Gujarat High Court
Minor Jay Arvindbhai Namera, Through ... vs Nagdishbhai Madhavjibhai Javiya on 7 May, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1807 of 2011
With
CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2025
In R/FIRST APPEAL NO. 1807 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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MINOR JAY ARVINDBHAI NAMERA, THROUGH GUARDIAN & FATHER
Versus
NAGDISHBHAI MADHAVJIBHAI JAVIYA & ANR.
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Appearance:
MR PANKAJ R DESAI(3120) for the Appellant(s) No. 1
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
MR SUNIL B PARIKH(582) for the Defendant(s) No. 2
SERVED BY PUBLICATION IN NEWS for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 07/05/2025
ORAL JUDGMENT
1. This Appeal is filed challenging the judgment and award
dated 21.03.2011 passed by learned Motor Accident Claims
Tribunal (Auxi.) at Morbi in M.A.C.P No.234 of 2007.
2. Heard learned advocate Mr Pankaj R. Desai assisted by
learned advocate Mr. Hemal Shah for the appellant and
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learned advocate Mr. Sunil B. Parikh for respondent No.2.
Though served, none appeared for respondent No.1.
3. The brief facts of the case are as under:
3.1. On 29.07.2007, minor Jay Arvind Namera was crossing
the road with his grandmother. When they were standing near
the side of the road, opponent No.1 came in Metador bearing
Registration No.GJ-3-Y-9114 in rash and negligent manner
with full speed on Rajkot-Morbi Road near Village
Hadbatiyali and dashed with minor. Resultantly, minor
sustained serious bodily injuries. FIR was lodged against
driver of Metador. Minor was admitted in Hospital and took
treatment from 29.07.2007 upto 18.08.2007 for the fracture
sustained on right thigh, head and spinal cord. Claim Petition
was filed by the guardian and father of minor claiming
compensation of Rs.10 lakhs. Opponent No.1 owner of
Metador was served through publication in public newspaper
but did not contest the claim petition. Opponent No.2-
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Insurance Company appeared and filed Written Statement at
Exhibit-16. Father of minor filed examination-in-chief at
Exhibit-37 and examined Dr. Hiren Sobhagayachandra
Kothari at Exhibit-41. Claimant produced documentary
evidence such as complaint, panchnama, case papers
pertaining to injuries, medical bills and disability certificate
issued by Dr. Hiren Sobhagayachandra Kothari. After
considering the evidence on record, learned Tribunal partly
allowed the claim petition by granting compensation of
Rs.5,07,500/- with 7.5% interest against opponents from the
date of filing claim petition till realization.
3.2. Being aggrieved and dissatisfied with the impugned
judgment and award, appellant-claimant has filed the present
First Appeal for enhancement of compensation.
4. Learned advocate for the appellant, at the outset,
submitted that the challenge in the present First Appeal is only
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on the ground of assessment of notional income, granting less
compensation under the head of pain, shock and suffering,
attendant charges, non-granting of loss of marriage prospects,
future medical expenses and transportation and special diet.
Learned advocate for the appellant submitted that the young
boy aged about 5 years has sustained 100% permanent partial
disability and suffering from paraplegia because of spine
injury and injuries sustained on the other parts of the body. It
is submitted that boy is handicapped and crippled and lives a
vegetarian life. It is submitted that because of accidental
injuries, minor boy has suffered great pain, shock and
suffering and has also lost his future marriage prospects.
Considering the disability, minor would require full attendant
throughout his life and also require future medical treatment
throughout his life. Learned Tribunal has considered notional
income of Rs.1,500/-, whereby an error is committed by
learned Tribunal. In the decision of Ayush Versus Branch
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Manager, Reliance Genral Ins. Co. Ltd. and another
reported in 2022 ACJ 1006, the Apex Court, while
considering the compensation for the victim who is minor, has
held that the notional income of the victim is not a justifiable
income and the minor is entitled to minimum wages payable
to a skilled workman and thereafter, considered the minimum
wages prevailing in the State of Karnataka on the date of
accident. The facts before the Hon'ble Apex Court was similar
to the facts found in the present case and compensation of
Rs.10 lakhs was granted under the head of pain, shock and
suffering. Conveyance charges was also awarded to the extent
of Rs.2 lakhs and prospective income was considered as 40%.
In the decision of Baby Sakshi Greola versus Manzoor
Ahmad Simon and another (Neutral Citation: 2024 INSC
963), the Hon'ble Apex Court while considering the question
of compensation for the victim who is minor, has also taken
into consideration rates of minimum wages while deciding the
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income of minor. The minor was assessed disability as 100%
and therefore, compensation under the head of pain, shock and
suffering was awarded to the extent of Rs.15 lakhs.
