Research › Search › Judgment

Gujarat High Court · body

2023 DIGILAW 364 (GUJ)

VIJAYBHAI ANUBHAI v. RAHUL CHANDRAKANTBHAI

2023-02-23

GITA GOPI

body2023
JUDGMENT : GITA GOPI, J. 1. Both these appeals are filed by the appellants who, at the relevant time, while moving MACP no. 12/15 and MACP no. 13/15, were minors. They both have challenged the common judgment and award passed on 11.4.2019 by MACT (Main), Surendranagar making a prayer for enhancement of compensation money. 2. Ms. Ajmera, learned advocate for the claimants has stated that the claimants– minors had sustained physical disability and in MACP no. 12/15, the functional disability has been considered as 35% for the body as a whole, while in MACP no. 13/15, the learned Tribunal has considered functional disability as 13% of the body as a whole, as consented by both the sides. Ms. Ajmera submits that the learned Tribunal was required to follow the yardstick laid down in the case of Master Mallikarjun vs. Divisional Manager, The National Insurance Company Limited and Another, AIR 2014 SC 736 . 3. Per contra, learned advocate Mr. Rathin P. Raval submits that the learned Tribunal has considered the facts and evidence on record and the compensation granted is just and reasonable and thus, supporting the judgment, has made a prayer to dismiss the appeals. 4. The facts of the case suggest that on 21.11.2014, the appellant of MACP no. 12/15 was driving the motorcycle bearing registration no. GJ-13 K-3214 and the appellant of MACP no. 13/15 was a pillion rider. It was stated that they were on correct side of the road and motorcycle was driven at moderate speed and at about 6.00 p.m. when they reached near a mine area on Ratanpar-Rajkot bypass, opponent no. 2 came from the opposite side driving truck bearing registration no. GJ-15 XX-7030 in a rash and negligent manner in an excessive speed and dashed with the motorcycle of the appellants. As a result, both the appellants sustained injuries. 5. In cross-examination of the appellant of MACP no. 12/15, had admitted that he had no driving license and has admitted that the road on which the accident took place was having a traffic which was a wide road, where two vehicles could easily pass at a time and that there was head on collusion between the truck and the motorcycle. However, he had denied the suggestion that the motorcycle was driven at an excessive speed and because of that, the accident had occurred and the accident had occurred because of his negligence. However, he had denied the suggestion that the motorcycle was driven at an excessive speed and because of that, the accident had occurred and the accident had occurred because of his negligence. Considering the deposition, copy of the FIR, Panchanama and the charge-sheet and relying on the evidence of the complainant observing the fact that the truck driver has fled away from the place of occurrence, in corroboration with the damage to the front side of the motorcycle as well as on the truck and the blood stain on the middle of the road as could be reflected from the Panchnama Exh.43, the learned Tribunal came to the conclusion that the accident had occurred in the middle of the road and considering the fact that the motorcyclist, being a minor and was not holding the driving license, the learned Tribunal has attributed the negligence of 80% of the truck driver of truck bearing registration no. GJ-15 XX-7030 and 20% to the driver of the motorcycle bearing registration no. GJ-13 K-3214 who is the applicant of MACP No. 12/15. This Court does not find any reason to interfere with the conclusion drawn by the learned Tribunal in connection with issue no. 1. 6. In connection with the evidence further led by the claimants, the victim – injured of MACP no. 12/15 was aged about 16 years. He sustained injuries on head, face, right leg and left hand he was given primary treatment in C.U. Shah Medical College and Hospital, Surendranagar and thereafter, was admitted in Hope Neurocare Hospital, Ahmedabad, where he stayed as an indoor patient from 22.11.2014 to 29.11.2014. The evidence was given with regard to expenses made for medical treatment. Discharge card and medical reports were produced on record and further, the disability certificate issued by Dr. Y.D. Solanki, M.S. Ortho and Dr. Vijay Sheth, M.S. M.Ch. and the certificates were produced at Exhs.55 and 56 respectively. The Doctor had given the opinion about the permanent partial disability being 48% and 19% respectively for the body as a whole. However, on consent of both the sides, 35% functional disability has been considered by the Tribunal. Since the functional disability has been assessed on the basis of the consent, there is no reason to set aside the same. 7. While in MACP no. However, on consent of both the sides, 35% functional disability has been considered by the Tribunal. Since the functional disability has been assessed on the basis of the consent, there is no reason to set aside the same. 7. While in MACP no. 13/15, the claimant was 15 years of age and he too had suffered injuries on head and face and was given primary treatment in C.U. Shah Medical College and Hospital, Surendranagar and thereafter, he was taken to Hope Neurocare Hospital, Ahmedabad, where he stayed as an indoor patient from 22.11.2014 to 29.11.2014. The disability certificate of Dr. Vijay Sheth, M.S. M.Ch. was produced at Exh.57. Both the lawyers on record had consented for functional disability of 13% for the body as a whole. 