Madhya Pradesh High Court
Ku. Chetna Sharma Age 4 Years (Minor Thr. ... vs Pawan Sharma on 12 February, 2024
Author: Hirdesh
Bench: Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 12th OF FEBRUARY, 2024
MISC. APPEAL No. 1063 of 2021
BETWEEN:-
KU. CHETNA SHARMA D/O PAWAN SHARMA, AGED 4
YEARS (MINOR THR. NATURAL GUARDIAN MOTHER SMT.
SHRADDHA W/O PAWAN R/O 279/4, ADARSH INDRA NAGAR
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI HIMANSHU PALIWAL- ADVOCATE)
AND
1. PAWAN SHARMA S/O MANOHARLAL SHARMA 279/4,
ADARSH INDRA NAGAR, INDORE(MADHYA
PRADESH)
2. AKASH SHARMA S/O MAHESH SHARMA, R/O GRAM
BICHDOD KHALSA, TEH GHATIYA DIST UJJAIN
(MADHYA PRADESH)
3. BAJAJ ALLIANZ GENERAL INSURANCE COMPANY
LIMITED THR DIVISIONAL MANAGER 7, RACE
COURSE ROAD, COMMERCE HOUSE INDORE
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI MONESH JINDAL - ADVOCATE FOR RESPONDENT NO.3)
---------------------------------------------------------------------------------------------------------------
This appeal coming on for admission this day, the court passed the
following:
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 23-02-2024
10:57:46
2
ORDER
This appeal by the claimant under section 173(1) of the Motor Vehicles Act
is arising out of the award dated 23.10.2020 passed by XIII Member MACT,
Indore in MACC No.2788/2018 on account of inadequacy of compensation and
seeking enhancement of compensation.
2. The date of accident, negligence and the issue of liability are not in dispute
and the findings recorded by the Tribunal in this regard are also not in
question. As per the findings of the Tribunal, in case of permanent disability of
the minor child Chetna who is four years, the Tribunal has awarded a total
compensation of Rs.14,84,233/- along with interest from the date of filing of the
claim petition till realisation.
3. Learned counsel for the appellant submits that the Tribunal has committed
error in awarding only Rs.4,00,000/- to the claimant relying on the judgment
passed by Apex Court in the case of Master Mallikarjun Vs. National
Insurance Company Limited and another 2013 ACJ 2445 and considering her
disability at 50% whereas Dr.Mehrotra (PW-4) has specifically stated that
appellant will suffer 80% permanent disability throughout her life. He submitted
that in the case of Kajal Vs. Jagdish Chand and others reported in 2020 ACJ
1042 the Apex Court awarded compensation to the appellant towards loss of
future income due to permanent disability. No amount towards loss of income to
the appellant's parents during the treatment and other heads. The Tribunal has
also committed error in not awarding amount under the head of future treatment,
whereas Ex.P-5 to Ex.P-9 suggests that appropriate expenses over appellant's
diapers and other useful things will be Rs.3,000/- p.m for her life and Ex.P-87 is
certificate that appellant will undergo physiotherapy for lifetime. Hence,
appellants seeks enhancement of compensation over Rs.30,00,000/-
4. On the other hand, learned counsel for the Insurance Company argued in
support of the impugned award and contended that the Claims Tribunal has rightly
awarded the compensation amount in the case which does not call for any
interference by this Court.
5. Heard the learned counsel for the parties and perused the record.
6. Learned counsel for the appellant submits that Tribunal has committed
error in not taking into consideration the income of the claimant as per circular of
the M.P.Minimum Wages Act, payable to the skilled labour and relied on the
judgment in the case of Kajal (Supra).
7. In the above case, the deceased undisputedly was only 5 years old. So the
case relied upon by the appellant is not applicable in this case with regard to
assessed income of the claimant.
8. Learned counsel for the appellants submitted that Tribunal has committed
error in assessing the permanent disability as only 50%, whereas Dr. Mehrotra
(PW-4) specifically stated that appellant will suffer 80% permanent disability
throughout her life.
9. In this regard perusal of the record of the Tribunal it is found that
Dr.Ashish Mehrotra (PW-4) stated in the examination in chief in para 4 that
claimant child suffered permanent disability of 80% throughout her life.
Permanent Disability certificate is Ex.P-51. Considering the cross examination of
this witness it is found that he denied the suggestion given by the appellant's
counsel before the Tribunal that disability must be decreased as age was
increasing. Considering the evidence of PW-4 it is found that Tribunal has
committed error in assessing permanent disability of the claimant as 50%. In the
considered opinion of this Court, on the basis of evidence of PW-4 and disability
certificate Ex.P-51, injuries and age of the claimant, 80% permanent disability is
deemed to be considered.
10. In the case of Master Mallikarjun (Supra) the Apex Court has held as
under:-
"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 shock, | |
|hardship, inconvenience, and | |
|discomforts, etc., and loss of | |
|amenities in life on account of | |
|permanent disability. | |
|Discomfort, inconvenience and loss |Rs.25,000/- |
|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/- |
11. In view of the aforesaid, in regard to the permanent disability the claimant
is entitled to compensation of Rs.5,00,000/- by enhancing the amount by
Rs.1,00,000/- towards permanent disability.
12. Learned counsel for the appellant submits that Tribunal has committed
error in not awarding any amount under the head of loss of income to the parents
of the claimant during treatment and also not awarding any amount towards
damage and loss of marriage prospect and submitted that Tribunal has also
awarded amount on lower side under the head of pain and suffering, special diet,
attendant and future treatment.
13. In this regard, considering the disability of the claimant, age, injury in the
considered opinion of this Court, it is a fit case for enhancing Rs.5,00,000/- in
other heads. Accordingly, the appellant is entitled to an additional sum of
Rs.6,00,000/- over and above the amount which has been awarded by the
Tribunal.
14. In the result, the appeal is partly allowed by enhancing the compensation
amount by a sum of Rs.6,00,000/-. The enhanced amount shall bear interest at the
same rate as awarded by the Tribunal. The other findings recorded by the
Tribunal shall remain intact.
15. In the result, the appeal is allowed in part and to the extent indicated herein
above.
(HIRDESH)
JUDGE
RJ
