C/FA/3469/2022 ORDER DATED: 23/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3469 of 2022
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NIKITAKUMARI ARJANBHAI
Versus
BHUPENDRASINH NATVERSINH SOLANKI
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MS SEJAL K MANDAVIA(436) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 23/02/2023
ORAL ORDER
1. In this First Appeal, challenge has been given by the minor, who was aged 14 years, through his mother, to judgment and award dated 08.10.2021 passed by the Motor Accident Claims Tribunal (Auxi.), Mahisagar at Lunawada in MACP No.2577 of 2017 (Old MACP No.494 of 2015) praying for enhancement of the compensation amount because of physical disability sustained at 32.68%, which was considered as 11% for body as a whole by the learned Tribunal.
2. Learned Advocate Mr.Bhalodi for the appellant submitted that the learned Tribunal ought to have followed the judgment of the Hon'ble Apex Court in case of Mallikarjun Vs. Divisional Manager, National Insurance Company Limited & Page 1 of 4 Downloaded on : Thu Mar 02 20:31:10 IST 2023 C/FA/3469/2022 ORDER DATED: 23/02/2023 Anr., reported in (2014) 14 SCC, 396, to consider the compensation as per the yardstick laid down, even in view of the fact that the child was a non-earning member of the family.
3. While countering the same, learned Advocate Ms.Sejal Mandavia submits that the compensation granted is in accordance to the evidence produced by the claimant and just and reasonable amount has been granted.
4. As per the facts of the case, on 27.03.2015 at about 11 hrs., minor and others were waiting at the bus stop at village Nava Rabadiya crossing. At that time, driver of ST Bus No.GJ-17-Y-3798 came in full speed. Because of the rash and negligent driving, lost control over the bus and dashed with the minor-claimant. As a result of the accident, minor sustained severe injuries.
5. The learned Tribunal, after having appreciating the evidence on record, considered physical disability for body as a whole at 11% for the claimant aged 14 years. In such case, principle as laid down in case of Mallikarjun (supra) is consistently made applicable by the Courts and keeping in view the yardsticks laid down by the Hon'ble Apex Court and the fact that 11% disability for body as a whole is considered, the claimant would be entitled for amount of Rs.3,00,000/- as compensation. In case of Mallikarjun (supra), the Hon'ble Apex Court in paras-8 and 12 has Page 2 of 4 Downloaded on : Thu Mar 02 20:31:10 IST 2023 C/FA/3469/2022 ORDER DATED: 23/02/2023 held 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 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.
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 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick.
6. The learned Tribunal has granted Rs.3,500/- for Page 3 of 4 Downloaded on : Thu Mar 02 20:31:10 IST 2023 C/FA/3469/2022 ORDER DATED: 23/02/2023 transportation, attendants, special diet and medical expenses while medical bills are granted at Rs.21,646/-. Thus, the claimant would be entitled to compensation money of Rs.3,00,000/- for pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomfort, etc. and loss of amenities of life on account of permanent disability, Rs.3,500/- for transportation, attendants, special diet and medical expenses and Rs.21,646/- towards medical bills, totalling to Rs.3,25,146/-.
7. The learned Tribunal has granted Rs.68,786/- with 9% interest. The enhanced amount would be Rs.2,56,360/-, which the Insurance Company is directed to deposit within six weeks from the date of receipt of this order. The claimants would be entitled to enhanced amount of compensation of Rs.2,56,360/- at the rate of 7.5% interest per annum. The insurance Company is directed to deposit Rs.2,56,360/- with interest at the rate of 7.5% per annum. The 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) SHITOLE Page 4 of 4 Downloaded on : Thu Mar 02 20:31:10 IST 2023