Gujarat High Court
Mohammed Saifi Mushtaq Ahmed ... vs Driver Of Dcm Toyota No. Gj-2-T-5895 ... on 18 September, 2014
Author: Bhaskar Bhattacharya
Bench: Chief Justice
C/FA/1502/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 1502 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE
MR. BHASKAR BHATTACHARYA
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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MOHAMMED SAIFI MUSHTAQ AHMED LALA(MINOR)....Appellant(s)
Versus
DRIVER OF DCM TOYOTA NO. GJ-2-T-5895 9KARMAN M. DESAI) &
2....Defendant(s)
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Appearance:
MR MITESH R AMIN, ADVOCATE for the Appellant(s) No. 1
MS KARUNA V RAHEVAR, ADVOCATE for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1 - 3
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CORAM: HONOURABLE THE CHIEF JUSTICE
MR. BHASKAR BHATTACHARYA
Date : 18/09/2014
ORAL JUDGMENT
1. This appeal under section 173 of the Motor Vehicles Page 1 of 5 C/FA/1502/2006 JUDGMENT Act is at the instance of the claimant and is directed against the award dated 15th December 2005 passed by the Motor Accident Claims Tribunal (Auxi.), Sabarktantha at Himatnagar in M.A.C.P.No.1176 of 1998 thereby awarding a sum of Rs.2,92,900/- with interest at the rate of 9% per annum from the date of filing of the claim application till December, 2000 and thereafter, at the rate of 6% per annum till realization.
2. Being dissatisfied, the claimant has come up with present appeal.
3. After going through the materials on record, it appears that on 08th May 1998 while the victim was driving his bicycle, he was hit by D.C.M. Toyota Tempo, as a result the victim was seriously injured. At the time of accident, the victim was aged 8 years. He sustained fracture of pelvis bone and his urinary bladder was damaged due to the accident and he was not able to excrete urine naturally. He also sustained compound fracture on his left leg.
4. It appears that in spite of prolong treatment even at the time of deposition in the year 2005, after a lapse of seven years, the victim was unfit and his treatment was continuing. It further appears that the Doctor certified that his disability was to the extent of 45% with respect of entire body. At the time of trial, both the learned counsel for the parties jointly agreed that same may be treated as 37%.
5. It may not be out of place to mention there that the father of the victim is an M.D.Doctor and the claimant is being treated often in Mumbai, as a result, the father had to incur Page 2 of 5 C/FA/1502/2006 JUDGMENT huge expenditure for operation of plastic surgery on urinary duct and the treatment was still continuing.
6. The Tribunal below on consideration of materials on record came to the conclusion that the entire negligence for the accident was upon the driver of the D.C.M. Toyota tempo and the Tribunal calculated compensation in the following way:
Sr.No. Heading Amount
1 Towards future loss of income Rs.99,900/-
2 Towards actual loss of income Rs.18,000/-
3 Towards pain, shock and suffering Rs.30,000/-
4 Towards medicines and medical treatment Rs.85,000/-
5 Towards conveyance charges Rs.20,000/-
6 Towards special diet Rs.20,000/-
7 Towards attendants charges Rs.20,000/-
Total Rs.2,92,900/-
7. After hearing the learned counsel for the parties and after going through the aforesaid uncontroverted evidence, in my view, the amount awarded by the Tribunal is shockingly low in comparison to the injury suffered by the claimant.
8. Future loss of income has been assessed to be only Rs.99,900/-, whereas it appears that in view of the accident the leg of the claimant has become shorter by 2.5 cm. He has become mentally week. He is often suffering from urinary inflammation due to the accident and due to mental weakness, he is not able to apply his mind to his studies, as a result of which his health has also deteriorated.
9. It further appears that there is no dispute that the Page 3 of 5 C/FA/1502/2006 JUDGMENT victim is being treated at Mumbai and the total medical expenses awarded by the Tribunal is only to the extent of Rs.85,000/- though he has been operated for more than once.
10. After taking into consideration the fact that a bright boy of eight years has become undisputedly 37% disable for no fault on his part and in view of the enormity of the injury, this is a fit case where the Tribunal should have awarded full compensation claimed by the appellant. It appears that his medical treatment will continue for a long time and having regard to increase of expenses in medical treatment, it will be appropriate if a sum of Rs.8,00,000/- is awarded as compensation.
11. I, thus award Rs.8,00,000/- as compensation. It further appears that the Tribunal has awarded interest at the rate of 9% per annum upto December 2000 though the accident occurred in the year 1998. At that point of time, bank rate interest was 12% per annum for one year deposit.
12. I, thus, also revise the interest rate at 12% per annum from the date of filing of the claim application till December 1999 and at the rate of 9% per annum from 01st January 2000 till realization.
13. The insurance company is directed to deposit the balance amount with interest within two months from today before the Tribunal.
14. The appeal is allowed. Record and Proceedings be sent to the Tribunal.
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(BHASKAR BHATTACHARYA, CJ.)
satish
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