Gujarat High Court
Minor Priyankaben Udesingbhai Katara vs Jivanbhai Amarsinh Bariya on 18 December, 2023
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
C/FA/2441/2023 JUDGMENT DATED: 18/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2441 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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MINOR PRIYANKABEN UDESINGBHAI KATARA
Versus
JIVANBHAI AMARSINH BARIYA
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 18/12/2023
ORAL JUDGMENT
1. By way of this Appeal, filed by the Guardian and
father of the minor daughter, the Appellant-claimant
has challenged the judgment and award dated
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16.10.2019 passed by the learned Motor Accident
Claims Tribunal (Aux.), Panchmahals at Godhra in
M.A.C.P. No.880 of 2016 on the ground that the
compensation amount granted is not in consonance
with the decision of the Hon'ble Apex Court in the
case of Mallikarjun v. Divisional Manager, National
Insurance Company Limited and Another reported in
2014 14 SCC 396. The minor was aged four years at
the time of accident.
2. The facts giving rise to the present Appeal can be put
succinctly as under :-
On 28.08.2016 at about 13.00 hours the minor
appellant alongwith Induben was going walking on
the side of the road near Piplod Village. It is the
case of the appellant that the respondent No.1 was
driving his Hero Honda Motorcycle bearing
Registration No.GJ-20-AD-3189 in excessive speed and
in a rash and negligent manner and dashed the minor
from behind who was at the Bus stand. A First
Information Report bearing C.R. No.136 of 2016 was
lodged before Dev. Bariya Police Station against the
respondent No.1.
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3. Learned Advocate for the appellant Mr. Nishit A.
Bhalodi submitted that the accident was proved by
way of complaint at Exhibit 19, copy of Panchnama
at Exhibit 20, the injuries at Exhibit 23 and medical
bills at Exhibit 24. The Driving License and
Registration of Certificate Book of the offending
vehicle was placed on record at Exhibit 21 and 22
respectively. It is further submitted that the
evidence by way of Disability Certificate was assessed
by the Doctor and permanent partial disability @ 35%
was placed on record. Further by way of Pursis -
Exhibit 27, learned Advocates of both the sides
agreed to assess the disability of 13% for the body as
a whole and inspite of that, the learned Tribunal
reduced the percentage by placing reliance on the
judgment of this Court in First Appeal No.6520 of
1995. It is further submitted that the decision in
the case of Mallikarjun (supra) was reported in the
year 2013. However, the learned Tribunal should
have considered the decision of the Hon'ble Apex
Court in the case of Raj Kumar vs. Ajay Kumar and
Anr. reported in (2011) 1 SCC 343 to assess the case
of the minor disability. It is also submitted that in
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this case when the disability has been assessed as
35% by the Doctor and when the learned Advocates
on record had urged the Court to consider the same
as 13% by way of a Pursis - Exhibit 27, the learned
Tribunal ought not to have come to its own
conclusion without support of any medical evidence
and failing to observe the guidelines as laid down in
the case of Raj Kumar (supra). Hence, it is
submitted by learned Advocate for the appellant Mr.
Nishit A. Bhalodi that 13% disability for the body as
a whole is to be considered and the yardstick as laid
down in the case of Mallikarjun (supra) be followed.
4. Countering the above arguments, learned Advocate
for the respondent-Insurance Company Ms. Kirti S.
Pathak submitted that the learned Tribunal has
rightly observed the disability. The minor had
sustained injuries on the body and fracture on the
left leg. The minor was aged 4 years at the time of
accident and therefore, it is submitted the learned
Tribunal has rightly observed the disability as 10%
and granted a just and fair compensation.
