Minor Bhumikaben Jagdishbhai ... vs Ramjibhai Karshanbhai Makwana

     C/FA/229/2021                                  ORDER DATED: 17/02/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 229 of 2021

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               MINOR BHUMIKABEN JAGDISHBHAI PARMAR
                               Versus
                  RAMJIBHAI KARSHANBHAI MAKWANA
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR ANAL S SHAH(3988) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1,2
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                            Date : 17/02/2023

                             ORAL ORDER

1. The challenge in this appeal is to the judgment and award dated 30.3.2019 passed by Motor Accident Claims Tribunal (Aux), Petlad, in Motor Accident Claims Petition No.229 of 2018 on the ground that learned Tribunal has failed to grant appropriate compensation, considering the fact that claimant is a minor aged about 15 years, who has filed claim petition through natural guardian.

2. Mr.Bhalodi, learned advocate for the appellant submits that the Tribunal ought to have considered the case of Mallikarjun v. Divisional Manager, National Insurance Company Limited and Another, [(2014) 14 SCC 396], and should have followed yardstick laid down therein for minor victims.

C/FA/229/2021 ORDER DATED: 17/02/2023

3. While countering the same, Mr.Aditya Chaudhari for the insurance company submitted that 42% physical disability for the body as a whole was considered, as per the purshis at Exh38 filed by both the sides and, accordingly, learned Tribunal has considered annual income of Rs.24,000/- and applied the multiplier and has granted the amount. He further stated that the amount under medical bills, special diet, transportation and attendance charges has been granted and learned Tribunal has also assessed the amount under the head of Pain, shock and suffering. Thus, Mr.Aditya Chaudhari submitted that the compensation granted by the Tribunal is just and reasonable.

4. In case of Mallikarjun (Supra), Honourable Apex Court in paragraph 8, while explaining the extent of inconvenience or discomfort arising out of the disability to the child, has very categorically laid down that the child cannot be equated with a non-earning person. The observation in paragraph 8 reads as under:-

"8. 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. The only indication in the Second Schedule for non- earning persons is to take the notional income as Rs.15,000/- per year. A child cannot be equated to such a non-earning person. Therefore, the Page 2 of 5 Downloaded on : Tue Feb 21 20:45:28 IST 2023 C/FA/229/2021 ORDER DATED: 17/02/2023 compensation is to be worked out under the non- pecuniary heads in addition to the actual amounts incurred for treatment done and/or to be done, transportation, assistance of attendant, etc. The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. 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. Appropriate compensation for disability should take care of all the non-pecuniary damages. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation, etc."

5. Here in this case, 51% disability for the body as a whole was assessed by the Dr.Nirav Prajapati of Sparsh Orthocare, Nadiad, and disability certificate was produced at Exh.23. Learned advocates on both the sides by moving a purshish at Exh.34, consented to consider 42% disability for the body as a whole.

6. Learned advocate for the appellant submitted that as per the yardstick laid down in the case of Mallikarjun (Supra), in case of minor child, for disability upto 60%, Rs.4 Lacs is considered as appropriate compensation in addition to actual expenditure for treatment, attendant etc. Page 3 of 5 Downloaded on : Tue Feb 21 20:45:28 IST 2023 C/FA/229/2021 ORDER DATED: 17/02/2023

7. Accordingly, in case of disability upto 60% of a child Rs.4 Lacs is directed to be granted by the Apex Court. Here, the child claimant as consented by both the sides has suffered 42% disability for the body as a whole. Thus, following the judgment in the case of Mallikarjun (supra), the claimant would be entitled to get Rs.4 Lacs towards compensation for 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. Learned Tribunal has granted medical bill and special diet. Considering the facts of the case and keeping in mind the judgment of Mallikarjun (supra), the claimant would be entitled to the following amounts:-

Pain and suffering already undergone and to Rs.4,00,000/- be suffered in future, mental and physical shock, hardship, inconvenience, and discomforts, etc. and loss of amenities in life on account of permanent disability.

Medical Bills                                             Rs.1,25,999/-
Special     diet, transportation     and     attendant Rs.15,000/-
charges
Total                                                     Rs.5,40,999/-

8. The Tribunal has granted Rs.3,52,439/- with interest at the rate of 9% p.a. Therefore, the enhanced amount of compensation Rs.1,88,560/- which the insurance company would be liable to pay with interest at the rate of 7.5% within a period of six weeks from the date of petition till payment.

C/FA/229/2021 ORDER DATED: 17/02/2023

9. The claimant, who was minor at the time of accident, has now attained majority. Out of the total amount of compensation, 70% of the amount be invested in a Fixed Deposit with any nationalized Bank, initially, for a period of two years, (which shall be renewed from time to time) without any reference to this Court, or till the final disposal of the Appeal, if any, whichever is earlier. Interest accruing on such Fixed Deposit shall be accumulated. Insofar as the remaining 30% amount is concerned, the same shall be disbursed in favour of the original claimant(s), after proper verification.

10. Accordingly, this First Appeal is partly allowed. The impugned judgment and award dated 30.3.2019 passed by Motor Accident Claims Tribunal (Aux), Petlad, in Motor Accident Claims Petition No.229 of 2018 is modified accordingly. Registry is directed to send the record and proceedings back to the Tribunal, if received.

(GITA GOPI,J) R.S. MALEK Page 5 of 5 Downloaded on : Tue Feb 21 20:45:28 IST 2023