Mr. Pankaj Seth, Advocate v. MASTER MUSTAFA ORS

Judgment

1. The appellant-Insurance Company assails an award passed by the Motor Accident Claims Tribunal [“the Tribunal”] dated 04.06.2013, by which the respondent No. 1-claimant was awarded a sum of Rs. 20,13,124/-, alongwith interest at the rate of 9% per annum.

2. The facts, as apparent from the impugned judgment, are that the claimant, who was then four years of age, was hit by the offending vehicle [Registration No. DL-1-PC-2325] on 24.06.2011 at about 08.30 AM. The Tribunal has returned a finding of rash and negligent driving against the driver of the offending vehicle [respondent No. 2 herein].

3. It is undisputed that the minor claimant sustained grievous injuries as a result of the accident, which was medically ascertained at 83% permanent disability in the left upper limb and left lower limb. The Tribunal also noticed that the claimant suffered multiple fractures all over Signature Not Verified Signed By:BHUPENDER Signing Date:13.11.2025 18:01:04 MAC.APP. 723/2013 his body and, for the purposes of earning capacity, assessed his permanent disability at 100%.

4. The appellant contended in the appeal, that no loss of earning capacity could be awarded in favour of a minor claimant, relying upon Mallikarjun v. Divisional Manager, National Company Insurance

Limited & Anr.1 However, the legal position is now admittedly different. The Supreme Court, in a recent judgment in Hitesh Nagjibhai Patel v. Bababhai Nagjibhai Rabari & Anr.2, was concerned with a claimant, who was eight years old at the time of the accident, and suffered permanent disability assessed at 30%. The Supreme Court affirmed the view of the High Court that the permanent functional disability should however have been fixed at 90%. While quantifying damages, after noticing the judgment in Mallikarjun, the Court held as follows: income of the monthly into account “9. On the aspect of monthly income of the minor appellant, we are inclined to interfere with the judgment and order of the Courts below. In the present case, it is evident that the Courts below have failed to the appellant while determining the quantum of compensation. It is now a well-entrenched and consistently reiterated principle of law that a minor child who suffers death or permanent disability in a motor vehicle accident, cannot be placed in the same category as a non-earning individual for the purposes of assessing the amount of compensation because the child was not engaged in gainful employment at the time of the accident. In such a case, the computation of compensation under the head of loss of income ought to be made by adopting, at the very least, the minimum wages payable to a skilled workman as notified for the relevant period in the respective State where the cause of action arises. The said observation was rendered by this Court, in Kajal v. Jagdish Chand and Ors.3, and Baby Sakshi Greola v. Manzoor Ahmad Simon and Anr.4”5