Minor Vishalbhai Bhalabhai Raval vs Hasmukhbhai Kalidas Vanzara
2022 Latest Caselaw 1242 Guj

     C/FA/2488/2008                               JUDGMENT DATED: 04/02/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2488 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRAL R. MEHTA

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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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                   MINOR VISHALBHAI BHALABHAI RAVAL
                                Versus
                 HASMUKHBHAI KALIDAS VANZARA & 1 other(s)
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Appearance:
MR RITURAJ M MEENA(3224) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 2
MR SANDIP C SHAH(792) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                              Date : 04/02/2022

                             ORAL JUDGMENT

1. Feeling aggrieved and dissatisfied by the judgment and award dated 7.2.2007 passed by the learned MAC Tribunal (A1), Ahmedabad (Rural), Ahmedabad in MAC Petition No.350

C/FA/2488/2008 JUDGMENT DATED: 04/02/2022

of 2005, the appellant - original claimant has preferred this Appeal under Section 173 of the Motor Vehicles Act, 1988 (for short 'the MV Act') for enhancement of compensation.

2. The original claim petition was filed by the claimant seeking compensation of Rs.5 lakhs for the injuries sustained in vehicular accident that took place on 16.12.2004. The learned Tribunal was pleased to award Rs.2,57,500/- as compensation under the various heads, as under :

                      Particulars                             Amount
Future economic loss of income                             Rs.1,12,500/-
For pain, shock and suffering                               Rs.75,000/-
For medical expenses                                        Rs.15,000/-
For transportation charges                                  Rs.10,000/-
For special diet                                            Rs.15,000/-
For attendant charges                                       Rs.30000/-
Total                                                      Rs.2,57,500/-

3. It is the case of the claimant that on 16.12.2004, while he was passing on road, the truck bearing registration No.GJ- 18-T-1415 being driven by the driver in rash and negligent manner, dashed with the claimant and the wheel of the truck ran over on the leg of the claimant, due to which the claimant received serious injuries on his legs. The claimant was admitted in LG Hospital, Ahmedabad and operation was performed on both the legs, wherein in the right leg, plate was inserted. Whereas due to serious injuries, the left leg was amputed. The claimant, therefore, approached the learned Tribunal under Section 166 of the MV Act seeking, inter-alia, compensation to the tune of Rs.5 lakhs under various heads.

C/FA/2488/2008 JUDGMENT DATED: 04/02/2022

4. Upon service of notice, the opponents appeared through their learned advocates and submitted the written statements at Exh.13 and 10 respectively, taking all available contentions.

5. The learned Tribunal, after having considered the evidence on record, came to the conclusion that the driver of the truck bearing registration No.GJ-18-T-1415 was sole negligent. The learned Tribunal further proceeded to award compensation by taking into consideration the notional income of Rs.2500/- per month of the claimant being minor. Considering the agreement arrived at between the parties for the permanent disability at 25%, the learned Tribunal also considered the same. Thus, considering 25% of Rs.2500/- per month, the learned Tribunal arrived at the figure of Rs.625/- per month as future economic loss and accordingly, Rs.7500/- (Rs.625/- x 12) came to be considered as yearly future economic loss. Considering the age of the claimant, the learned Tribunal adopted the multiplier of 18. Hence, the compensation under the head of future economic loss was assessed at Rs.1,12,500/- The learned Tribunal further awarded Rs.75,000/- under the head of pain, shock and suffering. The learned Tribunal also awarded a sum of Rs.15,000/- under the head of medical expenses and Rs.10,000/- and Rs.15,000/- under the head of transportation and special diet. The learned Tribunal also awarded a sum of Rs.30,000/- under the head of attendant charges. Thus, in all, the learned Tribunal awarded a sum of Rs.2,57,500/- towards the compensation under the various heads.

