NEUTRAL CITATION
C/FA/2452/2020 JUDGMENT DATED: 22/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2452 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
NAFISA ABDUL KUMBHAR
Versus
LAXMANRAV P. CHITTODO & 2 other(s)
==========================================================
Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR KRUNAL R SAKSENA(5915) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1,2
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 22/08/2023
ORAL JUDGMENT
[1] Mr. Dhomse submitted that it is a case of minor injured, aged about 9 years who had Page 1 of 9 Downloaded on : Sun Sep 17 02:07:18 IST 2023 NEUTRAL CITATION C/FA/2452/2020 JUDGMENT DATED: 22/08/2023 undefined suffered 68% permanent neurological disability and Dr. Paresh Mody, M.S. Neurosurgeon has certified the disability. The injured claimant was treated conservatively and on examination, Mr. Dhomse submitted that the neurosurgeon has made an observation with regard to disability to assess it as 68%.
[2] Countering the same, Advocate Mr. Krunal Saksena contended that the applicant had filed a purshis at Exh.39 to consider the disability as 17% for the body as a whole and though the insurance company had not accepted the said also, now it would not be appropriate for the claimant to pray for 68% disability where no further proof has been given as observed by the Tribunal of any continuous disability. Thus, Mr. Saksena submitted that the yardstick laid down in the case of Master Mallikarjun Vs. Divisional Manager, The National Insurance Company Limited & Anr., reported in AIR 2014 SC 736 as referred by the Tribunal could be Page 2 of 9 Downloaded on : Sun Sep 17 02:07:18 IST 2023 NEUTRAL CITATION C/FA/2452/2020 JUDGMENT DATED: 22/08/2023 undefined adopted so that the injured claimant could be considered as being reasonably compensated. [3] The facts of the case suggest that on 7.10.2007, the minor claimant was on the road along with her relative Hamilaben as pedestrian and they were proceeding on left hand side on the road with due care. Suddenly opponent no.1 came from the rear side with Bolero car bearing registration no.GJ-12 Y- 1303 driving recklessly and negligently in an excessive speed without observing the road rules, on the wrong side and collided with the minor applicant who sustained injury owing to the accident.
[4] Exh.33 was produced on record by the father of the minor claimant with regard to nature of injuries and the treatment taken and to consider the disability of 68%, as assessed by the neurologist, which is as under:- Page 3 of 9 Downloaded on : Sun Sep 17 02:07:18 IST 2023
NEUTRAL CITATION C/FA/2452/2020 JUDGMENT DATED: 22/08/2023 undefined "(i) Pt has loss of smell sensation in both nostrils (mild - moderate).
(ii) Lt. Frontal code syndrome is the form of poor judgment, emotional instability.
(iii)She has difficulty in speech in the form of naming difficulty.
(iv) She has difficulty to recollect the events of recent and remote past."
[5] On examination and being invested with CT scan of brain the frontal region observing the hemorrhagic contusion had found fracture and the neurosurgeon had made the following observations:-
"... Pt met with a RTA on 7/10/07 Mankuva. She took treatment at Bhuj only. She was treated conservatively.
She was investigated with CT Scan
brain - which was S/o - EDM Lt.
Frontal Region C Hemorrhagic
contusion Lt. Frontal and depraved # Page 4 of 9 Downloaded on : Sun Sep 17 02:07:18 IST 2023 NEUTRAL CITATION C/FA/2452/2020 JUDGMENT DATED: 22/08/2023 undefined [Fracture] Lt. Frontal region." depraved."
[6] The record as observed by the learned Tribunal indicates that from the applicant's side, a purshis vide Exh.39 was moved for making a prayer to the Tribunal to consider 17% disability for the body as a whole. The learned Tribunal has considered only 10% disability of the minor on the basis that the insurance company has not admitted the disability.
[7] Considering the case of Raj Kumar v. Ajay Kumar & Anr., reported in (2011) 1 SCC 343 in case where the Doctor assessing the disability is not examined, the said aspect has been dealt with in the said case, where, the Apex Court has laid down that the Tribunal should not be a silent spectator when medical evidence is tendered in regard to the injuries and their effect, in particular the extent of Page 5 of 9 Downloaded on : Sun Sep 17 02:07:18 IST 2023 NEUTRAL CITATION C/FA/2452/2020 JUDGMENT DATED: 22/08/2023 undefined permanent disability. Considering the Tribunal as an active explorer and seeker of truth who is required to 'hold an enquiry into the claim' for determining the 'just compensation', the Hon'ble Supreme Court has observed that the Tribunal should, therefore, take an active role to ascertain the true and correct position so that it can assess the 'just compensation'. While dealing with personal injury cases, the Tribunal should preferably equip itself with a Medical Dictionary and a Handbook for evaluation of permanent physical impairment for understanding the medical evidence and assessing the physical and functional disability. The Tribunal, in the present case, on its own could have referred to the medical board to take the assistance for concluding the disability and specifically when it was a case of minor who would not be in a position to take any such assistance. The claimant has Page 6 of 9 Downloaded on : Sun Sep 17 02:07:18 IST 2023 NEUTRAL CITATION C/FA/2452/2020 JUDGMENT DATED: 22/08/2023 undefined accepted 17% permanent disability for body as a whole. Learned advocate Mr. Dhomse submits that the claimant would not now want to reagitate the same and thus, has prayed to consider the same for granting compensation as per the judgment of Master Mallikarjun (supra).
[8] It has been brought to the notice that the yardstick which has been laid in the case of Master Mallikarjun (supra) has not been followed by the Tribunal. In Paragraph 12 of the judgment, the Hon'ble Apex Court has laid down the slab to be followed in the case of minor sustaining permanent disability.
"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, Page 7 of 9 Downloaded on : Sun Sep 17 02:07:18 IST 2023 NEUTRAL CITATION C/FA/2452/2020 JUDGMENT DATED: 22/08/2023 undefined 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."
[9] Applicant's side had moved the purshis to consider 17% disability for the body as a whole and thus, as per the principles laid down in the case of Master Mallikarjun (supra), the applicant is required to be compensated accordingly. Thus, the compensation would be as under:-
Rs.3,00,000/- Pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, and discomforts, etc. and loss of amenities in life on account of permanent disability + Rs.17,446/- Medical expenses = Rs.3,17,446/- Total compensation Page 8 of 9 Downloaded on : Sun Sep 17 02:07:18 IST 2023 NEUTRAL CITATION C/FA/2452/2020 JUDGMENT DATED: 22/08/2023 undefined [10] As the Tribunal has granted compensation of Rs.1,37,446/- with interest at the rate of 9% per annum, the applicant - original claimant would be entitled to the enhanced amount of compensation of Rs.1,80,000/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. The insurance Company is directed to deposit the said amount within eight weeks from the date of receipt of writ of this Court.
[11] The impugned judgment and award be modified accordingly. The appeal is partly allowed. Registry is directed to send the record and proceedings back to the Tribunal, if received.
(GITA GOPI,J) Maulik Page 9 of 9 Downloaded on : Sun Sep 17 02:07:18 IST 2023