Minor Dhananjay Pravinbhai Lathiya vs Hasmukhbhai Hemrajbhai Adroja

Dr. Ashokkumar C. Joshi, J

This is an appeal filed under Section 173 of the Motor Vehicles Act, 1988 (MV Act) by appellant – Minor Dhananjay Pravinbhai Lathiya, through his natural guardian and mother - Gitaben Pravinbhai Lathiya, challenging the judgment and award dated 05.11.2019 passed in Motor Accident Claim Petition No. 230 of 2017 by the learned Motor Accident Claims Tribunal (Auxiliary) and 14th Additional District Judge, Rajkot, whereby, against the claim of Rs.3 lakh for the injuries sustained by the original claimant - minor in an accident that had occurred on 28.01.2017, the Tribunal has awarded an amount of Rs.38,000/- with 9% interest per annum from the date of filing the claim petition till realization holding the opponents therein jointly and severally liable to pay the compensation. Accordingly, the appellant – claimant has filed this appeal for enhancement of compensation.

Though served, none has appeared for the respondent No. 1 – the owner of the offending vehicle. Accordingly, heard, learned advocate Mr. Nishit A. Bhalodi for the appellant and learned advocate Mr. Rathin Raval for the respondent No. 2 – insurance company.

The sole contention that has been raised by the learned advocate for the appellant in this appeal is that though the Tribunal was apprised about the decision of the Apex Court in Mallikarjun V. Divisional Manager, The National Insurance Company Limited and Others, MANU/SC/0878/2013, the Tribunal has not considered the same and accordingly, he has urged to enhance the compensation in view of the aforesaid decision and thereby, to allow this appeal.

As against this, Mr. Rathin Raval, the learned advocate for the respondent No. 2 – insurance company, while resisting this appeal, has submitted that the appellant – injured is a minor and considering all the aspects of the matter, the Tribunal has awarded the compensation, which is just and proper and accordingly, it is requested that this Court may not interfere in the impugned judgment and award and eventually, it is requested to dismiss this appeal.

Regard being had to the submissions made and considering the impugned judgment and award, it appears that in a vehicular accident, the appellant, a minor had sustained severe multiple injuries on his head, legs, hands, waist etc. and had to avail treatment as an indoor patient for about 10 days. He also had to undergo regular treatment at intervals. The permanent disability of the appellant – claimant was assessed at 8% for the body as a whole. Considering the same as well as the age, period undergone in hospital and other such aspects, the Tribunal has awarded a sum of Rs.38,000/- towards compensation.

5.1 In the aforesaid backdrop, if the decision of the Apex Court in Mallikarjun (supra), is referred to, it is held that:

“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. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents.”

5.2 Thus, as per the above pronouncement, if the disability is upto 10%, appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be Rs.1 lakh. As referred to herein above, the Tribunal has awarded a sum of Rs.38,000/- under different heads, however, in view of the aforesaid decision of the Apex Court, the Tribunal has manifestly erred in awarding the just compensation and accordingly, this appeal requires favourable consideration.

In the aforesaid view of the matter, this appeal succeeds and is accordingly allowed in part. The impugned judgment and award is modified in view of the decision of the Apex Court in Mallikarjun (supra) and it is held that the appellant – claimant shall be entitled to the compensation as under:

Head

Compensation (Rs.)

Future loss of income

18,000/-

Actual Medical Expenses

10,000/-

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.

1,00,000/-

Total

1,28,000/-

6.1 The respondent No. 2 – insurance company is directed to deposit the difference amount of Rs.90,000/- (Rs.1,28,000-38,000) within a period of 30 days. The appellant – claimant shall be entitled to interest @ 6% per\ annum, on such enhanced amount of compensation from the date of claim petition till realization. Rest of the impugned judgment and award is not disturbed. R&P, if received, be sent back forthwith to the Tribunal\ concerned.