Gujarat High Court
Bhaveshbhai Dineshbhai Alias ... vs Bhamarsinh P Rajput on 26 June, 2024
NEUTRAL CITATION
C/FA/3254/2022 ORDER DATED: 26/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3254 of 2022
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BHAVESHBHAI DINESHBHAI ALIAS POPATBHAI VALMIK HARIJAN
Versus
BHAMARSINH P RAJPUT & ANR.
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Appearance:
MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1
MS RV ACHARYA(1124) for the Defendant(s) No. 2
UNSERVED EXPIRED (R) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 26/06/2024
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - original claimant, being aggrieved and dissatisfied with the impugned judgment and award dated 28.07.2020 passed by the Motor Accident Claims Tribunal (Aux.) Deesa at Bansakantha, in Motor Accident Claim Petition No.2766 of 2009 (old No.745 of 2004), by which the Tribunal has awarded compensation of Rs.50,000/- with 8% per annum interest to the claimant, holding the opponents liable, jointly and severally. The appellant herein was minor at the time of filing of claim petition and after becoming major, he has been replaced as appellant.
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NEUTRAL CITATION C/FA/3254/2022 ORDER DATED: 26/06/2024 undefined
2. Brief facts of the case are as under:
2.1. On 24.10.2004, when the minor applicant and deceased Sonalben were passing in the village-
Panthawada by way of walking at about 4:00 p.m., at that time, one Motor Vehicle Jeep bearing no. GJ-8A- 9659 came in high-speed and in negligent manner and due to excessive speed of the vehicle Jeep, the driver lost control over the steering of the said vehicle Jeep and as a result of that, the said Jeep dashed with the minor applicant and as a result of that, the accident occurred. Due to the said accident, the applicant sustained serious bodily injuries and for that, Rs.1,00,000/- as compensation has been sought from the opponents.
2.2. Notices were served to the opponents. Opponent No.1 has not chosen to appear or contest his case. Opponent No.2 has been deleted vide order dated 25.04.2018 by the learned predecessor. Hence, ex parte order has been passed under Order IX Rule 6(a) of the C.P.C.
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NEUTRAL CITATION C/FA/3254/2022 ORDER DATED: 26/06/2024 undefined 2.3. The Tribunal has framed the issues at Exh.11. The oral as well as documentary evidence has beenled. After considering the various documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed the claim petition by awarding compensation as noted above.
2.4. Being aggrieved and dissatisfied with the impugned judgment and award passed by the Tribunal, the present appeal has been preferred by claimant before this Court for enhancement of compensation.
3. Heard learned advocates appearing for the respective parties.
4.1. Learned advocate for the appellant - original claimant has submitted that the Tribunal has committed error in awarding the amount of compensation, which is on the lower side. He has also submitted that at the time of accident, the claimant was minor; aged about seven years, and in support of this, he has highlighted the Unique Identity Card produced at Exh.18, and has submitted that even then, the Tribunal has erroneously Page 3 of 14 Downloaded on : Mon Jul 01 20:42:38 IST 2024 NEUTRAL CITATION C/FA/3254/2022 ORDER DATED: 26/06/2024 undefined considered on the aspect of quantum in paragraph 8.3 of the impugned judgment, and thereby awarded Rs.50,000/- only, though there is disability certificate of the claimant, which is produced at Exh.23, whereby it is found that nd the claimant sustained LT.2 M.T.#U.D." disability to the tune of 8%, which is regarding limb means meta-tarsal and second meta tarsal of left leg got fractured. Hence, he has submitted that the amount awarded by the Tribunal under different heads is totally insufficient considering the settled position of law in the judgment of the Hon'ble Apex Court in the case of Master Mallikarjun vs. Divisional Manager, National Inssurance Company Limited and Another, reported in (2014) 14 SCC 396. In view of this decision, the Court has to award Rs.50,000/- as compensation. Hence, there is clear case of enhancement in the compensation to the claimant and, therefore, he has prayed to allow the present appeal by granting appropriate amount of compensation accordingly. Furthermore, he has submitted that in case of minor, when the injury is also available on the record, the ratio of the judgment of the Hon'ble Apex Court in the case of Master Mallikarjun (supra) is squarely applicable to the facts and circumstances of the case, Page 4 of 14 Downloaded on : Mon Jul 01 20:42:38 IST 2024 NEUTRAL CITATION C/FA/3254/2022 ORDER DATED: 26/06/2024 undefined therefore, he has submitted that appropriate amount of compensation may be awarded.
