Gujarat High Court
Master Dhruv Tusharbhai Chauhan vs Arvind Ramji Ghadhvi on 7 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3633 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
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MASTER DHRUV TUSHARBHAI CHAUHAN
Versus
ARVIND RAMJI GHADHVI & ANR.
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
MANDEEP SINGH SALUJA(8791) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 07/07/2025
ORAL JUDGMENT
1. Heard Mr. Hemal Shah, learned advocate for the
appellant. Mr. Mandeep Singh Saluja, learned advocate has
appeared on behalf of respondent- Insurance Company.
Notice issued upon the respondent no.1 has been duly served
upon, however no appearance has been entered. Noticing the
limited ground urged in the appeal, the matter is taken up for
final hearing in absence of respondent no.1.
2. The present appeal is filed under Section 173 of the
Motor Vehicles Act, 1988, being aggrieved and dissatisfied
with the impugned judgment and award dated 20.05.2022
passed by the Motor Accident Claim Tribunal (Main), Kutch-
Bhuj in MACP No. 18 of 2023. By the said impugned
judgment, The tribunal has partly allowed the claim petition
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preferred by the present appellant- original claimant under
Section 166 of the Motor Vehicle Act, 1988. The original
opponents - respondents herein are jointly and severally liable
to pay total compensation to the tune of Rs.3,93,500/- with
interest at the rate of 9% pa from the date of filing of claim
petition till its realization.
3. Learned advocate for the appellant, at the outset, has
invited my attention to the findings and reasons assigned by
the Tribunal while determining the amount of compensation
towards the future loss of income. According to the learned
advocate, the Tribunal committed gross error in ignoring the
well settled principle laid down by the Hon'ble Supreme Court
in the case of Master Mallikarjun vs. Divisional Manager,
The National Insurance Company Limited and Anr.,
reported in (2014) 14 SCC 396. Learned advocate has
further pointed out that indisputably the claimant was minor
at the time of accident. The cogent material has been brought
on record in this regard. In absence of any appeal being filed
by the respondent - Insurance Company, the said aspect has
attained the finality. The learned advocate has further pointed
out that injured has sustained permanent partial disability.
The medical certificate and the disability certificate has been
produced on record at Exh.43 wherein the medical expert has
assessed the disability of the injured as 31% of the body as a
whole. He has therefore, submitted that in view of the
decision of the Hon'ble Supreme Court in the case of Master
Mallikarjun (supra), the Tribunal ought to have awarded an
amount of Rs.4 lakhs under the head of pain and suffering and
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future, mental and physical shock, hardship, inconvenience
and discomforts and loss of amenities on account of
permanent disability. Learned advocate has further pointed
out that the Tribunal committed gross error in deducting the
amount of Rs.1 lakhs towards medical expenses which had
been assessed as Rs.1,67,094/- by taking into consideration
the amount being realized under the medi-claim policy.
Reliance was placed on the decision of the Division Bench in
the case of New India Insurance Company Limited vs.
Shashikantbhai Harsukhlal Koticha and others rendered
in First Appeal No.2263 of 2014 dated 21.07.2014. He
has therefore, urged this Court to enhanced the amount of
compensation under the aforesaid head.
4. Learned advocate for the respondent no.2- Insurance
Company has vehemently objected to the aforesaid
submissions. According to him, for the findings and reasons
assigned by the learned Judge, the amount of compensation as
awarded by the Tribunal calls for no interference in the
present appeal. Objecting to the submissions made by learned
advocate for the opponent claimant as regards the amount of
compensation towards the medical expenses is concerned,
learned advocate has submitted that since the amount has
already been realised by virtue of medi- claim policy, there is
no actual loss sustained by the claimant and is therefore,
rightly been given set off. He has submitted that the Tribunal
has therefore rightly not given the entire amount of medical
expenses as claimed for.
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5. Having heard the learned advocate appearing for the
respective parties and having perused the findings and
reasons assigned by the Tribunal, as rightly pointed out by
learned advocate for the appellant, in absence of any
challenge being made by the original opponents against the
impugned judgment and award, the factual matrix of the case
as regards the occurrence of accident and the particulars
based on which the amount of compensation has been
determined has remained undisputed. The injured is a 4 year
child, who has admittedly sustained injuries on account of
motor vehicle accident. The claimant has successfully
established before the tribunal about the involvement of the
vehicle and the liability of the Insurance Company towards the
payment of compensation. The only limited aspect which is
required to be re-examined by this Court in the present appeal
is the amount of compensation, more particularly under the
head of the loss sustained on account of permanent disability
and the medical expenses. Noticing the fact that the child was
aged 4 years at the time of accident and he having sustained
permanent disability to the extent of 31% of body as a whole,
in view of the legal principle laid down by the Hon'ble
Supreme Court in the case of Master Mallikarjun (supra)
which has been consistently being followed all throughout
thereafter by this Court, the present appeal deserves
consdieration. The Hon'ble Supreme Court in the case of
Master Mallikarjun (supra) in para 12 has observed thus:
"12. Though it is difficult to have an accurate
assessment of the compensation in the case of children
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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
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 Rs.25,000/-
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expenses during the period of
hospitalization for 58 days.
