Anirudhsinh Jorubha Jadeja vs Mehboob Ibrahim Khalifa
2023 Latest Caselaw 3447 Guj

     C/FA/1192/2021                            JUDGMENT DATED: 27/04/2023




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


                  R/FIRST APPEAL NO. 1192 of 2021

FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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     Whether Reporters of Local Papers may be
 1                                                                   NO
     allowed to see the judgment ?

 2 To be referred to the Reporter or not ?                           NO

     Whether their Lordships wish to see the fair
 3                                                                   NO
     copy of the judgment ?
   Whether this case involves a substantial
   question of law as to the interpretation of the
 4                                                                   NO
   Constitution of India or any order made
   thereunder ?

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              ANIRUDHSINH JORUBHA JADEJA
                          Versus
               MEHBOOB IBRAHIM KHALIFA
======================================
Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1,2
======================================

 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                           Date : 27/04/2023

                           ORAL JUDGMENT

1. Admit. Learned advocate Mr. Maulik Shelat waives

C/FA/1192/2021 JUDGMENT DATED: 27/04/2023

service for respondent No. 3 - insurance company. Notice is

served upon the respondent Nos. 1 and 2.

2. This is an appeal filed under Section 173 of the Motor

Vehicles Act, 1988 (MV Act) by appellant, who was minor at the

relevant time, challenging the judgment and award dated

03.09.2019 passed in Motor Accident Claim Petition No. 32 of

2018 by the learned Motor Accident Claims Tribunal (Auxiliary),

Bhuj (the Tribunal), whereby, against the claim of Rs.7 lakh for

the injuries sustained by the appellant in an accident, the

Tribunal has awarded an amount of Rs.1,30,000/- 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.

3. Heard, learned advocate Mr. Nishit A. Bhalodi for the

appellant and learned advocate Mr. Maulik Shelat for the

respondent No. 3 - insurance company.

3.1 The sole contention that has been raised by the learned

C/FA/1192/2021 JUDGMENT DATED: 27/04/2023

advocate for the appellant in this appeal is that at the time

when the appellant faced the accident, he was aged 17 years

and 05 months but the learned Tribunal has erred in

concluding that the appellant - claimant cannot be termed as a

child at the time of accident. It is further submitted that

disability for the body as a whole was assessed at 16%

however, the learned Tribunal has failed to appreciate the

same and has not granted compensation which ought to have

been granted in accordance with the settled law in the decision

of the Apex Court in Mallikarjun V. Divisional Manager,

The National Insurance Company Limited and Others,

MANU/SC/0878/2013, 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. Maulik Shelat, the learned advocate

for the respondent No. 3 - insurance company, while resisting

this appeal, has submitted that the reasoning given by the

learned Tribunal are in accordance with the facts of the case

and 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

C/FA/1192/2021 JUDGMENT DATED: 27/04/2023

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 that had occurred on 12.10.2017, the

appellant, a minor at the relevant time and was going on a

motorcycle as pillion rider, which was driven by the respondent

No. 1, who lost control over the motorcycle and the motorcycle

skidded and thus, the appellant - claimant sustained injuries

on different parts of the body. The learned Tribunal has

observed the age of the appellant - claimant as 17 years and 5

months and disability has been considered as 16% body as a

whole, however, apparently, has failed to take into

consideration the ratio laid down in the aforesaid decision in

Mallikarjun (supra).

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

C/FA/1192/2021 JUDGMENT DATED: 27/04/2023

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%, appropriate compensation on all

other heads in addition to the actual expenditure for

treatment, attendant, etc., should be Rs.3 lakh. As referred to

herein above, the Tribunal has awarded a sum of Rs.1,30,000/-

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 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:

C/FA/1192/2021 JUDGMENT DATED: 27/04/2023

Head Modified Award (Rs.) Actual Medical Expenses 5,000/-

Pain and suffering already undergone and to 3,00,000/- be suffered in future, mental and physical shock, hardship, inconvenience, and discomforts etc., and loss of amenities in life on account of permanent disability.

                                            Total            3,05,000/-


6.1     The respondent No. 3 - insurance company is directed to

deposit the difference amount of Rs.1,75,000/- (Rs.3,00,000-

1,30,000) within a period of 06 weeks. The appellant -

claimant shall be entitled to interest @ 7.5% per annum, on

such enhanced amount of compensation. R&P, if received, be

sent back forthwith to the Tribunal concerned.

[ Gita Gopi, J. ] hiren /64