Gujarat High Court
Minor Kishanbhai Maheshkumar ... vs Shantaji Amthaji Thakor on 14 December, 2022
Bench: Nirzar S. Desai
C/FA/417/2018 JUDGMENT DATED: 14/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 417 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-
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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 ? No
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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MINOR KISHANBHAI MAHESHKUMAR RAVAL
Versus
SHANTAJI AMTHAJI THAKOR & 1 other(s)
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Appearance:
MR. YOGENDRA THAKORE(3975) for the Appellant(s) No. 1
MR YOGI K GADHIA(5913) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 14/12/2022
ORAL JUDGMENT
1. By way of this appeal, the appellant has
challenged the judgment and award dated 20.4.2017
C/FA/417/2018 JUDGMENT DATED: 14/12/2022
passed by the learned 3rd M.A.C. Tribunal (Aux.),
Mahesana at Visnagar in M.A.C.P. No.941 of 2012 (Old
No.31/2010), whereby the present appellant has
preferred the application seeking compensation of
Rs.3,00,000/- under various heads; however, the
Tribunal, after leading the evidence and taking into
consideration the facts on record, awarded a sum of
Rs.2,03,650/- under various heads. However, according
to the appellant, the aforesaid compensation is not
just and fair compensation, and therefore, the same
is required to be enhanced by taking into
consideration latest law laid down by the Hon'ble
Supreme Court in the case of Master Mallikarjun vs.
National Insurance Co. Ltd., reported in 2014 (14)
SCC 396.
2. It is the case of the appellant that the
appellant has filed a claim petition to get
compensation of Rs.3,00,000/- in respect of
accidental injuries sustained by minor son of the
applicant in a vehicular accident occurred on
17.11.2009 between 11:00 am to 11:30 am, when the
C/FA/417/2018 JUDGMENT DATED: 14/12/2022
minor son of the appellant was passing besides the
road, at that time, a jeep bearing registration
No.GJ-5-YY-808 came with high speed and in rash and
negligent manner and dashed his jeep to the minor son
of the appellant and thereby, the minor son of the
appellant sustained serious injuries. At the time of
accident, the minor son of the applicant was only 5
years old. Due to the accident, the appellant
incurred heavy medical expenses, attendant charges,
special diet charges, transportation charges and also
sustained permanent disability. As such, the accident
has occurred due to negligent driving on the part of
the driver of jeep and the appellant has filed the
claim petition to get compensation of Rs.3,00,000/-
from the respondent - insurance company under various
heads. However, the Tribunal, after appreciating the
evidence on record, awarded only Rs.2,03,650/-.
Hence, the present appeal.
3. Mr.Yogendra Thakore, learned advocate for the
appellant submitted that the compensation awarded by
the Tribunal is not in consonance with the judgment
C/FA/417/2018 JUDGMENT DATED: 14/12/2022
of the Hon'ble Apex Court in the case of Master
Mallikarjun (supra). He further submitted that the
Tribunal considered the fact that the appellant
sustained injuries which resulted into 23.5%
disability which has not been disputed by the
respondent - insurance company, and therefore, taking
into consideration the judgment in the case of Master
Mallikarjun (supra), the appellant is entitled for
fair lump sum compensation of Rs.3,00,000/-. The
Tribunal has awarded a sum of Rs.1,26,900/- towards
future loss of income, Rs.15,000/- towards pain,
shock and suffering and Rs.3,000/- towards actual
loss of income, which according to learned advocate
for the appellant are required to be merged in the
lump sum compensation of Rs.3,00,000/- in view of the
ratio laid down by the Hon'ble Apex Court in the case
of Master Mallikarjun (supra). Learned advocate for
the appellant submitted that the present appellant is
also entitled for Rs.43,750/- towards medical
expenses and Rs.15,000/- towards S.A.T. charges and
thereby, submitted that the appellant is entitled to
compensation of Rs.3,58,750/-, against which, the
C/FA/417/2018 JUDGMENT DATED: 14/12/2022
Tribunal has awarded only Rs.2,03,650/- by way of
total compensation.
4. Mr.Gadhia, learned advocate for the respondent -
insurance company vehemently opposed the appeal and
submitted that the Tribunal has rightly awarded the
total compensation of Rs.2,03,650/-. He submitted
that the Tribunal has arrived at just and proper
conclusion after taking into consideration the
material on record and appreciating the evidence on
record in its proper perspective. However, Mr.Gadhia,
learned advocate for the insurance company could not
point out anything that while passing the impugned
judgment and award, the Tribunal has taken into
consideration the decision in the case of Master
Mallikarjun (supra).
5. In view of the above, what is required to be
seen is that whether the Tribunal has, while granting
the aforesaid compensation, considered the case of
Master Mallikarjun (supra) or not. On perusal of the
aforesaid award, it transpires that the Tribunal did
C/FA/417/2018 JUDGMENT DATED: 14/12/2022
not consider the ratio laid down by the Hon'ble Apex
Court in the case of Master Mallikarjun (supra),
wherein in paras 12 and 13, it is held 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 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."
6. In view of the aforesaid specific view taken by
the Hon'ble Supreme Court, which has been followed
thereafter, the appellant who is minor at the time of
accident would be entitled to the benefits as per the
ratio laid down by the Hon'ble Apex Court in the case
C/FA/417/2018 JUDGMENT DATED: 14/12/2022
of Master Mallikarjun (supra). Hence, the appellant
is entitled for just and fair lump sum compensation
of Rs.3,00,000/-, which would include the
compensation under the heads of future loss of
income, pain, shock and suffering and under the head
actual loss of income considering disability of
23.5%. Rest of the compensation awarded by the
tribunal in the impugned judgment and award shall
remain as it is. Thus, the appellant would be
entitled to total compensation of Rs.3,58,750/- break
up of which is as under:
Head Compensation
Amount
Lump sum Rs.3,00,000
Medical and incidental expenses Rs. 43,750
during the period of
hospitalisation for 58 days
S.A.T. Charges Rs. 15,000
Total Rs.3,58,750
7. The insurance company shall deposit the enhanced
amount of Rs.1,55,100/- with interest at the rate of
7% per annum from the date of petition till its
C/FA/417/2018 JUDGMENT DATED: 14/12/2022
realization within a period of 12 weeks.
8. Mr.Thakore, learned advocate for the appellant,
states that difference of deficit court fees shall be
adjusted by the learned Tribunal in accordance with
law.
9. With the aforesaid this appeal is partly
allowed. Record and proceedings received, if any, be
remitted back to the concerned Tribunal forthwith.
Sd/-
(NIRZAR S. DESAI,J)
P. SUBRAHMANYAM
