Gujarat High Court
Jalpaben Arvindbhai Thakkar vs Navinkumar Mansang Rathod on 6 June, 2023
Bench: Gita Gopi
C/FA/2346/2022 JUDGMENT DATED: 06/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2346 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
JALPABEN ARVINDBHAI THAKKAR
Versus
NAVINKUMAR MANSANG RATHOD
==========================================================
Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR HARDIK P MEHTA(6943) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1
UNSERVED EXPIRED (R) for the Defendant(s) No. 2
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 06/06/2023
ORAL JUDGMENT
1. Heard the learned advocates appearing for the
respective parties.
C/FA/2346/2022 JUDGMENT DATED: 06/06/2023
2. Being aggrieved and dissatisfied with the judgment and
award dated 30.06.2018, passed by the MACT (Aux),
Anjar-Kachchh, in MACP No.295/2015, the appellant -
original claimant has preferred present First Appeal
under Section 173 of the Motor Vehicles Act.
3. The brief facts of the case are that, on 10.07.2000, the
minor claimant was going along with her relatives from
Gagodar to Bhachau to attend one marriage procession
and when the marriage procession was going through the
main market, at that time, opponent No.1 came driving
his scooter bearing registration No. GJ-12-R-5597 in rash
and negligent manner and hit the claimant, who
sustained grievous injuries. As per the claimant, on the
date of accident, she was aged about 9 years. After
having attained the majority, the claimant got the cause
title amended and another application at Exh:33 was also
filed with a prayer to increase the compensation from
Rs.2,00,000/- to Rs.4,95,000/-, which came to be allowed
on 06.06.2018.
4. Mr. Hiren Modi, learned advocate for the appellant-minor
C/FA/2346/2022 JUDGMENT DATED: 06/06/2023
claimant submitted that the claimant was assessed with
physical disability as 30 % by the doctor and relevant
disability certificate was produced at Exh:41 and the
learned Tribunal came to the conclusion to consider the
disability for the body as a whole at 12 %. Mr. Modi
further submitted that the judgment was delivered on
30.06.2018 and the learned Tribunal at Anjar-Kachchh
was required to assess the compensation in accordance
with the yardstick laid down by the Apex Court in the
case of Master Mallikarjun Vs. Divisional Manager,
The National Insurance Company Limited & Anr.
[AIR 2014 SC 736].
5. Countering the arguments, Mr. Hardik Mehta, learned
advocate appearing for Respondent No.3 - Oriental
Insurance Co. Ltd. submitted that the learned Tribunal
has considered the notional income as Rs.15,000/- p.a.
and considering 12% disability, has granted
compensation, which is just and reasonable and thus Mr.
Mehta states that interference of this Court is not
warranted.
6. In Master Mallikarjun's Judgment, the Hon'ble Apex Court
C/FA/2346/2022 JUDGMENT DATED: 06/06/2023
while considering the claim of victim child has laid down
the observations in para 8, which reads as under:-
"8. The age of the child and deformities on his body resulting
in disability, have not been duly taken note of. As held by this
Court in R.D. Hattangadi vs. M/s. Pest Control (India) Pvt. Ltd. and
Others[1], while assessing the non-pecuniary damages, the
damages for mental and physical shock, pain and suffering
already suffered and that are likely to be suffered, any future
damages for the loss of amenities in life like difficulty in running,
participation in active sports, etc., damages on account of
inconvenience, hardship, discomfort, disappointment, frustration,
etc., have to be addressed especially in the case of a child victim.
For a child, the best part of his life is yet to come. 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."
C/FA/2346/2022 JUDGMENT DATED: 06/06/2023
7. While considering the case of the child observing that the
child should appropriately compensated for the disability,
the Hon'ble Apex Court has laid down the yardstick for
considering the disability to be compensated, which has
been made in para 12 as under:-
"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. The appellant, hence, would be entitled to get the
compensation as follows: -
Head Compensation
Amount
Pain and suffering already Rs.3,00,000/-undergone Rs.3,00,000/-
and to be suffered in future, mental and physical
shock, hardship, inconvenience, and discomforts,
etc., and loss of amenities in life on account of
permanent disability
Discomfort, inconvenience and loss Rs.25,000/- of Rs.25,000/-
earnings to the parents during the period of
hospitalization
Medical and incidental expenses Rs.25,000/- Rs.25,000/-
during the period of hospitalization for 58
days
Future medical expenses for Rs.25,000/- Rs.25,000/-
correction of the mal union of fracture and
incidental expenses for such treatment
Total Rs.3,75,000/-
C/FA/2346/2022 JUDGMENT DATED: 06/06/2023
8. Here in the present case, learned Tribunal has considered
12 % disability of the minor claimant, in accordance with
the observations made in Master Mallikarjun Vs.
Divisional Manager, The National Insurance
Company Limited & Anr. as referred hereinabove in
case of disability of above 10 % and upto 30 % for the
whole body, the Apex Court has considered appropriate
to grant Rs.3,00,000/-. Considering the age of the minor
and the facts of the disability sustained in the vehicular
accident, it would be appropriate that the yardstick which
has been laid down by the Apex Court in the case of
Mallikarjun (Supra) is followed in the matter. Thus,
accordingly, considering 12 % disability for the body as a
whole of the minor victim, Rs.3,00,000/- is required to be
granted.
9. The medical expense has been granted as Rs.5,000/-. No
dispute has been raised by the claimant. Hence, the
claimant would be entitled to total amount of
Rs.03,05,000/-.
10. As the Tribunal has granted compensation of Rs.38,000/-
with interest at the rate of 7.5% per annum, the
C/FA/2346/2022 JUDGMENT DATED: 06/06/2023
appellant-claimant would be entitled to additional
amount of compensation of Rs.2,67,000/- with interest at
the rate of 7.5% per annum from the date of filing of the
claim petition till its realization. The insurance Company
is directed to deposit the additional amount with interest
at the rate of 7.5% per annum within eight weeks from
the date of receipt of writ of this Court.
11. The impugned judgment and award be modified
accordingly. The appeal is partly allowed. Registry is
directed to send the record and proceedings back to the
Tribunal, if received.
Sd/-
(GITA GOPI,J)
SUCHIT
