Rizwan Nizamuddin Shaikh vs Karansinh Somsinh Solanki
2021 Latest Caselaw 18363 Guj

     C/FA/3525/2009                                    JUDGMENT DATED: 14/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/FIRST APPEAL NO. 3525 of 2009


FOR APPROVAL AND SIGNATURE:                         Sd/-


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?                                                  No

2    To be referred to the Reporter or not ?                               Yes

3    Whether their Lordships wish to see the fair copy
     of the judgment ?                                                      No

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution                    No
     of India or any order made thereunder ?

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                           RIZWAN NIZAMUDDIN SHAIKH
                                     Versus
                      KARANSINH SOMSINH SOLANKI & 2 other(s)
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1
MS LILU K BHAYA(1705) for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 1,2
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                                 Date : 14/12/2021

                                 ORAL JUDGMENT

1. This is first appeal is preferred by the claimant for enhancement of the compensation awarded by the learned Motor Accident Claims Tribunal (Auxiliary), Kheda at Nadiad in Motor Accident Claim Petition No. 2448 of 1998 vide judgment and

C/FA/3525/2009 JUDGMENT DATED: 14/12/2021

award dated 07.01.2009.

2. Brief facts giving rise to the present appeal are as under: 2.1 On the day of incident minor appellant was riding a bicycle. At that time, a tractor-trailer came in a rash and negligent manner and had dashed the bicycle of the appellant. Due to which he had fallen down and had sustained serious injuries.

2.2 Then after, the appellant had filed a petition under Section 166 of M.V. Act before the learned Motor Accident Claims Tribunal (Aux.) at Nadiad being MACP No. 2448 of 1998 for claiming Rs. 5,00,000/- as compensation against the driver of the said tractor- trailer.

3. Heard the learned counsel Mr. MTM Hakim for the original appellant-claimant and Ms. Lilu K. Bhaya, learned counsel on behalf of the defendant-Insurance Company. Though the notice served to the other defendant, none appears for the opponent No. 1 and 2.

4. Learned advocate for the applicant has submitted that the learned Tribunal has committed an error while considering the quantum. It is also further submitted that, considering the permanent disability to the injured the amount of compensation awarded by the Tribunal is not just compensation. He has submitted that the learned Tribunal has also not considered the future loss of income to the injured. The learned Tribunal has also committed a serious error by considering the disability 13% body as a whole instead of 15% merely on a ground that the advocate appears for the original claimant has put a signature on the pursis

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and has given consent.

4.1 At the time of accident the injured was at the age of 11 years, now he become major.

5. Learned counsel appearing for the appellant has relied upon the following decisions:

1. G. Ravindranath alias R. Chowdary Vs. E. Srinivas and Anr. reported in (2013) 12 SCC Page-455;

2. Shaileshkumar Shantilal Gandhi and Anr. Vs. Sunil Babulal Dixit and Ors. reported in 2013 (1) GJH Page-57

6. On a ground that the claimants cannot stopped from filing the appeal for challenging the disability though his advocate has given a consent on the purses filed by the other side the consent of the advocate cannot come in the way of the appellant and it is not binding upon the appellant.

7. In the case of Shaileshkumar Shantilal Gandhi and Anr. Vs. Sunil Babulal Dixit and Ors. (Supra) this Court has held in para 7 to 16 as under:

7. It is, now, well settled law that concession made at the time of trial by a learned Counsel on a question of fact is biding upon the client, but, a concession made on the question of law by a Counsel is never binding, as there is no estoppal against law. The moment, a learned Counsel places reliance upon a decision of a High Court and asks the Court to follow the said decision, as a binding precedent, it necessarily follows that he has relied upon a proposition of law laid down by the High Court in the given facts. It is well known that there cannot be any precedent on the question of fact and it is the proposition of law, which is laid down in a decision in the binding

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precedent. Therefore, by relying upon the said decision , the learned Counsel for the claimant in the Tribunal below merely placed reliance upon a statement of law laid down by the High Court. I, therefore, find that if a learned Counsel mistakenly relied upon a decision, in the facts of the said case, such a concession must be treated as a concession of question of law and not of facts and cannot be biding upon his client if the law is otherwise.

8. Mr. Valmik Vyas, learned Counsel, with Mr. Rajni Mehta, learned Counsel, appearing on behalf of the Insurance Company has also supported Ms. Bhatt and has further relied upon a decision of the Supreme Court in the case of "KAUSHALYA DEVI VS. KARAN ARORA AND OTHERS", 2007 11 SCC 120, wherein the Supreme Court observed as under;

"9. There are some aspects of human life which are capable of monetary measurement, but the totality of human life is like the beauty of sunrise or the splendor of the stars, beyond the reach of monetary tape-measure . The determination of damages for loss of human life is an extremely difficult task and it becomes all the more baffling when the deceased is a child and/or a non-earning person. The future of a child is uncertain. Where the deceased was a child, he was earning nothing but had a prospect to earn. The question of assessment of compensation, therefore, becomes stiffer. The figure of compensation in such cases involves a good deal of guesswork. In cases, where parents are claimants relevant factor would be age of parents.

