Gujarat High Court

Legal Heirs Of Deceased Parth & ... vs Patel Daud Vali (Tailor) on 24 March, 2022

Bench: Hemant M. Prachchhak

     C/FA/950/2011                              JUDGMENT DATED: 24/03/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/FIRST APPEAL NO. 950 of 2011


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
================================================================

1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

================================================================
LEGAL HEIRS OF DECEASED PARTH & FATHER OF MINOR SHAISHAV &
                         & 1 other(s)
                           Versus
             PATEL DAUD VALI (TAILOR) & 4 other(s)
================================================================
Appearance:
MR R.K.MANSURI(3205) for the Appellant(s) No. 1,2
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 5
RULE NOT RECD BACK for the Defendant(s) No. 3,4
RULE SERVED for the Defendant(s) No. 1,2
===============================================================

    CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                            Date : 24/03/2022

                           ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

C/FA/950/2011 JUDGMENT DATED: 24/03/2022

1. Feeling aggrieved and dissatisfied by the common

judgment and award dated 15.11.2010 passed by the Motor

Accident Claims Tribunal (Main), Sabarkantha at Himmatnagar

(hereinafter referred to as "the Tribunal"), the appellants -

claimants have preferred this appeal challenging the quantum of

award awarded by the Tribunal in M.A.C.P. No.667 of 2004.

2. Following facts emerge from the record of the appeal.

2.1 That the accident took place on 22.04.2004 at about 8.30

p.m. It is the case of the claimants that the injured

Rajendrakumar along with goods and his family members were

travelling in Eicher Truck bearing registration No.GJ-07-X-1464

from Bharuch to Ahmedabad as Rajendrakumar was transferred

from Bharuch to Ahmedabad. It is the case of the claimants that

when Eicher Truck reached near Village: Hariyada, Taluka -

District : Kheda, a truck bearing registration No.MCY-3788 was

parked on the road and due to lights of the vehicle coming from

the opposite side, the driver of Eicher Truck could not see

stationed truck and dashed with the stationed truck, as a result

of which Chetnaben and minor Shaishav had sustained injuries

C/FA/950/2011 JUDGMENT DATED: 24/03/2022

as mentioned in the medical certificates and two other persons

namely Bhikhiben and Parth had succumbed to the injuries in the

accident. An FIR was lodged with the jurisdictional police station

at Exhibit 72. The claim petition being M.A.C.P. No.667 of 2004

came to be filed by the appellants for injury sustained by them

as well as for the death of his son Parth, who was minor aged

about 9 years. It is also the case of the claimants that

Rajendrakumar was working as salesman with the Gujarat State

Civil Supply Corporation and was aged about 36 years on the

date of the accident. It is further the case of the claimants that

because of the crush injuries on both legs, his (Rajendrakumar)

leg was required to be amputated and he lost his right eye and

also sustained fracture injuries on other parts of the body. It is

the case of the claimants that injured Rajendrakumar was

admitted in BCJ General Hospital, Mumbai and took treatment

from 07.02.2005 to 14.02.2005 and his left leg was amputated

below the knee and due to fracture on right leg of tibia fibula

plate is inserted.

2.2 The claimants have also relied upon the disability

certificate at Exhibit 90 issued by Dr.Z. A. Memon. The Tribunal,

C/FA/950/2011 JUDGMENT DATED: 24/03/2022

after appreciating the evidence on record, came to the

conclusion that the driver of the truck was solely negligent and

also came to the conclusion that there is no loss of future income

as the injured Rajendrakumar was in government service and his

salary was increased. Considering the disability certificate of eye

at Exhibit 83 and the disability certificate at Exhibit 90, the

Tribunal came to the conclusion that the injured Rajendrakumar

would not live normal life and while partly allowing the claim

petition, the Tribunal awarded compensation, along with interest

at the rate of 7.5% from the date of claim petition till its

realization, as under:-

Rs.0,18,022=00 under the head of medical treatment and bills. Rs.0,25,000=00 under the head of pain, shock and suffering. Rs.0,20,000=00 under the head of transportation, attendant and special diet.

