Gujarat High Court
Minor Hansraj Jumma Koli vs Paschim Gujarat Vij Company Ltd on 7 July, 2016
Bench: M.R. Shah, A.S. Supehia
C/FA/1282/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 1282 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH sd/
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA sd/
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1 Whether Reporters of Local Papers may be allowed to see NO
the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any
order made thereunder ?
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MINOR HANSRAJ JUMMA KOLI....Appellant(s)
Versus
PASCHIM GUJARAT VIJ COMPANY LTD....Defendant(s)
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Appearance:
MR.HIREN M MODI, ADVOCATE for the Appellant(s) No. 1
MR J V BHAIRAVIA, ADVOCATE for the Defendant(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 07/07/2016
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) 1.0. Admit. Shri Jayesh Bhairavia, learned advocate waives service of notice of admission on behalf of the respondent. In the facts and circumstances of the case and with the consent of the learned advocates for the respective parties, present appeal is taken up for final hearing today. As the issue involved in a very narrow compass and as such covered by the decision of the Hon'ble Supreme Court Page 1 of 6 HC-NIC Page 1 of 6 Created On Tue Jul 12 00:51:18 IST 2016 C/FA/1282/2016 JUDGMENT in the case of Master Mallikarjun vs. Divisional Manager, The National Insurance Company Limited reported in (2014) 14 SCC
396. 2.0. Feeling aggrieved and dissatisfied with the impugned judgment and decree passed by the learned Principal Senior Civil Judge, Kutch at Bhuj passed in Special Civil Suit No. 143 of 2010, by which, the learned Judge has partly decreed the said suit and has awarded a total sum of Rs. 2,50,000/ to the original plaintiff towards compensation for the injuries and the permanent partial disability sustained by the minor Hansraj, the original plaintiff has preferred present First Appeal.
3.0. That on 06.06.2009 minor Hansarj - son of the original plaintiff sustained serious injuries and permanent partial disability due to electrocution. At the time of accident, the minor was aged 11 years. He sustained serious injuries and his right hand was required to be amputated from elbow and his left hand thumb was also required to be cut. Therefore, as such injured sustained 100% permanent partial disability and therefore, the minor through his father filed the aforesaid Special Civil Suit claiming Rs. 43,60,000/ towards compensation.
3.1. That on appreciation of evidence and considering the permanent partial disability of the body as a whole at 93%, by impugned judgment and decree the learned Tribunal has awarded a total sum of Rs. 2,50,000/ in all including Rs. 1,50,000/ towards future loss of income and Rs. 1,00,000/ under different Page 2 of 6 HC-NIC Page 2 of 6 Created On Tue Jul 12 00:51:18 IST 2016 C/FA/1282/2016 JUDGMENT heads with 7% interest thereon.
3.2. Feeling aggrieved and dissatisfied with the impugned judgment and decree passed by the learned trial Court in awarding Rs. 2,50,000/ only towards compensation for the injuries sustained by the injured - permanent partial disability sustained by him, the original plaintiff has preferred present First Appeal.
4.0. Shri Hiren Modi, learned advocate for the appellant has vehemently submitted that the learned trial Court has materially erred in awarding Rs. 2,50,000/ only towards compensation for the injuries and permanent partial disability sustained by the minor.
4.1. It is vehemently submitted by Shri Modi, learned advocate for the appellant that at the time of accident minor was aged 11 years and because of the electrocution his one hand from elbow was required to be amputated and his left hand thumb was required to be cut and therefore, as such he sustained 93% permanent partial disability of body as a whole, it shall be considered as 100% so far as earning capacity is concerned, the amount awarded by the learned trial Court cannot be said to be just compensation.
4.2. Relying upon the decision of the Hon'ble Supreme Court in the case of Master Mallikarjun (supra), it is vehemently submitted by Shri Modi, learned advocate for the appellant that claimant shall be entitled to at least Rs. 6,00,000/. It is submitted Page 3 of 6 HC-NIC Page 3 of 6 Created On Tue Jul 12 00:51:18 IST 2016 C/FA/1282/2016 JUDGMENT that over an above, the claimant shall also be entitled to compensation towards pain, shock and suffering.
4.3. It is further submitted by Shri Modi, learned advocate for the appellant that the learned trial Court has materially erred in awarding interest at the rate of 7% p.a. It is submitted as per the catena of decisions of the Hon'ble Supreme Court as well as this Court and accident had occurred in the year 2009, the learned trial Court ought to have awarded interest at the rate of 9% p.a. Making above submissions and relying upon the above decisions, it is requested to allow the present First Appeal accordingly.
5.0. Shri Jayesh Bhairavia, learned advocate has appeared on behalf of the respondent. He is not disputing and he is not in a position to dispute that minor sustained serious injuries relating into permanent partial disability due to electrocution. He is also not in a position to dispute and is not disputing that because of the electrocution the minor sustained serious injuries and permanent partial disability to the extent of 93% of the body as a whole as his right hand from elbow was required to be amputated and his left hand thumb was required to be cut. However, has submitted that as injured was minor aged 11 years and he was not earning at all in the facts and circumstances of the case the amount awarded by the learned trial Court can be said to be just compensation. However, ultimately considering the decision of the Hon'ble Supreme Court in the case of Master Mallikarjun (supra) he has left it to the Court and has requested to award just compensation which deems fit.
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C/FA/1282/2016 JUDGMENT
6.0. Heard the learned advocates for the respective parties at length. As observed herein above, it is not in dispute that the minor sustained serious injuries has resulted into permanent partial disability to the extent of 93% of the body as a whole and as his right hand from the elbow is amputated and his left hand thumb was required to be cut. At the time of accident minor was aged 11 years. Under the circumstances, as such it is very difficult to award compensation to be awarded to minor. However, in the case of Master Mallikarjun (supra) the Hon'ble Supreme Court had occasion to consider the aspect of compensation to be paid to the minor due to permanent partial disability sustained by the minor. After considering the various decisions of the Hon'ble Supreme Court, ultimately the Hon'ble Supreme Court has observed and held that appropriate compensation on all other heads in addition to 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 Rs. 1 lakh; unless there are exceptional circumstances to take different yardstick. Considering the aforesaid decisions of the Hon'ble Supreme Court and as disability is above 90%, the claimant shall be entitled to Rs. 6 lakhs with 9% interest thereon from the date of filing of the suit till realization.
6.1. To the aforesaid extent, impugned judgment and decree passed by the learned trial Court is required to be modified and the present appeal is required to be partly allowed to the aforesaid extent.
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C/FA/1282/2016 JUDGMENT
7.0. In view of the above and for the reasons stated above, present appeal succeeds in part. The impugned judgment and decree passed by the learned Principal Senior Civil Judge, Kutch at Bhuj passed in Special Civil Suit No. 143 of 2010 is hereby modified to the extent and it is held that the original claimant shall be entitled to total sum of Rs. 6 lakhs with 9% interest thereon from the date of filing of the suit till realization. Now, balance enhanced amount to be deposited by the respondent with the learned trial Court within the period of 8 weeks from today and on such deposit, the learned trial Court is directed to invest the same in the Fixed Deposits in the name of minor initially for a period of five years. There shall not be any loan and / or advance on the said Fixed Deposits without prior permission of the Court. However, claimant shall be entitled to withdraw the periodical interest on the same, which shall be utilized for the better education of the minor. Present appeal is partly allowed to the aforesaid extent. No costs.
sd/ (M.R.SHAH, J.) sd/ (A. S. SUPEHIA, J.) Kaushik Page 6 of 6 HC-NIC Page 6 of 6 Created On Tue Jul 12 00:51:18 IST 2016