Gujarat High Court

Bhaveshbhai Dineshbhai Alias ... vs Bhamarsinh P Rajput on 26 June, 2024

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      C/FA/3254/2022                                         ORDER DATED: 26/06/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 3254 of 2022

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     BHAVESHBHAI DINESHBHAI ALIAS POPATBHAI VALMIK HARIJAN
                             Versus
                  BHAMARSINH P RAJPUT & ANR.
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Appearance:
MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1
MS RV ACHARYA(1124) for the Defendant(s) No. 2
UNSERVED EXPIRED (R) for the Defendant(s) No. 1
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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 impugned judgment and award dated 28.07.2020

passed by the Motor Accident Claims Tribunal (Aux.)

Deesa at Bansakantha, in Motor Accident Claim Petition

No.2766 of 2009 (old No.745 of 2004), by which the

Tribunal has awarded compensation of Rs.50,000/- with

8% per annum interest to the claimant, holding the

opponents 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 24.10.2004, when the minor applicant and

deceased Sonalben were passing in the village-

Panthawada by way of walking at about 4:00 p.m., at

that time, one Motor Vehicle Jeep bearing no. GJ-8A-

9659 came in high-speed and in negligent manner and

due to excessive speed of the vehicle Jeep, the driver

lost control over the steering of the said vehicle Jeep

and as a result of that, the said Jeep dashed with the

minor applicant and as a result of that, the accident

occurred. Due to the said accident, the applicant

sustained serious bodily injuries and for that, Rs.1,00,000/- as compensation has been sought from the

opponents.

2.2. Notices were served to the opponents. Opponent

No.1 has not chosen to appear or contest his case.

Opponent No.2 has been deleted vide order dated

25.04.2018 by the learned predecessor. Hence, ex parte

order has been passed under Order IX Rule 6(a) of the

C.P.C.

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2.3. The Tribunal has framed the issues at Exh.11. The

oral as well as documentary evidence has beenled. 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.

3. Heard learned advocates appearing for the respective

parties.

4.1. 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

seven years, and in support of this, he has highlighted

the Unique Identity Card produced at Exh.18, and has

submitted that even then, the Tribunal has erroneously

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considered on the aspect of quantum in paragraph 8.3 of

the impugned judgment, and thereby awarded Rs.50,000/-

only, though there is disability certificate of the claimant,

which is produced at Exh.23, whereby it is found that nd the claimant sustained LT.2 M.T.#U.D." disability to the

tune of 8%, which is regarding limb means meta-tarsal

and second meta tarsal of left leg got fractured. 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 Master

Mallikarjun vs. Divisional Manager, National Inssurance

Company Limited and Another, reported in (2014) 14

SCC 396. In view of this decision, the Court has to award Rs.50,000/- as compensation. Hence, there is clear

case of enhancement in the compensation to the claimant

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 Master Mallikarjun (supra) is squarely

applicable to the facts and circumstances of the case,

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therefore, he has submitted that appropriate amount of

compensation may be awarded.

5. Per contra, 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 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.

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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:

Sr.No.                        Heads                         Amount

1.         Pain and suffering already                                  40,000

           undergone and to be suffered

           in future mental and physical

           shock, hardship, in

           convenience, and discomforts,

           etc., and loss of amenities of

           life on account of disability.

2.         Loss of earning of parents                                10,000/-

                           Total                                     50,000/-






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6.4. In view of the above-mentioned awarded amount

under various heads, there is no dispute that the

claimant was aged about seven years at the time of

accident. It is relevant to note that there is disability

certificate of the claimant issued by the doctor; which is

produced at Exh.23, whereby it is found that the nd claimant sustained LT.2 M.T.#U.D." disability to the

tune of 8%, which is regarding limb means meta-tarsal

and second meta tarsal of left leg got fractured., and it

is worth nothing that the Tribunal has considered the

disability of the claimant to the extent 5% for body as a

whole. Now, considering the judgment of the Hon'ble

Apex Court in the case of Master Mallikarjun (supra), more particularly, paragraph Nos.8 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

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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.

9. Sapna vs. United Indian Insurance Company Limited and

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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 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

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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 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

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the present case are squarely covered by the judgment of

the Hon'ble Apex Court in the case of Master

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

the opinion that the appellant - claimant is entitled to

get the following final amount as compensation:

Sr.No. Heads Amount

1. Pain and suffering already 1,00,000 undergone and to be suffered

in future mental and physical

shock, hardship, in

convenience, and discomforts,

etc., and loss of amenities of

life on account of disability.

2. Loss of earning of parents 10,000/-

Total 1,10,000/-

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

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higher amount than claimed.

6.7. Thus, the Tribunal has committed an error in

awarding total compensation of Rs.50,000/- only under

various heads. The appellant - original claimant is

entitled to get the additional amount of compensation of

Rs.60,000/- over and above the amount of Rs.50,000/- as

awarded by the Tribunal. The opponents, including the

insurance company, are jointly and severally liable to pay

the aforesaid additional amount of Rs.60,000/- to the

appellant - original claimant together with interest at

the rate of 8% per annum from the date of the claim

petition till realization. Rest of the direction(s) if any,

shall remain same.