Gujarat High Court

Jagruti Ravibhai Tharu Maheshwari vs Alimamad Abdulkarim Chavda on 26 June, 2024

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      C/FA/2446/2023                                      ORDER DATED: 26/06/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 2446 of 2023

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                   JAGRUTI RAVIBHAI THARU MAHESHWARI
                                  Versus
                   ALIMAMAD ABDULKARIM CHAVDA & ORS.
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
MR NAGESH C SOOD(1928) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                   Date : 26/06/2024
                                    ORAL ORDER

1. The present First Appeal, under Section 173 of

Motor Vehicles Act, 1988, is preferred by the appellant -

original claimant, being aggrieved and dissatisfied with

the common impugned judgment and award dated

31.01.2022 passed by the Motor Accident Claims Tribunal

(Main) Kachchh, at Bhujs, in Motor Accident Claim

Petition No.03 of 2011, by which the Tribunal has

awarded compensation of Rs.1,79,000/- with 9% per

annum interest to the claimant, holding the opponents

i.e. owner, driver and insurance company liable, jointly

and severally. The appellant herein was minor at the

time of filing of claim petition and after becoming major,

he has been replaced as appellant.

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2. Brief facts of the case are as under:

2.1. On 06.11.2010, Kum. Jagruti aged about three years

with her family was proceeding from Ganeshnagar,

Gandhidham to Maheshwari Nagar, Gandhidham in Hero

Honda Motorcycle. Her father Shri Ravibhai Atmaram

alias Aatu Tharu (Maheshwari) was driving the said

Hero Honda Motorcycle. He was driving the Hero Honda

Motorcycle on the left-hand side of the road with

moderate and controllable speed. The appellant was

pillion rider. AT around 16:00 hrs., the Hero Honda

Motorcycle had reached about 1/2 k.m. away from

Gandhidham B- Division Police Station, Opp. IFFCO

Colony Gate, Gandhidham. Her father had stopped the Motorcycle near divider opposite IFFCO Colony Gate. At

that time, driver of Luxury Bus No.GJ-12-T-4325 had

come along with Luxury Bus. He was driving the said

Luxury Bus rashly, recklessly, negligently and at an

excessive speed, without observing the rules of the road

and endangering human life, lost control over the Luxury

Bus, and dashed and collided with the Hero Honda

Motorcycle. The deceased Shri Ravibhai and family

members Smt. Hansaben, Kum. Jagruti & Master

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Himanshu fell down on the road alongwith the Hero

Honda Motorcycle. They sustained serious injuries. Shri

Ravibhai succumbed to the accidental injuries. Appellant,

Smt. Hansaben, & Master Himanshu have been

permanently disabled. Hence, the claim petition has been

preferred.

2.2. Notices were served to the opponents. Opponents

have appeared and filed their written statements by

disputing all the averments made by the claimant in the

claim petition.

2.3. The Tribunal has framed the issues. The oral as

well as documentary evidence were led by the rival

parties before the Tribunal. After considering the various

documentary as well as oral evidence and submissions

made at the bar, the Tribunal has partly allowed the

claim petition by awarding compensation as noted above.

2.4. Being aggrieved and dissatisfied with the impugned

judgment and award passed by the Tribunal, the present

appeal has been preferred by claimant before this Court

for enhancement of compensation.

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3. Heard learned advocates appearing for the respective

parties.

4. Learned advocate for the appellant - original

claimant has submitted that the Tribunal has committed

error in awarding the amount of compensation, which is

on the lower side. He has also submitted that at the

time of accident, the claimant was minor; aged about

three years, and has submitted that even then, the

Tribunal has erroneously considered on the aspect of

quantum in the impugned judgment, and awarded

Rs.1,79,000/- only, though there is disability certificate of

the claimant, which is produced at Exh.33 issued by

Dr.Abhinav M. Kotak, whereby it is found that the claimant sustained sustained disability body as a whole

to the extent 15% and had sustained only fracture ribs

with hemothorax and she was treated as indoor patiet

for four days (Xh.47). Hence, he has submitted that the

amount awarded by the Tribunal under different heads is

totally insufficient considering the settled position of law

in the judgment of the Hon'ble Apex Court in the case

of Mallikarjun vs. Divisional Manager, National

Inssurance Company Limited and Another, reported in

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(2014) 14 SCC 396. In view of this decision, the Court

has to award Rs.1,79,000/- as compensation. Hence, there

is clear case to enhance the compensation by awarding

additional amount of Rs.1,49,000/-, as the Tribunal has

already awarded Rs.1,79,000/-, and therefore, he has

prayed to allow the present appeal by granting

appropriate amount of compensation accordingly.

Furthermore, he has submitted that in case of minor,

when the injury is also available on the record, the ratio

of the judgment of the Hon'ble Apex Court in the case

of Mallikarjun (supra) is squarely applicable to the facts

and circumstances of the case, therefore, he has

submitted that appropriate amount of compensation may

be awarded.

