Gujarat High Court
Sanjaykumar Ghanshyambhai ... vs Navghanbhai Bhopalbhai Sambhad on 15 December, 2022
Bench: Ashokkumar C. Joshi
C/FA/756/2017 JUDGMENT DATED: 15/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 756 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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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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SANJAYKUMAR GHANSHYAMBHAI BAGHELA
Versus
NAVGHANBHAI BHOPALBHAI SAMBHAD & 2 other(s)
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Appearance:
FORAM T SHETH(8794) for the Appellant(s) No. 1
MR TUSHAR L SHETH(3920) for the Appellant(s) No. 1
MR TANMAY B KARIA(6833) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 15/12/2022
ORAL JUDGMENT
1. This First Appeal is filed by the appellant - original claimant
under Section 173(1) of the Motor Vehicles Act, 1988, against the
judgment and award dated 30.8.2016 passed in Motor Accident
Claim Petition No. 299 of 2012 by the Motor Accident Claims
C/FA/756/2017 JUDGMENT DATED: 15/12/2022
Tribunal (Auxi.) & 7th Additional District Judge, Rajkot at Dhoraji,
which was preferred under Section 166 of the Motor Vehicles Act,
whereby, against a claim valued at Rs.2 lakh for the injuries
sustained in an accident that had occurred on 02.04.2007 the
Tribunal has awarded a sum of Rs.66,100/- with interest at the rate
of 9% per annum from the date of claim petition till realization,
holding liable the opponents therein to pay the compensation to the
appellant - original claimant. Hence, grieved claimant has filed this
appeal on the point of quantum.
2. The brief facts of the case are that on 02.04.2007 at about
6:00 PM near Bhojpara village on Rajkot - Gondal National Highway.
It is the case of the applicant that on the date of accident, his minor
son was standing near the board of Village Bhojpara, at that time,
the driver of Goods Rickshaw No. GJ-11-W-7881 came in full speed
in rash and negligent manner and hit the standing minor son of
applicant, resultant minor applicant, who was studying in standard -
7, has got serious kind of injuries over his femur bone of left leg and
other bodily injuries and primarily taken to Ramnath Hospital,
Gondal from where he was referred to G.T. Sheth Hospital, Rajkot
where he was treated as an indoor patient and injury is permanent
and he is disabled for working as he has done before.
3. Though served, the respondent Nos. 1 and 2 has put in no
appearance and accordingly, the Court proceeded with the final
C/FA/756/2017 JUDGMENT DATED: 15/12/2022
hearing of the matter. Heard, learned advocate Mr. Tushar L. Sheth
for the appellant and learned advocate Mr. Tanmay B. Karia for the
respondent No. 3 - insurance company.
4. The learned advocate Mr. Tushal Sheth for the appellant-
claimant has placed reliance upon the judgment delivered by the
Hon'ble Apex Court in the case of Master Mallikarjun vs.
Divisional Manager, the National Insurance Company Limited
& Anr, in Civil Appeal No. 7139 of 2013 arising out of S.L.P. (Civil)
No.1676 of 2012. He also submitted that as per this judgment the
concerned Tribunal was required to award Rs. 3 lakhs for pain,
suffering already 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 and
therefore, the Tribunal has failed to appreciate this aspect and
awarded only Rs.66,100/- with 9% interest from the date of claim
petition till realization. He further submitted that there should be Rs.
10,000/- discomfort, inconvenience, Rs.11,000/- for medical expense
and Rs.10,000/- for future medical expenses because of disability of
13% of the injured. He also prayed to enhance the awarded amount
of the Tribunal.
5. Per contra, the learned advocate Mr. Tanmay Karia for the
respondent No. 3 - insurance company, while heavily opposing this
appeal and submitted that this is not a fit case for application of the
C/FA/756/2017 JUDGMENT DATED: 15/12/2022
dictum of the judgment in the case of Master Mallikarjun vs.
Divisional Manager, the National Insurance Company Limited
& Anr (Supra). He further submitted that the impugned judgment
and award passed by the learned Tribunal being just and proper, no
interference is required at the hands of this Court.
6. Having heard the arguments from both the sides, it appears
that the identical issue was decided in the case of Master
Mallikarjun vs. Divisional Manager, the National Insurance
Company Limited & Anr (Supra). It was observed in Para -12 of
this judgment, which reads as under:
"Para 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 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. Rs.3,00,000/-.
Discomfort, inconvenience and loss of earnings to the parents
during the period of hospitalization.
C/FA/756/2017 JUDGMENT DATED: 15/12/2022
Rs.25,000/-
Medical and incidental expenses during the period of
hospitalization for 58 days.
Rs.25,000/- Future medical expenses for correction of the mal
union offracture and incidental expenses for such treatment.
Rs.25,000/-
TOTAL:- Rs.3,75,000/-"
6.1 In the present case, it is undisputed fact that the injuries
caused to the minor, coupled with 13% disability on body as a
whole. Further, it appears that the Tribunal lost site of the
application of judgment in the case of Master Mallikarjun vs.
Divisional Manager, the National Insurance Company Limited & Anr
(Supra) and therefore by applying the judgment in case of
Mallikarjun vs. Divisional Manager, the National Insurance Company
Limited & Anr (Supra) and thereby modification of the award of the
Tribunal is required and Rs. 3,00,000/- is awarded for for pain,
suffering already 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.
Therefore, this appeal, is required to be allowed to that extent and
the impugned judgment and award is required to be modified
accordingly.
7. In the aforesaid backdrop, this appeal succeeds and is allowed
accordingly. The impugned judgment and award is modified to the
aforesaid extent and it is held that the appellant - claimant shall be
C/FA/756/2017 JUDGMENT DATED: 15/12/2022
entitled for the following towards compensation:
Head Award of Tribunal Modified Amt. (Rs.)
(Rs.)
Future loss of income 35,100/- ----
Pain, Shock & Suffering 15,000/- 3,00,000/-
Special Diet, Attendant, 5,000/-
Transportation (2000/- + 2000/-
+1000/-)
Medical Expenses 11,000/- 11,000/-
Future Medical Exp. 10,000/-
Discomfort, 10,000/-
inconvenience to
parents
Total 66,100/- 3,31,000/-
Different Amt. 2,64,900/-
7.1 The difference amount shall be deposited within a period of 08
(eight) weeks.
7.2 This court is agreed with the arguments of learned advocate
Mr. Karia for the Respondent No.3. The appellant - claimant shall be
entitled to interest at the rate of 6% per annum on such enhanced
amount of compensation, from the date of claim petition till
realization.
7.3 The rest of the impugned judgment and award is not
disturbed.
7.4 R&P, if received, be sent back forthwith.
(A. C. JOSHI,J)
prk
