Gujarat High Court
Raj Haresh Kevalramani vs Devendrasinh Dilipsinh Vala on 14 December, 2022
Bench: A.Y. Kogje
C/FA/3634/2018 JUDGMENT DATED: 14/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3634 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
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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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RAJ HARESH KEVALRAMANI
Versus
DEVENDRASINH DILIPSINH VALA
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Appearance:
MR. VISHAL P THAKKER(7079) for the Appellant(s) No. 1
PRADEEP K THAKKER(9171) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 14/12/2022
ORAL JUDGMENT
[1] The claimant in appeal against the award of Motor Accident
Claim Tribunal (Aux.), Bhavnagar dated 13.10.2017 in Motor
Accident Claim Petition No.473 of 2006. It is a case where the
claim was filed by the claimant on behalf of minor for
compensation for the injuries sustained in vehicular accident. The
injured victim was aged 14 years and had claimed compensation of
C/FA/3634/2018 JUDGMENT DATED: 14/12/2022
RS.3 Lakhs. The Tribunal, after considering all the aspects, has
awarded compensation of Rs.69,000/- with running interest at the
rate of 9% per annum from the date of the petition till payment.
[2] Learned advocate appearing for the appellant submitted that
the Tribunal has committed an error by considering the disability of
the injured victim as 10% for the body as a whole, whereas the
disability certificate issued by the Orthopedic Doctor is 20% and
therefore, by applying the decision of the Apex Court in case of
Master Mallikarjun v/s. Divisional Manager, The National Insurance
Company Limited, reported in AIR 2014 SC 736, the claimant will
be entitled to compensation of Rs.3 Lakhs by considering the
disability to be between 10% to 30%. Learned advocate for the
appellant has vehemently submitted that the nature of injury is
serious injury and has affected the whole life of the victim and
therefore, by granting an amount of RS.22,500/- towards future loss
of income, great injustice is caused to the victim. Learned advocate
submitted that the victim had to undergo surgery on two occasions
and on each occasion, the claimant had to pay an amount of Rs.1
Lakh towards each surgery. This aspect also the Tribunal ought to
have considered. Learned advocate by taking this Court through the
pleadings in the appeal memo has elaborately indicated about the
injury sustained and how the treatment had taken place over period
of time.
[2.1] It is submitted that the Tribunal ought to have held that the
claimant was entitled to an amount of Rs.50,000/- under the head
of Pain, Shock and Suffering, another amount of Rs.50,000/- for
medical expenses. Learned advocate through his pleadings has relied
upon the decision in case of R.D.Hattangadi v/s. M/s. Pest Control
(India) Pvt. Ltd and others, reported in AIR 1955 SC 755.
C/FA/3634/2018 JUDGMENT DATED: 14/12/2022
[3] Learned advocate appearing for the respondent insurance
company submitted that the claim of the appellant made before this
Court is not at all sustained by any evidence inasmuch as the
reference made by the appellant with regard to two surgeries and
incurring cost of Rs.1 Lakh each, cannot be sustained as there is no
evidence worth the name and the documentary evidence which is
placed on record and exhibited only sustained the expenditure to
the extent of Rs.31,000/- and odd. Learned advocate for the
insurance company has submitted that the claim of the appellant to
the extent of Rs.3 Lakh considering the injury between 10% to 30%
by relying upon the decision in case of Master Mallikarjun (Supra),
cannot be accepted as even from the evidence of the victim
themselves, disability sustained is to the extent of 10% of the whole
body.
