to determine the just compensation.

SUGGESTIONS FOR INSURANCE COMPANIES

15. In cases of death, where the liability of the insurer is not disputed, the insurance companies should, without waiting for the decision of the Motor Accidents Claims Tribunal or a settlement before the Lok Adalat, endeavour to pay to the family (Legal representatives) of the deceased, compensation as per the standard formula determined by the decisions of this Court.

16. In cases of injuries to any accident victim, where the liability is not disputed, the insurer should offer treatment at its cost to the injured, without waiting for an award of the Tribunal. If insurance companies can meet the bills for treatment of those who have taken a medical insurance policy, we see no reason why they should not extend a similar treatment to the accident victims of vehicles insured with them.

17. In countries like United Kingdom, the percentage of motor accident claims, with reference to the accidents is very

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low. This is because immediately after being notified of the accident, the insurer makes its own enquiries and satisfies itself about its liability and voluntarily assesses and pays the compensation to the victim. Only where the insurer denies the claim or where the victim is not satisfied with the quantum of compensation paid, the matter goes to court. There is no reason why insurance companies in India should not adopt such a procedure. In death cases, the calculation of compensation is now standardized by several decisions of this court [See for example: Sarla Verma v. Delhi Transport Corporation - 2009 (6) SCC 121]. The insurers can either by relying upon the police report (AIR) or by enquiring with the family or the employer of the deceased, ascertain the three inputs required for calculation of the compensation, that is, age of the deceased, income of the deceased and number of dependent family members. With these particulars, the insurers can easily calculate the compensation and offer a compensation, either a lump sum or an annuity. Similarly in cases of injuries, the insurers can offer treatment in hospitals approved by it and meet the expenses or pay the bills, or if the victim has already undergone the treatment, reimburse the cost of treatment. It can also reimburse other items of special damages, the damages for pain suffering, which is also standardized in several decisions of this Court. By such voluntary payment there will be all round benefits. The insurers save interest and litigation cost and discharge their obligation to the society. The victims will be relieved from financial hardship and benefit from timely effective treatment. Burden on courts will be reduced and judicial man power can be diverted to more complex cases."

7.5 Yet in another decision in Mohar Sai and Anr. v. Gayatri

Devi and Ors., rendered in Civil Appeal No. 8411 of 2011 on

27.04.2018, the Apex Court has observed as under:

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"8.....However, it is well settled that in motor accident claim cases, the Court cannot adopt a hyper-technical approach but has to discharge the role of parens partiae."

...emphasis supplied

7.6 The Tribunal has erred in not considering the examination-in-

chief, exh. 21 wherein, the claimant has referred his name as ''Niraj

Girishkumar Patel'. He has stated that on the date of accident i.e.

12.08.2010 in the morning, when he was going to school by walking

on the road near Gayatri temple, a motorcycle driver came in full

speed and dashed with him and because of his negligence and

rashness, the accident had occurred. In the deposition, he has

referred to the motorcycle number as 'GJ-8-M-7583'. The only

error in writing the registration number is of the middle series i.e.

'M' where, actually, on record, it is 'N'. In cross-examination, no

such issue was raised by the insurance company; the accident has not

been denied in the cross-examination; the driver and the owner of

the vehicle i.e. GJ-8-N-7583 were made party respondents in the

claim petition. The Tribunal has observed that the matter was

proceeded ex parte against the opponent Nos. 1 and 2 but on perusal

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of the claim petition, exh. 1, no such order of proceeding ex parte

against the opponent Nos. 1 and 2 appears to have been passed. In

the Written Statement filed by the insurance company vide exh. 37,

the insurance company has denied any accident due to the

negligence of driver of vehicle bearing registration No. GJ-8-M-

7583 but the injured claimant was not contradicted by any such

suggestion. The accident has not been denied.

7.7 In the deposition, the injured has stated that due to the

accident, he had suffered fracture in his legs and had also sustained

various injuries on the other parts of the body. He was immediately

rushed to Deesa in Dr. Mehul Modh's Hospital, where, he was

operated and according to him, because of the fracture and various

injuries, he had sustained permanent partial disability. Exh. 25 is the

Certificate issued by Sagar Orthopaedic Hospital, Palanpur, wherein,

disability assessed was 16%, while, in the D.E. List, exh. 19, the

insurance company has admitted 7% disability for the body as a

whole. The claimant also appears to have consented to consider the

disability of 7% for the body as a whole and since, no other vehicle

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was involved, considering the fact that the accident had not been

denied by the opponent Nos. 1 and 2 and relying on the FIR,

Panchnama, RC Book and the insurance policy of vehicle being GJ-

8-N-7583 is proved on record, the Tribunal ought to have proceeded

accordingly, which is not the case.

7.8 As both the parties herein have consented to consider the

disability at 7% for the body as a whole, the appellant - claimant

being minor at the relevant point of time, following the decision of

the Apex Court in Master Mallikarjun v. Divisional Manager, The

National Insurance Company Limited & Anr., AIR 2014 SC 736,

the compensation is required to be granted. In the said decision, the

Apex Court has observed 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. As held by this Court in R.D. Hattangadi v. Pest Control (India) Pvt. Ltd. and Ors. MANU/SC/0146/1995 : (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

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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 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."

xxx

"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

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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 of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents."

7.9 In view of the parameters laid down in the aforesaid decision

in Master Mallikarjun (supra), upto 10% permanent disability, the

appellant herein - original claimant, minor at the relevant time, is

entitled to compensation of Rs.1 lakh. Further, the appellant -

claimant had incurred Rs.8,441/- towards medical expenses for

which also, he is entitled to.

8. For the foregoing discussion and reasons, this appeal succeeds

and is accordingly, allowed in part. The impugned judgment and

award in this appeal, is hereby, set aside. The appellant - claimant is

held to be entitled to compensation of Rs.1,08,441/- with interest at

the rate of 7.5 per annum from the date of claim petition till

realization, from the respondents herein, jointly and severally. The