Kananben Kiritkumar Bobada Minor ... vs Dilipkumar Amrutlal Modi
2023 Latest Caselaw 7039 Guj

                                                                                  NEUTRAL CITATION




       C/FA/4541/2009                             ORDER DATED: 25/09/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/FIRST APPEAL NO. 4541 of 2009

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 KANANBEN KIRITKUMAR BOBADA MINOR THRO'KIRITKUMAR I BOBADA
                           Versus
             DILIPKUMAR AMRUTLAL MODI & 4 other(s)
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Appearance:
MR ARPIT A KAPADIA(3974) for the Appellant(s) No. 1
MS HINA DESAI(1023) for the Defendant(s) No. 5
RULE SERVED for the Defendant(s) No. 2,3,4
UNSERVED EXPIRED (R) for the Defendant(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                      Date : 25/09/2023
                       ORAL ORDER

1. Being aggrieved by and dissatisfied with the quantum of compensation awarded by the claim Tribunal at Dahod, the appellant original claimant has preferred the present appeal, seeking enhancement of compensation.

2. On 09.05.1999, the appellant being a passenger of the Jeep, met with an accident, allegedly caused by the offending Jeep, which came from opposite direction and given a dash to the Jeep, wherein the appellant was traveling. At the relevant time, appellant was aged about 12 years old and being a minor, she had filed claim petition through her father, claiming compensation of Rs.5,00,000/- against the driver, owner and insurance company of the offending Jeep. The Tribunal at Dahod, after considering the evidence on record, awarded a sum of Rs.3,15,000/- under the various heads, as available for awarding just compensation.

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3. During the proceedings, she attained majority and was joined as claimant.

4. Being aggrieved with the said judgment and award, the appellant injured by preferring the present appeal seeks enhancement of compensation.

5. Ms.Shailee Kapadia, learned advocate for Mr.Arpit Kapadia, learned advocate appearing for and on behalf of the appellant claimant, has submitted that the judgment and award is unjust, unreasonable, disproportionate and in contravention of evidence on record, law and settled principle of law. The award is inadequate in the facts and circumstances of present case. That the learned Tribunal failed to appreciate the education background of the claimant that if the claimant would not have met with the accident, she would have opted for more better discipline of medical or other field and had more better prospect of live. That it is evident that the appellant had successfully cleared Grade-4 in Bharat Natiyam before the incident and now, due to sustaining of the injuries resulted into permanent partial disablement, her career in dancing has been permanently foreclosed. That due to injuries, her leg shorten by four inches and the same is not properly considered while awarding the amount of compensation. That the amount under the pain, shock and suffering is also on lower side and the amount awarded under the other heads are also awarded in a mechanical manner without appreciating the long treatment and mental and physical agony suffering by the claimant and his family members.

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6. In the aforesaid contentions, learned counsel Ms.Kapadia submitted that the award is required to be commensurately enhanced.

7. On the other hand, Ms.Heena Desai, learned counsel appearing for the respondent company countering the submissions, has stated that the impugned judgment and award in no manner can be said to be inadequate and unjust. She further submitted that the appellant was at the relevant time minor and despite of this fact, the Tribunal has considered Rs.3,000/- monthly income and after considering 35% disability and applying the multiplier of 15, the Tribunal has awarded Rs.1,89,000/- under the head of future loss. That every disability cannot affect the earning capacity of a person, it is for the appellant to prove by cogent evidence that it would affect earning capacity. That the appellant, even after the functional disability assessed by the doctor, has completed her graduation in BDS and she is happily working with the hospital and as such, on account of disability, in no manner, her capacity to work is affected and therefore, in absence of any evidence about reduction of her earning capacity, question does not arise to consider the enhancement of the amount of compensation.

8. In the aforesaid contentions, learned counsel Ms.Desai has submitted that the impugned judgment and award is just, equitable and reasonable and no ground exists to enhance the amount of compensation.

9. Having heard learned counsels for the respective parties and on perusal of the material placed on record, the issue

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arose for consideration is to whether amount of compensation as determined by the Tribunal needs any enhancement ?

10. In the facts of present case, the involvement of the vehicle, the issue of negligence determined by the Tribunal and the facts of medical evidence proving the factum of injuries and disablement sustained and suffered by the appellant are not in dispute.

11. It is the contention that the learned Tribunal did not consider the future prospects of the appellant. It is no doubt true that the leg of the appellant is shortened by four inches and before the incident, she had passed the examination of Bharat Natiyam. The learned Tribunal while awarding the amount under the future loss, has considered 35% of disability. In these background facts, this Court is of the considered view that the Tribunal while awarding the amount under the future loss failed to consider the future prospects and in that view of the matter, the amount awarded under the future loss requires modification. The Tribunal has rightly determined monthly income of Rs.3,000/-, however, the loss of future prospect required to be considered and accordingly, by adding 40%, the prospective income would come to Rs.4,200/- in considering 35% disablement the monthly loss comes to Rs.1,470/- and yearly it would be Rs.17,640/- and applying the multiplier of 18%, the total amount under the head of future loss comes to Rs.3,17,520/-. The Tribunal has awarded Rs.1,89,000/- and after deducting the same, the net enhanced amount comes to Rs.1,28,520/- and the

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same is awarded under the head of future economic loss.

12. The next contention is that under the various heads, the sufficient amount has not been awarded. This Court is of the considered view that the accident is of the year 1999 and considering the factum of injuries and treatment thereof, the Tribunal has awarded Rs.15,000/- towards pain, shock and suffering, Rs.97,000/- towards medical expenses and Rs.14,000/- towards special diet, transportation and attendant charges. Nothing brought on record to suggest that due to sustaining of the injuries, she cannot enjoy of her life as before and her prospect of good matrimonial match has become blink. Thus, therefore, this Court does not find any ground to enhance the amount of compensation under the other heads as discussed hereinabove.

13. For the reasons recorded, the present appeal is allowed in part. The respondents are held jointly and severally liable to pay the enhanced amount of compensation of Rs.1,28,520/- to the appellant with interest at the rate of 6% from the date of claim petition. The respondents are directed to deposit the said amount with interest within two months. The Tribunal shall disburse the entire amount without further making the investment in the FDR. Decree be drawn accordingly.

(ILESH J. VORA,J) Rakesh