Gujarat High Court
Hitesh Nagjibhai Patel vs Bababhai Nagjibhai Rabari on 20 August, 2024
NEUTRAL CITATION
C/FA/4863/2022 ORDER DATED: 20/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4863 of 2022
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HITESH NAGJIBHAI PATEL
Versus
BABABHAI NAGJIBHAI RABARI & ANR.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MS E.SHAILAJA(2671) for the Defendant(s) No. 2
NOTICE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 20/08/2024
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - original claimant, being aggrieved and dissatisfied with the judgment and award dated 17.09.2021 passed by the Motor Accident Claims Tribunal (Aux.), Banaskantha at Deesa, in Motor Accident Claim Petition No.87 of 2017, by which the Tribunal has awarded compensation of Rs.3,90,000/- with 9% per annum interest to the claimant, holding Opponents liable, jointly and severally.
2. Brief facts of the case are as under:
2.1 On 14.10.2012, When the minor appellant namely Hitesh Nagbhai Patel was standing along with his father i.e. the present applicant and Amarabhai Harjibhai Patel and Khetabhai Dhanabhai Patel on the Kachcha road which is situated on the road leading from Village-Dhima to Village-Tharad of Village-Dhima at about 4:00 p.m. and that time, One Motor Vehicle bearing No. GJ-8V-3085 (Now it is referred as "Goods Vehicle") came in full speed and in negligent Page 1 of 9 Uploaded by SLOCK BAROT(HC01781) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 22:37:30 IST 2024 NEUTRAL CITATION C/FA/4863/2022 ORDER DATED: 20/08/2024 undefined manner and as a result of that, the said goods vehicle dashed with the minor who is standing on the Kachcha road and by thus, the accident was occurred and due to the said accident, the minor sustained serious bodily injuries and therefore, the claim petition has been filed to have compensation from the opponents under Section 166 of the Motor Vehicle Act, 1988. According to the petition, the opponents no.1 & 2 are Driver Cum Owner & Insurer of the Goods Vehicle respectively.
2.2 After considering the 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 is preferred by the claimant for enhancement.
3. Heard learned advocates appearing for the respective parties.
4. Learned advocate for the appellant - original claimant 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 8 years and has also submitted that even then, the Tribunal has erroneously considered on the aspect of quantum in its impugned judgment, and awarded Rs.3,90,000/- only, though there is disability certificate of the injured, which is produced at Exh.14 and the injuries; amputation of left leg, whereby it is found that the injured sustained disability to the tune of 70% permanent physical impairment/mental disability and the Tribunal has considered Page 2 of 9 Uploaded by SLOCK BAROT(HC01781) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 22:37:30 IST 2024 NEUTRAL CITATION C/FA/4863/2022 ORDER DATED: 20/08/2024 undefined disability to the extent 30% only. 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 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.4,10,000/- as compensation, and therefore, he has prayed to allow the present appeal by granting appropriate amount of compensation accordingly. He has further relied on the judgments rendered in the cases of (i) Rajeev Sharma Vs. Yogendra Singh and others, more particularly, paras 2 and 5 of the judgment; (ii) Aabid Khan Vs. Dinesh and others, more particularly, para 10 of the judgment; (iii) G. Vivek Vs. National Insurance Co. Ltd. and another, more particularly, paras 4, 10 to 13 of the judgment, in support of his case. 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 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 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 proper, however, this Court may Page 3 of 9 Uploaded by SLOCK BAROT(HC01781) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 22:37:30 IST 2024 NEUTRAL CITATION C/FA/4863/2022 ORDER DATED: 20/08/2024 undefined 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. I have also gone through the relevant paragraphs of the judgments relied on by the learned advocate for the appellant and the same are helpful in the facts and circumstances of the present case for consideration.
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.
6.3. The Tribunal has awarded the amount of compensation under different heads, which is as follows:
Sr. Heads Amount (Rs.)
No.
1. Pain & Suffering already undergone and 3,00,000/-
to be suffered in future mental and
physical shock, hardship, inconvenience, Page 4 of 9 Uploaded by SLOCK BAROT(HC01781) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 22:37:30 IST 2024 NEUTRAL CITATION C/FA/4863/2022 ORDER DATED: 20/08/2024 undefined and discomforts etc and loss of amenities in life on account of disability
2. Loss of earning of parents 30,000/-
3. Medical Expenses 30,000/-
4. Future Medical expenses 30,000/-
Total 3,90,000/-
6.4. In view of the above-mentioned awarded amount under various heads, there is no dispute that the injured was aged about 8 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.14; whereby it is found that the injured has sustained permanent physical impairment/ mental disability to the tune of 70%, however, considering the amputation of left leg below knee of the injured, disability to the extent of at least 90% is required to be considered. Now, considering the judgment of the Hon'ble Apex Court in the case of Mallikarjun (supra), more particularly, paragraph Nos.8 to 12 are relevant, as under:
"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, Page 5 of 9 Uploaded by SLOCK BAROT(HC01781) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 22:37:30 IST 2024 NEUTRAL CITATION C/FA/4863/2022 ORDER DATED: 20/08/2024 undefined 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 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 of 16%. It was held that the child should Page 6 of 9 Uploaded by SLOCK BAROT(HC01781) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 22:37:30 IST 2024 NEUTRAL CITATION C/FA/4863/2022 ORDER DATED: 20/08/2024 undefined 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 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/- Page 7 of 9 Uploaded by SLOCK BAROT(HC01781) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 22:37:30 IST 2024 NEUTRAL CITATION C/FA/4863/2022 ORDER DATED: 20/08/2024 undefined 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 Mallikarjun (supra). In light of this judgment, I am of the opinion that the appellant - claimant is entitled to get the following final amount as compensation:
Sr. Particulars Amounts
No. (Rs.)
1. Loss of amenities in life on 5,00,000/-
account of disability
2. Pain and suffering 75,000/-
3. Loss of earning to parents 30,000/-
4. Future medical expenses 30,000/-
5. Medical Bills 30,000/-
6. Artificial limb 2,00,000/-
Total... 8,65,000/-
Amount awarded by the Tribunal 3,90,000/-
Enhanced amount ... 4,75,000/-
6.6. Therefore, I hold that the claimant is entitled to get the total amount of compensation of Rs.4,75,000/- 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.3,90,000/- and, therefore, remaining amount of Rs.4,75,000/- would be the enhanced amount of compensation payable to the claimant.
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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 17.09.2021 passed by the Motor Accident Claims Tribunal (Aux.), Banaskantha at Deesa, in Motor Accident Claim Petition No.87 of 2017 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.4,75,000/- with 9% p.a. interest from the date of claim petition till its 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 forthwith.
(SANDEEP N. BHATT,J) SLOCK BAROT Page 9 of 9 Uploaded by SLOCK BAROT(HC01781) on Thu Aug 29 2024 Downloaded on : Fri Aug 30 22:37:30 IST 2024