MINOR RASHIDA MOHMEDALI ISAP THROUGH HER GUARDIAN AND NEXT FRIEND v. RASIKLAL MANILAL RAVAL AND OTHERS
1993-09-28
J.N.BHATT, V.H.BHAIRAVIA
body1993
DigiLaw.ai
J. N. BHATT, J. ( 1 ) THE adequacy of the amount of compensation of Rs. 29 0 awarded to the appellant/original claimant in Motor Accident Claim Petition No. 23 of 1982 is questioned before us in this appeal. ( 2 ) THE claim for compensation arose out of an accident which occurred on 6-5-1981 at about 7 a. m. near Nabipur Bus Stand in Bharuch District. Minor claimant Rashida was violently knocked down by the driver of the motor tempo No. G. R. T. 5077 resulting into serious injuries on the right hand left other parts of the minor claimant. Ultimately her left leg came to be amputed above knee. She claimed an amount of Rs. 89 0 by way of compensation from the driver owner and insurer of the offending tempo. The claimant was hardly 12 years at the relevant time and she was studying in VIII standard. ( 3 ) ON appreciation of the facts and circumstances the Tribunal reached to the conclusion that the original opponent- No. 1 driver of the tempo was rash and negligent and responsible for the accident and resultant injuries to the minor. The Tribunal awarded an amount of Rs. 25 0 for amputation of leg under the head of pain shock and sufferings and an additional amount of Rs. 4 0 for medical expenses transport charges and other sundry expenses also came to be awarded. Thus the claimant was awarded Rs. 29 0 by way of compensation under both the heads from all the opponents with interest at the rate of 6% per annum from the date of the application till realisation with proportionate costs. ( 4 ) BEING aggrieved by the judgment and award passed in the said claim petition by the Motor Accident Claims Tribunal (Auxiliary) Bharuch on 28 the original claimant has come up in this appeal for enhancement of the amount of award and the claim is restricted to Rs. 60 0 ( 5 ) THE Tribunal has awarded an amount of Rs. 4 0 for medical expenses transport charges special diet etc. which to us it appears to be justified in the circumstances. Therefore we confirm the said amount of award under the said head. ( 6 ) HOWEVER the amount of compensation of Rs.
60 0 ( 5 ) THE Tribunal has awarded an amount of Rs. 4 0 for medical expenses transport charges special diet etc. which to us it appears to be justified in the circumstances. Therefore we confirm the said amount of award under the said head. ( 6 ) HOWEVER the amount of compensation of Rs. 25 0 under the head of pain shock and sufferings in our opinion appears to be little conservative and insufficient in the facts and circumstances of the case and particularly in view of the sharp fall in value of rupee. It is true that the Tribunal has relied on a decision of this Court rendered in the case of Amul Rameshchandra v. Abbasbhai reported in XIX GLR 721 wherein the claimant who was a young boy aged 12 suffering from serious injuries resulting into amputation of right leg above ankle was awarded conventional global amount of Rs. 25 0 for pain shock and suffereings and loss of enjoyment and amenities of life. In the facts and circumstances of the present case and considering the sharp fall in value of rupee the amount of Rs. 25 0 cannot be said to be adequate and sufficient. ( 7 ) IN order to appreciate the merits of this appeal for enhancement of compensation following facts may be mentioned : the minor claimant Rashida was only 12 years old at the relevant time and she had sustained serious injuries on her right hand left leg and other parts of her body on account of dashing of the offending tempo. She was immediately shifted to Civil Hospital Bharuch for treatment. Thereafter se was shifted to S. S. G. Hospital Baroda for further treatment. Unfortunately she was allowed to go from S. S. G. Hospital Baroda after preliminary treatment with an advice to visit the hospital after a period of 15 days for check up. She went to S. S. G. Hospital Baroda for check up again after 20 days that is on 20-5-1981. It is an admitted fact that at that time she was admitted as an indoor patient in the hospital and operation was performed on 23-5-1981. It is also an admitted fact that there is also amputation of left leg of minor Rashida above knee. She was discharged from the hospital on 10-6-1981.
