Bombay High Court
Master Mahesh Machindra Dhotre ... vs Pratap B. Bhanushali And Anr on 6 May, 2025
2025:BHC-AS:22025
Manoj 222-FA-451-2008.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.451 OF 2008
Master Mahesh Machindra Dhotre,
Age: 2 years, Through Father & Next Friend,
Shri Machindra Tripanna Dhotre,
R/at Room No.2, Shiv Shambho Chaw,
Borivali (E), Mumbai - 400 066 ...Appellant
Vs.
1. Mr. Pratap B. Bhanushali,
Residing at K-24, APMC Market,
Phase II, Turbhe, Vashi,
Navi Mumbai, Dist. Thane
2. The National Insurance Co. Ltd,
Having their office at Dab-II
Sterling Cinema Bldg., 1st floor,
65, Murzban Road, Fort, Mumbai-1 ...Respondents
Ms. Ketki A. Gokhale i/by Mr. A. M. Gokhale, for the Appellant.
Ms. Poonam Mital, for the Respondent No.2.
CORAM : SHYAM C. CHANDAK, J.
DATED : 06th MAY, 2025
JUDGMENT:
-
. Present Appeal seeking an exception to the Judgment and
Award dated 15/11/2007, in Application No.1830 of 2005 ("Claim"),
passed by the Motor Accident Claims Tribunal, Mumbai ("Tribunal")
thereby said claim filed under Section 166 of the Motor Vehicles Act,
Manoj 222-FA-451-2008.doc
1988 ("the Act") was partly allowed and Respondent No.1/Original
Opposite Party and Respondent No.2/Insurer have been held jointly
and severally liable to pay the Appellant/ Original Claimant a sum of
Rs.62,500/- exclusive of No Fault Liability alongwith interest at the
rate of 7.5% per annum from the date of filing of the claim till
realization of said amount.
2) Heard Ms. Gokhale, the learned Advocate for the
Appellant and Ms. Mital, the learned Advocate for Respondent No.2.
Perused the record. Notice to Respondent No.1 is dispensed with vide
Order dated 08/08/2014.
3) Brief facts are that, on 01/06/2005, at about 10.30 a.m.,
near Devipada, Borivali (E), Mumbai, Appellant's mother Mallama
Machindra Dhotre and her mother-in-law alongwith the Appellant
alighted from an auto rickshaw. Thereafter, mother of the Appellant
was busy in paying the rickshaw fare and the Appellant was standing
there. At that juncture, a motor truck bearing MH-11-M-3593
("truck") came from back side and dashed the Appellant. As a result,
the Appellant fell down and the rear wheel of the truck ran over his
both the legs. Consequently, the Appellant sustained serious injuries.
Immediately, Appellant was admitted in Bhagwati Hospital, at
Borivali and medically treated there. The Appellant had sustained
following injuries due to the accident :-
Manoj 222-FA-451-2008.doc
(1) Type III open Type I salter harms fracture of lower end
Right Tibia.
(2) Tibiofibular diastasis Right.
(3) Degloving injury of anteromedial aspect Right tibia and
right popliteal fossa.
(4) 10 cm contused lacerated wound over left ankle.
3.1) Considerable amount was spent on the medical treatment
of the Appellant, however, the accidental injury caused him 40%
permanent partial disability. The Appellant was aged 18 months.
Therefore, the Appellant filed said claim through his father-next
friend and prayed to award a compensation in the sum of
Rs.4,00,000/- with interest.
4) Despite notice, Respondent No.1 did not contest the claim.
Respondent No.2, therefore, obtained the permission under Section
170 of the Act and resisted the claim filing the Written Statement
(Exh.10). Respondent No.2 denied that the accident occurred due to
rash and negligent driving of the truck. It was contended that the
accident was inevitable. Therefore, Respondent No.2 prayed to
dismiss the claim with costs.
5) Hence, the Tribunal framed the relevant issues. To prove
the claim, the Appellant adduced his evidence through his next friend
(AW1/Exh.12). In addition, he examined his mother Mallama Dhotre
Manoj 222-FA-451-2008.doc
(AW2/Exh.13) to prove the accident and Dr. Amit Aajgaonkar
(AW3/Exh.14) to prove the disability. Besides, the Appellant has
produced several documents in evidence. No evidence was adduced
by Respondent No.2 in the rebuttal.
6) After considering the evidence, the Tribunal held that the
accident occurred due to rash and negligent driving of the truck. The
accidental injuries caused the Appellant 40% permanent partial
disabilities. The injury gave an ugly appearance to the injured right
leg. The Appellant required the future medical treatment. Therefore,
the Tribunal awarded the compensation as under :-
(i) Medical Treatment - Rs.6,000/-
(ii) Conveyance - Rs.1,500/-
(iii) Special Diet - Rs.5,000/-
(iv) Future discomfort & Loss of
Amenities of life - Rs.25,000/-
(v) Future Medical Treatment - Rs.25,000/-
(vi) Pain and sufferings - Rs.25,000/-
------------------
Total - Rs.87,500/-
7) It is not disputed that the Appellant was aged 18 months
and that, he had suffered the aforesaid injuries. There is nothing in
the evidence to take an exception to the finding recorded by the
Tribunal that the accident occurred due to rash and negligent driving
of the truck. In fact, the evidence of the AW1 and AW2 that at the
Manoj 222-FA-451-2008.doc
time of accident the Appellant was to the side of the road and the
truck dashed him is supported with the F.I.R. Said oral and
documentary evidence did not meet any challenge in the cross-
examination. I am, therefore, in agreement with the finding of
Tribunal that the accident occurred due to rash and negligent driving
of the truck.
