United India Insurance Co Ltd vs Chandrikaben Manilal Bhanabhai Vankar
2024 Latest Caselaw 1256 Guj

Gujarat High Court

United India Insurance Co Ltd vs Chandrikaben Manilal Bhanabhai Vankar on 13 February, 2024

Author: Gita Gopi

Bench: Gita Gopi

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     C/FA/2585/2014                                 ORDER DATED: 13/02/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2585 of 2014

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               UNITED INDIA INSURANCE CO LTD
                            Versus
      CHANDRIKABEN MANILAL BHANABHAI VANKAR & 2 other(s)
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
UNSERVED EXPIRED (R) for the Defendant(s) No. 3
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 13/02/2024

                               ORAL ORDER

1. The appellant-Insurance Company has challenged the judgment dated 26/02/2014 of Motor Accident Claims Tribunal (Auxiliary), Panchmahal at Godhra in Motor Accident Claim Petition No.1660 of 2007.

2. The case arises for the injury of minor who met with a vehicular accident on 14/08/2007 while she was returning home in the evening. She was along with his father and waiting for a bus at Shamli bus station at about 18:00 hours and at that time a tractor bearing registration no.GJ-17-D- 1868 came in full speed and in rash and negligent manner impinging the applicant and caused her injuries. An FIR being I-CR No.237 of 2007 was registered before Godhra Taluka Police Station, Godhra.

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3. Mr. G. C. Majmudar, learned advocate for the appellant- Insurance Company submitted that the injury sustained by the applicant claimant could not be proved and the percentage of the injury was required to be assessed by the Tribunal instead of completely relying upon the consent of both the parties. Mr.Majmudar, learned advocate submitted that though ratio is laid down in the case of Mallikarjun v. Divisional Manager, National Insurance Company Limited, another reported in [(2014) 14 SCC 396], the tribunal was required to go in depth to assess the actual disability and should have granted the amount accordingly. Thus, Mr. Majmudar, learned advocate submitted that the compensation amount is on a higher side.

4. Countering the arguments of learned advocate for the appellant, Mr. Hiren Modi, learned advocate for the respondent claimant submitted that the pursis at Exh.27 was moved before the learned Tribunal where both the parties had consented for 11% disability and thus Mr. Modi, learned advocate stated that now the insurance company cannot retract the same and further submitted that it is the case of minor and the necessity to substantially and reasonably compensate the minors have been appreciated by the Apex Court as per the case of Mallikarjun v. Divisional Manager, National Insurance Company Limited, another reported in [(2014) 14 SCC 396] and thus Mr. Modi, learned advocate stated that the compensation amount granted by the learned Tribunal requires no indulgence of this

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Court.

5. This Court has often seen that there is a practice by the learned advocates on record to consent the disability factum on the opinion of the doctors and both the advocates on deliberation would come to a consensus generally to assist the court for determination of the compensation and under this circumstance it has become our experience to respect the said approach of the learned advocates on record. The indulgence of the court would be necessary only in exceptional case where the court would find that mutual consent by placing an endorsement by way of pursis would cause any prejudice to either of the parties. Such practice of filing of pursis is adopted because at times the doctors do not come in Tribunal and pursis are filed by reducing the disability percentage on consent to ameliorate the difficulties in getting the presence of treating doctor to give evidence during the trial. Then in that case, the only function of the court, would be to see that such deduction had not caused any undue advantage nor such reduction of disability percentage has caused any prejudice. Since the advocates on record on due deliberation gives consent for reduction of the disability, this Court does not find any reason to re-assess the functional disability and safety relies on pursis Exh.27 for 11% disability as done by the Tribunal.

6. At the same time, it is to be noted that such endorsement on the pursis should not be taken into consideration as a conclusive proof and in case of any

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necessity under the facts and circumstances of the case, the Tribunal can and should take the exercise of finding the actual disability on the basis of the medical evidence with the assistance of the medical books and following the proportion laid down in the case of Rajkumar vs. Ajay Kumar and another reported in 2011 (1) SCC 343.

7. In the case of Mallikarjun v. Divisional Manager, National Insurance Company Limited, another reported in [(2014) 14 SCC 396], the Apex Court has laid down the criteria to be adopted for considering the compensation for the minors who sustained injuries owing to the vehicular accident.

8. In Mallikarjun (supra), the Hon'ble Apex Court has dealt with the claim by the victim child and had observed that it was 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. It was taken into consideration that 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. The Hon'ble Apex Court thus stated that the child cannot be equated to such a non-earning person, and 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,

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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. The appropriate compensation for disability should take care of all the non-pecuniary damages. The Hon'ble Apex Court thus held that apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation etc. Therefore considering the view of the judgment as observed it would be 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. Thus the Hon'ble Apex Court in the said decision has held as under:

"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 up to 30% to the whole body. Rs.3 lakhs; up to 60%, Rs. 4 lakhs; up to 90%, Rs. 5 lakhs and above 90%, it should be Rs. 6 lakhs. For permanent disability up to 10%, it should be Rs.1 lakh, unless there are exceptional circumstances to take a different yardstick."

9. The learned Tribunal, thus, has granted Rs.3,00,000/- considering the disability of 11%. However, it is pertinent to note that the medical expenses has not been proved by the parents and further separate amount under the head of special diet and transportation would not be necessary since

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lump-sum amount of Rs.3,00,000/- would cover the hardships, inconveniences and discomfort as well as the loss of amenities in life.

10. Hence, this Court is of the view that Rs.10,000/- is an excess amount and in view of the same, the impugned award is required to be modified to the said extent and thus, compensation amount is reduced from Rs.3,10,000/- to Rs.3,00,000/-.

11. Thus, by partly allowing the present appeal, Rs.10,000/- be return back to the appellant-insurance company along with the accrued interest thereupon from the amount of compensation which has been deposited in the FDR in the name of the minor under the Guardianship Act.

(GITA GOPI,J) ILA