It is an admitted fact that at that time she was admitted as an indoor patient in the hospital and operation was performed on 23-5-1981. It is also an admitted fact that there is also amputation of left leg of minor Rashida above knee. She was discharged from the hospital on 10-6-1981. According to the medical evidence the minor claimant has sustained permanent partial disablement in the left leg to the extent of 6% on account of amputation of leg above knee. ( 8 ) IN view of the aforesaid admitted facts it becomes crystal clear that a minor girl aged about 12 years at the time of the accident will be deprived of many pleasures and amenities of life. Looking to the nature and number of injuries period of treatment the extent of permanent partial disablement and the tender age of a female coupled with the facts that the prospects of such a victim in the matrimony are affected and the substantial effect on the academic life while viewed in the light of the sky-rocketing prices and significant fall in purchasing power of a rupee we are of the opinion that the claimant should be awarded Rs. 40 0 instead of Rs. 25 0 for pain shock and sufferings and loss of amenities and pleasures of life. Thus the claimant would be entitled to an additional amount of Rs. 15 0 under this head. ( 9 ) NEXT it brings into sharp focus the amount under the head of pecuniary loss. As has been often said such loss is ispo facto is divisible into two categories - one negative and another positive. In the first category falls the deprivation of earnings or other items which would have been received but for the accident and have now been taken away. In the second category is comprised the new positive burden of expenses required to be incurred as a result of the accident. For the assessment under the first sub-head an estimate of the probable future earnings had there been no accident and the actual earning power after the accident has to be made and the difference between the two is the loss of earning capacity which will have to be justly compensated in terms of money. We may reiterate that what we assess and evaluate is not the loss of life or limb which is otherwise invaluable.
We may reiterate that what we assess and evaluate is not the loss of life or limb which is otherwise invaluable. We assess and estimate only the economic loss or prospective loss which the claimant has been suffering and will be suffering and the anxiety of the court under these circumstances is always to see that the victims of such road accident are placed in the same financial position as they would have been had there been no road accident. So at times it is an assumption and evaluation in which the uncertainties and imponderables are inherent. ( 10 ) IT may be mentioned that we have often said that in the circumstances such as we have in the present case the best method to adopt would be to make a global assessment under the head of pecuniary loss so as to award a just and reasonable amount of compensation. The Court has to find out the extent of disablement and its resultant impact on the earning capacity. The principles governing the amount of compensation on this count are extensively explored and very well settled. Considering the facts and circumstances and the relevant principles we are of the opinion that the claimant is likely to suffer at least an economic loss of Rs. 150 per month on account of the permanent partial disablement and amputation of left leg. It appears to us having regard to the facts and circumstances and evidence on record that if the pecuniary loss of the claimant is assessed at Rs. 150 per month the annual loss would come to Rs. 150 x 12 = Rs. 1800 and this being a case of a female of 12 years obviously we would like to adopt 15 multipliers. Therefore the I claimant would be entitled to Rs. 1800 x 15 = Rs. 27 0 under the head of pecuniary loss and it would take care of every conceivable relevant factors including the uncertainties and imponderables of life.
1800 and this being a case of a female of 12 years obviously we would like to adopt 15 multipliers. Therefore the I claimant would be entitled to Rs. 1800 x 15 = Rs. 27 0 under the head of pecuniary loss and it would take care of every conceivable relevant factors including the uncertainties and imponderables of life. Unfortunately the impugned judgment and award of the Tribunal is conspicuous by absence of any amount of compensation under this head for which no reasons are assigned With due respect such an approach in spite of the fact that law is extensively explored and examined by catena of judicial pronouncements is not only indicative of non-application of mind but is illegal Be as it may The claimant is found entitled to at least an amount of Rs. 27 0 under the head of future pecuniary loss. ( 11 ) THE Tribunal has awarded interest at the rate of 6% per annum only from the date of the application till realisation. In our opinion the view of the Tribunal in absence of any specific reasons for not awarding higher rate of interest is unsustainable. This Division Bench (Coram : V. H. Bhairavia and J. N. Bhatt JJ.) awarded interest at the rate of 15% per annum on the amount of compensation from the date of the application till realisation in the case of Mohanbhai Gemabhai v. Balubhai Savjibhai in First Appeal No. 1316 on 28-9-1992 relying on the decision of the Supreme Court in the case of Rukmani Devi v. Om Prakash reported in 1991 A. C. J. 3. We have also followed the said decision later on in First Appeal Nos. 948 of 1983 (decided on 16-10-1992) 917 (decided on 16-10-1992) 878 (decided on 15 etc. ( 12 ) WE may mention that the learned Counsel for the opponent-insurer has contended that the claimant should not be awarded enhanced rate of interest on the amount of the entire amount. He has further contended that the amount awarded by the Tribunal has already been deposited and paid to the claimant and therefore also the enhanced rate of interest should be awarded only on the enhanced amount of compensation We are neither impressed nor convinced by this contention. It was also argued by the learned Counsel Mr.