8) The evidence of AW3-Dr. Aajgaonkar coupled with the
Disability Certificate (Exh.15) indicates that on account of the
injuries, the normal activities of the right leg of the claimant have
been restricted. The knee joint permits movements but only up to 10
to 80 degrees. The knee joint may become stiffer with the passage of
time. The Appellant has been unable to put full weight on the right
leg. There has been severe wasting and weakness of the right knee, leg
and foot. The movements of the right knee and right ankle have been
restricted. There has been shortening of the right leg by 1 inch. These
findings recorded by AW3 did not shatter in the cross-examination.
Today, the learned Advocate for the Appellant produced the latest
photographs (Exh."X" colly) of the appellant and the injured right leg.
It shows that still the Appellant has been carrying the disability as it
was assessed by AW3 and it developed the stiffness at the knee.
9) Ms. Gokhale, the learned Advocate cited a decision in
Master Mallikarjun Vs. Divisional Manager, The National Insurance
Manoj 222-FA-451-2008.doc
Company Limited and Another1, therein in paragraph 8, the Hon'ble
Supreme Court held that,
"8. ... As held by this Court in R.D. Hattangadi vs. M/s.
Pest Control (India) Pvt. Ltd. and Others, (1995) 1 SCC
551, 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 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
1. 2014 (14) SCC 396.
Manoj 222-FA-451-2008.doc
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."
9.1) In paragraph 12 the Hon'ble Supreme Court observed and
held that,
"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. ..."
9.2) In Master Mallikarjun (supra), the Appellant child was
aged 12 years, when he met with the accident on 05.06.2006. The
Manoj 222-FA-451-2008.doc
surgeon assessed his disability to the extent of 34 % of the right lower
limb and 18 % of the whole body. Therefore the Tribunal awarded
him following amount :-
Head Compensation
Amount
Pain and suffering Rs.25,000/-
Inconvenience caused to parents Rs.10,000/-
Medical Expenses Rs.4,500/-
Loss of future amenities Rs.10,000/-
Conveyance food nourishment expenses Rs.4,000/-
Future surgery Rs.10,000/-
Total :- Rs.63,500/-
In an Appeal by the child, the said compensation was enhanced to
Rs.1,09,500/- by the High Court, which he impugned before the Apex
Court. In view of the aforenoted facts of the case and the observations
in paragraphs 8 and 12, the Hon'ble Supreme Court enhanced and
awarded the compensation as under :-
Head Compensation
Amount
Pain and suffering already undergone Rs.3,00,000/-
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 loss of Rs.25,000/-
earning to the parents during the
period of hospitalization
Medical and incidental expenses Rs.25,000/-
during the period of hospitalization
Manoj 222-FA-451-2008.doc
Future medical expenses for Rs.25,000/-
correction of the mal union of fracture
and incidental expenses for such
treatment
Special diet Rs.10,000/-
Loss of father's income due to Rs.10,000/-
attending the injured during
hospitalization and recovery period
Total :- Rs.3,75,000/-
10) The facts and circumstances of the case in hand, more or
less, are similar to the facts of the case of Master Mallikarjun (supra).
Therefore, and considering the difficulty that Appellant has been
facing due to the disability, he is entitled to receive Rs.5,25,000/-,
which is inclusive of all the heads considered by the Tribunal.
11) The upshot of the above discussion is that, the Tribunal
did not consider the evidence on record as required in law, which
resulted in awarding less compensation. Said infirmity, therefore,
warranted an interference with the impugned Judgment and Award
to enhance the compensation and modify the Award, accordingly.
Thus, the Appeal succeeds.
11.1) Hence, following Order is passed :-
i) The Appeal is allowed with proportionate costs.
ii) The impugned Judgment and Award dated
15/11/2007, in Application No.1830 of 2005, passed
Manoj 222-FA-451-2008.doc
by the Motor Accident Claims Tribunal, Mumbai, is
modified.
iii) The Respondents shall jointly and severally pay a
sum of Rs.5,25,000/- together with interest thereon
at the rate of 7.50 % per annum from the date of the
Claim Petition till realisation of the amount.
iv) The Respondents are directed to comply with this
Judgment and Order within a period of four months
from today, by depositing the amount in the
Tribunal.
v) On deposit of the amount the Tribunal shall
immediately inform about the deposit to the
Appellant/claimant.
vi) The deposited amount shall be paid to the
Appellant, subject to payment of a deficit Court fee,
if any.
vii) Respondent No.2-Insurance Company will be
entitled to the adjustment of the amount against the
amount already paid under the impugned Award.
viii) Appeal stands disposed of in aforesaid terms.
ix) R & P shall be returned to the Tribunal.
Digitally
signed by
PREETI
(SHYAM C. CHANDAK, J.)
PREETI HEERO
HEERO JAYANI
JAYANI Date:
2025.05.15
14:23:32
+0530
