Imran Yakubbhai Belim vs Sunilbhai Kanjibhai Vasava
2023 Latest Caselaw 570 Guj

     C/FA/3425/2022                               JUDGMENT DATED: 18/01/2023




       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3425 of 2022

FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
======================================================

      Whether Reporters of Local Papers may be allowed to see
 1                                                                        NO
      the judgment ?
 2 To be referred to the Reporter or not ?                                NO

      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 ?

======================================================
                     IMRAN YAKUBBHAI BELIM
                              Versus
                   SUNILBHAI KANJIBHAI VASAVA
======================================================
Appearance:
MR ADNAN A. KHAN for MR MOHSIN M HAKIM(5396) 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
======================================================

 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,

C/FA/3425/2022 JUDGMENT DATED: 18/01/2023

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

judgment and award dated 22.02.2018 passed in Motor Accident Claim

Petition No. 1751 of 2001 by the learned Motor Accident Claims Tribunal

(Auxiliary) and 10th Additional District Judge, 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 18.07.2001,

the Tribunal has awarded an amount of Rs.48,500/- 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. Heard, learned advocate Mr. Adnan A. Khan for learned advocate

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

B. Karia for the respondent No. 3 - insurance company.

3. The sole contention that has been raised by the learned advocate for

the appellant in this appeal is that the Tribunal has not properly appreciated

the ratio 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

C/FA/3425/2022 JUDGMENT DATED: 18/01/2023

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 and

thereby, to allow this appeal.

4. As against this, Mr. Tanmay Karia, the learned advocate for the

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

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 multiple injuries and

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

disability of the appellant - claimant was assessed at 6% for the body as a

whole. Considering the same as well as the age, hospitalization and other

such aspects, the Tribunal has awarded a sum of Rs.48,500/- towards

compensation under different heads.

       C/FA/3425/2022                                    JUDGMENT DATED: 18/01/2023




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.48,500/- 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.

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

C/FA/3425/2022 JUDGMENT DATED: 18/01/2023

held that the appellant - claimant shall be entitled to the compensation as

under:

                            Head                               Compensation
                                                                  (Rs.)
Special Diet, Attendant and Transportation Charges                       15,000/-
Actual Medical Expenses                                                    5,000/-
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            1,20,000/-
               Minus: Compensation awarded by the Tribunal               48,500/-
                                                 Difference              71,500/-


6.1      The respondent No. 3 - insurance company is directed to deposit the

difference amount 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 /65