Gujarat High Court
Minor Dhananjay Pravinbhai ... vs Hasmukhbhai Hemrajbhai Adroja on 8 December, 2022
Bench: Ashokkumar C. Joshi
C/FA/2682/2022 JUDGMENT DATED: 08/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2682 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
======================================================
Whether Reporters of Local Papers may be allowed to see
1 NO
the judgment ?
2 To be referred to the Reporter or not ? YES
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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MINOR DHANANJAY PRAVINBHAI LATHIYA
Versus
HASMUKHBHAI HEMRAJBHAI ADROJA
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 08/12/2022
ORAL JUDGMENT
1. This is an appeal filed under Section 173 of the Motor Vehicles Act,
1988 (MV Act) by appellant - Minor Dhananjay Pravinbhai Lathiya,
C/FA/2682/2022 JUDGMENT DATED: 08/12/2022
through his natural guardian and mother - Gitaben Pravinbhai Lathiya,
challenging the judgment and award dated 05.11.2019 passed in Motor
Accident Claim Petition No. 230 of 2017 by the learned Motor Accident
Claims Tribunal (Auxiliary) and 14 th Additional District Judge, Rajkot,
whereby, against the claim of Rs.3 lakh for the injuries sustained by the
original claimant - minor in an accident that had occurred on 28.01.2017, the
Tribunal has awarded an amount of Rs.38,000/- with 9% 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. Though served, none has appeared for the respondent No. 1 - the
owner of the offending vehicle. Accordingly, heard, learned advocate
Mr. Nishit A. Bhalodi for the appellant and learned advocate Mr. Rathin
Raval for the respondent No. 2 - insurance company.
3. The sole contention that has been raised by the learned advocate for
the appellant in this appeal is that though the Tribunal was apprised about
the decision of the Apex Court in Mallikarjun V. Divisional Manager, The
National Insurance Company Limited and Others, MANU/SC/0878/2013,
C/FA/2682/2022 JUDGMENT DATED: 08/12/2022
the Tribunal has not considered the same and 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. Rathin Raval, the learned advocate for the
respondent No. 2 - insurance company, while resisting this appeal, has
submitted that the appellant - injured is a minor and considering all the
aspects of the matter, the Tribunal has awarded the compensation, which is
just and proper and accordingly, it is requested that this Court may not
interfere in the impugned judgment and award and eventually, it is requested
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 had sustained severe multiple injuries on his head, legs,
hands, waist etc. and had to avail treatment as an indoor patient for about 10
days. He also had to undergo regular treatment at intervals. The permanent
disability of the appellant - claimant was assessed at 8% 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
Rs.38,000/- towards compensation.
C/FA/2682/2022 JUDGMENT DATED: 08/12/2022
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 upto 10%,
appropriate compensation on all other heads in addition to the actual
expenditure for treatment, attendant, etc., should be Rs.1 lakh. As referred
to herein above, the Tribunal has awarded a sum of Rs.38,000/- 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
C/FA/2682/2022 JUDGMENT DATED: 08/12/2022
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.)
Future loss of income 18,000/-
Actual Medical Expenses 10,000/-
Pain and suffering already undergone and to be suffered in 1,00,000/-
future, mental and physical shock, hardship,
inconvenience, and discomforts etc., and loss of amenities
in life on account of permanent disability.
Total 1,28,000/-
6.1 The respondent No. 2 - insurance company is directed to deposit the
difference amount of Rs.90,000/- (Rs.1,28,000-38,000) within a period of 30
days. The appellant - claimant shall be entitled to interest @ 6% per
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
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