Gujarat High Court
Ajay Shantilal Thakor vs Pravinbhai Rambhai Prmar on 29 June, 2021
Bench: N.V.Anjaria
C/FA/2541/2020 ORDER DATED: 29/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2541 of 2020
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AJAY SHANTILAL THAKOR
Versus
PRAVINBHAI RAMBHAI PRMAR
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR. RAHUL R DHOLAKIA(6765) for the Defendant(s) No. 2
NOTICE SERVED(4) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
Date : 29/06/2021
ORAL ORDER
Heard learned advocate Mr.Nishit Bhalodi for the
appellant and learned advocate Mr.Rahul Dholakia on behalf of
the respondent No.2- Insurance Company.
1.1 Respondent No.1 who is owner and served, however, since
he is non-contesting party, this appeal could be taken up for final
consideration though nobody appears representing respondent
No.1, having regard to the issues and arguments involved in the
appeal.
2. The appellant claimant has preferred the present appeal
under Section 173 of the Motor Vehicles Act, 1988, questioning
the judgment and award dated 20.12.2019 passed by the Motor
Accident Claims Tribunal (Auxiliary) by 4 th Additional District
Judge, Petlad in Motor Accident Claims Petition No.135 of 2018,
whereby the Claims Tribunal awarded to the claimant total
amount of Rs.1,96,137/- with interest at the rate of 9% from the
date of accident till realization. The victim who suffered injuries
in the accident was minor aged 17 years.
2.1 This appeal is preferred for enhancement of the
compensation.
C/FA/2541/2020 ORDER DATED: 29/06/2021
2.2 The accident took place on 6.4.2014. The minor son of the
appellant- claimant sustained serious injuries on account of rash
and negligent driving of the offending vehicle EECO car bearing
No.GJ-6-ED-3542. The claim petition was filed under Section 166
of the Motor Vehicles Act.
3. Insurance Company appeared and contested the claim by
filing written statement at Exhibit 19. The Tribunal framed
issues and proceeded to adjudicate the claim. On the basis of the
evidence, Tribunal awarded total compensation as above to the
extent of Rs.1,96,137/- with interest which was classified under
the different heads as Rs.91,800/- towards future loss of income,
Rs.85,337/- in respect of the medical bills, Rs.12,000/- under the
head of pain, shock and suffering and Rs.7,000/- for special diet,
transportation and attendance.
3.1 So far as the disability of the injured was concerned, the
offence was considered and discussed by the Tribunal as
recorded in paragraph Nos.12 and 13. One Dr. Bhavin Rupera
issued disability certificate (Exhibit 39) assessing 14% disability
for body as a whole. The applicant himself produced disability
certificate (Exhibit 20) which was issued by Dr. Vijay Sheth,
Neurosurgeon, in which 23% disability was indicated for the
body as whole. Learned advocate for the opponent endorsed to
consider 10% disability with reference to Exhibit 20 certificate.
3.2 The parties agreed to consider in total 17% disability for
body as a whole. On such basis, findings was recorded by the
Tribunal holding that the injured had suffered 17% disability for
body as a whole. Total annual income to be considered
Rs.30,000/- and multiplier of 18 was applied to arrive at above
C/FA/2541/2020 ORDER DATED: 29/06/2021
compensation inclusion of medical bills etc.
4. Learned advocate for the appellant raised sole contention
that the Tribunal committed error in awarding Rs.91,800/- only
under the head of future loss of income to the injured claimant,
who was, submitted learned advocate, aged 17 years and who
has received the disability for the body as whole, was assessed
at 17%. Learned advocate for the appellant relied on the
decision of the Apex Court in Master Mallikarjun v. Divisional
Manager, the National Insurance Company Limited
[(2014) 14 SCC 396] to submit that looking to the extent of
disability, Rs.3,00,000/- ought to have been awarded as per the
said decision towards future loss of income.
5. The error committed by the Tribunal could be immediately
struck once the decision of the Supreme Court in Master
Mallikarjun (supra) is considered. In that, 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,
"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
C/FA/2541/2020 ORDER DATED: 29/06/2021
yardstick." (Para 12)
5.1 In the present case, the permanent partial disability of the
appellant is assessed 17% by the Tribunal. It therefore fell
within the bracket of disability between 10% and 30%, therefore
as per the aforementioned decision of the Supreme Court,
Rs.3,00,000/- could be awardable towards future loss of income,
pain shock and suffering and special diet etc. in lump-sum and
that is consolidated. Accordingly, for the amount of Rs.91,800/-,
Rs.12,000/- and 7,000/- presently awarded by Tribunal towards
future loss of income, pain shock and suffering and special diet,
transportation and attendance, total amount of Rs.3,00,000/-
would be suitable. As total entitlement to the appellant claimant
accordingly to Rs.3,00,000/- in total is to be awarded as above,
Rs.85,337/- towards treatment and medical bills awarded by the
Tribunal shall become payable making total entitlement for the
appellant to Rs.3,85,337 with 9% interest from the date of claim
petition till realization.
6. Resultantly, the applicant- claimant will be entitled to the
enhancement of Rs.1,89,200/- which shall be paid to the
appellant as additional compensation with interest as awarded
by the Tribunal. The Insurance Company shall deposit the said
additional amount with interest as above on or before 15.9.2021.
The additional compensation amount shall be disbursed to the
appellant claimant after proper verification and undergoing
requisite procedure. The impugned judgment and award of the
Claims Tribunal shall stand modified as above.
7. The appeal is allowed in the aforesaid terms.
(N.V.ANJARIA, J)
Manshi
