Gujarat High Court
Minor Jay Arvindbhai Namera, Through ... vs Nagdishbhai Madhavjibhai Javiya on 7 May, 2025
NEUTRAL CITATION
C/FA/1807/2011 JUDGMENT DATED: 07/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1807 of 2011
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2025
In R/FIRST APPEAL NO. 1807 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
✓
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MINOR JAY ARVINDBHAI NAMERA, THROUGH GUARDIAN & FATHER
Versus
NAGDISHBHAI MADHAVJIBHAI JAVIYA & ANR.
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Appearance:
MR PANKAJ R DESAI(3120) for the Appellant(s) No. 1
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
MR SUNIL B PARIKH(582) for the Defendant(s) No. 2
SERVED BY PUBLICATION IN NEWS for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 07/05/2025
ORAL JUDGMENT
1. This Appeal is filed challenging the judgment and award dated 21.03.2011 passed by learned Motor Accident Claims Tribunal (Auxi.) at Morbi in M.A.C.P No.234 of 2007.
2. Heard learned advocate Mr Pankaj R. Desai assisted by learned advocate Mr. Hemal Shah for the appellant and Page 1 of 19 Uploaded by RINKU MALI(HC01574) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 21:16:46 IST 2025 NEUTRAL CITATION C/FA/1807/2011 JUDGMENT DATED: 07/05/2025 undefined learned advocate Mr. Sunil B. Parikh for respondent No.2. Though served, none appeared for respondent No.1.
3. The brief facts of the case are as under:
3.1. On 29.07.2007, minor Jay Arvind Namera was crossing the road with his grandmother. When they were standing near the side of the road, opponent No.1 came in Metador bearing Registration No.GJ-3-Y-9114 in rash and negligent manner with full speed on Rajkot-Morbi Road near Village Hadbatiyali and dashed with minor. Resultantly, minor sustained serious bodily injuries. FIR was lodged against driver of Metador. Minor was admitted in Hospital and took treatment from 29.07.2007 upto 18.08.2007 for the fracture sustained on right thigh, head and spinal cord. Claim Petition was filed by the guardian and father of minor claiming compensation of Rs.10 lakhs. Opponent No.1 owner of Metador was served through publication in public newspaper but did not contest the claim petition. Opponent No.2- Page 2 of 19 Uploaded by RINKU MALI(HC01574) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 21:16:46 IST 2025
NEUTRAL CITATION C/FA/1807/2011 JUDGMENT DATED: 07/05/2025 undefined Insurance Company appeared and filed Written Statement at Exhibit-16. Father of minor filed examination-in-chief at Exhibit-37 and examined Dr. Hiren Sobhagayachandra Kothari at Exhibit-41. Claimant produced documentary evidence such as complaint, panchnama, case papers pertaining to injuries, medical bills and disability certificate issued by Dr. Hiren Sobhagayachandra Kothari. After considering the evidence on record, learned Tribunal partly allowed the claim petition by granting compensation of Rs.5,07,500/- with 7.5% interest against opponents from the date of filing claim petition till realization. 3.2. Being aggrieved and dissatisfied with the impugned judgment and award, appellant-claimant has filed the present First Appeal for enhancement of compensation.
