'Sympathetic View Required When Such Great Loss Of Body Part': Allahabad High Court Enhances Motor Accident Compensation To Child Who Lost One Kidney
The Allahabad High Court recently enhanced the compensation granted by the Motor Accident Claims Tribunal to a minor (as he then was), who lost one kidney and suffered liver damage on being hit by a motorcycle while driving a moped.Justice Ajai Tyagi said,"The learned tribunal has not taken sympathetic view which is required by tribunal in such matters when the child has suffered such a...
The Allahabad High Court recently enhanced the compensation granted by the Motor Accident Claims Tribunal to a minor (as he then was), who lost one kidney and suffered liver damage on being hit by a motorcycle while driving a moped.
Justice Ajai Tyagi said,
"The learned tribunal has not taken sympathetic view which is required by tribunal in such matters when the child has suffered such a great loss of body part. Theories of just compensation has also been overlooked by the tribunal while adjudicating this matter, just because no disability or injury report was filed."
In the present appeal challenging the quantum of compensation awarded by the Tribunal, it was submitted that the Tribunal has materially erred in calculating the compensation. The counsel for the Respondent contended that medical treatment received was on Government expenses which have covered the major expenses suffered by the Appellant.
The court observed that a person who either contributes or is the author of the accident would be liable for his contribution to the accident having taken place. Reliance was placed on Bajaj Allianz General Insurance Co.Ltd. Vs. Smt. Renu Singh And Others where it was observed that –
"Negligence means failure to exercise required degree of care and caution expected of a prudent driver. Negligence is the omission to do something which a reasonable man, guided upon the considerations, which ordinarily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence is not always a question of direct evidence. It is an inference to be drawn from proved facts. Negligence is not an absolute term, but is a relative one. It is rather a comparative term. What may be negligence in one case may not be so in another."
The aforesaid judgment, the Court said, would apply to the facts of this case because the injured did not have licence to drive moped when the accident occurred.
"While going through the record, it is proved that the victim was 16 years of age and was a minor. In our case, the tribunal on the basis of evidence held that accident had taken place due to rash and negligent driving of the motorcyclist and held the minor was also negligent. The tribunal relied on the decision of the Apex Court in Bishan Dass v. Himachal Road Transport Corporation (hrtc) And Ors, AIR 2014 ACJ 1012 and, therefore, the findings of fact that the child was negligent and accident was between the Scotty which was being driven by the injured is upheld," it said.
Thus, the Court proceeded to compute the compensation payable to the Appellant in accordance with Kajal v. Jagdish Chand & Ors., whereby the Supreme Court enhanced the compensation awarded to a young girl who became 100% disabled due to an accident.
Applying the 18 Multiplier, the Court computed Total Loss of income at Rs. 2,72,160, Pain & sufferings at Rs. 1,00,000/- and compensation under all other heads for non-pecuniary damages at Rs. 70,000, hence, the total compensation being Rs. 4,42,160.
Case Title: Prabhat Kumar And Others vs Dheeraj And Others
Citation: 2022 LiveLaw (AB) 119