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5. In the case of Mallikarjun (supra) the Hon'ble Apex
Court has dealt with the claim by the victim child
and had observed that it was unfair and improper to
follow the structured formula as per the Second
Schedule to the Motor Vehicles Act for reasons more
than one. The main stress in the formula is on
pecuniary damages. It was taken into consideration
that for children there is no income. The only
indication in the Second Schedule for non-earning
persons is to take the notional income as Rs.15,000/-
per year. The Hon'ble Apex Court thus stated that
the child cannot be equated to such a non-earning
person, and therefore, the compensation is to be
worked out under the non-pecuniary heads in
addition to the actual amounts incurred for
treatment done and/or to be done, transportation,
assistance of attendant etc. The main elements of
damage in the case of child victims are the pain,
shock, frustration, deprivation of ordinary pleasures
and enjoyment associated with healthy and mobile
limbs. The compensation awarded should enable the
child to acquire something or to develop a lifestyle
which will offset to some extent the inconvenience or
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discomfort arising out of the disability. The
appropriate compensation for disability should take
care of all the non-pecuniary damages. The Hon'ble
Apex Court, thus, held that apart from this head,
there shall only be the claim for the actual
expenditure for treatment, attendant, transportation
etc. Therefore considering the view of the judgment
as observed it would be 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. Thus the Hon'ble Apex Court in the said
decision has held as under:
"We are of the view 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 up to
30% to the whole body. Rs.3 lakhs; up to 60%, Rs.
4 lakhs; up to 90%, Rs. 5 lakhs and above 90%, it
should be Rs. 6 lakhs. For permanent disability up
to 10%, it should be Rs.1 lakh, unless there are
exceptional circumstances to take a different
yardstick."
6. Having heard learned Advocates for the respective
parties, perused the records of the case. Since the
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injury assessed by the Doctor was 35% and both the
learned Advocates on record had urged the Court to
consider the same as 13% by way of filing of a pursis
- Exhibit 27, the learned Tribunal could have been
gracious enough to consider the same or in the
alternative, passed an appropriate order considering
the permanent partial disability as 35% as assessed by
the Doctor and also considering the decision in the
case of Raj Kumar (supra).
7. Be that as it may, since the disability has been
agreed by both the sides and as it has not been re-
agitated by the learned Advocate for the appellant, it
would be justified to consider the 13% disability of
the minor and as per the decision laid down in the
case of Mallikarjun (supra), the minor claimant would
be entitled for an amount of Rs.3,00,000/-.
8. Documentary evidence with regard to medical
expenses has been produced on record at Exhibit 24,
which has been considered by the learned Tribunal
and therefore, the medical expenses @ Rs.22,800/-
has been granted.
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9. Therefore, the following computation be can be
arrived at :-
Heads Amount
Pain and suffering already Rs. 3,00,000/-
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.
Medical expenses Rs. 22,800/-
Total Rs. 3,22,800/-
10. The learned Tribunal has awarded an amount of
Rs.82,800/- with rate of interest @ 9% per annum,
which the respondent/s are liable to deposit, with the
enhanced amount as Rs.2,40,000/- (Rs.3,22,800/-
minus Rs.82,800/-). In the result, the present
respondent/s are directed to deposit the amount
within a period of EIGHT (8) WEEKS from the date
of receipt of writ of the order of this Court. It is
further directed that the claimant would be entitled
to receive the enhanced compensation @ 7.5% per
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annum from the date of the application.
11. After deposit of the above/enhanced amount, the
said amount be deposited in a Fixed Deposit Receipt
(FDR). The amount so deposited with the accrued
interest thereon be paid to the claimant, once the
minor attains the age of majority and after carrying
out the necessary procedures for verification of her
identity, without any further reference to the Court.
12. In view of the above, the Appeal is allowed and
the judgment and award dated 16.10.2019 passed by
the learned Motor Accident Claims Tribunal (Aux.),
Panchmahals at Godhra in M.A.C.P. No.880 of 2016
stands modified to the above extent. Record and
proceedings, if any, be sent back to the concerned
Court / Tribunal forthwith.
(GITA GOPI, J)
CAROLINE