Future medical expenses for Rs.25,000/-
correction of the mal union of
fracture and incidental
expneses for such treatment.
Total Rs.3,75,000/-
6. The original claimant shall be entitled to amount of
compensation of Rs.4 lakhs under the head of pain and
suffering already 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. Thus, amount of Rs.2,81,500/- awarded
by the Tribunal towards future loss of income, is required to
be enhanced to the tune of Rs.4,00,000/- since the amount has
been considered under the overall heads of the loss of
amenities in life on account permanent disability, the amount
of Rs.25,000/- awarded towards pain and suffering separately
by the Tribunal is required to be set aside.
7. This brings me to the issue of medical expenses. It is an
undisputed fact that the original claimant has suffered
medical expenses to the tune of Rs.1,67,095/-. The aforesaid
fact has been established by leading cogent material which
includes the medical case papers produced on record at
Exhibit 51, 52, 53 and 56 collectively. However, the Tribunal
has proceeded to reduce the aforesaid claim of Rs. 1,67,095/
by awarding amount of Rs.67,095/- towards the medical
expenses, mainly on the ground that the amount of Rs.1 lakh
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has been reimbursed under the medi-claim policy to the
claimant. As rightly pointed out by learned advocate for the
appellant, the aforesaid approach of the Tribunal is not in
consonance with the legal principles laid down in this regard.
It would be appropriate to reproduce the relevant
observations of the Hon'ble Division Bench of this Court in the
case of Shashikantbhai Harsukhlal Koticha (supra).
Dealing with the similar contentions, the Hon'ble Division
Bench has observed as under:
"7. In our view, the said contention should not detain
us further since the issue is already covered by the
earlier decision of this Court. The first one is the
decision of this Court in thecase of REVABEN v/s
KANTIBHAI NAROTTAMBHAI GOHIL,reported at
1994(2) GLR 1728, (First Appeal No.1287 of 1983)
wherein the Division Bench of this Court (Coram :
C.K.Thakkar & Y.B. Bhatti, JJ. (as Their Lordships then
were)),while dealing with more or less similar
contention qua the benefit available to the deceased,
has observed at Para - 5.2 as under :
"Having considered the submission made by both
the Counsels and having perused with the care
the approach of the Tribunal in this regard, the
only conclusion we can draw is that the entire
approach is based on certain surmises and
inferences which are not justified. Moreover, on a
question of principle itself, no deduction could
have been made from the damage awardable
under this head, on account of the family pension
which would be available to the claimants on
account of the death of the deceased. We have no
doubt, that no such deduction was permissible.
The basic principle underlying the inadmissibility
of such deductions is that the damages for the
tortuous act which are awardable to the
claimants are on the basis that the tort-feasor has
committed the acts in question for which he is
liable to pay damages. Obviously, the tort-feasor
cannot be permitted to take advantage of his own
wrong. If in fact, deductions were made on
account of certain benefits which may accrue to
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the claimants on account of the death of the
deceased, and if a set off is given in respect of
these amount against the damages awardable, it
would amount to conferring an advantage upon
the tort-feasor. Even on basic principles, no such
deduction can be made inasmuch as the benefits
which would accrue to the dependents of the
deceased are benefits which would even
otherwise have accrued to the claimants on the
death of the deceased, irrespective of how he had
died. These principles are by how well settled and
do not merit a lengthy discussion. Suffice it to say
that these principles have been settled by a
Division Bench of this Court in the case of
Prataprai Arjandas Dhameja v/s Jivkuvarba,
reported at [1982 (1)] GLR 437, and also in the
case of Arunaben & ors. v/s Mehmoodbhai
Imamali Kaji, reported at 1982 GLH 1010 : (1983)
(1) GLR 156)."