5. Per contra, learned advocate for the learned

advocate for the defendant No.2 - insurance company

has submitted that the impugned judgment and order

passed by the Tribunal is just and proper, as the

Tribunal has considered all the aspects and passed the

impugned judgment and award after considering the

material available on the record. The Tribunal has

considered every aspect; multiplier, injury, etc. by

considering the judgments of the Hon'ble Apex Court, as

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such, the amount awarded by the Tribunal is proper,

however, this Court may consider the submissions of the

parties, and thereby, may pass appropriate order.

6.1. I have considered the submissions made by the

rival parties. I have perused the record and proceedings

of the Tribunal. I have gone through the impugned

judgment and award passed by the Tribunal.

6.2. It is noteworthy to mention that the provisions of

the Motor Vehicles Act, 1988 which gives paramount

importance to the concept of 'just and fair' compensation.

It is a beneficial legislation which has been framed with

the object of providing relief to the victims or their

families. Section 168 of the Motor Vehicles Act deals

with the concept of 'just compensation' which ought to be

determined on the foundation of fairness, reasonableness

and equitability. Although such determination can never

be arithmetically exact or perfect, an endeavor should be

made by the Court to award just and fair compensation

irrespective of the amount claimed by the claimants.

6.3. The Tribunal has awarded the amount of

compensation under different heard, which is as follows:

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Sr.No. Heads Amount

1. Future Loss of Income 1,36,080/-

2. Pain, Shock and Suffering 15,000/-

3. Attendant, Transportation 10,000/-

Charges and Special Diet

4. Medical expenses 18,000/-

Total 1,79,000/-

6.4. In view of the above-mentioned awarded amount

under various heads, there is no dispute that the

claimant was aged about three years at the time of

accident, and eight years at the time of filing the claim

petition. It is relevant to note that there is disability

certificate of the claimant which is produced at Exh.33

issued by Dr.Abhinav M. Kotak, whereby it is found that

the claimant sustained sustained disability body as a

whole to the extent 15% and had sustained only fracture

ribs with hemothorax and she was treated as indoor

patiet for four days (Xh.47). Now, considering the

judgment of the Hon'ble Apex Court in the case of

Mallikarjun (supra), more particularly, paragraph Nos.8

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to 12 are relevant, as under:

"8. It is unfortunate that both the Tribunal and the High Court have not properly appreciated the medical evidence available in the case. 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

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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.

9. Sapna vs. United Indian Insurance Company Limited and Another[2] is the case of a 12 year old girl who suffered 90% disability in her left leg. This Court granted a lump sum amount of Rs.2,00,000/- on these heads.

10. In Iranna vs. Mohammadali Khadarsab Mulla and Another[3], a Division Bench of the Karnataka High Court granted an amount of Rs.4,00,000/- on these heads to the child who suffered 80% permanent disability.

11. In Kum. Michael vs. Regional Manager, Oriental Insurance Company Limited and Another[4], this Court considered the case of an eight year old child suffering a fracture on both legs with total disability only to the tune of 16%. It was held that the child should be entitled to an amount of Rs.3,80,000/- on these counts.

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

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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.

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







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      C/FA/2446/2023                                                 ORDER DATED: 26/06/2024

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                                                                 Amount

              Pain          and      suffering      already Rs.3,00,000/-
              undergone 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 Rs.25,000/-
              loss of earnings to the parents
              during              the      period           of
              hospitalization

Medical and incidental expenses Rs.25,000/-

              during              the      period           of
              hospitalization for 58 days.

              Future         medical       expenses      for Rs.25,000/-
              correction of the mal union of
              fracture and incidental expenses
              for such treatment.

              Total:-                                            Rs.3,75,000/-"

6.5. In view of the above, it transpires that the facts of

the present case are squarely covered by the judgment of

the Hon'ble Apex Court in the case of Mallikarjun

(supra). In light of this judgment, I am of the opinion

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that the appellant - claimant is entitled to get the

following final amount as compensation:

Sr.No.                  Particulars                       Amounts (Rs.)

1.        Future Loss of Income and                                   3,00,000/-

          Pain, Shock and Suffering

2.        Special Diet, Transportation                                   10,000/-

          and Attendant Charges

3.        Medical                                                        18,000/-

                                            Total...                    3,28,000/-

6.6. Considering the fact that the claimant has claimed

for amount of compensation of Rs.1,00,000/-, and taking

into account the fact judgment of the Hon'ble Apex Court

in the case of Nagappa vs. Gurudayal Singh & Ors.

reported in (2003) 2 SCC 274, there is no bar to award

higher amount than claimed by the claimant.

6.7. Thus, the Tribunal has committed an error in

awarding total compensation of Rs.1,79,000/- only under

various heads. The appellant - original claimant is

entitled to get the additional amount of compensation of

Rs.1,49,000/- over and above the amount of Rs.1,79,000/-

as awarded by the Tribunal. The opponents, including

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the insurance company, are jointly and severally liable to