ORAL ORDER

1. ADMIT. Service of notice of admission is waived by learned advocate Mr. R.M. Meena for respondent No.2-

Insurance Company.

2. The appellant-original claimant has challenged the judgment and dated 08.02.2021 passed by the M.A.C.T. (Aux. VII), Gondal in M.A.C.P. No. 90 of 2016 on the ground that the Tribunal has failed to appreciate the facts on record, particularly, the fact that the claimant was a minor-injured and has proceeded to award compensation as if it was a case of a major.

3. Learned advocate Mr. Nishit Bhalodi for the appellant- original claimant contended that the Tribunal has committed gross error in passing the impugned judgment and award in view of the fact that though the original claimant was a minor at the time of accident, it has calculated compensation as per the structured formula, referring the notional income. Hence, the impugned judgment and award deserves to be quashed and set aside.

4. Reliance was placed upon the decision of Apex Court in the case of Mallikarjun v. Divisional Manager, National Insurance Company Limited and another, (2014) 14 SCC 396, more particularly, on the observations made in paragraph-12, which reads thus;

“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 be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick.”

5. In this case, the claimant had produced Disability Certificate on record vide Exhibit-36, according to which, the permanent physical disability was assessed at 42% for the body as a whole, both the sides agreed to consider the permanent physical disability at 18% for the body as a whole.

6. Learned advocate Mr. Bhalodi appearing for the injured- claimant submitted that he does not want to re-agitate the issue of percentage of disability so assessed and adjudicated upon by the Tribunal. Thus, the permanent physical disability of the injured-claimant is assessed at 18% for the body as a whole and he is entitled for compensation accordingly.

7. In the judgment rendered in Mallikarjun’s case (supra), the Apex Court has dealt with the claim raised by a minor, who is injured in a vehicular accident and has held that it is unfair and improper to follow the structured formula as per the Second Schedule to the Motor Vehicles Act for many reasons as the main stress in the said formula was on pecuniary damages only. The Apex Court took note of the fact that a child would not have any source of income. The only indication in the Second Schedule in connection with non- earning individuals is to take the notional income at Rs.15,000/- per year. The Apex Court, accordingly, concluded that an injured-child cannot be equated with a non-earning individual and hence, compensation has to be worked out under the non-pecuniary heads, in addition to the actual amounts incurred for treatment undergone and / or to be undergone, the transportation cost, assistance of attendance, etc. The main elements of damage in the case of child victim are pain, shock, frustration, deprivation or ordinary pleasures and enjoyment associated with healthy and mobile limbs and that 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. The appropriate compensation for disability should take of all the non-pecuniary damages. The Apex Court, accordingly, held that apart from the above heads, t