4. Learned advocate for the appellant, at the outset, submitted that the challenge in the present First Appeal is only Page 3 of 19 Uploaded by RINKU MALI(HC01574) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 21:16:46 IST 2025 NEUTRAL CITATION C/FA/1807/2011 JUDGMENT DATED: 07/05/2025 undefined on the ground of assessment of notional income, granting less compensation under the head of pain, shock and suffering, attendant charges, non-granting of loss of marriage prospects, future medical expenses and transportation and special diet. Learned advocate for the appellant submitted that the young boy aged about 5 years has sustained 100% permanent partial disability and suffering from paraplegia because of spine injury and injuries sustained on the other parts of the body. It is submitted that boy is handicapped and crippled and lives a vegetarian life. It is submitted that because of accidental injuries, minor boy has suffered great pain, shock and suffering and has also lost his future marriage prospects. Considering the disability, minor would require full attendant throughout his life and also require future medical treatment throughout his life. Learned Tribunal has considered notional income of Rs.1,500/-, whereby an error is committed by learned Tribunal. In the decision of Ayush Versus Branch Page 4 of 19 Uploaded by RINKU MALI(HC01574) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 21:16:46 IST 2025 NEUTRAL CITATION C/FA/1807/2011 JUDGMENT DATED: 07/05/2025 undefined Manager, Reliance Genral Ins. Co. Ltd. and another reported in 2022 ACJ 1006, the Apex Court, while considering the compensation for the victim who is minor, has held that the notional income of the victim is not a justifiable income and the minor is entitled to minimum wages payable to a skilled workman and thereafter, considered the minimum wages prevailing in the State of Karnataka on the date of accident. The facts before the Hon'ble Apex Court was similar to the facts found in the present case and compensation of Rs.10 lakhs was granted under the head of pain, shock and suffering. Conveyance charges was also awarded to the extent of Rs.2 lakhs and prospective income was considered as 40%. In the decision of Baby Sakshi Greola versus Manzoor Ahmad Simon and another (Neutral Citation: 2024 INSC
963), the Hon'ble Apex Court while considering the question of compensation for the victim who is minor, has also taken into consideration rates of minimum wages while deciding the Page 5 of 19 Uploaded by RINKU MALI(HC01574) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 21:16:46 IST 2025 NEUTRAL CITATION C/FA/1807/2011 JUDGMENT DATED: 07/05/2025 undefined income of minor. The minor was assessed disability as 100% and therefore, compensation under the head of pain, shock and suffering was awarded to the extent of Rs.15 lakhs. Considering the aspect of loss of marriage prospects, compensation was granted to the extent of Rs.1 lakh and attendant charges was considered as Rs.2,500/- per month for a period of six months and thereby, 15,000/- was granted under the head of attendant charges.
4.1. Considering the aforesaid decisions, learned advocate for the appellant has claimed Rs.2,800/- per month as income as per rates of minimum wages prevailing on the date of accident and claimed 40% addition as prospective income. Appellant also claimed Rs.6,50,000/- under the head of pain, shock and suffering, Rs.5,40,000/- under the head of attendant charges, Rs.1,00,000/- towards transportation and special diet, Rs.3,00,000/- for loss of marriage prospects and Rs.2,00,000/- towards future medical expenses. It is further contended that Page 6 of 19 Uploaded by RINKU MALI(HC01574) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 21:16:46 IST 2025 NEUTRAL CITATION C/FA/1807/2011 JUDGMENT DATED: 07/05/2025 undefined claimant is entitled to interest on all heads. 4.2. In support of submission with regard to granting of interest on attendant charges, reliance is placed upon a decision rendered by the Division Bench of this Court in the case of Chirag Pravinchandra Bhagat versus Ishwarbhai Mohanbhai Desai & Ors. passed in First Appeal No.1764 of 2019 on 13.12.2024. Except above, no other submissions are canvassed by learned advocate for the appellant.
5. Per contra, learned advocate for the respondent No.2- Insurance Company has supported the impugned judgment and award. However, it is submitted by learned advocate for the Insurance Company that the notional income which has been assessed by learned Tribunal at Rs.1,500/- is just and reasonable and considering the injuries and the evidence of the doctor, learned Tribunal has assessed 100% disability body as a whole and thereafter, awarded just and reasonable Page 7 of 19 Uploaded by RINKU MALI(HC01574) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 21:16:46 IST 2025 NEUTRAL CITATION C/FA/1807/2011 JUDGMENT DATED: 07/05/2025 undefined compensation under the head of pain, shock and suffering, attendant charges, special diet. It is further submitted that claimant-appellant would not be entitled to any interest on future medical expenses as well as compensation under the attendant charges. Learned advocate for the respondent has placed reliance upon the decision in the case of R.D. Hattangadi versus Pest Control (India) Pvt. Ltd. and Others reported in (1995) 1 SCC 551 and has relied upon paragraph No.18 of the said decision, which is reproduced as under;
"18. So far the direction of the High Court regarding payment of interest at the rate of 6% over the total amount held to be payable to the appellant is concerned, it has to be modified. The High Court should have clarified that the interest shall not be payable over the amount directed to be paid to the appellant in respect of future expenditures under different heads. It need not be pointed out that interest is to be paid over the amount which has become payable on the date of award and not which is to be paid for expenditures to be incurred in future. As such we direct that appellant shall not be entitled to interest over such amount."
5.1. The claim of enhancement of compensation under the head of pain, shock and suffering, attendant charges, transportation and special diet, loss of marriage prospects and future medical expenses are unreasonable and on the higher side. There is no Page 8 of 19 Uploaded by RINKU MALI(HC01574) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 21:16:46 IST 2025 NEUTRAL CITATION C/FA/1807/2011 JUDGMENT DATED: 07/05/2025 undefined medical evidence to substantiate that the minor would require attendant throughout his life and he would be needing future medical treatment. In nutshell, it is the case of the Insurance Company that claimants are not entitled to any enhancement in compensation.