Considering the aspect of loss of marriage prospects,
compensation was granted to the extent of Rs.1 lakh and
attendant charges was considered as Rs.2,500/- per month for
a period of six months and thereby, 15,000/- was granted
under the head of attendant charges.
4.1. Considering the aforesaid decisions, learned advocate for
the appellant has claimed Rs.2,800/- per month as income as
per rates of minimum wages prevailing on the date of accident
and claimed 40% addition as prospective income. Appellant
also claimed Rs.6,50,000/- under the head of pain, shock and
suffering, Rs.5,40,000/- under the head of attendant charges,
Rs.1,00,000/- towards transportation and special diet,
Rs.3,00,000/- for loss of marriage prospects and Rs.2,00,000/-
towards future medical expenses. It is further contended that
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claimant is entitled to interest on all heads.
4.2. In support of submission with regard to granting of
interest on attendant charges, reliance is placed upon a
decision rendered by the Division Bench of this Court in the
case of Chirag Pravinchandra Bhagat versus Ishwarbhai
Mohanbhai Desai & Ors. passed in First Appeal No.1764 of
2019 on 13.12.2024. Except above, no other submissions are
canvassed by learned advocate for the appellant.
5. Per contra, learned advocate for the respondent No.2-
Insurance Company has supported the impugned judgment
and award. However, it is submitted by learned advocate for
the Insurance Company that the notional income which has
been assessed by learned Tribunal at Rs.1,500/- is just and
reasonable and considering the injuries and the evidence of the
doctor, learned Tribunal has assessed 100% disability body as
a whole and thereafter, awarded just and reasonable
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compensation under the head of pain, shock and suffering,
attendant charges, special diet. It is further submitted that
claimant-appellant would not be entitled to any interest on
future medical expenses as well as compensation under the
attendant charges. Learned advocate for the respondent has
placed reliance upon the decision in the case of R.D.
Hattangadi versus Pest Control (India) Pvt. Ltd. and Others
reported in (1995) 1 SCC 551 and has relied upon paragraph
No.18 of the said decision, which is reproduced as under;
"18. So far the direction of the High Court regarding payment of
interest at the rate of 6% over the total amount held to be payable to the
appellant is concerned, it has to be modified. The High Court should
have clarified that the interest shall not be payable over the amount
directed to be paid to the appellant in respect of future expenditures
under different heads. It need not be pointed out that interest is to be
paid over the amount which has become payable on the date of award
and not which is to be paid for expenditures to be incurred in future. As
such we direct that appellant shall not be entitled to interest over such
amount."
5.1. The claim of enhancement of compensation under the head
of pain, shock and suffering, attendant charges, transportation
and special diet, loss of marriage prospects and future medical
expenses are unreasonable and on the higher side. There is no
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medical evidence to substantiate that the minor would require
attendant throughout his life and he would be needing future
medical treatment. In nutshell, it is the case of the Insurance
Company that claimants are not entitled to any enhancement in
compensation.
6. I have considered rival submissions canvassed by learned
advocates for the parties and have also perused record and
proceedings. Undisputedly, the victim is aged about 5 years on
the date of accident and as per the disability certificate Exhibit-
41 issued by Dr. Hiren Sobhagayachandra Kothari, minor has
sustained following injuries.
"D/7 burst # with cord injury and paraplegia with bladder bowel
involvement
Rt. Thigh degloving injury
# rt. Frontal linear # with EDH
Lt. Basal ganglia contusion
Whiplash injury."
7. The said doctor has examined the minor and assessed
permanent partial disability at 100% body as a whole. Oral
deposition of Dr. Hiren Sobhagayachandra Kothari recorded at
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Exhibit-41 also indicates the same injuries and has stood by the
percentage of disability assessed by him. There is no much
quarrel on the assessment of disability and more particularly,
there is no challenge with regard to the assessment of disability,
quantum of compensation and negligence by the Insurance
Company. The only limited question under consideration is in
view of the age and disability sustained to the minor, whether
learned Tribunal has awarded just and reasonable compensation
under the head of pain, shock and suffering, attendant and
special diet or not. Undisputedly while assessing the
compensation, learned Tribunal has failed to grant any
compensation under the head of loss of marriage prospects and
future medical expenses. The question with regard to assessment
of notional income is no more res integra in the decision of
Ayush (supra). In paragraph Nos.7 and 8 of the said decision,
the Hon'ble Apex Court has considered rates of minimum
wages payable to a skilled employee prevailing on the date of
accident. As submitted by learned advocate for the appellant,
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rates of minimum wages on the date of accident was Rs.2,800/-,
is just and reasonable and I hold that income of minor would be
assessed at Rs.2,800/- per month. Adding 40% as prospective
income, total income would come to Rs.2,800/- + 40% =
Rs.3,920/-). Undisputedly, the minor is paraplegic and the age
of minor is such that no evidence either oral or documentary is
required to consider the agony which minor must have
undergone because of vehicular accidental injuries. The nature
of injuries are such that the minor has lost his childhood
enjoyment and the future marriage prospects. The minor would
require an attendant during his life and would also require future
medical treatment for such injuries. If the oral evidence of Dr.
