Gujarat High Court
Aartiben Rameshshing Tomar vs Nasuruddin Chandanbhai Fakir on 18 January, 2023
Bench: Ashokkumar C. Joshi
C/FA/4179/2018 JUDGMENT DATED: 18/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4179 of 2018
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 ?
======================================================
AARTIBEN RAMESHSHING TOMAR
Versus
NASURUDDIN CHANDANBHAI FAKIR
======================================================
Appearance:
MR R G DWIVEDI(6601) for the Appellant(s) No. 1
MR TANMAY B KARIA(6833) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 18/01/2023
ORAL JUDGMENT
1. This is an appeal filed under Section 173 of the Motor Vehicles Act,
1988 (MV Act) by the appellant - original claimant, challenging the
C/FA/4179/2018 JUDGMENT DATED: 18/01/2023
judgment and award dated 22.03.2018 passed in Motor Accident Claim
Petition No. 276 of 2001 by the learned Motor Accident Claims Tribunal
(Auxiliary), Vadodara, whereby, against a claim of Rs.1 lakh for the injuries
sustained by the original claimant - a minor at the relevant time, in an
accident that had occurred on 14.05.2000, the Tribunal has awarded an
amount of Rs.30,000/- with 9% interest per annum from the date of filing
the claim petition 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. Learned advocate Ms. Bhavna D. Acharya states at bar that she
appears for the respondent Nos. 1 and 2. She may file her appearance, if yet
not filed.
3. Heard, learned advocate Mr. R. G. Dwivedi for the appellant, learned
advocate Mr. Tanmay B. Karia for the respondent No. 3 - insurance
company and learned advocate Ms. Bhavna Acharya for the respondent Nos.
1 and 2.
4. The sole contention that has been raised by the learned advocate for
the appellant in this appeal is that the Tribunal has not considered the ratio
C/FA/4179/2018 JUDGMENT DATED: 18/01/2023
laid down in the decision of the Apex Court in Mallikarjun V. Divisional
Manager, The National Insurance Company Limited and Others, MANU/
SC/0878/2013, and thereby, has erred in awarding the compensation to the
original claimant, who was minor at the relevant time and had suffered 6%
disability body as a whole and accordingly, he has urged to enhance the
compensation in view of the aforesaid decision as well as on other heads and
thereby, to allow this appeal.
4.1 As against this, Mr. Tanmay Karia, the learned advocate for the
respondent No. 3 - insurance company and learned advocate Ms. Bhavna
Acharya for the respondent Nos. 1 and 2, while resisting this appeal, have
submitted that the appellant - injured was a 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 time, had sustained fracture injury and had
to avail treatment for the same. The permanent disability of the appellant -
C/FA/4179/2018 JUDGMENT DATED: 18/01/2023
claimant was assessed at 6% for the body as a whole. Considering the same
as well as the age, treatment taken and other such aspects, the Tribunal has
awarded a sum of Rs.30,000/- 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.30,000/- under all
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.
C/FA/4179/2018 JUDGMENT DATED: 18/01/2023
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.)
Special Diet, Attendant and Transportation Charges and 5,000/-
Medical Expenses
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.
Total 1,05,000/-
Minus: Compensation awarded by the Tribunal 30,000/-
Difference 75,000/-
6.1 The difference amount shall be deposited 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 impugned judgment and award is not disturbed.
R&P, if received, be sent back forthwith to the Tribunal concerned.
[ A. C. Joshi, J. ]
hiren
/SA-5
