The main legal point established in the judgment is the applicability of the yardstick laid down in the case of Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited & Anr., AIR 2014 SC 736 in determining the appropriate compensation for disability in motor accident claims.

JUDGMENT :

1. The claim petition being Motor Accident Claim Petition No. 1220 of 2017 (Old No. 565 of 2007) was moved by the appellant – claimant, who, at the relevant time, was a minor aged 16 years.

2. The facts of the case are that on 27.09.2006, the appellant – claimant was travelling in a Jeep bearing registration No. GJ-17-C- 3439 driven by the respondent No. 1 herein – original opponent No. 1, which was stated to be in moderate speed, following traffic rules. At about 16:00 hours, when the said Jeep was passing near Sajivav village, the respondent No. 3 came driving Tractor bearing registration No. GJ-17-D-5193 with Trailor bearing registration No. GJ-17-Y-3442 in rash and negligent manner, in excessive speed and dashed with the Jeep, as a result, the minor sustained serious injuries and thus, had filed the claim petition through guardian and next friend, her father. During the pendency of the claim petition, on attaining majority, she moved an application exh. 25 to replace her as a claimant.

3. Learned advocate Mr. Bhalodi for the appellant – claimant submitted that the disability of 10% for the body as a whole was believed by the learned Tribunal and as per the Disability Certificate, exh. 53, she suffered 22% disability of right upper limb and both the lawyers had consented to consider the disability of 10% for the body as a whole, but the learned Tribunal considered the notional income of Rs.15,000/- to assess the future loss of income. Mr. Bhalodi for the appellant – claimant submitted that the case falls as per the yardstick laid down in the case of decision of the Hon’ble Apex Court in Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited & Anr., AIR 2014 SC 736 and the learned Tribunal was required to follow the same to grant just compensation.

4. Learned advocate Mr. Maulik Shelat for the insurance company stated that the disability is only of 10% for the body as a whole and medical expenses of Rs.5,000/- has been granted and the amount under the heads of Pain, Shock and Suffering of Rs.10,000/-, Transportation, Attendant Charges and Special Diet of Rs.7,000/- have been aptly granted and future loss of income of Rs.22,500/- is also reasonably provided. Thus, he states that the impugned judgment and award does not warrant any interference of this Court.

5. In the case of Master Mallikarjun (supra), the Hon'ble Apex Court, while considering the claim of a victim child, has categorically held that it would be unfair and improper to follow the structured formula as per the Second Schedule to the MV Act for more than one reasons. The relevant observations are as under:-

“8. 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.”

5.1 It has been brought to the notice that the yardstick, which has bee