Hiren Sobhagayachandra Kothari recorded at Exhibit-41 is
considered, minor has suffered serious bodily injuries which
would hamper his day to day activities of life. In the case of
Ayush (supra), minor boy was aged about 5 years and suffered
from spinal cord lesion resulted into 100% permanent disability.
The injured was suffering from urinary and bowel incontinence
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and requires attendant throughout his life. In paragraph No.12 of
the said decision, the Hon'ble Apex Court has observed on the
question of loss of marriage prospects, transportation charges
and physical condition of the victim and thereafter, granted
Rs.10 lakhs and Rs.2 lakhs under the heads of pain, shock and
suffering and conveyance charges respectively.
8. In the decision of Baby Sakshi Greola (supra), the minor
girl sustained 75% mental moderate retardation and had no
control over the passage of her urine. Disability assessed was
body as a whole and was non-progressive. In paragraph No.29
of the said decision, the Hon'ble Apex Court has discussed
about considering the rates of minimum wages for assessing
income of minor and further held that notional income is not the
correct approach for assessing income in the cases of
compensation relating to minor. The Hon'ble Apex Court has
also considered the decision of Kajal V. Jagdish Chand and
Others reported in (2020) 4 SCC 413.
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In paragraph Nos.34 and 35 while discussing the question
of compensation under the head of pain, shock and suffering, it
has been observed as under;
34. As has been referred to hereinabove, this Court recently in the case
of K.S. Muralidhar (supra) relying inter-alia upon the previous
decisions of this Court in the cases of Kajal (supra) and Master Ayush
(supra) awarded a sum of Rs. 15,00,000/- under the head of pain and
suffering to the appellant therein.
35. In this respect, it would be appropriate to refer to paragraphs
26 and 27 of the judgment of this Court in the case of Kajal
(supra), which read thus:
"Pain, suffering and loss of amenities
26. Coming to the non-pecuniary damages under the head of
pain, suffering, loss of amenities, the High Court has awarded
this girl only Rs 3,00,000.
In Mallikarjun v. National Insurance Co. Ltd. [Mallikarjun v.
National Insurance Co. Ltd., (2014) 14 SCC 396 : (2015) 1 SCC
(Civ) 335 : (2015) 1 SCC (Cri) 372 : (2013) 10 Scale 668] , this
Court while dealing with the issue of award under this head held
that it should be at least Rs 6,00,000, if the disability is more
than 90%. As far as the present case is concerned, in addition to
the 100% physical disability, the young girl is suffering from
severe incontinence, she is suffering from severe hysteria and
above all she is left with a brain of a nine-month- old child. This
is a case where departure has to be made from the normal rule
and the pain and suffering suffered by this child is such that no
amount of compensation can compensate.
27. One factor which must be kept in mind while assessing the
compensation in a case like the present one is that the claim
can be awarded only once. The claimant cannot come back to
court for enhancement of award at a later stage praying that
something extra has been spent. Therefore, the courts or the
Tribunals assessing the compensation in a case of 100%
disability, especially where there is mental disability also,
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should take a liberal view of the matter when awarding the
compensation. While awarding this amount, we are not only
taking the physical disability but also the mental disability and
various other factors. This child will remain bedridden for life.
Her mental age will be that of a nine-month-old child.
Effectively, while her body grows, she will remain a small baby.
We are dealing with a girl who will physically become a woman
but will mentally remain a 9-month-old child. This girl will miss
out playing with her friends. She cannot communicate; she
cannot enjoy the pleasures of life; she cannot even be amused by
watching cartoons or films; she will miss out the fun of
childhood, the excitement of youth; the pleasures of a marital
life; she cannot have children who she can love, let alone
grandchildren. She will have no pleasure. Her's is a vegetable
existence. Therefore, we feel in the peculiar facts and
circumstances of the case even after taking a very conservative
view of the matter an amount payable for the pain and suffering
of this child should be at least Rs 15,00,000."
(emphasis supplied)
The Hon'ble Apex Court has observed that in a case like
the present one, claimant can be awarded only once and
claimant cannot come back to Court for enhancement of award
at a later stage praying that something extra has been spent. In
the cases of 100% disability, especially, where there is a case of
mental disability, a liberal view should be taken while awarding
compensation. The Hon'ble Apex Court awarded Rs.15 lakhs
under the head of pain, shock and suffering.
