Minor Rajesh @ Rajubhai Vanubhai ... vs Altafbhai Iqbalbhai
2022 Latest Caselaw 4290 Guj

     C/FA/3858/2012                               JUDGMENT DATED: 21/04/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3858 of 2012


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

==========================================================

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 ?

==========================================================
      MINOR RAJESH @ RAJUBHAI VANUBHAI THROUGH VANUBHAI
                          SONDABHAI
                             Versus
                 ALTAFBHAI IQBALBHAI & 2 other(s)
==========================================================
Appearance:
MS AMRITA AJMERA(5204) for the Appellant - Ori. Claimant
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3 - Insurance Co.
RULE SERVED for the Defendant(s) No. 1,2
==========================================================

    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                              Date : 21/04/2022

                             ORAL JUDGMENT

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - Insurance Company, being aggrieved and dissatisfied with the common judgment and award dated 13.08.2012 passed by the Motor Accident Claims Tribunal

C/FA/3858/2012 JUDGMENT DATED: 21/04/2022

(Aux.), Surendranagar in Motor Accident Claim Petition No.244 of 2005, by which the Tribunal has awarded compensation of Rs.3,07,000/- with 9% per annum interest to the claimants, holding Opponents i.e. owner, driver and insurance company liable, jointly and severally.

2. Brief facts of the case are as under:

2.1 On 20.04.2005 at about 5:00 p.m., when the injured - Minor Rajesh Vanubhai was going on pedestrian road, at that time, one Truck bearing registration No.GJ-1-U-7173 came from opposite side in rash and negligent manner and dashed with the claimant. Due to that, the claimant received serious injuries. The injured was aged about 5 years and was going for study. The injured got injures; like crush injuries on right leg and therefore, he has to cut his leg and he received injuries on left leg and on face and also on body. Therefore, the claim petition is filed by the guardian of the injured to get the compensation of Rs.5 lakhs with 18% interest.

2.2 Notices were served to the opponents i.e. owner, driver and insurance company. None were present except Opponents No.3 - insurance company. Opponent No.3 - insurance company has filed its written statement at Exh.12 by disputing all the averments made by the claimant in the claim petition and also disputed the liability.

2.3 The Tribunal has framed the issues at Exh.26. The oral as well as documentary evidence were led by the rival parties before the Tribunal. After considering the documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed the claim petition by awarding compensation as noted above.

2.4     Being aggrieved and dissatisfied with the impugned judgment






      C/FA/3858/2012                           JUDGMENT DATED: 21/04/2022

and award passed by the Tribunal, the present appeal is preferred by the claimant for enhancement.

3. Learned advocate for the appellant - claimant has submitted that the Tribunal has committed an error in not properly calculating the amount of compensation. He has submitted that amount awarded is on lower side as the Tribunal has not properly considered the various aspects; like future prospective income of the injured, injuries and disability, etc. He has submitted that the Tribunal has committed an error by not considering the compensation properly under the head of future prospective income in view of the disability. He has further submitted that looking to the age of the injured and keeping in view the ratio laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited versus Pranay Shethi reported in (2017) 16 SCC 680, more income should be added towards prospective income of the injured. The Tribunal has not appreciated the injuries and disability sustained by the injured. He has submitted that the Tribunal has committed gross error by not considering the entire medical bills produced on record by the claimant. He has submitted that the Tribunal has awarded meager compensation under the head of pain, shock and suffering. He has submitted that the Tribunal has awarded very meager amount towards transportation, attendant charges and special diet, which should be more as per the decision of Hon'ble Apex Court in the case of Sarla Verma versus Delhi Transport Corporation reported in (2009) 6 SCC 121. He has submitted that the Tribunal has not properly applied multiplier, which should be higher. He has submitted that the compensation is required to be enhanced by modifying the award impugned accordingly.