6. I have considered rival submissions canvassed by learned advocates for the parties and have also perused record and proceedings. Undisputedly, the victim is aged about 5 years on the date of accident and as per the disability certificate Exhibit- 41 issued by Dr. Hiren Sobhagayachandra Kothari, minor has sustained following injuries.
"D/7 burst # with cord injury and paraplegia with bladder bowel
involvement
Rt. Thigh degloving injury
# rt. Frontal linear # with EDH
Lt. Basal ganglia contusion
Whiplash injury."
7. The said doctor has examined the minor and assessed permanent partial disability at 100% body as a whole. Oral deposition of Dr. Hiren Sobhagayachandra Kothari recorded at Page 9 of 19 Uploaded by RINKU MALI(HC01574) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 21:16:46 IST 2025 NEUTRAL CITATION C/FA/1807/2011 JUDGMENT DATED: 07/05/2025 undefined Exhibit-41 also indicates the same injuries and has stood by the percentage of disability assessed by him. There is no much quarrel on the assessment of disability and more particularly, there is no challenge with regard to the assessment of disability, quantum of compensation and negligence by the Insurance Company. The only limited question under consideration is in view of the age and disability sustained to the minor, whether learned Tribunal has awarded just and reasonable compensation under the head of pain, shock and suffering, attendant and special diet or not. Undisputedly while assessing the compensation, learned Tribunal has failed to grant any compensation under the head of loss of marriage prospects and future medical expenses. The question with regard to assessment of notional income is no more res integra in the decision of Ayush (supra). In paragraph Nos.7 and 8 of the said decision, the Hon'ble Apex Court has considered rates of minimum wages payable to a skilled employee prevailing on the date of accident. As submitted by learned advocate for the appellant, Page 10 of 19 Uploaded by RINKU MALI(HC01574) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 21:16:46 IST 2025 NEUTRAL CITATION C/FA/1807/2011 JUDGMENT DATED: 07/05/2025 undefined rates of minimum wages on the date of accident was Rs.2,800/-, is just and reasonable and I hold that income of minor would be assessed at Rs.2,800/- per month. Adding 40% as prospective income, total income would come to Rs.2,800/- + 40% = Rs.3,920/-). Undisputedly, the minor is paraplegic and the age of minor is such that no evidence either oral or documentary is required to consider the agony which minor must have undergone because of vehicular accidental injuries. The nature of injuries are such that the minor has lost his childhood enjoyment and the future marriage prospects. The minor would require an attendant during his life and would also require future medical treatment for such injuries. If the oral evidence of Dr. Hiren Sobhagayachandra Kothari recorded at Exhibit-41 is considered, minor has suffered serious bodily injuries which would hamper his day to day activities of life. In the case of Ayush (supra), minor boy was aged about 5 years and suffered from spinal cord lesion resulted into 100% permanent disability. The injured was suffering from urinary and bowel incontinence Page 11 of 19 Uploaded by RINKU MALI(HC01574) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 21:16:46 IST 2025 NEUTRAL CITATION C/FA/1807/2011 JUDGMENT DATED: 07/05/2025 undefined and requires attendant throughout his life. In paragraph No.12 of the said decision, the Hon'ble Apex Court has observed on the question of loss of marriage prospects, transportation charges and physical condition of the victim and thereafter, granted Rs.10 lakhs and Rs.2 lakhs under the heads of pain, shock and suffering and conveyance charges respectively.
8. In the decision of Baby Sakshi Greola (supra), the minor girl sustained 75% mental moderate retardation and had no control over the passage of her urine. Disability assessed was body as a whole and was non-progressive. In paragraph No.29 of the said decision, the Hon'ble Apex Court has discussed about considering the rates of minimum wages for assessing income of minor and further held that notional income is not the correct approach for assessing income in the cases of compensation relating to minor. The Hon'ble Apex Court has also considered the decision of Kajal V. Jagdish Chand and Others reported in (2020) 4 SCC 413.