8. In the case of Master Mallikarjun (supra), it has been observed by the Hon'ble Apex Court, while considering the claim by a victim child, has categorically held that it would be unfair and improper to follow the structured formula as per the Second Schedule to the M.V. Act for more than one reasons. The relevant observations are 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 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 nonearning 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. 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.” 9. 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.” 9. It has been brought to the notice that the yardstick which has been laid in the case of Master Mallikarjun (supra) has not been followed by the Tribunal. In Paragraph 12 of the judgment, the Hon'ble Apex Court has laid down the slab to be followed in the case of minor sustaining permanent disability: “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.” 10. In MACP No. 12/15, the minor sustained 35% functional disability and in MACP no. 13/15, the minor sustained 13% disability. Following the yardstick, the claimant of MACP no. 12/15 would be entitled to receive the amount of Rs.4,00,000/- while the claimant of MACP no. 13/15 would be entitled to receive amount of Rs.3,00,000/- under the head of 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 medical expenses of the claimant of MACP no. 12/15, which has been brought on record by way of Exh.49 is Rs.2,41,616/- while in MACP no. 13/15, the receipt at Exh.54 shows the expenses behind the medical treatment at Rs.78,100/-. 11. The learned Tribunal has not taken into consideration the fact that the parents could have suffered inconvenience during the period of hospitalization and expended for treatment and as there would be transportation expenses since both the minors were taken for primary treatment in C.U. Shah Medical College and Hospital and thereafter, to Hope Neurocare Hospital, where the minor was hospitalized from 22.11.2014 to 29.11.2014. Taking into consideration the fact that they were hospitalized for about 7 days in the hospital and considering the fact that though no evidence has been given regarding the income from the parents, but has stated that the claimant of MACP no. 12/15 was doing some water pouring work and miscellaneous work, the parents may be from a labour class and considering the loss of one month of the income and the expenses for the transportation, Rs.8,000/- under the head of discomfort, inconvenience and loss of earning to the parents is granted. 12. In MACP No. 12/15, the computation would be as under: 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. 4,00,000/- Discomfort, inconvenience and loss of earning to the parents during the period of hospitalization Rs. 8,000/- Medical expenses Rs. 2,41,616/- Total Rs. 6,49,616/- 13. 20% negligence has been attributed to the claimant of MACP No. 12/15 and 20% is to be deducted from the total amount and hence, the amount of Rs.1,29,923/- gets deducted from the compensation money. Hence, the claimant of MACP no. 12/15 would be entitled to Rs.5,19,693/-. 14. In MACP no. 13/15, the computation would be as under: 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. 3,00,000/- Discomfort, inconvenience and loss of earning to the parents during the period of hospitalization Rs. 8,000/- Medical expenses Rs. 78,100/- Total Rs. 3,86,100/- 15. The claimant of MACP no. 13/15 is entitled to total amount of Rs.3,86,100/- which the claimant, being a pillion rider, is entitled to recover from any of the tort feasor. 16. However, 20% negligence is attributed to the claimant of MACP no. 12/15 and since the learned Tribunal has apportioned the negligence aspect following the decisions in the cases of Khenyei vs. New India Assurance Co. Ltd. and Others, (2015) 9 SCC 273 and United India Insurance Company Ltd. vs. Makanlal Ramjibhai Dalsaniya and Others passed by this Court in Special Civil Application No. 2719 and 2767 of 2019 dated 3.5.2019, 20% amount comes to Rs.77,220/- which the insurance Company would recover the amount from the claimant of MACP no. 12/15. Ltd. and Others, (2015) 9 SCC 273 and United India Insurance Company Ltd. vs. Makanlal Ramjibhai Dalsaniya and Others passed by this Court in Special Civil Application No. 2719 and 2767 of 2019 dated 3.5.2019, 20% amount comes to Rs.77,220/- which the insurance Company would recover the amount from the claimant of MACP no. 12/15. Rs.77,220/- is to be deducted from the amount granted to claimant of MACP no. 12/15, hence, the insurance Company’s liability to pay in MACP no. 12/15 would be Rs.4,42,473/-. 17. The Tribunal has granted amount of Rs.3,93,400/- in MACP no. 12/15 with interest at the rate of 9% per annum, while in MACP no. 13/15, the Tribunal has granted amount of Rs.1,50,500/- with interest at the rate of 9% per annum. Hence, the enhanced amount of the compensation granted in MACP no. 12/15 is Rs.49,073/- which the insurance Company would be liable to deposit. In MACP no. 13/15, the enhanced amount would come to Rs.2,35,600/-. The insurance Company is directed to deposit the enhanced amount with interest at the rate of 7.5% per annum within eight weeks from the date of receipt of writ of this Court. 18. The judgment and award be modified accordingly. The appeal is partly allowed. Registry is directed to send the record and proceedings back to the Tribunal, if received.