4. Per contra, Mr. Majmudar, learned advocate for respondent -

C/FA/3858/2012 JUDGMENT DATED: 21/04/2022

insurance company has submitted that the impugned judgment and award passed by the Tribunal is just and proper. The Tribunal has rightly considered the income of the deceased. He has submitted that under the head of transportation, attendant charges and special diet, the Tribunal has awarded proper compensation to the claimant. He has submitted that no interference is required in the impugned award by this Court. He has submitted that this appeal may be dismissed.

5. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the Motor Vehicles Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimants.

6.1 I have considered the submissions made by the rival parties. I have perused the record and proceedings of the Tribunal. I have gone through the impugned judgment and award passed by the Tribunal. The Tribunal has considered the notional income of the injured Rs.1,500/- as the injured was a minor. However, the Tribunal has committed an error in considered the fact that the injured was aged about 5 years and he might be able to earn more after getting major. Therefore, the notional income of the injured would be considered Rs.4,000/- per month. Further, the injured has to cut his leg due to crush injuries received by him and the injuries received on the other leg. Therefore, it can be said that the injured cannot stand

C/FA/3858/2012 JUDGMENT DATED: 21/04/2022

without any help for whole life. Hence, looking to the said injuries, it can be said that the permanent disability to the injured would be 100%. The injured might not be able to earn forcefully like normal person.

6.2 Further, looking to the age of the injured at the time of accident, it would be proper to add future prospective income of the injured to the extent 40%. Further, looking to the age and considering the decision of Hon'ble Apex Court in the case of Sarla Verma (supra), 15 multiplier would be proper to apply in the present case. Thus, considering the notional income Rs.4,000/- plus 40% prospective future income, 100% disability and 15 multiplier, the total amount of compensation under the head of future dependency loss would come to Rs.5,04,000/- which should be awarded to the claimant, which would be just and proper considering the facts and circumstances of the present case.

6.3 Further, under the head of pain, shock and suffering, it would be proper to award Rs.2 lakhs looking to the injuries and disability of the injured. Further, medical expenses of Rs.20,000/- should be awarded to the claimant as there were medical bills produced by the claimant. It is required to keep in mind that the future medical expenses and/or the expenses towards artificial leg to be implanted to the injured. For that, Rs.3 lakhs would be proper to award to the claimant. Further, under the head of enjoyment of life, Rs.2 lakhs would be just and proper to award to the claimant as the injured was aged about 5 years only at the time of accident and considering the decision of Hon'ble Apex Court in mind in the case of Syed Sadiq versus United India Insurance Co. Ltd. reported in 2014(2) SCC

735.

       C/FA/3858/2012                                 JUDGMENT DATED: 21/04/2022



6.4     Therefore, total compensation would be as under, which the

claimant is entitled to get, which would meet the ends of justice.

                             Particulars                        Amount (Rs.)
         Future Dependency Loss                                          5,04,000/-
         Pain, shock and suffering                                       2,00,000/-
         Future Medical Expenses / Artificial Leg                        3,00,000/-
         Medical Expenses                                                   20,000/-
         Loss of Enjoyment                                               2,00,000/-
                                                    Total...             10,24,000/-

Therefore, I hold that the claimant is entitled to get the total amount of compensation of Rs.10,24,000/- with 9% p.a. interest from the date of filing the claim petition till its realisation, which would meet the ends of justice. Rest of the direction(s) of the Tribunal remain same. The Tribunal has already awarded Rs.3,07,000/-, therefore, remaining amount of Rs.7,17,000/- would be the enhanced amount of compensation payable to the claimant.

7. For the reasons recorded above, the following order is passed.

7.1     The present appeal is allowed.

7.2     The Insurance Company is directed to deposit the enhanced

amount Rs.7,17,000/- with 9% p.a. interest from the date of claim petition till its realisation before the concerned Tribunal, within a period of six weeks from the date of receipt of this order.

7.3 The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon if any, to the claimants, by account payee cheque, after proper verification and after following due procedure.

       C/FA/3858/2012                           JUDGMENT DATED: 21/04/2022



7.4     While making the payment, the Tribunal shall deduct the

courts fees, if not paid, in accordance with rules/law.

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

(SANDEEP N. BHATT,J) M.H. DAVE