8. The aforesaid decision again came up for
consideration before this Court in the case of UNITED
INDIA INSURANCE CO. v/s JIVANBHAI KANABHAI
PATEL, (in First Appeal No. 655 of 2011, decided on
13.4.2011), reported at 2011 GLHEL - SC - 227800,
wherein similar contention was raised and at Para - 6 to
11, it was observed thus :
6. It is worth noting that as recorded in the above
referred observations, three Division Benches of
this Court; one in the case Brevaben v. Kantibhai
N. Gohil, reported in 1995 ACJ 548; another in case
of Prataprai Arjandas Dhameja v. Bhupatsing Gagji,
reported in 1982 ACJ 316 (Gujarat); and third one
in case of Arunaben v. Mehmoodbhai Imamali Kaji,
reported in 1983 ACJ 409 (Gujarat), have taken the
view that the tortfeasor cannot be permitted to
take advantage of his own wrong and if a set-off is
given in respect of these amounts against the
damages awardable, it would amount to conferring
an advantage upon the tortfeasor. It has also been
observed that no such deduction can be made
inasmuch as the benefits, which would accrue to
the dependent of the deceased are benefits which
would even otherwise have accrued to the
claimants on the death of the deceased irrespective
of how he had died and such principles as per the
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above referred decision of the Division Benches of
this Court are well settled.
7. Further, even if the contention is considered for
the sake of examination that any amount was paid
by the employer to the claimant on account of the
Group Insurance Scheme, there was no evidence
on record to show that the premium was not being
deducted from the employee concerned, towards
the Group Insurance scheme or that the expenses
of such purpose were not passed over. Apart from
the above, if the employer has taken the insurance
of its employee, may be of Group Insurance Policy
and if the employee concerned has claimed the
compensation on account of the accident from the
employer, who may be one of the tortfeasor, it
might attract a different consideration, but in a
case where the tortfeasor, who is appellant herein
is not at all concerned with the contract of the
Group Insurance, cannot be earn to have premium
of its own wrong for the very statutory liability to
compensate the injury of the third party as per the
provisions of the Motor Vehicle Act read with the
contract of Insurance with the owner of the vehicle
through which the injury is sustained to the
claimant.
8. The reliance placed upon the decision of the
Apex Court in case of Helen C. Rebello (supra) is
illfounded inasmuch as the principles laid down in
the said decision by the Apex Court is not that the
deduction is to be made, but on the contrary the
conclusion recorded by the Apex Court in
paragraph 36 the relevant of which reads as
under:-
"36. ... How can an amount of loss and gain of one
contract could be made applicable to the loss and
gain of another contract. Similarly, how an amount
receivable under a statute has any correlation with
an amount earned by an individual. Principle of
loss and gain has to be on the same place within
the same sphere, of course, subject to the contract
to the contrary or, any provisions of law."
9. Further, at paragraph 38, it was found by the
Apex Court, relevant of which reads as under:-
"We have no hesitation to conclude that the set of
decisions, which applied the principle of no
deduction of the life insurance amount, should be
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accepted and the other set, which interpreted to
deduct, is to be rejected. For all these
considerations, we have no hesitation to hold that
such High Courts were wrong in deducting the
amount paid or payable under the life insurance by
giving restricted meaning to the provisions of the
Motor Vehicles Act basing mostly on the language
of English statutes and not taking into
consideration the changed language and intents of
the legislature under various provisions of the
Motor Vehicles Act, 1939."
The same view has been reiterated in the
subsequent decision of the Apex Court in the case
of United India Insurance Co. Ltd. v. Patricia Jean
Mahajan and Ors. (supra). Under these
circumstances, reliance upon the decision of the
Apex Court is misconceived and is of no help for
showing the legal position otherwise.
10.The aforesaid is coupled with the circumstances
that after the conclusion of the case or the
proceedings before the Tribunal a new ground is
sought to be canvassed, which would require
essentially the leading of evidence, including the
opportunity of cross- examination by the parties.
11.Under the circumstances, the contention cannot
be accepted and it cannot be said that the Tribunal
has committed error in not deducting the amount,
if any, paid by the employer to the claimant."
