Gujarat High Court
Minor Ajay Gordhanbhai Khorani vs Govindbhai Ghughabhai Gamara on 17 September, 2024
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C/FA/1681/2023 JUDGMENT DATED: 17/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1681 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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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 ?
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MINOR AJAY GORDHANBHAI KHORANI
Versus
GOVINDBHAI GHUGHABHAI GAMARA & ORS.
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
MR RATHIN P RAVAL(5013) for the Defendant(s) No. 2
RULE UNSERVED for the Defendant(s) No. 1
SERVED BY RPAD (R) for the Defendant(s) No. 2
UNSERVED EXPIRED (R) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 17/09/2024
ORAL JUDGMENT
1. The present First Appeal, under Section 173 of
Motor Vehicles Act, 1988, is preferred by the appellant/s
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- original claimant/s, being aggrieved and dissatisfied
with the impugned judgment and award dated 17.01.2022
passed by the Motor Accident Claims Tribunal (Aux.)
Rajkot, in Motor Accident Claim Petition No.1437 of
2010, by which the Tribunal has awarded compensation
of Rs.2,62,500/- with 9% per annum interest to the
claimant/s.
2. Brief facts of the case are as under:
2.1. On 18.10.2010 at about 12.45 p.m., the appellant
was travelling in utility jeep no GJ-13T-9675 as a
passenger with goods and when the said jeep was going
on Ahmedabad - Rajkot highway and reached near Saat
hanuman Navagam, the driver of the said jeep was
driving the said vehicle in rash and negligent manner,
endangering human life with full speed, without
observing traffic rules and when the said vehicle reached
at the spot of accident at the time driver of tractor no
GJ-1AQ-1952 came driving the said tractor in rash and
negligent manner, endangering to human lives and on
the wrong side and dashed with the utility jeep and
accident occurred. As a result of which, the claimant
sustained grievous injuries including fracture. The
complaint is filed before Kuvada Road Police Station
against driver of tractor no GJ-1AQ-1952 by one of the
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passengers who was travelling in the said. Hence, claim
petition has been preferred.
2.2. 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.
2.3. Being aggrieved and dissatisfied with the impugned
judgment and award passed by the Tribunal, the present
appeal has been preferred by claimant/s before this Court
for enhancement of compensation.
3. Heard learned advocates appearing for the respective
parties.
4. Learned advocate for the appellant/s - original
claimant/s 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 injured was
minor; aged about 13 years, and in support of this, he
has highlighted the birth certificate produced at Exh.51,
and has also submitted that even then, the Tribunal has
erroneously considered on the aspect of quantum in its
impugned judgment, and awarded Rs.2,62,599/- only,
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though there is disability certificate of the injured, which
is produced at Exh.50, whereby it is found that the
injured sustained disability to the tune of 21% as per
consensus. 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.3,07,500/- as compensation, 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, therefore, he has
submitted that appropriate amount of compensation may
be awarded.
5. Per contra, learned advocate for the respondent 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
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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
just and 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 injured.
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6.3. The Tribunal has awarded the amount of
compensation under different heads, which is as follows:
Sr.No. Heads Amount (Rs.)
1. Pain and suffering and future 2,50,000/-
loss of income
2. Discomfort, inconvenience and 5,000/-
loss of earning of parents
during the period of
hospitalization
3. Medical expenses 7,500/-
Total 2,62,500/-
6.4. In view of the above-mentioned awarded amount
under various heads, there is no dispute that the injured
was aged about 13 years at the time of accident. It is
relevant to note that there is disability certificate of the
injured issued by the doctor at Exh.50; whereby learned
advocates appearing for the respective parties have
agreed to consider disability for body as a whole to the
tune of 21% with consensus. 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:
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"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
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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
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
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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
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
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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 Master
Mallikarjun (supra). In light of this judgment, I am of
the opinion that the appellant/s - claimant/s is entitled
to get the following final amount as compensation:
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Sr. Particulars Amounts
No. (Rs.)
1. Future loss of income and 3,00,000/-
pain, shock and suffering
3. Medical expenses 7,500/-
Total... 3,07,500/-
Amount awarded by the 2,62,500/-
Tribunal
Enhanced amount ... 45,000/-
6.6. Therefore, I hold that the claimant/s are entitled to
get the total amount of compensation of Rs.3,07,500/-
with 9% p.a. interest from the date of filing the claim
petition till its realisation, which would meet the ends of
justice. Rest of the direction(s) of the Tribunal remain
same. The Tribunal has already awarded Rs.2,62,500/-
and, therefore, remaining amount of Rs.45,000/- would be
the enhanced amount of compensation payable to the
claimant/s.
6.7 Furthermore, as in the present case, the Tribunal
has exonerated the insurance company from it liability,
however, considering the decision of the Hon'ble Apex in
the case of Khenyei vs. New India Assurnace Co. Ltd. &
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Ors. reported in (2015) 9 SCC 273, and the decision of
this Court in First Appeal No.1351 of 2006 and allied
matter dated 27.06.2024 and First Appeal No.1915 of
2006 dated 19.06.2024, I am of the opinion that the
principale of "Pay and Recover" will be invoked in the
present case. Hence, respondent No.2 - insurance
company will first pay the entire awarded amount
including the enhanced amount and then, it is open for
the respondent No.2 - insurance company to recover the
same from other tort-feasors.
7. For the reasons recorded above, the following order
is passed.
7.1. The present appeal is allowed to the aforesaid
extent.
7.2. The impugned judgment and award dated 17.01.2022
passed by the Motor Accident Claims Tribunal (Aux.)
Rajkot, in Motor Accident Claim Petition No.1437 of 2010
shall stand modified to the aforesaid extent by enhancing
the amount of compensation as above.
7.3. The respondent No.2 - Insurance Company is
directed to deposit the enhanced amount Rs.45,000/- with
9% p.a. interest from the date of claim petition till its
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realisation before the concerned Tribunal, within a period
of six weeks from the date of receipt of this order.
7.4. On deposit of such amount, the Tribunal shall
disburse the entire awarded amount (including the
enhanced amount) lying in the FDR and/or with the
Tribunal, with accrued interest thereon if any, to the
claimant/s, by account payee cheque, after proper
verification and after following due procedure.
7.5 While making the payment, the Tribunal shall
deduct the courts fees, if not paid, in accordance with
rules/law.
7.6. Record and proceedings, if any, be sent back to the
concerned Tribunal, within two week from today.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