Rs.0,84,747=00 under the head of actual loss of income. Rs.2,50,000=00 under the head of loss of amenities & enjoyment of life

----------------------

Rs.3,97,769=00           Total
==========



2.3     Considering the case of the deceased son Parth, the

Tribunal, by applying multiplier of 15 as the deceased Parth was

9 years of old and no any earning member in the family,

awarded compensation of Rs.1,54,500/- along with interest at

the rate of 7.5% from the date of claim petition till its realization.

C/FA/950/2011 JUDGMENT DATED: 24/03/2022

Being aggrieved by the same, the present appeal is filed by the

appellants - claimants.

3. Heard Mr.R. K. Mansuri, learned counsel appearing on

behalf of the appellants - claimants and Mr.Maulik Shelat,

learned counsel appearing on behalf of the respondent -

Insurance Company. As the liability is not denied by the

Insurance Company, the presence of other respondents is not

necessary to decide the present appeal and as such, no one

appears for other respondents.

4. Mr.R. K. Mansuri, learned counsel appearing on behalf of

the appellants contended that the Tribunal has committed an

error in granting meager amount of Rs.25,000/- as compensation

under the head of pain, shock and suffering. He contended that

the injured has lost his right eye and his left leg has been

amputated below the knee and to undergo rigorous treatment

for about eighteen months. According to Mr.Mansuri, learned

counsel, because of the injury sustained and disability attained

due to injury sustained in the accident, the injured claimant has

lost his promotional revenue as well. He contended that the

C/FA/950/2011 JUDGMENT DATED: 24/03/2022

injured claimant had to take treatment at Mumbai for which

expenses were incurred, whereas, the Tribunal has only granted

meager amount of Rs.20,000/- as compensation under the head

of transportation, attendant and special diet which deserves to

be enhanced. Mr.Mansuri, learned counsel, referring to the case

of deceased Parth son of the injured, contended that the parents

have lost their son at the age of 9 years and, therefore, the

claimants are entitled to consortium. He contended that the

Tribunal has erroneously followed structural formula which was

provided for petition under Section 163(A) of the Motor Vehicles

Act while calculation the claim. Relying upon the decision of the

Hon'ble Supreme Court in the case of National Insurance

Company Limited Vs. Pranay Sethi and others, reported in

(2017) 16 SCC 680, Mr.Mansuri, learned counsel contended

that over-and-above consortium, the claimants would be entitled

to additional compensation as prayed for.

5. Per contra, Mr.Maulik Shelat, learned counsel appearing for

the respondent - Insurance Company has relied upon the

decision of the Hon'ble Supreme Court in the case of Raj Kumar

Vs. Ajay Kumar and another, reported in (2011) 1 SCC 343

C/FA/950/2011 JUDGMENT DATED: 24/03/2022

and contended that the Tribunal has followed the principle laid

down by the Hon'ble Apex Court in the case of Rajkumar (supra)

and has granted just compensation and no modification is

required. Mr.Shelat, learned counsel has also relied upon the

decision of the Hon'ble Supreme Court in the case of The New

India Assurance Company Limited Vs. Satish Chandra

Sharma and another rendered in Civil Appeal No.1579 of

2022 and contended that in the instant case also, the injured

claimant is not immobilized and on the contrary, he has

continued in government service even with disability and the

Tribunal has rightly assessed disability which is not otherwise

proved by the claimant. He has submitted that the Tribunal has

granted just and adequate compensation and no interference is

called for.

6. No other contentions, submissions and/or grounds are

raised by learned counsel appearing for the parties.

7. Having perused the original record and proceedings and

upon considering the submissions made, it clearly appears that

the injuries sustained by the appellant - claimant are major in

nature. The certificates at Exhibit 83 and 90 show that his right

C/FA/950/2011 JUDGMENT DATED: 24/03/2022

eye had to be replaced by artificial eye and left leg of the

claimant was required to be amputated below the knee. It is no

doubt true that the Tribunal has granted Rs.2,50,000/- as

compensation under the head of loss of amenities and

enjoyment of life. The fact remains that the injured appellant had

to undergo rigorous treatment as can be culled out upon re-

appreciation of the evidence on record for about eighteen

months that too he was travelled to Mumbai for special

treatment and considering such facts of this case, this Court is of

the opinion that the Tribunal has committed an error in awarding

only meager amount of Rs.25,000/- as pain, shock and suffering.

