JUDGMENT :

Kurian Joseph, J.

1. Leave granted.

2. What is the just and fair compensation to be awarded to a child, who suffered disability in a motor accident, is the main point arising for consideration in this case.

THE UNDISPUTED FACTS

3. Appellant at the age of 12 years was hit by a motorcycle on 05.06.2006. He suffered the following injuries:

a. (Right) lower 1/3 leg deformity, movements restricted diagnosis of fracture.

b. Two abrasions over left elbow posteriorly over olecrenon both measuring 4x1 cms.

c. Abrasion over dorsal aspect right hand at the basis of index finger.

4. Negligence of the rider was proved. The child was treated as inpatient from 05.06.2006 to 01.08.2006, for 58 days. He was operated on 24.06.2006. Six months after the discharge, he was seen by the doctor on 15.02.2007 for follow up. It is in evidence that the patient had the following discomforts/disabilities, i.e.:

i. Patient walks with limp on to the right side.

ii. Puckered scar on and aspect of middle 1/3 of (Right) leg with operated scar on either side.

iii. Shortening of right lower limb by 1.5 cms.

iv. Limitation of right knee movements by 30 %.

v. Muscle power around right knee Gr. IV against Gr. V.

vi. Limitation of right ankle movement by 20%.

vii. Muscle power around (right) ankle is Gr. IV against Gr. V.

viii. Check X ray No. 3791 dated 15.02.2007 shows disunited fracture of right tibia with plate and screw fixation in situ. Mal union fracture of right tibia.

5. The surgeon had assessed the disability to the extent of 34% of right lower limb and 18% to the whole body.

6. The Motor Accidents Claims Tribunal in a petition filed claiming compensation to the tune of Rs. 4,00,000/-, awarded compensation to the tune of Rs. 63,500/- under the following heads:-      

7. On approaching the High Court, the compensation was enhanced to Rs. 1,09,500/-. The enhancement was mainly under the head "Loss of future amenities" wherein the Appellant was awarded Rs. 50,000/-. Appellant still not satisfied, filed this Special Leave Petition.

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., (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 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