In paragraph Nos.42, 43 and 44 of the said decision, the
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Hon'ble Apex Court has observed as under;
42. The appellant, therefore, has not only lost her childhood but
also her adult life. Marriage/companionship is an integral part of
the natural life of a human being. Although, in the present case the
appellant is capable of reproduction, it is near impossible for her
to rear children and enjoy the simple pleasures of marital life and
companionship. However, the learned Tribunal in the present case
did not award any compensation to the appellant under this head
and the High Court, in appeal, without appreciating the impact of
the non- pecuniary loss suffered by the appellant only awarded
compensation of Rs. 1,00,000/- for the loss of marriage prospects.
43. We are, therefore, of the opinion that this a fit case where the
compensation awarded under the head of loss marriage prospects
by the High Court is inadequate and the same must be enhanced to
Rs. 5,00,000/-.
d) Attendant Charges
44. In the present case, the learned Tribunal recorded the
evidence of the appellant's mother (PW-2). She stated that they
had engaged a maid servant to do the household work whom they
were paying Rs. 2,500/- per month for a period of 6 months.
Considering the same, the learned Tribunal awarded Rs. 2,500 x 6
= Rs. 15,000/- under the head of attendant charges.
9. Keeping in mind the benevolent legislation and keeping in
mind the ratio laid down in the aforesaid decisions, it would be
just and reasonable to grant compensation to the tune of Rs.10
lakhs under the head of pain, shock and suffering, attendant
charges to the tune of Rs.5,40,000/-, transportation and special
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diet to the tune of Rs.1, 00,000/-, loss of marriage prospects to
the tune of Rs.3,00,000/- and future medical expenses to the
extent of Rs.1,50,000/-.
10. The next question which has been posed for consideration
before this Court is whether claimant is entitled to interest for
non-pecuniary compensation such as future medical expenses,
attendant charges, loss of marriage prospects. Learned advocate
for the appellant has fairly contended that appellant would not
claim any interest on future medical expenses and shall let go
and waive off interest on future medical expenses. Considering
the submission, claimant would not be entitled to any interest on
compensation under future medical expenses.
11. In the case of R.D. Hattangadi (supra), it was also a case
of paraplegia below waist and the victim had suffered serious
injuries resulting into 100% disability. Claimant was aged about
52 years and was a practicing advocate and a retired City Civil
Court Judge. The Hon'ble Apex Court considering the said facts
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did not grant any interest in respect of future expenditures under
different heads such as home attendant charges. In the present
case, as discussed above, the victim was only aged about 5 years
which cannot be equated with the age of the claimant in the case
of R.D. Hattangadi (supra). The minor, in the present case, has
a long way of life to live and the attendant charges would
increase year by year considering the rate of inflation. Claimant
would be entitled to interest on attendant charges for the reason
mentioned above. The ratio laid down in the decision of R.D.
Hattangadi (supra) would not help to the submission of learned
advocate for the Insurance Company for the above stated
discussions.
12. In the case of Chirag Pravinchandra Bhagat (supra), the
Hon'ble Division Bench has awarded interest on attendant
charges, special diet and transportation expenses. Applying said
principle in the present case, claimants are entitled to interest on
attendant charges.
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13. In the background of the above discussion, claimant is
entitled to the following amount of compensation;
Sr. Name of the Head Amount in Rs.
1 FUTURE LOSS OF INCOME
Income per month Rs.2,800/-
Prospective Income
(Rs.2,800 + 40%) Rs.3,920/-
Rs.3,920/- x 12 x 18 8,46,720/-
2 Pain, shock and suffering 10,00,000/-
3 Medical 1,36,500/-
4 Attendant charges 5,40,000/-
5 Future Medical expenses 1,50,000/-
6 Loss of marriage prospects 3,00,000/-
7 Transportation and Special Diet 1,00,000/-
Total 30,73,220/-
Amount awarded by tribunal 5,07,500/-
Enhanced amount of compensation 25,65,720/-
14. The Insurance Company is directed to deposit the
enhanced amount of compensation of Rs.25,65,720/- with 7.5%
per annum interest within a period of eight weeks from the date
of receipt of the copy of this order.
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15. The present First Appeal is partly allowed accordingly.
The judgment and award dated 21.03.2011 passed by learned
Motor Accident Claims Tribunal (Auxi.) at Morbi in M.A.C.P
No.234 of 2007, is modified to the aforesaid extent.
16. Once the enhanced amount is deposited by the Insurance
Company, the learned Tribunal shall disburse the same in favour
of the claimants through RTGS by following the prevailing
procedure and due identification.
17. While making the payment, the Tribunal shall deduct the
Courts Fees, if not paid, in accordance with rules / law.
18. Record and proceedings, if any, be sent back to the
concerned Court/Tribunal.
19. In view of the order passed in the main matter, connected
Civil Application does not survive and the same stands disposed
of accordingly.
(D. M. DESAI,J)
RINKU MALI