9. Once again, similar aspect came to be considered by
this Court when the similar contention was raised in the
case of ORIENTAL INSURANCE COMPANY LTD. v/s
BAKULABEN MAHESHBHAI SHANTILAL BHATT,
REPORTED AT 2013 (33) GHJ 112. In Para - 11 & 12 it
was observed thus :
11. Learned advocate for the appellant also submitted
that the claimant who had already received some amount
under the Medi Claim Policy from another insurance
company is not entitled to receive any amount towards
the medical expenses from the insurer in the present
case. We find that the decision of Hon'ble the Supreme
Court in case of National Insurance Company Ltd. Versus
Sebastian K. Jacob (supra) relied by him is on different
facts and cannot be applied to the facts of the present
case. In the said case, there were two different insurance
companies for two different vehicles involved in the
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accident and out of those two different insurance
companies, the claimant had already received amount of
medical expenses from one of the companies which was
the insurer of one of the vehicles. In the present case,
respondent No.1 has not received any amount of medical
expenses either from the insurer of Maruti Van or from
the GSRTC prior to the award of medical expenses
passed by the Claims Tribunal. What was received by the
claimant is the amount under her independent medi-
claim policy, therefore, it cannot be said that the
claimant is receiving double amount under the same
head. In fact, this Court in the case of Revaben, wd/o.
Nathubhai Mohanbhai v/s. Kantibhai Narottambhai Gohil
reported in 1994 (8) GLR 1728 has settled this issue by
holding that the tort-feasor is liable to pay damages for
his tortious act and cannot be permitted to take
advantage of his own wrong. It is required to be
mentioned that for medi-claim policy, separate premium
is required to be paid and only then, a person is entitled
to claim the amount incurred for medical treatment on
the basis of such medi claim policy and, therefore, what
is being received under the medi-claim policy is an
independent right other than the claim under the Motor
Vehicles Act and, therefore, argument advanced by the
learned advocate for the appellant is devoid of any merits
and stands rejected.
12. In the result, the appeal as also the Cross Objections
are partly allowed to the extent stated above. Respondent
No.1 claimant is held entitled to receive the total
compensation of Rs.19,35,000.00 with 9 per cent interest
per annum. The appellant and respondent No.2 shall
jointly and severally pay to the claimant 75% of the above
said amount of compensation and respondent No.3 and 4
shall jointly and severally pay 25% of the above said
amount of compensation with proportionate costs and 9%
interest per annum. The appellant and respondents no.3
and 4 are directed to deposit the above said amount of
compensation with costs and interest in the proportion of
their liability before the Claims Tribunal within six weeks
from the date of pronouncement of this judgment and
order, if such amount is not deposited or falling short."
10. We may also record that in another decision of this
Court in the case of SATISHKUMAR RASIKLAL DOCTOR
v/s BALDEVBHAI CHHAGANBHAI THAKORE, reported at
2007 (1) GCD 727, similar view was taken by observing
that the set-off or the deduction of the amount received by
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the claimant for medi-claim policy cannot be considered."
In light of the aforesaid legal position, the tribunal
committed error in deducting an amount of Rs. 1 lakh towards
the medical expenses. Thus, the appellant is held entitled to
enhanced amount of compensation towards the medical
expenses from Rs.67,094/- to Rs.1,67,094/-.
8. For the foregoing reasons, the enhanced amount of
compensation is determined as under:
Particulars Amount of compensation
Future Prospects 4,00,000/-
Medical Expenses 1,67,094/-
Attendant Charges 15,000/-
Total Compensation 5,82,094/-
Awarded by Tribunal 3,93,500/-
Enhanced compensation 1,88,594/-
8.1. Hence, the impugned judgment and award dated
20.05.2022 passed by the Motor Accident Claim Tribunal
(Main), Kutch-Bhuj in MACP No. 18 of 2023 is hereby
modified and present appeal is allowed to the aforesaid
extent. The appellant- original claimant is held entitled to
compensation of an amount of Rs.5,82,094/-. Since by
impugned judgment and award the Tribunal has awarded an
amount of Rs.3,93,500/-, the appellant shall be entitled to
enhanced amount of compensation to the tune of
Rs.1,88,594/- (Rs.5,82,094 - Rs.3,93,500/-) with interest at
the rate of 9% from the date of filing of claim petition till its
actual realization. The respondents - original opponents are
held jointly and severally liable to pay such enhanced amount
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of compensation with proportionate costs and interest. Let,
the aforesaid amount be deposited with the concerned
Tribunal within a period of 8 weeks from the date of receipt of
the present order. On deposit of the aforesaid amount, the
Tribunal shall be at liberty to release and disburse the entire
award amount in favour of the original claimant, after due
verification. Let, such exercise be undertaken by the Tribunal
strictly in accordance with the guidelines prescribed by the
Hon'ble Supreme Court in this regard; preferably within a
period of two weeks from deposit of such amount.
9. With these observations, the appeal stands allowed to
the aforesaid extent.
(NISHA M. THAKORE,J)
RATHOD KAUSHIKSINH
