Gujarat High Court
Naynaben Alias Nisha D/O ... vs Babubhai Lallubhai Bhil on 15 December, 2022
Bench: Ashokkumar C. Joshi
C/FA/3967/2019 JUDGMENT DATED: 15/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3967 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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Whether Reporters of Local Papers may be allowed to see
1 NO
the judgment ?
2 To be referred to the Reporter or not ? NO
Whether their Lordships wish to see the fair copy of the
3 NO
judgment ?
Whether this case involves a substantial question of law as
4 to the interpretation of the Constitution of India or any NO
order made thereunder ?
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NAYNABEN ALIAS NISHA D/O TULSIBHAI MISTRI W/O
DHARMESHKUMAR DESAI
Versus
BABUBHAI LALLUBHAI BHIL
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Appearance:
MR MAKBUL I MANSURI(2694) for the Appellant(s) No. 1
for the Defendant(s) No. 1
MR TANMAY B KARIA(6833) for the Defendant(s) No. 3
UNSERVED EXPIRED (R) for the Defendant(s) No. 2
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 15/12/2022
ORAL JUDGMENT
1. This is an appeal filed under Section 173 of the Motor Vehicles Act,
C/FA/3967/2019 JUDGMENT DATED: 15/12/2022
1988 (MV Act) by appellant, challenging the judgment and award dated
29.11.2017 passed in Motor Accident Claim Petition No. 886 of 1994 by the
learned Motor Accident Claims Tribunal (Auxiliary), Panchmahals @
Godhra, whereby, against the claim of Rs.2 lakh for the injuries sustained by
the original claimant in an accident that had occurred on 25.12.1993, the
Tribunal has awarded an amount of Rs.38,650/- with 7.5% interest per
annum from the date of filing the claim petition till realization holding the
opponents therein jointly and severally liable to pay the compensation.
Accordingly, the appellant - claimant has filed this appeal for enhancement
of compensation.
2. Heard, learned advocate Mr. Makbul I. Mansuri for the appellant and
learned advocate Mr. Tanmay B. Karia for the respondent No. 3 - insurance
company.
3. The sole contention that has been raised by the learned advocate for
the appellant in this appeal is that in view of the decision of the Apex Court
in Mallikarjun V. Divisional Manager, The National Insurance Company
Limited and Others, MANU/SC/0878/2013, the appellant - claimant is
entitled to Rs.3 lakh towards future economic loss in view of the undisputed
disability at 18% sustained by the appellant - claimant, in addition to the
C/FA/3967/2019 JUDGMENT DATED: 15/12/2022
actual expenditure that had been incurred by the appellant - claimant.
Accordingly, he has urged to enhance the compensation in view of the
aforesaid decision and thereby, to allow this appeal.
4. As against this, Mr. Tanmay Karia, the learned advocate for the
respondent No. 3 - insurance company, has resisted this appeal by
submitting that the impugned judgment and award being just and proper, no
interference is required at the hands of this Court. However, he is not in a
position to controvert the ratio laid down in the aforesaid decision of the
Apex Court but he submitted that as per the order passed by the coordinate
Bench dated 05.02.2020 in First Appeal No. 89 of 2020, no separate amount
requires to be awarded under the heads of economic loss, pain, shock and
suffering. Eventually, he urged to dismiss this appeal.
5. Regard being had to the submissions made and considering the
impugned judgment and award, it appears that in a vehicular accident, the
appellant, a minor at the relevant time, had sustained severe injuries and had
to avail treatment as an indoor and outdoor patient. The permanent
disability of the appellant - claimant was assessed at 18% for the body as a
whole. Considering the same as well as the age, period undergone in
hospital and other such aspects, the Tribunal has awarded a sum of
C/FA/3967/2019 JUDGMENT DATED: 15/12/2022
Rs.38,650/- towards compensation.
5.1 In the aforesaid backdrop, if the decision of the Apex Court in
Mallikarjun (supra), is referred to, it is held that:
"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."
5.2 Thus, as per the above pronouncement, if the disability is above 10%
and upto 30% to the whole body, appropriate compensation on all other
heads in addition to the actual expenditure for treatment, attendant, etc.,
should be Rs.3 lakh. The Court has also referred to the order dated
05.02.2020 of the coordinate Bench passed in the First Appeal No. 89 of
C/FA/3967/2019 JUDGMENT DATED: 15/12/2022
2020. Accordingly, as referred to herein above, the Tribunal has awarded a
sum of Rs.38,650/- under different heads, however, in view of the aforesaid
decision of the Apex Court, the Tribunal has manifestly erred in awarding
the just compensation and accordingly, this appeal requires favourable
consideration.
6. In the aforesaid view of the matter, this appeal succeeds and is
accordingly allowed in part. The impugned judgment and award is modified
in view of the decision of the Apex Court in Mallikarjun (supra) and it is
held that the appellant - claimant shall be entitled to the compensation as
under:
Head Compensation
(Rs.)
Special Diet, Transportation etc. 1,250/-
Medical Expenses 1,000/-
Pain and suffering already undergone and to be suffered in 3,00,000/-
future, mental and physical shock, hardship,
inconvenience, and discomforts etc., and loss of amenities
in life on account of permanent disability.
Total 3,02,250/-
6.1 The respondent No. 2 - insurance company is directed to deposit the
difference amount of Rs.2,63,600/- (Rs.3,02,250-38,650) within a period of
08 weeks. The appellant - claimant shall be entitled to interest @ 6% per
C/FA/3967/2019 JUDGMENT DATED: 15/12/2022
annum, on such enhanced amount of compensation from the date of claim
petition till realization. Rest of the impugned judgment and award is not
disturbed. R&P, if received, be sent back forthwith to the Tribunal
concerned.
[ A. C. Joshi, J. ]
hiren
