Nirbhay Manubhai Patel vs Kamleshkumar Motibhai Patel
2022 Latest Caselaw 10062 Guj

     C/FA/4270/2019                               JUDGMENT DATED: 14/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 4270 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI

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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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                         NIRBHAY MANUBHAI PATEL
                                  Versus
                      KAMLESHKUMAR MOTIBHAI PATEL
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Appearance:
MR MANISH J PATEL(2131) for the Appellant(s) No. 1
MR CHIRAYU A MEHTA(3256) for the Defendant(s) No. 2
MR RITESH B DAVE(2815) for the Defendant(s) No. 3
MR YOGI K GADHIA(5913) for the Defendant(s) No. 4
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 First Appeal, the appellant has challenged the

C/FA/4270/2019 JUDGMENT DATED: 14/12/2022

award dated 03.01.2019 passed in M.A.C.P. No. 1631 of 2013

(Old MACP) Case No. 838 of 2010 by MACT, (Aux.),

Modasa whereby the Tribunal was pleased to partly allowed

the claim of grant of Rs. 4,36,070/- with 9% interest.

2. When the matter was taken up for hearing today, learned

advocate Mr. Manish Patel appearing for the appellant who are

seeking enhancement, upon instructions from the appellant

made a statement at bar that he is confining the present appeal

only to the extent of grant of compensation in respect of the

partial disability of right upper limb and lower limb of the

present appellant, which the Tribunal has considered to be

18% and granted sum of Rs. 1,80,000/- towards compensation

for the same and therefore, the appeal was heard and decided

only on the aforesaid aspect as rest of the challenge to the

award has not been pressed by learned advocate Mr. Patel.

3. Learned advocate Mr. Manish Patel for the appellant drew

attention of this Court to the paragraphs no. 9.1 and 9.2 of the

award and pointed out that the Tribunal on the basis of his

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disability certificate which was produced at Exh. 57 came to

the conclusion that the claimant has sustained partial disability

and according to Kessler partial disability of right upper limb

and lower limb was about 39.83% but at the same time, since,

the learned advocates for the parties were agreed to have

assess permanent partial disability of the claimant to the tune

of 18% of whole body, the case of the appellant was

considered as if he has sustained 18% of partial disability.

Thereafter, the Tribunal considered the judgment in case of

Mallikarjun V/s. Divisional Manager, National Insurance

Company Ltd. and another reported in 2013 ACJ 2445 and

based upon the aforesaid judgment, the Tribunal while

considering the fact that Hon'ble Supreme Court held that if

disability is above 10% and up to 30% to the whole body, a

compensation of Rs. 3,00,000/- should be awarded, instead of

awarding Rs. 3,00,000/-, the Tribunal has considered Rs.

10,000/- per 1% disability and accordingly for 18% of

disability granted Rs. 1,80,000/- which is not in accordance

with the ratio laid down by the Hon'ble Supreme Court and

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therefore, the aforesaid error committed by the Tribunal is

required to be rectified and enhancing the permanent disability

compensation suitably.

4. Learned advocate Mr. Chirayu Mehta appearing for the

defendant no. 2 and learned advocate Mr. Yogi Gadhia

appearing for the Insurance Company though opposed the

appeal vehemently, could not point out anything contrary

which may compel this Court to take a contrary view than

ratio laid down by Hon'ble Supreme Court. The Hon'ble

Supreme Court while considering the aspect of partial

disability held that if disability is above 10% and upto 30% to

whole body Rs. 3,00,000/- should be paid. Even the Tribunal

in paragraphs no. 9.4 and 9.5 observed as under:-

"9.4 Hence, this Tribunal has considered that the minor victim has suffered from permanent disability of 18% body as a whole. Recently, the Hon'ble Supreme Court III (2013) ACC 924 (SC) in the case of Master Mallikarjun Vs. Divisonal Manager, National Insurance Co. Ltd., (supra) held as under:-

wherein it is held that "Appropriate compensation on all other heads in addition to actual expenditure for treatment, attendant, etc., should be, if disability is above 10% and up to 30% to whole body, Rs.3,00,000/-, up to 60% Rs.4,00,000/-, up to 90% Rs.5,00,000/- and above 90%, it should be Rs.6,00,000/-. For permanent disability up to 10%, it should

C/FA/4270/2019 JUDGMENT DATED: 14/12/2022

be Rs.1 Lakh,. As discussed above permanent partial physical impairment of claimant as 10% of whole body. Therefore, she would be entitled to get Rs.1,00,000/- towards the common heads as held by the Hon'ble Apex Court in "III (2013) ACC 924 (SC) in the case of Master Mallikarjun Vs. Divisonal Manager, National Insurance Co. Ltd."

9.5 Here in this case, the disability of the injured is to be considered as 18% and therefore, as per the above ratio laid down by the Hon'ble Supreme Court, the claimant is entitled for ₹. . 1,80,000/- under the head of pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience and discomfort, etc., and loss of amenities in life on account of permanent disability."

5. The aforesaid observations made by the Tribunal are not in

accordance with the ratio laid down by the Hon'ble Supreme

Court as the Hon'ble Supreme Court has categorically

observed that if disability is above 10% and up to 30% to the

whole body, sum of Rs. 3,00,000/- should awarded towards

permanent disability compensation and it does not speak about

any part of the aforesaid amount depending upon the specific

percentage of disability. It is undisputed fact that the claimant

is minor at the time of accident.

6. In view of that, the award of the Tribunal is required to be

quashed and set aside to the aforesaid extent. So far as it has

awarded compensation for permanent disability to the tune of

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Rs.1,80,000/- and the same is enhanced to sum of Rs.

3,00,000/- to be paid within 12 weeks from today with 6%

interest from the date of original claim application.

7. With the aforesaid directions, the present First Appeal is partly

allowed. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(NIRZAR S. DESAI,J) VARSHA DESAI