Appropriate compensation for disability should take care of all the non-pecuniary damages of a minor: Rajasthan High Court

Appropriate compensation for disability should take care of all the non-pecuniary damages. 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. This assertion was made by the Rajasthan High Court Jaipur Bench presided over by J. Prakash Gupta in the case of HDFC Ergo General Insurance Company Ltd., Ajmer vs. Khushi, Abid Khan and Abhishek Patidar [S.B. Civil Miscellaneous Appeal No. 5421/2018] connected with Khushi vs. Abid Khan, Abhishek Patidar and HDFC Ergo General Insurance Company Limited, Ajmer [S.B. Civil Miscellaneous Appeal No. 1074/2019].

In the present case, the claimant was travelling with seven others when their vehicle met with an accident. She was the sole survivor and was 15 years of age when her statement was recorded. She filed for the compensation from the insurance company. The insurance company declining the claim pleaded that she was minor and her statement could not be relied upon. The claimant on the other hand, filed for the enhancement of the amount of compensation which was supposed to be provided by the insurance company to her.

The honorable court in the present case declared, “in view of the facts and circumstances, as mentioned above, the appeal filed by the claimant is partly allowed. The claimant would be entitled to receive Rs.9,18,820/- as compensation instead of Rs.6,68,820/- as awarded by the Tribunal. Other terms and conditions of the award shall remain unchanged. The Insurance Company shall deposit the enhanced amount along with interest @ 6% p.a. from the date of filing the claim petition till the date of payment”.

The Apex Court in the case Kumari Kiran through her father Harinarayan Vs. Sajjan Singh & Ors. 2015 (1) R.A.R.87 (SC) held, “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.” Hence, this Court in accordance with the principles laid down by this Court and after examining the facts, evidence on record and circumstances of the case on hand, we deem it fit and proper to award Rs.3,00,000/- towards permanent disability of the appellant-minors viz. Kumari Kiran and Master Sachin, since they have suffered 30% and 20% permanent disability respectively, due to the shortening of their right leg by one inch after the injuries sustained in the motor accident.”

Further, reference was made to the case of R.D. Hattangadi v. Pest Control (India) Pvt. [CMA-5421/2018] Ltd. and Ors. [(1995) 1 SCC551], in which this Court had contended, “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. 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.”

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