Gujarat High Court
United India Insurance Co. Ltd vs Digvijaysinh Rajendrasinh Minor on 23 September, 2022
C/FA/2507/2007 JUDGMENT DATED: 23/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2507 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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UNITED INDIA INSURANCE CO. LTD.
Versus
DIGVIJAYSINH RAJENDRASINH MINOR & 2 other(s)
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Appearance:
MR ANAL S SHAH(3988) for the Appellant(s) No. 1
MR PARESH DARJI, LD. ADVOCATE FOR MR AMIT V THAKKAR(3073) for
the Defendant(s) No. 1
NOTICE SERVED for the Defendant(s) No. 3
UNSERVED EXPIRED (N) for the Defendant(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 23/09/2022
ORAL JUDGMENT
1. The appellant- United India Insurance Company Ltd. has filed this appeal under Section 173 of the Motor Vehicles Act,1988 ("the Act" for short) challenging the judgement and award dated 15/02/2006, Page 1 of 11 Downloaded on : Thu Sep 29 20:35:40 IST 2022 C/FA/2507/2007 JUDGMENT DATED: 23/09/2022 passed by the Motor Accident Claims Tribunal, (Auxi.), Fast Track Court No.1, Bharuch in Motor Accident Claims Petition No.687 of 1997, wherein the Tribunal has awarded total compensation of Rs.9,12,600/- to minor Digvijaysinh Rathod.
2. Short facts, arising from the record of the case, are as under:
On 02/06/1997 minor Digvijaysinh Rathod was going with his parents towards Village: Nana Sanja from Jhagadia, on a motor-cycle bearing registration No.GJ-16-A-7447. The said motor-cycle was driven by father of minor Digvijaysinh and his mother - Minaxiben and minor Digvijaysinh were sitting as pillion riders. It was case of the original claimants that motor-cycle was driven with moderate speed, on correct side of the road following traffic rules. At that time, when they were passing through Jhagadia Sugar Mill, one truck bearing registration No.GJ-16-T-8897 came in rash and negligent manner with full speed and dashed with the motor-cycle. In the said accident, all three (driver and two pillion riders) sustained injuries. Out of all three, minor Digvijaysinh sustained serious injury, for which, he was admitted to Mahavir Hospital, Surat for treatment. Considering the gravity of injuries, surgeries were performed through team of Orthopedic Surgeon, Plastic Surgeon and Vascular Surgeon and his left leg was amputed from thigh. For the said Page 2 of 11 Downloaded on : Thu Sep 29 20:35:40 IST 2022 C/FA/2507/2007 JUDGMENT DATED: 23/09/2022 accident, a claim petition was filed through parents of minor Digvijaysinh seeking compensation of Rs.10,00,000/-. It was case of the original claimant that the accident occurred on account of sole negligence of the driver of the truck.
Upon claim petition being filed, the learned tribunal issued Notices to the respondents. The respondent - Insurance Company filed written statement. The learned Tribunal after hearing the parties and on appreciation of evidence, held driver of the truck 100% negligent and awarded total compensation of Rs.9,12,600/- under different heads, as under:
Future loss of income Rs.4,89,600/-
Medical Treatment Rs.1,70,000/-
Attendant, transportation and special diet Rs. 28,000/-
charges
Actual loss of income Rs. 25,000/-
Pain, shock and suffering Rs.1,00,000/-
Future Expenses Rs.1,00,000/-
Total compensation Rs.9,12,600/-
The learned Tribunal awarded total compensation of Rs.9,12,600/- with interest at the rate of 9% per annum from the date of filing of claim petition till realization, with proportionate costs. Page 3 of 11 Downloaded on : Thu Sep 29 20:35:40 IST 2022
C/FA/2507/2007 JUDGMENT DATED: 23/09/2022 Aggrieved by the quantum of compensation awarded, present appeal is filed by the appellant- Insurance company under section 173 of the Motor Vehicles Act,1988.
3. Heard Mr.Anal Shah, learned advocate for the appellant- Insurance company and Mr.Paresh Darji, learned advocate for the respondent- original claimant. As liability has not been denied, presence of other respondents is not required for deciding this appeal. This appeal was admitted by co-ordinate bench of this Court on 26/06/2007.
4. Appearing for the appellant, Mr.Anal Shah, learned advocate submitted that the impugned judgement and award passed by the learned Tribunal is erroneous, on the following grounds:
(i) Learned Tribunal has committed a serious error in considering disability of minor Digvijaysinh to the extent of 85%. As per Doctor's Certificate at Exh.57, 85% was assessed for lower left limb and therefore, as per second schedule to the act, the disability ought to have been considered, for body as a whole to the extent of 35% instead of 85%.
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C/FA/2507/2007 JUDGMENT DATED: 23/09/2022 (ii) He relied upon decision of Hon'ble Supreme Court in the
case of Mallikarjun vs. Divisional Manager, National Insurance Company Limited and another reported in (2014)14 SCC 396, and submitted that the Hon'ble Supreme Court has held that for the disability up to 60%, compensation of Rs.4,00,000/-, would be appropriate. In this case, disability ought to have been considered by the tribunal at 34%, which is less than 60% and therefore, compensation of Rs.4,89,600/-
awarded towards future loss of income, is much higher.
(iii) Learned Tribunal has erred in awarding amount of Rs.25,000/- towards actual loss of income in case of minor. Admittedly, the minor was 8 years old at the time of accident and was studying in Class II, having no income proof.