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NEUTRAL CITATION C/FA/1807/2011 JUDGMENT DATED: 07/05/2025 undefined In paragraph Nos.34 and 35 while discussing the question of compensation under the head of pain, shock and suffering, it has been observed as under;
34. As has been referred to hereinabove, this Court recently in the case of K.S. Muralidhar (supra) relying inter-alia upon the previous decisions of this Court in the cases of Kajal (supra) and Master Ayush (supra) awarded a sum of Rs. 15,00,000/- under the head of pain and suffering to the appellant therein.
35. In this respect, it would be appropriate to refer to paragraphs 26 and 27 of the judgment of this Court in the case of Kajal (supra), which read thus:
"Pain, suffering and loss of amenities
26. Coming to the non-pecuniary damages under the head of pain, suffering, loss of amenities, the High Court has awarded this girl only Rs 3,00,000.
In Mallikarjun v. National Insurance Co. Ltd. [Mallikarjun v. National Insurance Co. Ltd., (2014) 14 SCC 396 : (2015) 1 SCC (Civ) 335 : (2015) 1 SCC (Cri) 372 : (2013) 10 Scale 668] , this Court while dealing with the issue of award under this head held that it should be at least Rs 6,00,000, if the disability is more than 90%. As far as the present case is concerned, in addition to the 100% physical disability, the young girl is suffering from severe incontinence, she is suffering from severe hysteria and above all she is left with a brain of a nine-month- old child. This is a case where departure has to be made from the normal rule and the pain and suffering suffered by this child is such that no amount of compensation can compensate.
27. One factor which must be kept in mind while assessing the compensation in a case like the present one is that the claim can be awarded only once. The claimant cannot come back to court for enhancement of award at a later stage praying that something extra has been spent. Therefore, the courts or the Tribunals assessing the compensation in a case of 100% disability, especially where there is mental disability also, Page 13 of 19 Uploaded by RINKU MALI(HC01574) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 21:16:46 IST 2025 NEUTRAL CITATION C/FA/1807/2011 JUDGMENT DATED: 07/05/2025 undefined should take a liberal view of the matter when awarding the compensation. While awarding this amount, we are not only taking the physical disability but also the mental disability and various other factors. This child will remain bedridden for life.
Her mental age will be that of a nine-month-old child. Effectively, while her body grows, she will remain a small baby. We are dealing with a girl who will physically become a woman but will mentally remain a 9-month-old child. This girl will miss out playing with her friends. She cannot communicate; she cannot enjoy the pleasures of life; she cannot even be amused by watching cartoons or films; she will miss out the fun of childhood, the excitement of youth; the pleasures of a marital life; she cannot have children who she can love, let alone grandchildren. She will have no pleasure. Her's is a vegetable existence. Therefore, we feel in the peculiar facts and circumstances of the case even after taking a very conservative view of the matter an amount payable for the pain and suffering of this child should be at least Rs 15,00,000."
(emphasis supplied) The Hon'ble Apex Court has observed that in a case like the present one, claimant can be awarded only once and claimant cannot come back to Court for enhancement of award at a later stage praying that something extra has been spent. In the cases of 100% disability, especially, where there is a case of mental disability, a liberal view should be taken while awarding compensation. The Hon'ble Apex Court awarded Rs.15 lakhs under the head of pain, shock and suffering.
In paragraph Nos.42, 43 and 44 of the said decision, the Page 14 of 19 Uploaded by RINKU MALI(HC01574) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 21:16:46 IST 2025 NEUTRAL CITATION C/FA/1807/2011 JUDGMENT DATED: 07/05/2025 undefined Hon'ble Apex Court has observed as under;
42. The appellant, therefore, has not only lost her childhood but also her adult life. Marriage/companionship is an integral part of the natural life of a human being. Although, in the present case the appellant is capable of reproduction, it is near impossible for her to rear children and enjoy the simple pleasures of marital life and companionship. However, the learned Tribunal in the present case did not award any compensation to the appellant under this head and the High Court, in appeal, without appreciating the impact of the non- pecuniary loss suffered by the appellant only awarded compensation of Rs. 1,00,000/- for the loss of marriage prospects.
43. We are, therefore, of the opinion that this a fit case where the compensation awarded under the head of loss marriage prospects by the High Court is inadequate and the same must be enhanced to Rs. 5,00,000/-.
d) Attendant Charges
44. In the present case, the learned Tribunal recorded the evidence of the appellant's mother (PW-2). She stated that they had engaged a maid servant to do the household work whom they were paying Rs. 2,500/- per month for a period of 6 months. Considering the same, the learned Tribunal awarded Rs. 2,500 x 6 = Rs. 15,000/- under the head of attendant charges.
