Gujarat High Court

Naziyabanu Aiyubbhai Malek vs Aalerasul Shafimiya Kazi on 14 December, 2022

Bench: Hemant M. Prachchhak

     C/FA/4296/2018                               JUDGMENT DATED: 14/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 4296 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
     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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                       NAZIYABANU AIYUBBHAI MALEK
                                 Versus
                        AALERASUL SHAFIMIYA KAZI
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Appearance:
MR R.K.MANSURI(3205) for the Appellant(s) No. 1
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 3
MRS VASAVDATTA BHATT(193) for the Defendant(s) No. 5
RULE SERVED for the Defendant(s) No. 1,2,4
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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

C/FA/4296/2018 JUDGMENT DATED: 14/12/2022

awarded by the Motor Accident Claims Tribunal (Auxi.) and 4 th

Additional District Judge, Kheda at Nadiad, (hereinafter

referred to as "the Tribunal") vide impugned judgment and

award dated 28.06.2018 passed in M.A.C.P. No.722 of 2011,

whereby the Tribunal has partly allowed the claim petition and

awarded a sum of Rs.89,610/-.

2. Brief facts of the present case are that, on 03.02.2011,

the present appellant alongwith his two daughters were

travelling in a rickshaw, driven by respondent No.1 and owned

by respondent No.2, bearing registration No.GJ-7-VV-1391, for

offering prayers. The respondent No.1 was driving the rickshaw

in a rash and negligent manner and when the rickshaw

reached near Pipli, it get turtled on the road and at that time,

the S.T. Bus coming from the opposite side dashed with the

rickshaw. On account of such accident, the appellant received

serious injuries and initially was admitted at Dhandhuka

Government Hospital. Thereafter, she was shifted to V.S.

Hospital, Ahmedabad and was treated as indoor patient for a

long time. Hence, the appellant - original claimant has filed

M.A.C.P. No.722 of 2011 before the Tribunal. The Tribunal,

after evaluating the pleadings and evidence tendered by the

C/FA/4296/2018 JUDGMENT DATED: 14/12/2022

parties, partly allowed the claim petition and awarded a sum of

Rs.89,610/- under different heads as against the claim of

Rs.4,00,000/-.

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.

4. Heard Mr.R.K. Mansuri, the learned counsel appearing for

the appellant, Mr.Vibhuti Nanavati, the learned counsel

appearing for the respondent No.3 - Ifco Tokiya General

Insurance Company Ltd. and Mrs.Vasavdatta Bhatt, the learned

counsel appearing for the respondent No.5 - Gujarat State

Road Transport Corporation Ltd.

5. Mr.Mansuri, 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

C/FA/4296/2018 JUDGMENT DATED: 14/12/2022

the time of accident, the appellant was only 14 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, Mr.Nanavati, the learned counsel appearing

for respondent No.3 - Insurance Company 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,

he 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.

6.1 Mrs.Vasavdatta Bhatt, the learned counsel appearing for the

respondent No.5 - S.T. Corporation has submitted that the Corporation

has been exonerated by the Tribunal from the liability of paying any

compensation to the claimant.

C/FA/4296/2018 JUDGMENT DATED: 14/12/2022

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 18% permanent partial disablement (body as a

whole), which is clearly revealed vide Exh.-60 (the injury

certificate) and Exh.-66 (certificate showing permanent partial

disablement). The Tribunal has rightly considered the said

certificates and the age of the injured 14 years at the time of

accident. Considering all these aspects, the present appeal

deserves to be allowed in part and the 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

C/FA/4296/2018 JUDGMENT DATED: 14/12/2022

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: -

                        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.






       C/FA/4296/2018                                  JUDGMENT DATED: 14/12/2022




           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.89,610/- 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. Rest of the award passed by the

Tribunal is not disturbed and so far as the findings recorded by

the Tribunal qua the liability is concerned, the same remains

as it is since, neither the Insurance Company nor the S.T.

Corporation has challenged the impugned award and

therefore, the liability and apportionment remains the same.

10. For the foregoing reasons, the following order is passed:-

(i) Appeal is allowed in part.

C/FA/4296/2018 JUDGMENT DATED: 14/12/2022

(ii) Judgment and award dated 28.06.2018 passed by the

Motor Accident Claims Tribunal (Auxi.) and 4th Additional

District Judge, Kheda at Nadiad in M.A.C.P. No.722 of

2011 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