Gujarat High Court

Nafisa Abdul Kumbhar vs Laxmanrav P. Chittodo on 22 August, 2023

Bench: Gita Gopi

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     C/FA/2452/2020                                  JUDGMENT DATED: 22/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 2452 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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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 ?

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                          NAFISA ABDUL KUMBHAR
                                   Versus
                      LAXMANRAV P. CHITTODO & 2 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR KRUNAL R SAKSENA(5915) for the Defendant(s) No. 3
NOTICE SERVED for the Defendant(s) No. 1,2
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                 Date : 22/08/2023

                              ORAL JUDGMENT

[1] Mr. Dhomse submitted that it is a case of

minor injured, aged about 9 years who had

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suffered 68% permanent neurological disability

and Dr. Paresh Mody, M.S. Neurosurgeon has

certified the disability. The injured claimant

was treated conservatively and on examination,

Mr. Dhomse submitted that the neurosurgeon has

made an observation with regard to disability

to assess it as 68%.

[2] Countering the same, Advocate Mr. Krunal

Saksena contended that the applicant had filed

a purshis at Exh.39 to consider the disability

as 17% for the body as a whole and though the

insurance company had not accepted the said

also, now it would not be appropriate for the

claimant to pray for 68% disability where no

further proof has been given as observed by

the Tribunal of any continuous disability.

Thus, Mr. Saksena submitted that the yardstick

laid down in the case of Master Mallikarjun

Vs. Divisional Manager, The National Insurance

Company Limited & Anr., reported in AIR 2014

SC 736 as referred by the Tribunal could be

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adopted so that the injured claimant could be

considered as being reasonably compensated.

[3] The facts of the case suggest that on

7.10.2007, the minor claimant was on the road

along with her relative Hamilaben as

pedestrian and they were proceeding on left

hand side on the road with due care. Suddenly

opponent no.1 came from the rear side with

Bolero car bearing registration no.GJ-12 Y-

1303 driving recklessly and negligently in an

excessive speed without observing the road

rules, on the wrong side and collided with the

minor applicant who sustained injury owing to

the accident.

[4] Exh.33 was produced on record by the father of

the minor claimant with regard to nature of

injuries and the treatment taken and to

consider the disability of 68%, as assessed by

the neurologist, which is as under:-

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"(i) Pt has loss of smell sensation in both nostrils (mild - moderate).

(ii) Lt. Frontal code syndrome is the form of poor judgment, emotional instability.

(iii)She has difficulty in speech in the form of naming difficulty.

(iv) She has difficulty to recollect the events of recent and remote past."

[5] On examination and being invested with CT scan

of brain the frontal region observing the

hemorrhagic contusion had found fracture and

the neurosurgeon had made the following

observations:-

"... Pt met with a RTA on 7/10/07 Mankuva. She took treatment at Bhuj only. She was treated conservatively.

             She    was     investigated          with        CT      Scan
             brain    -     which    was       S/o      -     EDM       Lt.
             Frontal         Region           C        Hemorrhagic

contusion Lt. Frontal and depraved #

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[Fracture] Lt. Frontal region." depraved."

[6] The record as observed by the learned Tribunal

indicates that from the applicant's side, a

purshis vide Exh.39 was moved for making a

prayer to the Tribunal to consider 17%

disability for the body as a whole. The

learned Tribunal has considered only 10%

disability of the minor on the basis that the

insurance company has not admitted the

disability.

[7] Considering the case of Raj Kumar v. Ajay

Kumar & Anr., reported in (2011) 1 SCC 343 in

case where the Doctor assessing the disability

is not examined, the said aspect has been

dealt with in the said case, where, the Apex

Court has laid down that the Tribunal should

not be a silent spectator when medical

evidence is tendered in regard to the injuries

and their effect, in particular the extent of

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permanent disability. Considering the Tribunal

as an active explorer and seeker of truth who

is required to 'hold an enquiry into the

claim' for determining the 'just

compensation', the Hon'ble Supreme Court has

observed that the Tribunal should, therefore,

take an active role to ascertain the true and

correct position so that it can assess the

'just compensation'. While dealing with

personal injury cases, the Tribunal should

preferably equip itself with a Medical

Dictionary and a Handbook for evaluation of

permanent physical impairment for

understanding the medical evidence and

assessing the physical and functional

disability. The Tribunal, in the present case,

on its own could have referred to the medical

board to take the assistance for concluding

the disability and specifically when it was a

case of minor who would not be in a position

to take any such assistance. The claimant has

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accepted 17% permanent disability for body as

a whole. Learned advocate Mr. Dhomse submits

that the claimant would not now want to

reagitate the same and thus, has prayed to

consider the same for granting compensation as

per the judgment of Master Mallikarjun

(supra).

[8] It has been brought to the notice that the

yardstick which has been laid in the case of

Master Mallikarjun (supra) has not been

followed by the Tribunal. In Paragraph 12 of

the judgment, the Hon'ble Apex Court has laid

down the slab to be followed in the case of

minor sustaining permanent disability.

"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,

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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."

[9] Applicant's side had moved the purshis to

consider 17% disability for the body as a

whole and thus, as per the principles laid

down in the case of Master Mallikarjun

(supra), the applicant is required to be

compensated accordingly. Thus, the

compensation would be as under:-

Rs.3,00,000/- Pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, and discomforts, etc. and loss of amenities in life on account of permanent disability + Rs.17,446/- Medical expenses = Rs.3,17,446/- Total compensation

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[10] As the Tribunal has granted compensation of

Rs.1,37,446/- with interest at the rate of 9%

per annum, the applicant - original claimant

would be entitled to the enhanced amount of

compensation of Rs.1,80,000/- with interest at

the rate of 7.5% per annum from the date of

filing of the claim petition till its

realization. The insurance Company is directed

to deposit the said amount within eight weeks

from the date of receipt of writ of this

Court.