He has further contended that the amount awarded by the Tribunal has already been deposited and paid to the claimant and therefore also the enhanced rate of interest should be awarded only on the enhanced amount of compensation We are neither impressed nor convinced by this contention. It was also argued by the learned Counsel Mr. Trivedi for the opponent-insurer that the claimant has not specifically prayed for higher rate of interest in the memo of appeal and therefore higher rate of interest cannot be awarded and if awarded should not be awarded on the entire amount of compensation These contentions are without substance Wide discretion is given to the Tribunal or Court concerned for awarding interest under Section 171 of the Motor Vehicles Act 1988 (Section 110-CC of the Old Act) for award of interest There is no fetter on the discretion of the Tribunal except that the interest shall not be awarded before the date of making the application for compensation. In view of the settled proposition of law while viewed in the light of the facts and circumstances of the present case the aforesaid contentions relating to the award of enhanced rate of interest on the entire amount of compensation is totally meritless and are hereby rejected. ( 13 ) IN view of the entire conspectus of the factual scenario and settled proposition of law the claimant is found entitled to in aggregate an amount of Rs. 71 0 by way of compensation instead of an amount of Rs. 29 0 awarded by the Tribunal Thus the claimant is found entitled to an additional amount of compensation of Rs. 42 0 We therefore hold that the claimant is found entitled to in aggregate under both the heads a sum of Rs. 71 0 by way of compensation with interest at the rate of 15% per annum from the date of the application till realisation with costs the break-up of which is as follows : Head Amount awarded Additional Total Amount by Tribunal Amount awarded by this Court Pain shock and sufferings Rs. 25,000 Rs. 15,000 Rs. 40,000 loss of amenities and enjoyment of life For medical expenses special Rs. 4,000 - Rs. 4,000 diet transport charges etc. For future economic loss - Rs. 27,000 Rs. 27,000 Rs. 29,000 Rs. 42,000 Rs.
25,000 Rs. 15,000 Rs. 40,000 loss of amenities and enjoyment of life For medical expenses special Rs. 4,000 - Rs. 4,000 diet transport charges etc. For future economic loss - Rs. 27,000 Rs. 27,000 Rs. 29,000 Rs. 42,000 Rs. 71,000 as could be seen from the aforesaid table that in this appeal the original claimant is found entitled to an additional amount of Rs. 42 0 with interest at the rate of 15% per annum on the entire amount of Rs. 71 0 from the date of the application till realisation minus the amount of interest which is already paid to the claimant at the rate of 6% per annum from the date of the application till the date of payment with costs. ( 14 ) BEFORE parting we hereby direct that the entire additional amount including the interest and cost awarded by us in this appeal to the claimant shall be invested in Fixed Deposit Receipt of any nationalised bank or in any government security of the choice of the claimant for a period not less than 96 months and the receipt evidencing the deposit shall be deposited with the Nazir of the Tribunal which shall bear the endorsement that no loan or encumbrance or charge shall be made on the said security without the prior approval of the Tribunal. Out of the aforesaid amount half amount shall be invested in such a way that the claimant could be paid periodical interest and the remaining half shall be invested in such a way that the interest shall accumulate. These directions are issued for the utmost protection of the claimant who obviously would not have required physical discipline to make best use of the amount awarded with cost and interest. ( 15 ) IN the result the appeal is partly allowed to the aforesaid extent with proportionate costs. (DKM) Appeal partly allowed. .