Upon re-appreciation of the evidence as a whole, we deem it fit

to award Rs.1,00,000/- as compensation under the head of pain,

shock and suffering instead of Rs.25,000/-. Similarly, we deem it

fit to award Rs.30,000/- under the head of transportation,

attendant and special diet. Thus, so far as the injured claimant is

concerned, he would be entitled to compensation as under:-

Rs.0,18,022=00 Under the head of medical treatment Rs.1,00,000=00 Under the head of pain, shock and suffering Rs.0,30,000=00 Under the head of transportation, attendant and special diet.

Rs.0,84,747=00 Under the head of actual loss of income Rs.2,50,000=00 Under the head of loss of amenities and enjoyment of life

C/FA/950/2011 JUDGMENT DATED: 24/03/2022

Rs.4,82,769=00 Total Compensation Rs.3,97,769=00 Compensation awarded by the Tribunal Rs. 85,000=00 Additional compensation

Thus, the appellants are entitled to additional

compensation at Rs.85,000/- along with the interest at the rate

of 7.5% p.a. from the date of filing the claim petition till its

realization.

8. As far as second limb of argument is concerned, it is an

admitted fact that 9 years old son of the appellants sustained

fatal injury. It would be apt to refer to the decision of the Hon'ble

Supreme Court in the case of Rajendra Singh and others Vs.

National Insurance Company Limited and others reported

in (2020) 7 SCC 256 wherein the Hon'ble Supreme Court has

observed in paragraphs no.12, 13 and 16 as under:-

12. The second deceased was a school going child aged about 12 years. She had a whole future to look forward in life with all normal human aspirations. She died prematurely due to the accident at a very tender age for no fault of hers even before she could start to understand the beauty and joys of life with all its ups and downs. The loss of a human life untimely at childhood can never be measured in terms of loss of earning or monetary loss alone. The emotional attachments involved to the loss of the child can have a devastating effect on the family which needs to be visualised and understood. Grant of nonpecuniary damages for the wrong done by awarding compensation for loss of expectation in life is therefore

C/FA/950/2011 JUDGMENT DATED: 24/03/2022

called for.

13. Undoubtedly the injury inflicted by deprivation of the life of the child is very difficult to quantify. The future also abounds with uncertainties. Therefore, the courts have used the expression just compensation to get over the difficulties in quantifying the figure to ensure consistency and uniformity in awarding compensation. This determination shall not depend upon financial position of the victim or the claimant but rather on the capacity and ability of the deceased to provide happiness in life to the claimants had she remained alive. The compensation is for loss of prospective happiness which the claimant would have enjoyed had the child not died at the tender age. Since the child was studying in a school and opportunities in life would undoubtedly abound for her as the years would have rolled by, compensation must also be granted with regard to future prospects. It can safely be presumed that education would have only led to her better growth and maturity with better prospects and a bright future for which compensation needs to be granted under non-pecuniary damages. (See R.K. Malik vs. Kiran Pal, (2009) 14 SCC 1).

16. The deduction on account of contributory negligence has already been held by us to be unsustainable. The determination of a just and proper compensation to the appellants with regard to the deceased child, in the entirety of the facts and circumstances of the case does not persuade us to enhance the same any further from Rs.2,95,000/- by granting any further compensation under the separate head of future prospects . It may only be noticed that R.K. Malik Vs. Kiran Pal, (2009) 14 SCC 1 does not consider New India Assurance Co. Ltd. Vs. Satender, (2006) 13 SCC 60 on the grant of future prospects as far as children are concerned.

9. Even considering the ratio laid down by the Hon'ble

Supreme Court in the case of United India Insurance

Company Limited Vs. Satinder Kaur alias Satwinder Kaur

and others, AIR 2020 SC 3076, the appellants would be

C/FA/950/2011 JUDGMENT DATED: 24/03/2022

entitled to enhanced compensation which upon re-appreciation

of the evidence as a whole, we quantify at Rs.3,00,000/-. As the

Tribunal has granted Rs.1,54,500/-, the appellants would be

entitled to compensation of Rs.1,45,500/- along with interest at

the rate of 7.5% p.a. from the date of filing of the claim petition

till its realization. The Insurance Company shall deposit

additional amount of compensation with interest and