C/FA/5093/2019 ORDER DATED: 09/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5093 of 2019
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KUSH RAMCHANDRA DOCTOR
Versus
GHANSHYAM JASHBHAI PATEL
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Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1
for the Defendant(s) No. 2
DS AFF.NOT FILED (N) for the Defendant(s) No. 1
MR YOGI K GADHIA(5913) for the Defendant(s) No. 3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 09/02/2023
ORAL ORDER
1. By way of present appeal, the appellant herein- original claimant, is aggrieved by the judgment and award dated 1.8.2018 passed in MACP No. 909/2001 by the MACT (Auxi) and Additional District Judge, Surat.
2. The appellant, on 7.8.2001 was a minor and was passing as pedestrian near Lalitapark Society on road. At that time, the opponent No.1 came driving his Tractor bearing Registration No. GJ-13B-2537, in a rash and negligent manner with excessive speed and dashed with him , which resulted into accident in question. The appellant sustained serious nature of injuries on his body as mentioned in the medical certificate. The appellant was taken to Kiran Surgical Hospital for his treatment and was treated as indoor patient for two days and Page 1 of 8 Downloaded on : Tue Feb 14 20:38:35 IST 2023 C/FA/5093/2019 ORDER DATED: 09/02/2023 operation was carried. Thereafter, the appellant was shifted at Ashaktashram Hospital wherein he was treated as indoor patient and discharged on 20.8.2001. The appellant also took treatment at Hospital of Dr. Gabani and Dr. Kulkarni till 7.5.2003. At the time when the accident occurred, the appellant was healthy and was studying. The appellant was unable to do his routine work for long time. He spent reasonable amount towards purchase of medicines and treatment charges, special diet, attendance charges, transportation charges, etc. The appellant also suffered great mental pain, shock and suffering. The Opponent No.1 is the driver of the vehicle and was driving in rash and negligent manner and was responsible for said accident and, therefore, liable to pay an amount of compensation to the appellant, as prayed for. Opponent No.2 is the owner and opponent No.3 is the insurer of the offending vehicle and under the principle of vicarious liability, the opponents are liable to pay compensation. In view thereof, the appellant herein filed the present claim petition against the opponents claiming an amount of Rs.10 lakh from the opponents under Section 166 of the Motor Vehicles Act, 1988.
3. An FIR came to be lodged with Katargam Police Station. The tribunal by judgment and order dated 1.8.2018 awarded Rs. 1,98,500/- as compensation with interest at the rate of 9%. p.a. The said order was passed Page 2 of 8 Downloaded on : Tue Feb 14 20:38:35 IST 2023 C/FA/5093/2019 ORDER DATED: 09/02/2023 below Exh-93 and the same reads thus:
"-:ORDER:-
(1) The petition is hereby partly allowed. (2) The applicatn do recover Rs.1,98,500/- (Rupees One Lakh Ninety Eight Thousand Five Hundred Only) as compensation with interest at the rate of 9% p.a. from the date of this claim petition till its realisation with proportionate costs from the opponents who are jointly and severally liable to pay the same.
(3) It is further ordered that deficit court fees, if any, is to be deducted first from the amount of compensation awarded to the applicant.
(4) It is also ordered that interim compensation if any paid to the applicant be deducted first from the awarded amount. (5) Out of total amount of compensation with interest, 70% amount shall be deposited in any Nationalised Bank of his choice within limit of 10 kms from the residence of application for the period of FIVE YEARS and remaining 30% amount shall be paid to the applicant by A/c. Payee Cheque. The said investment shall carry the following terms and conditions:-
(a) No loan, over-draft or adance, known by any other name or nomenclature, shall be made available on the said fixed deposit investment, and the Bank shall not allow any encumbrance on the said fixed deposit without written on the said fixed deposit without wirtten order of this Tribunal.
(b) The interest on the fixed deposit as and when it becomes due, shall be paid to the claimant.
(c) The Bank shall intimate to the Tribunal the particulars of the fixed deposit.
(6) The opponents are directed to deposit the amount of Page 3 of 8 Downloaded on : Tue Feb 14 20:38:35 IST 2023 C/FA/5093/2019 ORDER DATED: 09/02/2023 compensation jointly and severally within three months from the date of order before this Tribunal.
