Gujarat High Court
Maheshwari (Mangaliya) Govind ... vs Ramesh Samji Dangar on 14 December, 2022
Bench: Nirzar S. Desai
C/FA/1178/2021 JUDGMENT DATED: 14/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1178 of 2021
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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MAHESHWARI (MANGALIYA) GOVIND VALJI
Versus
RAMESH SAMJI DANGAR
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Appearance:
SHIVANG A THACKER(7424) for the Appellant(s) No. 1
MR YOGI K GADHIA(5913) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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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
judgment and award dated 03.07.2019 by the M.A.C.T Aux.,
C/FA/1178/2021 JUDGMENT DATED: 14/12/2022
Kutch at Bhuj in M.A.C.P. No. 104 of 2004 whereby the
Tribunal allowed the claim petition of the appellant and
awarded compensation of Rs. 3,00,000/-with 9 % interest from
the date of application till date of his realization. However, the
present appeal is preferred for a limited purpose as the
Tribunal has not thought it fit to grant compensation to the
tune of Rs. 30,000/- for medicines and special diet, Rs.
10,000/- for attendant charges, Rs. 30,000/- for transportation
charges from Bhuj to Ahmedabad, Rs. 30,000/- for financial
loss and loss of comfort to the parents for attending the
appellant and thereby, the present appellant has prayed for an
additional sum of Rs.1,00,000/- over and above the sum of Rs.
3,00,000/- which was awarded by way of compensation.
2. The claim of the present appellant before the Tribunal was as
under:-
2.1 That On 09/01/2004 at about 8-30 a.m., the minor
applicant namely Govind was crossing the road near to
Kukma Pond, at that time opponent No.1 along with
C/FA/1178/2021 JUDGMENT DATED: 14/12/2022
Jeep No. GJ-12-K-8115 came in rash and negligent
manner and with full speed and dashed his Jeep with the
minor applicant and thereby caused accident in which
applicant sustained serious injuries. It is further stated
that the applicant has been permanently and partially
disabled because of the injuries sustained by him in the
said accident which took place because of rash and
negligent driving of opponent No.1 i.e. driver of Jeep
bearing registration No. GJ-12-K-8115. Opponent No.2
and 3 are the owner and insurer of the said vehicle Jeep
respectively. Therefore, the opponents are liable to pay
the amount of compensation to the applicant with costs
and interest.
3. The Tribunal considered the aforesaid aspect and awarded
compensation of Rs. 3,00,000/- with 9% interest from the date
of application till realization of the amount alongwith
proportionate costs of the application. However, as the
appellant was aggrieved that the amount towards medicine and
special diet, attendant charges and transportation charges as
C/FA/1178/2021 JUDGMENT DATED: 14/12/2022
well as financial loss and loss of comfort to the parents for
attending the appellant were not considered by the Tribunal
seeking an enhancement of the compensation by Rs.
1,00,000/-, the present appeal is preferred.
4. Learned advocate Mr. Shivang Thacker appearing for the
appellant by relying the upon the judgment in case of
Malikarjun V/s Divisional Manager, National Insurance
Company Ltd. and Anr. reported in (2014) 14 SCC 396 and
more particularly by relying upon paragraph no. 12 of the
aforesaid judgment submitted that the Tribunal has only
granted future loss of income. However, the Tribunal has
granted compensation on all other heads in addition to the
actual expenditure for the treatment, attendant etc. and
therefore, he submitted that an additional compensation of
Rs. 1,00,000/- which is based on the actual expenses incurred
by the present appellant may be allowed by directing the
Insurance Company to grant the amount as prayed for.
5. Learned advocate Mr. Yogi K. Gadhia appearing for the
C/FA/1178/2021 JUDGMENT DATED: 14/12/2022
Insurance Company vehemently opposed the present appeal
and submitted that the Tribunal has after taking into
consideration all the evidence on record granted the
compensation of Rs. 3,00,000/- with 9% interest and therefore,
no interference in the award passed by the Tribunal is
required.
6. I have learned advocates for the respective parties. Learned
advocate Mr. Thacker for the appellant at the outset submitted
that this Court may exercise the discretion and reduce the
amount suitably, if this Court deems that the amount claimed
by the appellant is exaggerated amount.
7. The Hon'ble Supreme Court in case of Malikarjun V/s
Divisional Manager, Oriental Insurance Company Ltd. And
Anr. in paragraphs no. 12 and 13 observed 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 up to 30% to the whole body, Rs.3
lakhs; up to 60%, Rs.4 lakhs; up to 90%, Rs.5 lakhs and above 90%, it
should be Rs.6 lakhs. For permanent disability upto 10%, it should be
C/FA/1178/2021 JUDGMENT DATED: 14/12/2022
Rs.1 lakh, unless there are exceptional circumstances to take different
yardstick.
13. In the instant case, the disability is to the tune of 18%. The
appellant had a longer period of hospitalization for about two months
causing also inconvenience and loss of earning to the parents. The
appellant, hence, would be entitled to get the compensation as follows:
Head Compensation
amount
Pain and suffering already undergone and to be Rs. 3,00,000/-
suffered in future, mental and physical shock,
hardship, inconvenience, and discomforts, etc. and
loss of amenities in life on account of permanent
disability.
Discomfort, inconvenience and loss of earnings to Rs. 25,000/-
the parents during the period of hospitalisation.
Medical and incidental expenses during the period Rs.25,000/-
of hospitalisation for 58 days.
Future medical expenses for correction of the of Rs. 25,000/-
the mal union of fracture and incidental
expenses
for such treatment.
Total Rs.3,75,000/-
8. Considering the fact that in the present case also the appellant
is a minor and therefore, the case of the present appellant is
squarely covered by the aforesaid judgment in case of
Malikarjun.
9. In opinion of this Court, interest of justice would be served, if
following amount as additional amount towards compensation
is awarded to the present appellant by modifying the aforesaid
C/FA/1178/2021 JUDGMENT DATED: 14/12/2022
award suitably.
Head Amount
Medical expenses and special diet Rs. 30,000/-
Attendant charges Rs. 10,000/-
Financial loss and loss of comfort to the Rs. 30,000/-
parents for attending
Transportation charges Rs. 25,000/-
Total Rs. 95,000/-
10. The respondent Insurance Company is directed to
deposit the aforesaid amount within a period of 12 weeks from
today with 6 % interest from the date of filing of claim
application before the Tribunal.
11. With the aforesaid direction, the present appeal is partly
allowed. Rule is made absolute to the aforesaid extent.
Direct service is permitted.
(NIRZAR S. DESAI,J)
VARSHA DESAI