[4] The Court has heard learned advocates for the parties and
perused the documents placed on record. The main issue raised by
the appellant is the assessment of loss of future income by
considering the disability at 10%. As learned advocate submitted
that in view of the decision in case of Master Mallikarjun (Supra),
the disability was required to be treated at 20%. Even from the
evidence on record, as discussed by the Tribunal, Exh.39 is the
disability certificate issued by the Dr.S.J. Sarvaiya, M.S. (Ortho.)
who has described the disability as 20% partial permanent disability
of the lower extremity. The decision in case of Master Mallikarjun
(Supra), a reference is made to the percentage of disability of body
as a whole and therefore, submission of learned advocate for
treating the partial permanent disability of the lower extremity at
20%, cannot be accepted. Of course, as per the decision of Master
Mallikarjun (Supra), where the permanent disability is to the extent
C/FA/3634/2018 JUDGMENT DATED: 14/12/2022
of about 10% and upto 30% of a body as whole, appropriate
compensation is of Rs.3 Lakhs. Accepting this principal, this Court
is of the view that where disability is shown at 10% and that too
when the Tribunal has recorded that learned advocates for the
parties have agreed to consider the psychical disability of body as a
whole at 10% by consensus, the Court deems it fit that under the
head of future loss of income in place of an amount of Rs.22,500/-,
compensation to be enhanced to Rs.1 Lakh as held in the case of
Master Mallikarjun (Supra), in para-12 which reads 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: -
XXXXXXX
[5] The Court also deems if fit towards all the parameters which
include Pain and suffering already undergone and to be suffered in
future, mental and physical shock, hardhips, inconvenience, and
discomforts, etc. and loss of amenities in life on account of
permanent disability, an amount of Rs.1 Lakh will be just
C/FA/3634/2018 JUDGMENT DATED: 14/12/2022
compensation. Insofar as the other compensation under other heads
namely medical expenses, as claimed by the appellant, the Court is
inclined to observe that the Tribunal has taken into consideration
the documents at Exh.39, which are the bills for medicines,
treatment, charges etc. which was aggregated to Rs.31,502/-, the
medical expenditure thus granted needs no interference.
[6] The compensation under the head of Pain, Shock and
Suffering of Rs.7500/- being covered under the compensation of
Rs.1 Lakh, may not be granted separately. However, an amount of
Rs.7500/- as compensation towards attendance, special diet and
transpiration charges remains unaltered.
[7] In view of the aforesaid, the compensation now granted to
the appellant would read as under:-
HEAD COMPENSATION
AMOUNT
For, Pain, Shock and Suffering, Rs.1,00,000/-
Hardship, Loss of Enjoyment
etc.
Medical Expenses, Exg.39 Rs.31,500/-
Attendant, Special Diet, Rs.7500/-
Transportation
Total Compensation Rs.1,39,000/-
Awarded by the Tribunal Ra.69,000/-
(Less)
Additional Compensation With Rs.70,000/-
9% interest per annum.
[8] Therefore, I hold that the claimant is entitled to get the total
amount of compensation of Rs.1,39,000/- with 9% p.a. interest from
the date of filing the claim petition till its realisation, which would
C/FA/3634/2018 JUDGMENT DATED: 14/12/2022
meet the ends of justice. Rest of the direction(s) of the Tribunal
remain same. The Tribunal has already awarded Rs.69,000/-
therefore, remaining amount of Rs.70,000/- would be the enhanced
amount of compensation payable to the claimant.
[9] For the reasons recorded above, the following order is passed.
[9.1] The appeal is partly allowed to the aforesaid extent.
[9.2] The Insurance Company is directed to deposit the enhanced
amount Rs.70,000/- with 9% p.a. interest from the date of claim
petition i.e. M.A.C.P. No.473 of 2006, till its realization before the
concerned Tribunal, within a period of three moths from the date
of receipt of this order.
[9.3] The Tribunal shall disburse the entire awarded amount lying
in the FDR and/or with the Tribunal, with accrued interest thereon
if any, as noted above, to the claimant, by account payee cheque,
after proper verification and after following due procedure.
[9.4] While making the payment, the Tribunal shall deduct the
courts fees, if not paid, in both the claim petitions, in accordance
with rules/law.
[9.5] Record and proceedings of both appeals be sent back to the
concerned Tribunal, forthwith.
(A.Y. KOGJE, J)
SIDDHARTH
