Gujarat High Court
Vasu Ketanbhai Virpariya vs Pankajbhai Amarsangbhai Karadiya on 20 June, 2025
NEUTRAL CITATION
C/FA/2098/2023 JUDGMENT DATED: 20/06/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2098 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
No
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VASU KETANBHAI VIRPARIYA
Versus
PANKAJBHAI AMARSANGBHAI KARADIYA & ORS.
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Appearance:
MR TUSHAR L SHETH(3920) for the Appellant(s) No. 1
MR TANMAY B KARIA(6833) for the Defendant(s) No. 2
MR. VISHAL P THAKKER(7079) for the Defendant(s) No. 1,5
RULE SERVED for the Defendant(s) No. 3,4
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 20/06/2025
ORAL JUDGMENT
1. The present appeal is filed by the original claimant under
Section 173 of the Motor Vehicles Act, 1988, being aggrieved and
dissatisfied with the judgment and award dated 23.08.2019 passed by
the learned Motor Accident Claims Tribunal (Auxi), Gondal in M.A.C.P.
No.81 of 2006.
1.1 By the said impugned judgment and award, though, the Tribunal
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has partly allowed the claim petition preferred by the present
appellant- original claimant under Section 166 of the Motor Vehicles
Act, 1988. However, the Tribunal has confined to the amount of
compensation to the tune of Rs.69,300/- only with interest at the rate
of 9% per annum from the date of filing of the claim petition till its
actual realization, to be realized from the original opponents-
respondents herein jointly and severally.
2. This Court, vide order dated 03.05.2023, had admitted the
appeal, noting the issue raised, in view of the decision of the Hon'ble
Supreme Court in the case of Mallikarjun v. Divisional Manager,
National Insurance Company Limited and Another reported in 2014
14 SCC 396.
3. Learned advocate Mr. Tushar L. Sheth has appeared on behalf of
the appellant- original claimant and learned advocate Mr. Tanmay
Karia has entered appearance on behalf of respondent no.2-Insurance
Company and learned advocate Mr. Vishal P. Thakker has entered
appearance for respondent nos.1 and 5.
4. Despite service of rule upon respondent nos. 3 and 4, they have
chosen not to appear and objected to present appeal. The appeal is
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peremptorily taken up for final hearing in their absence.
5. Learned advocate on record for the appellant, at the outset, has
apprised this Court on limited issue involved, and has submitted that
the Tribunal committed error by partly allowing the claim petition by
awarding amount of Rs.69,300/- under the combined head of future
loss of income, pain shock and suffering, medical expenses and special
diet transportation attendant charges. In support of his submissions,
learned advocate has placed reliance upon the decision of the Hon'ble
Supreme Court in the case of Mallikarjun (supra), to contend that in
case of minor claimant on the date of accident, the Hon'ble Supreme
Court has awarded an amount of Rs.1 Lakh in cases where permanent
disability is assessed to the extent of 10%. He has further invited my
attention to the findings and reasons assigned by the Tribunal in this
regard, and has pointed out that indisputably, the original claimants
was aged about 1.5 years at the time of the accident and as per the
Disability Certificate produced on record at Exh.48, though the same
was assessed at 20% permanent partial disability, the same was
treated as 10% of body as a whole. He has, therefore, submitted that
considering the fact that the deceased was minor at the relevant
point of time and the disability is assessed at the rate of 10% of body
as a whole, in view of the decision of the aforesaid decision of the
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Hon'ble Supreme Court, the Tribunal ought to have awarded Rs.1
Lakh. He has, therefore, urged this Court to allow the present appeal
to the aforesaid extent.
6. Learned advocate for the respondent -Insurance Company was
unable to object the aforesaid submissions made by learned advocate
for the appellant-original claimant. However, he has submitted that,
this Court may take into consideration the amount awarded by the
Tribunal to the tune of Rs.69,300/-, and may pass appropriate orders
for enhancement of amount of compensation.
7. Considering the aforesaid submissions of learned advocates for
the respective parties and having gone through the decision of the
Hon'ble Supreme Court in the case of Mallikarjun (supra), at the
outset, it would be appropriate to reproduce the relevant
observations of the Hon'ble Supreme Court in that case, which reads
as under:
"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
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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."
8. In light of the aforesaid decision and the undisputed facts as
highlighted by learned advocates for the respective parties, the
original claimant was aged 1.5 years at the time of the accident, which
has been proved by the claimant by producing on record the copy of
School Leaving Certificate produced on record at Exh.50, wherein the
date of birth of the claimant is recorded as 04.01.2004, whereas the
accident had taken place on 19.11.2005. Learned advocate for the
respondent has not disputed the aforesaid fact as recorded by the
Tribunal, neither any appeal has been filed by the Insurance Company
against the impugned judgment and award. As regards the permanent
partial disability of the claimant is concerned, as evident from the
findings and the reasons assigned by the Tribunal in the impugned
judgment and award, wherein both the parties have consented to
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consider permanent partial disability as 10% of body as a whole.
9. Noticing the aforesaid undisputed facts in light of the legal
principles laid down by the Hon'ble Supreme Court in the case of
Mallikarjun (supra), the issue raised in the present appeal, as regards
enhancement of total amount of compensation to the tune of Rs.1
Lakh, deserves consideration.
10. Hence, the present First Appeal stands allowed. The impugned
judgment and award dated 23.08.2019 passed by the learned Motor
Accident Claims Tribunal (Auxi), Gondal in M.A.C.P. No.81 of 2006, is
hereby modified. The appellant-original claimant is held entitled to
total amount of compensation to the tune of Rs. 1 Lakh towards the
head of future loss of income, pain, shock and suffering and
transportation, special diet and attendant charges. Thus, total amount
of compensation awarded with interest at the rate of 9% per annum
from the date of filing of the claim petition till its actual realization, is
under:
Particular of Head Compensation
(In Rupees)
Future loss of income, pain, shock and 1,00,000/-
suffering and transportation, special
diet and attendant charges
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Medical Bills 5300/-
Total 1,05,300/-
11. As pointed out by learned advocate for the respondent-
Insurance Company, the amount of Rs.69,300/- as awarded by the
Tribunal, is required to be deducted from the aforesaid total amount
of compensation of Rs.1,05,300/-, as awarded in the present appeal.
Original opponents- respondents herein are held jointly and severally
liable to pay the enhanced amount of compensation to the tune of
Rs.36,000/- (Rs.1,05,000/- Rs.69,300/-) with 9% interest per annum
from the date of filing of the claim petition till its actual realization.
12. The respondent -Insurance Company is directed to deposit the
enhanced amount of compensation with proportionate cost and
interest within a period of six weeks from the date of receipt of the
copy of this order. On deposit of the aforesaid enhanced amount by
the respondent-Insurance Company, the Tribunal is directed to release
and disburse the aforesaid amount in favour of the original claimant,
subject to due verification, strictly in accordance with the guidelines
issued by the Hon'ble Supreme Court in this regard. While making the
payment, learned Tribunal/Court shall deduct the Court Fees, if not
paid, in accordance with prevailing Rule. Let the aforesaid exercise be
undertaken by the Tribunal within a period of two weeks from the
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date of deposit of the award amount.
13. With these observations, present First Appeal stands disposed
of in aforesaid terms.
(NISHA M. THAKORE,J)
SUYASH SRIVASTAVA
