Gujarat High Court
Jayeshbhai Kavabhai Bharvad vs Arif Ismail Patel on 25 October, 2021
Bench: A.G.Uraizee
C/FA/193/2020 ORDER DATED: 25/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 193 of 2020
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JAYESHBHAI KAVABHAI BHARVAD
Versus
ARIF ISMAIL PATEL
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Appearance:
MR PRADEEP R MISHRA(10206) for the Appellant(s) No. 1
MR R G DWIVEDI(6601) for the Appellant(s) No. 1
MR ALKESH N SHAH(3749) for the Defendant(s) No. 2
RULE SERVED(64) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.G.URAIZEE
Date : 25/10/2021
ORAL ORDER
1. Being unhappy with the quantum of compensation,
the appellant has preferred present appeal under Section
173 of the Motor Vehicles Act 1988 ("M.V. Act" for short)
to assail judgment and award dated 23.10.2019 passed by
learned M.A.C.T. (Auxi), District Court, Vadodara in
M.A.C.P. No.1206 of 2008.
2. I have heard Mr. Pradeep R. Mishra, learned
advocate for the appellant and Mr. Alkesh N. Shah,
learned advocate for the respondent No. 2 - insurance
C/FA/193/2020 ORDER DATED: 25/10/2021
company.
3. The issue raised in this appeal moves in a narrow
compass and as the respondent No. 2 insurance company
has not denied its liability, the appeal is taken up for final
disposal today with the consent of learned advocate for
the parties.
4. Bereft of unnecessary details, the facts giving rise to
present appeal as could be gathered from the memo of
appeal and the impugned judgment are that the appellant
who was aged around 11 years was travelling in Eicher
Truck bearing registration No. GJ-6-Z-8448, along with
his relatives. The truck met with an accident with another
truck. As a consequence the appellant suffered serious
injuries and resultant disability. The claim petition being
M.A.C.P. No. 1206 of 2008 was therefore filed in the
Motor Accident Claims Tribunal, Vadodara to recover
Rs.2,00,000/- from the respondent being the owner /
driver and the insured of the offending vehicle
respectively. The tribunal has, by the impugned judgment
C/FA/193/2020 ORDER DATED: 25/10/2021
and award granted Rs.1,50,000/- as compensation with
9% interest. The appellant is not happy with the quantum
of compensation in view of the decision of Supreme Court
in case of Master Mallikaarjun vs. Divisional
Manager National Insurance Co. Ltd., and another
reported in 2014 (14) SCC 396. Hence, this appeal.
5. Mr. Mishra, learned advocate for the appellant has
raised sole contention to the effect that the Tribunal
ought to have awarded Rs.3,00,000/- instead of
Rs.1,50,000/- in view of the decision of Supreme Court in
case of Master Mallikaarjun (supra). He, therefore, urges
that the appeal may be allowed and appellant may be
held liable to receive Rs.3,00,000/- as compensation
instead of Rs.1,50,000/- as awarded by the tribunal.
6. Mr. Shah, learned advocate for the insurance
company has supported the impugned judgment and
award. He submits that the appellant had claimed only
Rs.2,00,000/- in the claim petition and considering overall
facts of the case, tribunal has awarded Rs.1,50,000/-
C/FA/193/2020 ORDER DATED: 25/10/2021
which is just and reasonable. He, therefore, submits that
the impugned judgment and awarded does not warrant
any interference. He, further submits that in case this
Court is inclined to enhance the compensation in view of
the decision of Hon'ble Supreme Court in case of Master
Mallikaarjun (supra), interest @ 7.5% may be awarded on
the additional compensation instead of 9% as awarded by
the Tribunal.
7. At the threshold it is apposite to consider the
observations of the Supreme Court in case of Master
Mallikaarjun (supra) which reads as under:-
"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
C/FA/193/2020 ORDER DATED: 25/10/2021
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....."
8. It is an undisputed fact that the appellant had
suffered 11% permanent disability as per Exh.15
disability certificate. It is also an admitted position that
the appellant was minor aged 11 years at the time of
accident.
9. It appears from the impugned judgment that the
tribunal has not followed dictum of the Supreme Court in
case of Master Mallikaarjun (supra). As the appellant had
claimed Rs.2,00,000/- as compensation in the claim
petition, the Tribunal, on spacious reason that the
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tribunal has to award just compensation has awarded
Rs.1,50,000/- as compensation. It is settled proposition of
law that while exercising jurisdiction under Section 166
of the M.V. Act, tribunal is required to award just and fair
compensation even if it exceeds the amount of
compensation claimed in the claim petition.
10. In view of above, the appeal succeeds and is hereby
allowed. The impugned judgment and award dated
23.10.2019 passed by learned M.A.C.T. (Auxi), District
Court, Vadodara in M.A.C.P. No.1206 of 2008 stands
modified and the appellant is held entitled to
Rs.3,00,000/- in place of Rs.1,50,000/- as awarded by the
Tribunal. The additional amount of compensation of
Rs.1,50,000/- shall carry interest @ 7.5%.
11. In the facts of the case, the parties are left to bear
their own cost.
12. The respondent No.2 insurance company is directed
to deposit the amount of additional compensation along
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with interest in the tribunal within six weeks from date of
the receipt of certified copy of present order.
The appeal stands disposed of accordingly.
(A.G.URAIZEE, J)
SURESH SOLANKI