(iv) As far as compensation awarded under other heads namely Medical treatment, attendant-transportation, special diet, future expenses and pain, shock and suffering, he fairly submitted that the same is in consonance with the decision of Hon'ble Supreme Court in case of National Insurance Company Limited vs. Pranay Sethi and Others reported in (2017) 16 SCC 680 and does not call for any adjudication. Page 5 of 11 Downloaded on : Thu Sep 29 20:35:40 IST 2022
C/FA/2507/2007 JUDGMENT DATED: 23/09/2022 (v) In relation to negligence, he submitted that the same is based
on appreciation of evidence on record and therefore does not press the said ground.
He, thus submitted that the impugned judgement and award being erroneous on the aspect of quantum, the compensation may be reduced and this appeal may be allowed.
5. On the other hand, Mr.Paresh Darji, learned advocate for the respondent- original claimants submitted that the learned Tribunal has awarded less compensation and it does not call for any interference. He further submitted that Certificate of Doctor at Exh.57, is in relation to amputation of left leg of minor from upper part of the left thigh and this being a case of loss of body part, consideration of disability as body as a whole, does not arise. In case of amputation, schedule to assess the disability would not be applicable. Referring to findings recorded by the Tribunal, he submitted that this is a case where minor was taken to the hospital in very critical condition. Condition of minor was such, 5 bottles of blood were infused and thereafter, operation was performed by team of Orthopedic Surgeon, Plastic Surgeon and Vascular Surgeon. For every dressing, anesthesia was required to be given to minor of 8 years. He further submitted that in case of amputation or similar kind of disability, Page 6 of 11 Downloaded on : Thu Sep 29 20:35:40 IST 2022 C/FA/2507/2007 JUDGMENT DATED: 23/09/2022 functional disability is required to be seen. He submitted that as left leg was amputed from thigh, which amounts to 100% functional disability and therefore, learned Tribunal has correctly assessed permanent partial disability to the extent of 85%. He submitted that this is not a case wherein disability is required to be reduced based on the Second Schedule.
Referring to the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt) & Ors. v. Delhi Transport Corporation & Anr. (2009) 6 SCC 121 and National Insurance Company Limited v. Pranay Sethi & Ors. (2017) 16 SCC 680, he submitted that though the appellant would be entitled for future prospective income, the same was not awarded by the learned Tribunal. As the minor was 8 years at the time of accident, multiplier of 18 would apply instead of 16. He thus submitted that this is not a case where compensation awarded by the tribunal is on higher side, which require reduction as submitted by learned advocate for the appellant. He, thus submitted to dismiss the appeal of the appellant- insurance company.
6. Heard learned advocates for the respective parties and also perused the record and proceedings.
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C/FA/2507/2007 JUDGMENT DATED: 23/09/2022
7. Upon re-appreciation of the evidence on record, on the aspect of compensation, it is noticed that the Tribunal has recorded circumstances, under which the minor was taken to the hospital, his condition at the relevant time and surgeries performed on 8 years boy through team of surgeons. It is also on record that the minor is the only son whose future got disturbed. The tribunal has recorded that minor is being deprived of natural pleasures of walking, running, playing, climbing, etc. for his entire life. His marriage prospects are substantially diminished. It is quite understood that there will be permanent inconvenience/ hardships, which causes mental stress for the life. If the functional disability is considered, I am in agreement with the submissions of learned advocate for the original claimant that, in this case it is on higher extent, which resulted into reduction in earning capacity for life time.
8. It is true that for assessing future loss of income at Rs.4,89,600/-, the tribunal assess income of minor at Rs.3000/- per month and after considering 85% disability, applied multiplier of 16. In the case of Mallikarjun (supra) the Hon'ble Supreme Court has held that in case of a minor up to 90% disability, compensation of Rs.5,00,000/- would be appropriate in addition to the actual expenditure for treatment, Page 8 of 11 Downloaded on : Thu Sep 29 20:35:40 IST 2022 C/FA/2507/2007 JUDGMENT DATED: 23/09/2022 attendant, etc. Moreover, in this case the tribunal has not awarded compensation for future prospective income and multiplier of 16 was applied instead of 18. Therefore, in my opinion compensation awarded towards future loss of income of Rs. 4,89,600/- cannot be said to be excessive which calls for interference of this court. In the same manner the compensation awarded of Rs. 25,000/- towards actual loss of income, is too small to be interfered with.
Further, in facts of this case ,where a minor lost his limb for no fault of him in my opinion, learned Tribunal has rightly awarded Rs.1,70,000/- towards medical treatment; Rs.28,000/- towards attendant, transportation and special diet charges; Rs.1,00,000/- towards pain, shock and suffering and Rs.1,00,000/- towards future expenses. In all, learned Tribunal has awarded total compensation of Rs.9,12,600/-.
At this juncture it would be worthy to refer to the decision of Hon'ble Supreme Court in case of Mallikarjun vs. Divisional Manager, National Insurance Company Limited and another (supra), wherein it is held in Para-8 as under:
"8. While considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the Second Schedule to the Page 9 of 11 Downloaded on : Thu Sep 29 20:35:40 IST 2022 C/FA/2507/2007 JUDGMENT DATED: 23/09/2022 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. The 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."
Applying same principle, that 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 Page 10 of 11 Downloaded on : Thu Sep 29 20:35:40 IST 2022 C/FA/2507/2007 JUDGMENT DATED: 23/09/2022 out of the disability. Therefore, in my opinion, this is not a case, wherein learned Tribunal has awarded excessive compensation which requires reduction as contended by the appellant- insurance company.
9. For the reasons aforesaid, the appeal of the Insurance Company being meritless, is hereby dismissed.
10. Registry is directed to transmit back the Record and Proceedings of the case to the concerned Tribunal forthwith. However, there shall be no order as to costs.
sd/-
(MAUNA M. BHATT,J) DIPTI PATEL Page 11 of 11 Downloaded on : Thu Sep 29 20:35:40 IST 2022