Akshaykumar Alias Ankit ... vs Mitul Hashmukhlal Soni
2023 Latest Caselaw 716 Guj

     C/FA/3512/2022                               JUDGMENT DATED: 30/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3512 of 2022


FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE GITA GOPI                     Sd/-

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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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           AKSHAYKUMAR ALIAS ANKIT DEEPAKKUMAR DAMOR
                              Versus
                    MITUL HASHMUKHLAL SONI
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 2
SERVED BY AFFIX. (R) for the Defendant(s) No. 1
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 30/01/2023

                             ORAL JUDGMENT

1. By way of this Appeal, the Appellant-claimant (a minor at the time of accident) has challenged the

C/FA/3512/2022 JUDGMENT DATED: 30/01/2023

judgment and award dated 27.11.2017 passed by the learned Motor Accident Claims Tribunal, Godhra in M.A.C.P. No.20 of 2006 on the grounds praying for enhancement of the compensation amount.

2. The facts which give rise to the present Appeal are as under :-

On 28.01.2005, at about 17.15 hours, the claimant was trying to cross the road near Bhoiwada Fish Market, at Godhra. At that time, the opponent No.1 came driving a Maruti Car bearing Registration No.GJ-17-C-7008 in a rash and negligent manner and rolled over the tyre of the vehicle on the left leg of the claimant. The claimant suffered grievous injuries and on account of the accident, the claimant incured huge expenses on medical treatment, medicines, food, transportation etc. and therefore, the claim was filed.

3. Learned Advocate for the appellant Mr. Nishit A. Bhalodi submits that the appellant was a minor at the time of accident and the claim petition was filed through his father who was his guardian and next friend. The minor had sustained permanent disability

C/FA/3512/2022 JUDGMENT DATED: 30/01/2023

of 36% and both the sides had admitted and considered disability @ 12%, however, the compensation amount has not been granted accordingly. It is further submitted that owing to the accident, the parents of the claimant had incurred huge expenses on medical treatment, transportation etc. while the learned Tribunal has granted only an amount of Rs.46,000/- towards the said head. It is further submitted that considering the ratio laid down by the Hon'ble Apex Court in the case of Master Mallikarjun v. Divisional Manager, the National Insurance Company Limited and Another reported in 2014 14 SCC 396, the learned Tribunal ought to have granted compensation amount, accordingly.

4. Countering the above submissions, learned Advocate for the respondent - Insurance Company Mr. Rathin Raval submitted that the disability was considered as 12% and the learned Tribunal has rightly considered the notional income of the minor who was aged 6 years at the time of accident. It is further submitted that the learned Tribunal has granted amount under the head of pain, shock and suffering and also under the head of Special Diet and Transportation, though

C/FA/3512/2022 JUDGMENT DATED: 30/01/2023

documents with regard to medical expenditure or treatment were not produced and thus, fair compensation has been granted. It is further submitted that the rate of interest granted by the learned Tribunal @ 9% per annum on the awarded amount is on the higher side and therefore, it is submitted that the rate of interest be modified by this Court @ 6% per annum.

5. In the case of Mallikarjun (supra), the Hon'ble Apex Court has observed in Paragraph 8 as under :-

"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

C/FA/3512/2022 JUDGMENT DATED: 30/01/2023

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."

6. Thus, the Hon'ble Apex Court has observed that for children there is no income and children cannot be equated to that of non-working persons. The main element of damage in the case of a child is the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs and 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. The Hon'ble Apex Court thus laid down the yardstick for considering the compensation to be awarded to minor claimant in Paragraph 12 of the above decision which is as under :-

"12. Though it is difficult to have an accurate

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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."

7. Heard learned Advocates appearing for the respective parties and perused the records of the case. Here in this case, 12% disability of the claimant has been consented by both the parties and accordingly the learned Tribunal has considered the same. Applying the ratio as laid down by the Hon'ble Apex Court in the case of Master Mallikarjun (supra), the claimant would be entitled for an amount of Rs.3,00,000/-. The learned Tribunal has also granted under the head of Special Diet and Transportation, an amount of Rs.6,000/- and under the head of medical expenses, an amount of Rs.3,000/- though evidence with regard to the medical expenditure involved were not produced, the said sum granted requires no

C/FA/3512/2022 JUDGMENT DATED: 30/01/2023

modification.

8. Thus, the computation can be made as under :-

                   Details                      Amount (Rs.)
    Permanent Disability                             3,00,000.00
    Special Diet and Transportation                        6,000.00
    Medical Expenses                                       3,000.00
                    Total                            3,09,000.00

9. The learned Tribunal has awarded an amount of Rs.46,000/- with rate of interest @ 9% per annum, which the respondent are liable to deposit, with the enhanced amount as Rs.2,63,000/- (Rs.3,09,000/- minus Rs.46,000/-). 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 annum from the date of the application and the disbursement of the amount be made as per the judgment and award of the learned Tribunal.

C/FA/3512/2022 JUDGMENT DATED: 30/01/2023

10. In view of the above, the Appeal is allowed and the judgment and award dated 27.11.2017 passed by the learned Motor Accident Claims Tribunal, Godhra in M.A.C.P. No.20 of 2006 stands modified to the above extent. Record and proceedings, if any, be sent back to the concerned Court / Tribunal forthwith.

Sd/-

(GITA GOPI, J) CAROLINE