5. Per contra, learned advocate for the defendant No.2 - insurance company has submitted that the impugned judgment and order passed by the Tribunal is just and proper, as the Tribunal has considered all the aspects and passed the impugned judgment and award after considering the material available on the record. The Tribunal has considered every aspect; multiplier, injury, etc. by considering the judgments of the Hon'ble Apex Court, as such, the amount awarded by the Tribunal is proper, however, this Court may consider the submissions of the parties, and thereby, may pass appropriate order.
6.1. I have considered the submissions made by the rival parties. I have perused the record and proceedings of the Tribunal. I have gone through the impugned judgment and award passed by the Tribunal. 6.2. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept of 'just and fair' compensation. Page 5 of 14 Downloaded on : Mon Jul 01 20:42:38 IST 2024
NEUTRAL CITATION C/FA/3254/2022 ORDER DATED: 26/06/2024 undefined It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the Motor Vehicles Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimants. 6.3. The Tribunal has awarded the amount of compensation under different heard, which is as follows:
Sr.No. Heads Amount
1. Pain and suffering already 40,000
undergone and to be suffered
in future mental and physical
shock, hardship, in
convenience, and discomforts,
etc., and loss of amenities of
life on account of disability.
2. Loss of earning of parents 10,000/-
Total 50,000/-
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NEUTRAL CITATION
C/FA/3254/2022 ORDER DATED: 26/06/2024
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6.4. In view of the above-mentioned awarded amount under various heads, there is no dispute that the claimant was aged about seven years at the time of accident. It is relevant to note that there is disability certificate of the claimant issued by the doctor; which is produced at Exh.23, whereby it is found that the nd claimant sustained LT.2 M.T.#U.D." disability to the tune of 8%, which is regarding limb means meta-tarsal and second meta tarsal of left leg got fractured., and it is worth nothing that the Tribunal has considered the disability of the claimant to the extent 5% for body as a whole. Now, considering the judgment of the Hon'ble Apex Court in the case of Master Mallikarjun (supra), more particularly, paragraph Nos.8 to 12 are relevant, as under:
"8. It is unfortunate that both the Tribunal and the High Court have not properly appreciated the medical evidence available in the case. The age of the child and deformities on his body resulting in disability, have not been duly taken note of. As held by this Court in R.D. Hattangadi vs. M/s. Pest Control (India) Pvt. Ltd. and Others[1], while assessing the non-pecuniary damages, the damages for mental and physical shock, pain and suffering already suffered and that are likely to be suffered, any future damages for the loss of Page 7 of 14 Downloaded on : Mon Jul 01 20:42:38 IST 2024 NEUTRAL CITATION C/FA/3254/2022 ORDER DATED: 26/06/2024 undefined amenities in life like difficulty in running, participation in active sports, etc., damages on account of inconvenience, hardship, discomfort, disappointment, frustration, etc., have to be addressed especially in the case of a child victim. For a child, the best part of his life is yet to come. 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.
9. Sapna vs. United Indian Insurance Company Limited and Page 8 of 14 Downloaded on : Mon Jul 01 20:42:38 IST 2024 NEUTRAL CITATION C/FA/3254/2022 ORDER DATED: 26/06/2024 undefined Another[2] is the case of a 12 year old girl who suffered 90% disability in her left leg. This Court granted a lump sum amount of Rs.2,00,000/- on these heads.
10. In Iranna vs. Mohammadali Khadarsab Mulla and Another[3], a Division Bench of the Karnataka High Court granted an amount of Rs.4,00,000/- on these heads to the child who suffered 80% permanent disability.
11. In Kum. Michael vs. Regional Manager, Oriental Insurance Company Limited and Another[4], this Court considered the case of an eight year old child suffering a fracture on both legs with total disability only to the tune of 16%. It was held that the child should be entitled to an amount of Rs.3,80,000/- on these counts.
