Gujarat High Court
Nikitakumari Arjanbhai vs Bhupendrasinh Natversinh ... on 23 February, 2023
Bench: Gita Gopi
C/FA/3469/2022 ORDER DATED: 23/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3469 of 2022
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NIKITAKUMARI ARJANBHAI
Versus
BHUPENDRASINH NATVERSINH SOLANKI
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MS SEJAL K MANDAVIA(436) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 23/02/2023
ORAL ORDER
1. In this First Appeal, challenge has been given by the
minor, who was aged 14 years, through his mother, to judgment
and award dated 08.10.2021 passed by the Motor Accident Claims
Tribunal (Auxi.), Mahisagar at Lunawada in MACP No.2577 of 2017
(Old MACP No.494 of 2015) praying for enhancement of the
compensation amount because of physical disability sustained at
32.68%, which was considered as 11% for body as a whole by the
learned Tribunal.
2. Learned Advocate Mr.Bhalodi for the appellant
submitted that the learned Tribunal ought to have followed the
judgment of the Hon'ble Apex Court in case of Mallikarjun Vs.
Divisional Manager, National Insurance Company Limited &
C/FA/3469/2022 ORDER DATED: 23/02/2023
Anr., reported in (2014) 14 SCC, 396, to consider the
compensation as per the yardstick laid down, even in view of the
fact that the child was a non-earning member of the family.
3. While countering the same, learned Advocate Ms.Sejal
Mandavia submits that the compensation granted is in accordance
to the evidence produced by the claimant and just and reasonable
amount has been granted.
4. As per the facts of the case, on 27.03.2015 at about 11
hrs., minor and others were waiting at the bus stop at village Nava
Rabadiya crossing. At that time, driver of ST Bus No.GJ-17-Y-3798
came in full speed. Because of the rash and negligent driving, lost
control over the bus and dashed with the minor-claimant. As a
result of the accident, minor sustained severe injuries.
5. The learned Tribunal, after having appreciating the
evidence on record, considered physical disability for body as a
whole at 11% for the claimant aged 14 years. In such case,
principle as laid down in case of Mallikarjun (supra) is consistently
made applicable by the Courts and keeping in view the yardsticks
laid down by the Hon'ble Apex Court and the fact that 11%
disability for body as a whole is considered, the claimant would be
entitled for amount of Rs.3,00,000/- as compensation. In case of
Mallikarjun (supra), the Hon'ble Apex Court in paras-8 and 12 has
C/FA/3469/2022 ORDER DATED: 23/02/2023
held as under:-
"8. While considering the claim by a victim child, it
would be 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. 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. A child cannot
be equated to such a non-earning person. 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
discomfort arising out of the disability. Appropriate
compensation for disability should take care of all the
non-pecuniary damages. In other words, apart from this
head, there shall only be the claim for the actual
expenditure for treatment, attendant, transportation,
etc.
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, 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.
6. The learned Tribunal has granted Rs.3,500/- for
C/FA/3469/2022 ORDER DATED: 23/02/2023
transportation, attendants, special diet and medical expenses while
medical bills are granted at Rs.21,646/-. Thus, the claimant would
be entitled to compensation money of Rs.3,00,000/- for pain and
suffering already undergone and to be suffered in future, mental
and physical shock, hardship, inconvenience and discomfort, etc.
and loss of amenities of life on account of permanent disability,
Rs.3,500/- for transportation, attendants, special diet and medical
expenses and Rs.21,646/- towards medical bills, totalling to
Rs.3,25,146/-.
7. The learned Tribunal has granted Rs.68,786/- with 9%
interest. The enhanced amount would be Rs.2,56,360/-, which the
Insurance Company is directed to deposit within six weeks from the
date of receipt of this order. The claimants would be entitled to
enhanced amount of compensation of Rs.2,56,360/- at the rate of
7.5% interest per annum. The insurance Company is directed to
deposit Rs.2,56,360/- with interest at the rate of 7.5% per annum.
The award be modified accordingly. The appeal is partly allowed.
Registry is directed to send the record and proceedings back to the
Tribunal, if received.
(GITA GOPI,J)
SHITOLE