9. Keeping in mind the benevolent legislation and keeping in mind the ratio laid down in the aforesaid decisions, it would be just and reasonable to grant compensation to the tune of Rs.10 lakhs under the head of pain, shock and suffering, attendant charges to the tune of Rs.5,40,000/-, transportation and special Page 15 of 19 Uploaded by RINKU MALI(HC01574) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 21:16:46 IST 2025 NEUTRAL CITATION C/FA/1807/2011 JUDGMENT DATED: 07/05/2025 undefined diet to the tune of Rs.1, 00,000/-, loss of marriage prospects to the tune of Rs.3,00,000/- and future medical expenses to the extent of Rs.1,50,000/-.
10. The next question which has been posed for consideration before this Court is whether claimant is entitled to interest for non-pecuniary compensation such as future medical expenses, attendant charges, loss of marriage prospects. Learned advocate for the appellant has fairly contended that appellant would not claim any interest on future medical expenses and shall let go and waive off interest on future medical expenses. Considering the submission, claimant would not be entitled to any interest on compensation under future medical expenses.
11. In the case of R.D. Hattangadi (supra), it was also a case of paraplegia below waist and the victim had suffered serious injuries resulting into 100% disability. Claimant was aged about 52 years and was a practicing advocate and a retired City Civil Court Judge. The Hon'ble Apex Court considering the said facts Page 16 of 19 Uploaded by RINKU MALI(HC01574) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 21:16:46 IST 2025 NEUTRAL CITATION C/FA/1807/2011 JUDGMENT DATED: 07/05/2025 undefined did not grant any interest in respect of future expenditures under different heads such as home attendant charges. In the present case, as discussed above, the victim was only aged about 5 years which cannot be equated with the age of the claimant in the case of R.D. Hattangadi (supra). The minor, in the present case, has a long way of life to live and the attendant charges would increase year by year considering the rate of inflation. Claimant would be entitled to interest on attendant charges for the reason mentioned above. The ratio laid down in the decision of R.D. Hattangadi (supra) would not help to the submission of learned advocate for the Insurance Company for the above stated discussions.
12. In the case of Chirag Pravinchandra Bhagat (supra), the Hon'ble Division Bench has awarded interest on attendant charges, special diet and transportation expenses. Applying said principle in the present case, claimants are entitled to interest on attendant charges.
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NEUTRAL CITATION C/FA/1807/2011 JUDGMENT DATED: 07/05/2025 undefined
13. In the background of the above discussion, claimant is entitled to the following amount of compensation;
Sr. Name of the Head Amount in Rs.
1 FUTURE LOSS OF INCOME
Income per month Rs.2,800/-
Prospective Income
(Rs.2,800 + 40%) Rs.3,920/-
Rs.3,920/- x 12 x 18 8,46,720/-
2 Pain, shock and suffering 10,00,000/-
3 Medical 1,36,500/-
4 Attendant charges 5,40,000/-
5 Future Medical expenses 1,50,000/-
6 Loss of marriage prospects 3,00,000/-
7 Transportation and Special Diet 1,00,000/-
Total 30,73,220/-
Amount awarded by tribunal 5,07,500/-
Enhanced amount of compensation 25,65,720/-
14. The Insurance Company is directed to deposit the enhanced amount of compensation of Rs.25,65,720/- with 7.5% per annum interest within a period of eight weeks from the date of receipt of the copy of this order.
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NEUTRAL CITATION C/FA/1807/2011 JUDGMENT DATED: 07/05/2025 undefined
15. The present First Appeal is partly allowed accordingly. The judgment and award dated 21.03.2011 passed by learned Motor Accident Claims Tribunal (Auxi.) at Morbi in M.A.C.P No.234 of 2007, is modified to the aforesaid extent.
16. Once the enhanced amount is deposited by the Insurance Company, the learned Tribunal shall disburse the same in favour of the claimants through RTGS by following the prevailing procedure and due identification.
17. While making the payment, the Tribunal shall deduct the Courts Fees, if not paid, in accordance with rules / law.
18. Record and proceedings, if any, be sent back to the concerned Court/Tribunal.
19. In view of the order passed in the main matter, connected Civil Application does not survive and the same stands disposed of accordingly.
(D. M. DESAI,J) RINKU MALI Page 19 of 19 Uploaded by RINKU MALI(HC01574) on Fri Jun 06 2025 Downloaded on : Fri Jun 06 21:16:46 IST 2025