Gujarat High Court
Minor Vivekbhai Bijendrabhai ... vs Rajesh Mayaram Sharma on 20 February, 2021
Bench: Vaibhavi D. Nanavati
C/FA/749/2021 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 749 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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MINOR VIVEKBHAI BIJENDRABHAI SHARMA THROUGH BIJENDRABHAI
OMPRAKASH SHARMA
Versus
RAJESH MAYARAM SHARMA
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2,4
MR KV GADHIA(319) for the Defendant(s) No. 5
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
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CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 20/02/2021
ORAL JUDGMENT
1. Having regard to controversy in narrow compass,
with consent of learned advocates for the respective
parties, the matter is taken up for final hearing
today.
C/FA/749/2021 JUDGMENT
2. Heard learned advocate Mr. Nishit Bhalodi for
the appellant and learned advocate Mr. Rathin P.
Raval for respondent No.3 Insurance company. Learned
advocate Mr. K.V. Gadhia has filed his appearance for
respondent No.5-Insurance Company.
3. The appellant - claimant has preferred the
present appeal under Section 173 of the Motor
Vehicles Act, 1988 being aggrieved and dissatisfied
with the judgment and award dated 18.11.2019 passed
by Motor Accident Claims Tribunal (Aux.) and
Additional District Judge, Kheda at Nadiad in Motor
Accident Claims Petition No.904 of 2015, whereby the
claims tribunal awarded total amount of Rs.99,306/-
to the appellant - claimant who was minor on the date
of accident in which he received bodily injuries.
4. The present appeal is filed for enhancement in
the amount of compensation.
5. On 17.06.2015, the appellant was sitting on
pillion sit of the parked Activa Scooter bearing
Registration No.GJ-07-BS-9024 at Reliance Petrol
Pump, on National Highway No.8. At that time,
Opponent no.1, who was driving the Truck bearing
registration No.GJ-01-CT-5899, came from back side
with excessive speed in rash and negligent manner and
dashed with the appellant who sustained grievous
bodily injuries, which resulted into permanent
disability.
6. The Insurance company with which the Truck was
C/FA/749/2021 JUDGMENT
insured, appeared in the claim petition and filed
written statement (Exh.40). The Tribunal framed
issues to proceed to adjudicate the claim
application. Holding the opponent No.1 as solely
negligent in causing the accident, Tribunal assessed
the notional income of the minor, aged twelve years,
to be Rs.15,000/- per year. On the basis of
disability certificate (Exh.59), it was noticed by
the Tribunal that appellant had sustained permanent
partial impairment of 29%. The parties however agreed
to adopt the figure of permanent partial impairment
of the body as a whole to be 11% as per the consent
purshis (Exh.49) produced before the Tribunal.
Applying multiplier of 15, it calculated the total
compensation of Rs.24,750/-. Added thereto
Rs.53,556/- towards Treatment and Medical Expenses,
Rs.10,000/- towards Transportation, attendants and
Expenses on Special diet and Rs.11,000/- towards
Pain, Shock and Suffering, to arrive at a figure of
Rs.99,306/- which came to be awarded as compensation
with 9% interest per annum.
7. The error committed by the Tribunal could be
immediately noticed/struck once the decision of the
Supreme Court in Master Mallikarjun v. Divisional
Manager, the National Insurance Company Limited
[(2014) 14 SCC 396] is considered. In the said case,
based on the extent of injuries, the Apex Court set
down the guidelines to provide the extent of
compensation to the injured minor on the basis of the
extent of injuries. In paragraph 12 of the Master
Mallikarjun (supra), the Supreme Court observed thus,
C/FA/749/2021 JUDGMENT
"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; uputo 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."
8. In the present case, the permanent partial
impairment of the appellant is to be held to be 11%
as per Exh.49. It fell within the bracket of
disability between 10% and 30%. Therefore, amount of
Rs.3 lakhs would be awardable. The amount of Rs.3
lakhs is substituted for the total amount of
Rs.24,750/- towards future loss and Rs.11,000/-
towards pain, shock and suffering and Rs.10,000/-
towards Transportation, Attendants and Special Diet
awarded by the Tribunal.
9. In the aforesaid view, the appellant - claimant
will be entitled to total amount of Rs.3 lakhs
towards future loss, pain, shock and suffering and
Transportation, Attendants and Special Diet. The
further amounts of Treatment and Medical Expenses of
Rs.53,556/- would stand as they are awarded by the
Tribunal. The total amount comes to Rs.3,53,556/- to
be awarded as compensation with interest. The
Tribunal has awarded Rs.99,306/-.
C/FA/749/2021 JUDGMENT
10. Resultantly, the appellant - claimant will be
entitled to enhancement of Rs.02,54,250/- which shall
be paid to the appellant as additional compensation
with interest.
11. Thus, Rs.2,54,250/- shall be paid to the
appellant as additional compensation with 7% interest
from the date of application till realisation. The
additional amount shall be deposited by the opponent
no.3-insurance company within a period of four weeks
from the date of receipt of this order.
12. The additional payable amount shall be disbursed
to the appellant - claimant after proper verification
and undergoing the requisite procedure.
13. In the result, the appeal is partly allowed. The
judgment and award dated 18.11.2019 passed by Motor
Accident Claims Tribunal (Aux.) and Additional
District Judge, Kheda at Nadiad in Motor Accident
Claims Petition No.904 of 2015 is modified to the
aforesaid extent.
14. Record and Proceedings, if any, be sent back to
the trial Court concerned, forthwith.
(VAIBHAVI D. NANAVATI,J)
NEHA