10. In case of the death of an infant, there may have been no actual pecuniary benefit derived by his parents during the child's lifetime. But this will not necessarily bar the parents' claim and prospective loss will find a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived. This principle was laid down by the House of Lords in the famous case of Taff Vale

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Rly. V. Jenkins, and Lord Atkinson said thus:

" ... all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact ---- there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first that the deceased earned money in the past, and, second, that he or she contributed to the support of the plaintiff. There are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can I think, be drawn from circumstances other than and different from them.' (See Lata Wadhwa V. State of Bihar.)

11. This Court in Lata Wadhwa case while computing compensation made distinction between deceased children falling within the age group of 5 t0 10 years and age group of 10 years to 15 years.

12. In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation."

9. In the case of death of an infant, the question of assessment of compensation is very difficult and it involves good deal of guess work. After going through the said decision, I find that a two-Judge-Bench of the Supreme Court in the said

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decision pointed out that in case of the death of an infant, there may have been no actual pecuniary benefit derived by his parents during the child's lifetime. But this will not necessarily bar the parents' claim and prospective loss will find a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived. According to the Supreme Court, in the said decision, in the case of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation. It appears that in making the above observation, the Supreme Court also relied upon the earlier decision of the said Court in the case of "Lata Wadhwa Vs. State of Bihar", reported in (2001) 8 SCC 197.

10. If we look at the decision of the Supreme Court in the case of Lata Wadhwa(Supra) relied upon in the case of Kaushalya Devi(Supra), a three-Judge-Bench of the Supreme Court, ultimately, arrived at the conclusion that the compensation amount for children between the age group of 5 to 10 years should be 1.5 lac to which a conventional amount or Rs.50,000/- is required to be added, and thus, the total amount which comes should be Rs.2,00,000/-.

11. In my opinion, in this case, when it has been found by the Tribunal itself that there was no contributory negligence on the part of the victims in the accident and the drivers of the offending vehicles were solely responsible, it will be appropriate to follow the view taken by the Supreme Court in the case of Lata Wadhwa(Supra) and the amount of

C/FA/3525/2009 JUDGMENT DATED: 14/12/2021

compensation should be enhanced to Rs.2,00,000/- in both these cases. It appears that the claimants have also restricted their claims to Rs.2,00,000/- in each case. Such being the position, I set aside the award, so far as amounts of compensation in two cases are concerned, namely M.A.C.P. No. 182 of 1993 and M.A.C.P. No. 183 of 1993 and enhance the compensation to an amount of Rs.2,00,000/- in each case, with interest at the rate of 12 per cent per annum from the date of filing of the application till 31st December, 1999, and at the rate of 8 per cent per annum from 1st January, 2000, till actual payment on the enhanced amount.

12. At this stage, Ms Bhatt appearing on behalf of the owner of the vehicle and Mr Vyas appearing on behalf of the Insurance Company drew my attention to the fact that in the Memorandum of Appeals preferred by the claimants, the amount has been restricted to further Rs.50,000/- over and above the amount awarded by the Tribunal and, therefore, according to them, this Court cannot at any rate enhance the amount beyond Rs.1,25,000/-.

13. In my opinion, the aforesaid contention is not tenable in view of the following observations of the Supreme Court in the recent decision of "IBRAHIM VS. RAJU" and others reported in (2011) 10 SCC 634 :-

"21.We are conscious of the fact that in the petition filed by him, the appellant had claimed compensation of Rs.3 lakhs only with interest and costs. It will be reasonable to presume that due to financial incapacity the appellant and his family could not avail the services of a competent lawyer and make a claim for adequate compensation. However, as the Tribunal and the High Court and for that reason this Court are duty- bound to award just compensation, we deem it proper to enhance the compensation from Rs.1,89,440 to Rs.6 lakhs. This approach is in tune with the judgment in Nagappa vs. Gurudayal Singh. In that case, the Court considered a similar issue, referred to the judgments of the Bombay High Court in

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Municipal Corpn. Of Greater Bombay vs, Kisan Gangaram Hire, Orissa High Court in Mulla Md. Abdul Wahid v. Abdul Rahim and Punjab and Haryana High Court in Devki Nandan Bangur v. State of Haryana and observed: (Nagappa case, (2003) 2 SCC 274, p.282, para 21)

"21. For the reasons discussed above, in our view, under the MV Act, there is no restriction that the Tribunal/court cannot award compensation amount exceeding the claimed amount. The function of the Tribunal/court is to award 'just' compensation which is reasonable on the basis of evidence produced on record. Further, in such cases there is no question of claim becoming time-barred or it cannot be contended that by enhancing the claim there would be change of cause of action. It is also to be stated that as provided under sub-section (4) to Section 166, even the report submitted to the Claims Tribunal under sub-section (6) of Section 158 can be treated as an application for compensation under the MV Act. If required, in appropriate cases, the court may permit the amendment to the claim petition."

