The central legal point established in the judgment is the need to compensate child victims based on the degree of disability suffered, considering non-pecuniary damages and the impact of permanent disability on earning capacity.

JUDGMENT :

1. Advocate Mr. Adnan A.Khan for Advocate Mr. V.A. Mansuri for the appellant submitted that the challenge is given by the claimant-injured to the judgment and award dated 24.11.2022 by Motor Accident Claims Tribunal (Main), Panchmahals at Godhra in MACP No.133 of 2018, only on the ground that though the learned Tribunal has followed the judgment of Hon’ble Supreme Court of Mallikarjun Vs. Divisional Manager, National Insurance Company Limited And Another, reported in (2014) 14 SCC 396, and had also considered the disability of 15% for body as a whole; however, has failed to adopt the same; though the Hon’ble Supreme Court has observed the yardstick laid down that in case of disability up to 10 to 30%, a lumpsum and rough estimate of Rs.3,00,000/- is to be awarded.

2. Advocate Mr. Khan submitted that the exceptional circumstances, as has been laid down, to take a different yardstick would be the cases, where the matters would stand on different footing like a permanent disability in the form of bedridden condition of the child, where he would be totally reliant on attendance and there would be necessity of future medical expenses or other needs, where the compensation is to be awarded beyond the maximum limit of six lakhs. While, the Hon’ble Supreme Court in Mallikarjun (supra) has laid down the yardstick relying upon the fact that the structure formula, as per Second Schedule to Motor Vehicle Act, would be unfair and improper to be followed in case of the child victims, claimants. For children there is no income, and, therefore observed that the main elements of damage in case of child victim are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs.

3. Advocate Mr. Khan submitted that the learned Tribunal relied on the disability certificate at Exhibit-38, which was actually for 35%, but since the parties had accepted to adopt 15% disability for body as a whole by way of pursis at Exhibit-31, the disability factor got slash down, and according to the disability certificate, the effect of the accidental injuries are difficulty in walking, difficulty in sitting, pain at the site of injury, dribbling of urine and burning maturation. Though that fact has been observed in the judgment, the learned Tribunal has considered that, those evidence of physical impairment are not permanent in nature and, therefore, came to an opinion to grant only the award of Rs.1,50,000/- with medical expenses, as proved at Exh.37, of Rs.49,000/-.

4. Advocate Mr. V.C. Thomas submitted that the learned Tribunal has relied on the judgment of Mallikarjun (supra), and has also observed the proposition of law laid down therein, and came to an opinion that physical impairment are not permanent in nature. Advocate Mr. Thomas stated that the amount granted by the Tribunal is just and reasonable.

5. In case of Mallikarjun (supra), the Hon’ble Apex Court was dealing with the case of a minor aged about 12 years, who was hit by a motorcycle, who suffered the injuries, as under:

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

(b) Two abrasions over left elbow posteriorly over olecranon both measuring 4 x 1 cm.

(c) Abrasion over dorsal aspect right hand at the base of index finger.”

6. The Apex Court while dealing with the damage in case of the child victims, has observed in para-8 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 com