Minor Diyaben Raviraj Jaiswal, Through ... vs Iffco Tokio General Insurance Company ...
2023 Latest Caselaw 8734 Guj

Gujarat High Court

Minor Diyaben Raviraj Jaiswal, Through ... vs Iffco Tokio General Insurance Company ... on 18 December, 2023

Author: Gita Gopi

Bench: Gita Gopi

                                                                                         NEUTRAL CITATION




     C/SCA/21043/2023                                      ORDER DATED: 18/12/2023

                                                                                          undefined




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 21043 of 2023

==========================================================
     MINOR DIYABEN RAVIRAJ JAISWAL, THROUGH MOTHER AND
        NATURAL GUARDIAN JAISWAL MANISHABEN RAVIRAJ
                            Versus
         IFFCO TOKIO GENERAL INSURANCE COMPANY LTD
==========================================================
Appearance:
MR.KARNA H DHOMSE(6684) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                Date : 18/12/2023

                                    ORAL ORDER

1. Mr. Karna H.Dhomse, learned advocate for

the petitioner submitted that the minor girl has

suffered 90% disability on the right upper limb.

As per the evidence, right shoulder of minor was

fractured; her two right ribs were fractured,

right hand had brekial Plexus injury as well as

blood vessel of right hand was cut and certain

injuries on face were there. Mr. Dhomse submitted

that though her bone have joint, but her shoulder

and elbow had no movement, as her muscles got

paralyzed.

NEUTRAL CITATION

C/SCA/21043/2023 ORDER DATED: 18/12/2023

undefined

2. It is stated by Advocate Mr. Dhomse that

the brekial Plexus is a bundle of nerves that

stems from nerve roots in the cervical (neck) and

upper trunk (torso) sections of the spinal cord

(C5-T1), creating a network that connects to the

nerves in the arm.

3. Advocate Mr. Dhomse further submitted

that there were no movement in her fingers as

well as her wrist was deformed and she has no

sensation in her right hand. Mr. Dhomse submitted

that the Doctor has assessed the permanent

disability of 90% on the right hand, and the

Tribunal has considered 100% functional

disability of the right hand.

4. Advocate Mr. Dhomse submitted that the

Tribunal was required to consider the matter as

an exceptional case and should have gone beyond

the parameters laid down in case of Mallikarjun

NEUTRAL CITATION

C/SCA/21043/2023 ORDER DATED: 18/12/2023

undefined

v. Divisional Manager, National Insurance Company

Limited and another, reported in [(2014) 14 SCC

396].

5. Advocate Mr. Dhomse stated that the

judgment of the Tribunal has been challenged by

the claimant through mother by filing First

Appeal No.4989 of 2023, which was admitted by

order dated 14.12.2023.

6. The claimant being minor had filed the

application through her widow mother. The mother

has no other source of income to deal with

medical expenses and, therefore, the mother had

filed MAC Misc. Application No.89 of 2023 in MACP

No.71 of 2020 for disbursement of the amount

urging medical need.

7. Advocate Mr. Dhomse submitted that 100%

amount has been deposited in FDR for a period of

NEUTRAL CITATION

C/SCA/21043/2023 ORDER DATED: 18/12/2023

undefined

five years or till the minor attains majority

whichever is later; though the periodical

interest is granted to the claimant or her

guardian, but the said amount would not be

sufficient to deal with the medical expenses;

hence, stated that the claimant had made the

prayer to disburse Rs.2,92,653/-, as the mother

had taken hand loan to meet with medical needs of

the child, since she has to pay the amount and

there being no male member in the family and

therefore, Advocate Mr. Dhomse submitted that the

Tribunal ought to have granted that amount.

Advocate Mr. Dhomse submitted that though there

was endorsement of the insurance company of no

objection, the total amount was ordered to be

placed in the F.D.R.

8. The fact suggests that the child needs

medical care and at present a prayer is made of

granting Rs.2,92,653/-, but this Court considers

NEUTRAL CITATION

C/SCA/21043/2023 ORDER DATED: 18/12/2023

undefined

that the First Appeal would take its time to

conclude, and when there has been no objection,

which was made contingent of identifying the

claim of the applicant, and since the claim made

by the widow mother is genuine, as on her own she

would not be in a position to deal with medical

needs of the minor, the minor is required to be

assisted monetarily so that she would have her

medical needs in time, and the mother be made

monetarily sufficient to look after the medical

needs of the child.

9. The amount of Rs.2,92,653/- has been

prayed, but this Court considers that

Rs.3,50,000/- would be appropriate to grant the

applicant. Hence, the Tribunal concerned is

directed to grant Rs.3,50,000/- to the applicant

by account payee cheque on proper verification,

so that widow mother would not have to run pillar

to post for other needs of the child.

NEUTRAL CITATION

C/SCA/21043/2023 ORDER DATED: 18/12/2023

undefined

10. In view of the above observation and

direction, the present petition stands disposed

of.

Direct service is permitted.

(GITA GOPI,J) Pankaj