6. Thus, being aggrieved by the aforesaid, the claimant has approached this Court by way of present Appeal against the

C/FA/2488/2008 JUDGMENT DATED: 04/02/2022

judgment and award passed by the learned Tribunal, considering it being inadequate in nature.

7. Mr.R.M. Meena, learned counsel appearing for the appellant - original claimant, submitted that the award passed by the learned Tribunal is inadequate in nature and thereby, the same may be modified by awarding suitably enhancing the compensation. Learned counsel further submitted that the learned Tribunal has not considered the evidence on record and thus, the award based on recording of such evidence is not justifiable and thereby, deserves consideration for enhancement by this Court. Learned counsel also submitted that the learned Tribunal has awarded very meager amount under the head of pain, shock and suffering, considering the age of the claimant as well as injuries sustained by him. Learned counsel also submitted that the learned Tribunal has also failed in not awarding any amount under the head of loss of amenities. Lastly, learned counsel urged to this Court to enhance the compensation suitably, in the interest of justice.

8. Per contra, Mr.G.C. Majmudar, learned counsel appearing for respondent No.2 - Insurance Co. has vehemently opposed the present Appeal and submitted that the award passed by the Tribunal is quite just and fair and thereby, cannot be said to be inadequate in nature. Mr.Majmudar further submitted that the learned Tribunal has considered all the facts and circumstances in its true perspective and whatever amount awarded under the various heads are complete adequate in nature and, therefore, learned counsel requested this Court to dismiss the Appeal, in

C/FA/2488/2008 JUDGMENT DATED: 04/02/2022

the interest of justice.

9. I have heard Mr.R.M. Meena, learned counsel appearing for the appellant - original claimant and Mr.G.C. Majmudar, learned counsel appearing for the respondent No.2 - Insurance Co. The respondent No.1, though served, has chosen not to appear and contest this Appeal. I have also gone through the Records and Proceedings received from the learned Tribunal. No other and further submissions and/or contentions have been raised, except what are stated above.

10. Having considered the submissions of learned advocates appearing for the respective parties, the only question that fall for consideration of this Court is whether the compensation awarded by the learned Tribunal is just and proper, in the facts and circumstances of the present case? At the outset, it is required to be noted that the age of the claimant at the time of accident was 5 years. It is an admitted position of fact that out of this vehicular accident, due to the serious injuries the left leg of the claimant has been amputed. Considering the aforesaid fact that at the time when the accident took place, the claimant was of a very tender age and in that tender age, he had to lose his one leg because of no fault attributable to him. Under the circumstances, in my considered opinion, the learned Tribunal ought to have awarded a sum of Rs.1,50,000/- under the head of pain, shock and suffering. I am also of the opinion that considering the age and the injuries which the claimant will have to bear for his entire life, the learned Tribunal should have considered the compensation under the head of loss of amenities, as well. Further, since no compensation has been awarded under the

C/FA/2488/2008 JUDGMENT DATED: 04/02/2022

head of loss of amenities, this Court deems it proper to award Rs.1,25,000/- under the head of loss of amenities.

11. So far as the rest of the part of compensation awarded under the other heads, I am in complete agreement with the findings and reasoning recorded by the learned Tribunal and, therefore, it does not require any interference. Hence, the award passed by the Tribunal deserves to be modified as under :

11. An amount of Rs.75,000/- is to be added under the head of pain, shock and suffering and Rs.1,25,000/- is required to be added under the head of loss of amenities. Thus, the claimant is entitled to receive additional amount of compensation of Rs.2 lakhs with interest @ 7% from the date of application till its realization.

12. In view of the aforesaid, the present First Appeal is partly allowed. The respondent No.2 - Insurance Co. is directed to deposit a sum of Rs.2 lakhs with interest @ 7% before the learned Tribunal within a period of 8 weeks from today. The Tribunal is directed to issue account payee cheque in favour of the claimant after due verification. R & P be sent back forthwith to the concerned Tribunal

(NIRAL R. MEHTA,J) V.J. SATWARA