Gujarat High Court
Minor Kinjalben (Amisha) ... vs Malek Sarifmiya Nuramiya on 14 December, 2022
Bench: Hemant M. Prachchhak
C/FA/4329/2018 JUDGMENT DATED: 14/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4329 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MINOR KINJALBEN (AMISHA) RAJESHBHAI DANTANI
Versus
MALEK SARIFMIYA NURAMIYA & 1 other(s)
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Appearance:
MR AV PRAJAPATI(672) for the Appellant(s) No. 1
MRS VASAVDATTA BHATT(193) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 14/12/2022
ORAL JUDGMENT
1. The present Appeal is filed by the appellant - original
claimant seeking enhancement of the compensation amount
awarded by the Motor Accident Claims Tribunal (Main),
C/FA/4329/2018 JUDGMENT DATED: 14/12/2022
Mehsana, (hereinafter referred to as "the Tribunal") vide
impugned judgment and award dated 18.08.2017 passed in
M.A.C.P. No.279 of 2014, whereby the Tribunal has partly
allowed the claim petition and awarded a sum of Rs.89,000/-.
2. Brief facts of the present case are that, on 21.08.2013,
minor appellant alongwith her parents was walking on the
Nandasan - Kadi road as a pedestrian and when they reached
at the place of accident, the drive of the S.T. Bus bearing
registration No.GJ-18-Y-4637 came with full speed and in rash
and negligent manner and in wrong side and dashed with
minor appellant. As a result, the appellant had sustained
serious injuries and suffered permanent disability. Hence, the
appellant - original claimant has filed M.A.C.P. No.279 of 2014
before the Tribunal. The Tribunal, after evaluating the
pleadings and evidence tendered by the parties, partly allowed
the claim petition and awarded a sum of Rs.89,000/- under
different heads as against the claim of Rs.1,00,000/-.
3. It came to be held by the Tribunal that said amount was
ordered to be awarded to the deponents. Not being satisfied
with the compensation amount, this appeal has been filed.
C/FA/4329/2018 JUDGMENT DATED: 14/12/2022
4. Heard Mr.A.V. Prajapati, the learned counsel appearing
for the appellant and Mrs.Vasavdatta Bhatt, the learned
counsel appearing for the respondent No.2 - Gujarat State
Road Transport Corporation.
5. Mr.Prajapati, the learned counsel appearing for the
appellant has submitted the same facts which are narrated in
the memo of appeal. He has submitted that the Tribunal has
not properly appreciated the income of the appellant while
determining the quantum. He further submitted that the
Tribunal has not awarded just and adequate compensation as
per the settled legal principles. He further submitted that at
the time of accident, the appellant was only 7 years and the
lower court has failed to consider prospective income and
adverse effect on the said prospective income and hence, the
Tribunal has committed an error on all other grounds raised in
the memo of appeal and has sought modification of the
impugned judgment and award and enhancement of the
compensation awarded by the Tribunal.
6. Per contra, Mrs.Bhatt, the learned counsel appearing for
C/FA/4329/2018 JUDGMENT DATED: 14/12/2022
respondent No.2 - S.T. Corporation has supported the
impugned judgment and award passed by the Tribunal and
submitted that the judgment passed by the Tribunal is just and
proper and, therefore, no interference is called for. However,
she candidly submitted that as per the decision of the Apex
Court in case of Master Mallikarjun Vs. Divisional Manager,
National Insurance Company Limited and another, (2014) 14
SCC 396, appropriate order may be passed.
7. Having considered the averments made in the appeal,
submissions made by the learned counsel appearing for both
the sides and considered the facts of the case and perused the
record and proceedings, and considering the fact that the
claimant being a minor and the case is already covered by the
decision of the Apex Court in case of Master Mallikarjun
(Supra). Moreover, the appellant sustained bodily injury and
sustained 26.83% disablement, which is clearly revealed vide
Exh.-22 (the injury certificate) and the Tribunal has rightly
considered the said certificates and the age of the injured 5
years and 7 months at the time of accident vide Exh.-23 (Birth
certificate of the claimant). Considering all these aspects, the
present appeal deserves to be allowed in part and the
C/FA/4329/2018 JUDGMENT DATED: 14/12/2022
impugned judgment and award passed by the Tribunal is
required to be modified to the extent.
8. Considering the ratio laid down by the Hon'ble Supreme
Court in the case of Master Mallikarjun Vs. Divisional
Manager, National Insurance Company Limited and another,
reported in (2014) 14 SCC 396, the impugned judgment and
award passed by the Tribunal is required to be modified to the
extent and the appellant is entitled to Rs.3,00,000/- (Rupees
Three Lac Only) towards compensation. The relevant
observations made by the Supreme Court in paragraph 12 is 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. In the instant case, the disability is to the
tune of 18%. 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: -
C/FA/4329/2018 JUDGMENT DATED: 14/12/2022
HEAD COMPENSATION AMOUNT
Pain and suffering already Rs.3,00,000/-
undergone and to be 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 Rs.25,000/-
loss of earnings to the parents
during the period of
hospitalisation
Medical and incidental expenses Rs.25,000/-
during the period of hospitalisation
for 58 days.
Future medical expenses for Rs.25,000/-
correction of the mal union of
fracture and incidental expenses
for such treatment.
Total Rs.3,75,000/-
9. Accordingly, a sum of Rs.3,00,000/- as additional
compensation requires to be awarded towards future loss of
income, which is just and reasonable compensation and the
same is awarded in addition to Rs.89,000/- awarded by the
Tribunal. However, the appellant is entitled to the enhanced
amount of compensation of Rs.3,00,000/- along with interest
at the rate of 6% per annum from the date of application till
realization of the amount.
10. For the foregoing reasons, the following order is passed:-
(i) Appeal is allowed in part.
C/FA/4329/2018 JUDGMENT DATED: 14/12/2022
(ii) Judgment and award dated 18.08.2017 passed by the
Motor Accident Claims Tribunal (Main), Mahesana in
M.A.C.P. No.279 of 2014 is hereby modified and in
addition to what has been awarded by the Tribunal, a
sum of Rs.3,00,000/- as additional amount with interest
at the rate of 6% per annum is awarded, which shall be
from the date of filing claim petition till the date of its
realization.
(iii) The respondent No.2 - Gujarat State Road Transport
Corporation is directed to deposit additional amount of
compensation with 6% interest as early as possible within
an outer limit of eight weeks from the date of receipt of
certified copy of this order.
(iv) The apportionment and order for disbursement as
made by the Tribunal in the operative portion of the order
shall hold good for the additional amount of
compensation.
(v) After deposit of the additional amount of
C/FA/4329/2018 JUDGMENT DATED: 14/12/2022
compensation, the same shall be disbursed in favour of
the claimant through RTGS, after proper verification. The
bank account details shall be furnished by the learned
advocate for the claimant to the Nazir Department of the
Court concerned.
(vi) The appellant is directed to pay deficit court fees, if
any, on the enhanced amount within one month from the
date of receipt of certified copy of this order.
11. Record and proceedings be sent back to the
concerned Tribunal forthwith. Pending civil application/s, if any,
shall stand disposed of accordingly.
(HEMANT M. PRACHCHHAK,J)
Dolly
