Salimbhai Ibrahimbhai Chanda v. Shantilal Harkhabhai Vankar
2019-01-23
S.G.SHAH
body2019
DigiLaw.ai
JUDGMENT : S.G. Shah, J. Heard learned advocate Mr. M. I. Mansuri appearing with Mr. Mohsin M. Hakim for the appellant and learned advocate Mr. H.C. Naidu for the respondent No.3. 2. Since the appeal is mainly for quantum of compensation and non-reliance of the decision of Hon'ble Supreme Court of India in the case of Mallikarjun Vs. Divisional Manager, National Insurance Company Ltd. & Anr. reported in, (2014) 14 SCC 396 , the matter can be disposed of at such admission stage itself. Therefore, when appeal is only on the ground of quantum of compensation, the notice upon respondents No.1 and 2 - driver and owner, has been waived relying upon the decision of A. Robert Vs. United India Insurance Co. Ltd., (1999) AIR SC 2977. It is to be recollected here that none of the original opponents being driver, owner and insurer of the vehicle, which was involved in the accident, have challenged the award and therefore, it is clear and certain that there is no dispute regarding nature of accident, its result and liability of the Insurance Company to pay compensation to the victim of road accident by indemnifying the owner of the vehicle. Therefore, minute details of all such facts are not reproduced herein, since it is well described in impugned judgment as well as in the pleadings. 3. However, it may be recollected here that appellant - original injured claimant was injured in a vehicular accident that took place on 22.1.2004 when driver of the Jeep No.GJ-17C-3454 has driven his vehicle rashly and negligently. Because of such driving, the Jeep turned turtle and the claimant, who was passenger in the Jeep had received several injuries. Even after appropriate treatment, the injuries have resulted into 23.5% permanent partial disability. It is agreed between the parties before the Tribunal to consider it as 9% for the body as a whole. The claimant was aged about 14 years at the time of accident and therefore, when he was minor, decision of Mallikarjun (supra) would be attracted for deciding just and reasonable compensation. The relevant paragraph being paragraph 12 of the said judgment is reproduced hereunder:- "12.
The claimant was aged about 14 years at the time of accident and therefore, when he was minor, decision of Mallikarjun (supra) would be attracted for deciding just and reasonable compensation. The relevant paragraph being paragraph 12 of the said judgment is reproduced hereunder:- "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." 4. Pursuant to such decision by the Hon'ble Apex Court, now, it becomes clear that when there is 9% disablement to the claimant, he is entitled to Rs.1 Lakh consolidated for different heads viz. pain and suffering already 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. The Hon'ble Supreme Court judgment further confirms that in addition to such amount of lump-sum Rs.1 Lakh, claimant would also be entitled to actual loss of earnings to the parents during the period of hospitalisation, medical and incidental expenses during the period of hospitalisation, so also future medical expenses, if there is necessity of further treatment. 5. Therefore, when Tribunal has awarded only Rs.49,160/- to the appellant - claimant, there is certainly scope of modifying such award pursuant to decision in the case of Mallikarjun (supra). For awarding Rs.49,160/-, the Tribunal has considered Rs.1,500/- as notional income of the minor - injured claimant and considering 9% disability, applied 18 as suitable multiplier for arriving at an amount of Rs.29,160/- towards future loss of income. The Tribunal has also awarded Rs.7,500/- towards pain, shock and suffering; Rs.7,500/- towards medicines and medical treatment; whereas, nothing has been awarded for actual loss of income considering that claimant was minor and not earning anything, but awarded Rs.5,000/- for attendant, transportation and special diet. 6. Learned advocate Mr.
The Tribunal has also awarded Rs.7,500/- towards pain, shock and suffering; Rs.7,500/- towards medicines and medical treatment; whereas, nothing has been awarded for actual loss of income considering that claimant was minor and not earning anything, but awarded Rs.5,000/- for attendant, transportation and special diet. 6. Learned advocate Mr. Naidu for respondent No.3 has, however, submitted that when Tribunal has awarded different amounts on all different heads and calculated the quantum of compensation in accordance with broad concepts for the purpose, there is no need to modify the award. 7. However, when there is a direct decision of Hon'ble Supreme Court of India, making it clear that in case of minor, there should be lump-sum amount of compensation as recorded herein above, it cannot be said that there is no scope of enhancement of compensation to the claimant only because Tribunal has awarded different amounts under different heads. It goes without saying that Tribunal has failed to appreciate the decision of Hon'ble Supreme Court of India in awarding just and reasonable compensation. 8. It cannot be ignored that Hon'ble Supreme Court of India has decided to award lump-sum amount of compensation under different heads considering the fact that for pain, shock and suffering alone, minimum Rs.15,000/- was awarded even before the year 1990 for simple fracture, even without disability. 9. In view of above facts and circumstances, it would be appropriate to modify the impugned award by awarding Rs. 1 Lakh towards pain and suffering already 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; Rs.7,500/- towards medicines and medical treatment; Rs.5,000/- for attendant, transportation and special diet. Thereby, the claimant is entitled to Rs.1,12,500/- in all with 9% interest from the date of application till its realisation. 10. The impugned award is modified accordingly. The First Appeal is partly allowed and disposed of accordingly. 11. R & P, if any received, be sent back to the concerned court forthwith.