(7) The opponents are ordered to bear their own costs.(8) Award to be drawn accordingly."
4. The appellant being aggrieved by the impugned order passed by the Tribunal in MACP No. 909/2001 below Exh-93 approached this Court by filing the present appeal.
5. Heard Mr. Mohsin Hakim, learned advocate appearing for the appellant and Mr. Yogi Gadhia, learned advocate appearing for the respondent No.3.
6. Mr. Mohsin Hakim, learned advocate appearing for the appellant submitted as under:
1. Mr. Hakim submitted that the Court below has erred in awarding Rs.1,98,500/- towards compensation as against the claim of Rs. 10 lakh.
2. The Court below has erred in not following the ratio as laid down by Hon'ble Supreme Court in the case of Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited, reported in AIR 2014 SC 736.
3. Mr. Hakim, learned advocate submitted that the compensation awarded by learned tribunal is required to be enhanced under other various heads, which reads thus: (1) Compensation is required to be Page 4 of 8 Downloaded on : Tue Feb 14 20:38:35 IST 2023 C/FA/5093/2019 ORDER DATED: 09/02/2023 enhanced so far as the attendance charges are concerned; (2) Future medical expenses.
7. Mr. Yogi Gadhia, learned advocate appearing for the opponent submitted that no error said to have been committed by the tribunal in awarding compensation by order dated 1.8.2018. Mr. Gadhia was, however, not in a position to contradict the settled position of law as laid down in case of Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited, reported in AIR 2014 SC 736.
8. Having heard the learned advocates appearing for the respective parties, at this stage, it is apposite to refer to Para-12 of the aforesaid decision in case Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited (Supra), which reads as under:
"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 Page 5 of 8 Downloaded on : Tue Feb 14 20:38:35 IST 2023 C/FA/5093/2019 ORDER DATED: 09/02/2023 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick.
9. Considering the ratio laid down by the Hon'ble Apex Court, it is undisputed that the appellant - original claimant was aged 10 years when the accident in question occurred. The tribunal has assessed permanent partial disability at 25%. Considering the aforesaid and the ratio as laid down in the Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited (Supra), the compensation rendered by the tribunal is required to be enhanced to Rs.3 lakh under the head of Pain, shock and sufferings and loss of amenities of life. The future medical expenses, in view of this court, is required to be enhanced to the tune of Rs.75,000/- .
10. Thus, in view of this Court, the appellant is entitled to the amount of compensation under the following heads as under:
Head Compensation
Pain, Shock and Rs. 3,00,000/-
sufferings and loss of
amenities of life.
Loss of earnings to Rs. 30,000/-
parents/ attendant
charges.
Medical Expenses Rs. 84,000/-
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C/FA/5093/2019 ORDER DATED: 09/02/2023
Special Diet and Rs. 20,000/-
transportation
Future Medical 75,000/-
Expenses.
Total Compensation Rs. 5,09,000/-
Deducting compensation Rs. 1,98,000/- already awarded by the
learned Tribunal
Additional Amount of Rs. 3,10,500/-
compensation
11. In view of the above, the appellant- original claimant is entitled to total compensation amounting to Rs.5,09,000/-. The appellant - original claims is entitled to enhanced amount of Rs.3,10,500/- towards additional amount of compensation. The respondent Insurance Company shall deposit the enhanced amount of compensation of Rs.3,10,500/- within a period of eight weeks from the date of receipt of this order. On the enhanced amount, the interest be calculated @ 6% from the amount of 2,35,500/- (the claimant will not be entitled to get interest on Rs.75,000/- towards future medical expenses) from the date of filing of the petition.
11.1 Once the amount of Rs.3,10,500/- is deposited before the tribunal, necessary Court fees be calculated on the enhanced amount of compensation and thereafter, the Page 7 of 8 Downloaded on : Tue Feb 14 20:38:35 IST 2023 C/FA/5093/2019 ORDER DATED: 09/02/2023 same be disbursed to the claimant upon proper verification, within a period of four weeks. The appeal stands allowed to the aforesaid extent.
(VAIBHAVI D. NANAVATI,J) SAJ GEORGE Page 8 of 8 Downloaded on : Tue Feb 14 20:38:35 IST 2023