Parag Jagdishkumar Natvarlal ... vs Yogeshkumar Jagdishbhai Jayswal
2023 Latest Caselaw 116 Guj

     C/FA/3182/2022                               JUDGMENT DATED: 05/01/2023




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3182 of 2022

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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      Whether Reporters of Local Papers may be allowed to see
 1                                                                        NO
      the judgment ?
 2 To be referred to the Reporter or not ?                                YES

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

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       PARAG JAGDISHKUMAR NATVARLAL JAYASWAL
                             Versus
            YOGESHKUMAR JAGDISHBHAI JAYSWAL
======================================================
Appearance:
MR MOHSIN M HAKIM(5396) for the Appellant(s) No. 1
MANDEEP SINGH SALUJA(8791) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
======================================================

 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                              Date : 05/01/2023

                            ORAL JUDGMENT

1. This is an appeal filed under Section 173 of the Motor Vehicles Act,

1988 (MV Act) by appellant - original claimant challenging the judgment

C/FA/3182/2022 JUDGMENT DATED: 05/01/2023

and award dated 13.06.2019 passed in Motor Accident Claim Petition No.

972 of 2017 (Old No. 195 of 2008) by the learned Motor Accident Claims

Tribunal (Auxiliary), Dahod at Limkheda, whereby, against the claim of

Rs.1.20 lakh for the injuries sustained by the original claimant - a minor at

the relevant point of time, in an accident that had occurred on 02.03.2008,

the Tribunal has awarded an amount of Rs.34,750/- with 8% interest per

annum from the date of filing the claim petition till 01.10.2014 and from the

date of award 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.

2. Though served, none has appeared for the respondent Nos. 1 and 2.

Accordingly, heard, learned advocate Mr. Adnan Khan for learned advocate

Mr. Mohsin M. Hakim for the appellant and learned advocate Mr. Mandeep

Singh Saluja for the respondent No. 3 - insurance company.

3. The learned advocate for the appellant has mainly contended that the

appellant - claimant had sustained 9% disability body as a whole, and

accordingly, the Tribunal ought to have passed the award taking into

consideration the law laid down by the Apex Court in Mallikarjun V.

Divisional Manager, The National Insurance Company Limited and

C/FA/3182/2022 JUDGMENT DATED: 05/01/2023

Others, MANU/SC/0878/2013, however, the Tribunal has not considered

the same. The learned advocate for the appellant would also urge that the

Tribunal has awarded a meager amount under other heads. Accordingly, it is

urged to enhance the amount of compensation in view of the aforesaid

decision and thereby, to allow this appeal.

4. As against this, Mr. Mandeep Singh Saluja, the learned advocate for

the respondent No. 3 - insurance company, while resisting this appeal, has

submitted that the appellant - injured was minor at the relevant time and

considering all the aspects of the matter, 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

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, the

appellant, a minor at the relevant point of time, had sustained severe injuries

and had to avail treatment as an indoor as well as outdoor patient. The

permanent disability of the appellant - claimant was assessed at 9% for the

body as a whole. Considering the same as well as the age, period undergone

in hospital and other such aspects as well as considering the notional income

C/FA/3182/2022 JUDGMENT DATED: 05/01/2023

of the appellant, the Tribunal has awarded a sum of Rs.34,750/- towards

compensation.

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 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 upto 10%,

appropriate compensation on all other heads in addition to the actual

expenditure for treatment, attendant, etc., should be Rs.1 lakh. As referred

to herein above, the Tribunal has awarded a sum of Rs.34,750/- 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. Further, the

C/FA/3182/2022 JUDGMENT DATED: 05/01/2023

compensation under the head of Special diet, Transportation and Attendant

charges since appears to be on lower side, the same also requires to be

enhanced suitably.

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:

                           Head                               Compensation
                                                                 (Rs.)
Pain and suffering already undergone and to be suffered in            1,00,000/-
future, mental and physical shock, hardship,

inconvenience, and discomforts etc., and loss of amenities in life on account of permanent disability.

Actual Medical Expenses                                                   2,000/-
Special Diet, Attendant and Transportation Charges                      10,000/-
                                                     Total            1,12,000/-
                                   Award of the Tribunal                34,750/-
                                                Difference              77,250/-


6.1      The respondent/s concerned shall deposit the difference amount of

Rs.77,250/- within a period of 30 days. The appellant - claimant shall be

entitled to interest @ 6% per annum, on such enhanced amount of

compensation from the date of claim petition till realization. Rest of the

C/FA/3182/2022 JUDGMENT DATED: 05/01/2023

impugned judgment and award is not disturbed. R&P, if received, be sent

back forthwith to the Tribunal concerned.

[ A. C. Joshi, J. ] hiren