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.In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months Page 9 of 14 Downloaded on : Mon Jul 01 20:42:38 IST 2024 NEUTRAL CITATION C/FA/3254/2022 ORDER DATED: 26/06/2024 undefined causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows:
Head Compensation
Amount
Pain and suffering already Rs.3,00,000/-
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.
Discomfort, inconvenience and Rs.25,000/-
loss of earnings to the parents
during the period of
hospitalization
Medical and incidental expenses Rs.25,000/-
during the period of
hospitalization for 58 days.
Future medical expenses for Rs.25,000/-
correction of the mal union of
fracture and incidental expenses
for such treatment.
Total:- Rs.3,75,000/-"
6.5. In view of the above, it transpires that the facts of Page 10 of 14 Downloaded on : Mon Jul 01 20:42:38 IST 2024 NEUTRAL CITATION C/FA/3254/2022 ORDER DATED: 26/06/2024 undefined the present case are squarely covered by the judgment of the Hon'ble Apex Court in the case of Master Mallikarjun (supra). In light of this judgment, I am of the opinion that the appellant - claimant is entitled to get the following final amount as compensation:
Sr.No. Heads Amount
1. Pain and suffering already 1,00,000 undergone and to be suffered in future mental and physical shock, hardship, in convenience, and discomforts, etc., and loss of amenities of life on account of disability.
2. Loss of earning of parents 10,000/-
Total 1,10,000/-
6.6. Considering the fact that the claimant has claimed for amount of compensation of Rs.1,00,000/-, and taking into account the fact judgment of the Hon'ble Apex Court in the case of Nagappa vs. Gurudayal Singh & Ors.
reported in (2003) 2 SCC 274, there is no bar to award Page 11 of 14 Downloaded on : Mon Jul 01 20:42:39 IST 2024 NEUTRAL CITATION C/FA/3254/2022 ORDER DATED: 26/06/2024 undefined higher amount than claimed.
6.7. Thus, the Tribunal has committed an error in awarding total compensation of Rs.50,000/- only under various heads. The appellant - original claimant is entitled to get the additional amount of compensation of Rs.60,000/- over and above the amount of Rs.50,000/- as awarded by the Tribunal. The opponents, including the insurance company, are jointly and severally liable to pay the aforesaid additional amount of Rs.60,000/- to the appellant - original claimant together with interest at the rate of 8% per annum from the date of the claim petition till realization. Rest of the direction(s) if any, shall remain same.
7. For the reasons recorded above, the following order is passed.
7.1. The present appeal is partly allowed. 7.2. The impugned judgment and award dated 28.07.2020 passed by the Motor Accident Claims Tribunal (Aux.) Deesa at Bansakantha, in Motor Accident Claim Petition No.2766 of 2009 (old No.745 of 2004) shall stand Page 12 of 14 Downloaded on : Mon Jul 01 20:42:39 IST 2024 NEUTRAL CITATION C/FA/3254/2022 ORDER DATED: 26/06/2024 undefined modified to the aforesaid extent by enhancing the amount of compensation as above.
7.3. The respondent No.2 - insurance company is directed to deposit the enhanced amount of Rs.60,000/- with the interest at the rate of 8% per annum before the concerned Tribunal, within a period of 6 weeks from today.
7.4. On deposit of such amount, it is open for the appellant - claimant to pray for disbursement of the entire awarded amount (including the enhanced amount) before the Tribunal, and the Tribunal may pass appropriate order for disburse of the amount, considering the fact that the appeal is now allowed by enhancing the awarded amount and taking into account the current age of the claimant, as well as considering the fact that at the time of accident, the claimant was aged about seven years at the time of accident.
7.5. On receipt of such application for disbursement, the Tribunal shall pass appropriate order of disbursement and investment, as expeditiously as possible. Page 13 of 14 Downloaded on : Mon Jul 01 20:42:39 IST 2024
NEUTRAL CITATION C/FA/3254/2022 ORDER DATED: 26/06/2024 undefined 7.6. Record and proceedings, if any, be sent back to the concerned Tribunal, within two week from today.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 14 of 14 Downloaded on : Mon Jul 01 20:42:39 IST 2024