14. Similar view is also taken in the case of "SANJAY BATHAM VS. MUNNALAL PARIHAR" and others reported in (2011) 10 SCC 665 where at paragraph 18, the Supreme Court has made the following observations:-

"18. It is true that in the petition filed by him under Section 166 of the Act, the appellant had claimed compensation of Rs.4,20,000/- only, but as held in Nagappa v. Gurudayal Singh, in the absence of any bar in the Act, the Tribunal and for that reason any competent court is entitled to award higher compensation to the victim of an accident."

15. It is, therefore, apparent that in course of a proceeding for compensation under Motor Vehicles Act even if at an appellate stage, an Appellate Court finds that the claimant is entitled to have more amount of compensation than the one claimed either in the claim application or in the Memorandum

C/FA/3525/2009 JUDGMENT DATED: 14/12/2021

of Appeal against the award of compensation and if the Tribunal or Court comes to the conclusion that the just amount of compensation would be more than the amount restricted by the claimant, such fact will not stand in the way of the Court in awarding just amount of compensation. However, in my opinion, in such case, the Court should pass direction for payment of additional amount of court fees.

16. Although, Mr Vyas drew my attention to an unreported decision of a learned Single Judge of this Court in the case of "ASHISHKUMAR GAJANANDBHAI JOSHI VS.

MOHAMADSAFI USMANBHAI MEMON" and two others in Civil Application No.4013 of 2007 in First Appeal No.1482 of 2002 disposed of on 4 th May, 2007, taking a contrary stance, in view of the specific law laid down by the Supreme Court, I am unable to follow the said decision.

8. In the case of G. Ravindranath alias R. Chowdary Vs. E. Srinivas and Anr. (Supra) Hon'ble Supreme Court has held in Para-12 as under:

12. It is settled law that compensation in personal injury cases should be determined under the following heads: Pecuniary damages (special damages) 12.1. (i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food and miscellaneous expenditure.

12.2. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on account of permanent disability.

12.3. (iii) Future medical expenses.

C/FA/3525/2009 JUDGMENT DATED: 14/12/2021

Non-pecuniary damages (general damages) 12.4. (iv) Damages for pain, suffering and trauma as a consequence of the injuries.

12.5. (v) Loss of amenities (and/or loss of prospects of marriage).

12.6. (vi) Loss of expectation of life (shortening of normal longevity).

12.7. In routine personal injury cases, compensation will be awarded only under Heads (i), (ii)(a) and (iv). 12.8. It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the Heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, future loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life.

9. Considering the facts of the present case and the injury sustained to the appellant, the present appeal is required to be enhanced and is hereby substituted to the extent that the present appeal is allowed in toto and the compensation as prayed for by the appellant in the present case is hereby enhanced to that extent.

10. Considering the above referred facts and the decisions of this Court and the Hon'ble Apex Court, the present appeal is required to be allowed in toto. The amount as prayed for by the appellant in the present First Appeal is to be enhanced to the tune of Rs. 3,00,000/- along with interest at the rate of 7.5% from the

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date of application till the date of realization of the amount.

11. In view of the above, I proceed to pass the following order.

                                  ORDER

(i)       Appeal is allowed.

(ii)      The impugned judgment and award dated 07.01.2009

passed by the Motor Accident Claims Tribunal (Aux.), Kheda at Nadiad in M.A.C.P. No. 2448 of 1998 is hereby modified and in substitution to what has been awarded by the Tribunal a sum of Rs. 3,00,000/- with interest at the rate of 7.5% per annum is awarded which shall be from the date of petition till date of payment or deposit whichever is earlier.

(iii) The apportionment and order for deposit as made by the Tribunal in paragraph - 24 of the operative portion of the order shall be hold good for the substituted award. The insurer is directed to deposit enhanced compensation amount expeditiously at any rate within an outer limit of tow months from the date of receipt of certified copy of this order.

Record and proceedings be sent back to the concerned Court, forthwith.

Sd/-

(HEMANT M. PRACHCHHAK,J) T. J. Bharwad