Parag Jagdishkumar Natvarlal Jayaswal vs Yogeshkumar Jagdishbhai Jayswal

Dr. Ashokkumar C. Joshi, J

This is an appeal filed under Section 173 of the Motor Vehicles Act, 1988 (MV Act) by appellant – original claimant challenging the judgment and award dated 13.06.2019 passed in Motor Accident Claim Petition No. 972 of 2017 (Old No. 195 of 2008) by the learned Motor Accident Claims Tribunal (Auxiliary), Dahod at Limkheda, whereby, against the claim of Rs.1.20 lakh for the injuries sustained by the original claimant – a minor at the relevant point of time, in an accident that had occurred on 02.03.2008, the Tribunal has awarded an amount of Rs.34,750/- with 8% interest per annum from the date of filing the claim petition till 01.10.2014 and from the date of award 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 Nos. 1 and 2. Accordingly, heard, learned advocate Mr. Adnan Khan for learned advocate Mr. Mohsin M. Hakim for the appellant and learned advocate Mr. Mandeep Singh Saluja for the respondent No. 3 – insurance company.

The learned advocate for the appellant has mainly contended that the appellant – claimant had sustained 9% disability body as a whole, and accordingly, the Tribunal ought to have passed the award taking into consideration the law laid down by the Apex Court in Mallikarjun V. Divisional Manager, The National Insurance Company Limited and Others, MANU/SC/0878/2013, however, the Tribunal has not considered the same. The learned advocate for the appellant would also urge that the Tribunal has awarded a meager amount under other heads. Accordingly, it is urged to enhance the amount of compensation in view of the aforesaid decision and thereby, to allow this appeal.

As against this, Mr. Mandeep Singh Saluja, the learned advocate for the respondent No. 3 – insurance company, while resisting this appeal, has submitted that the appellant – injured was minor at the relevant time 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 at the relevant point of time, had sustained severe injuries and had to avail treatment as an indoor as well as outdoor patient. The permanent disability of the appellant – claimant was assessed at 9% for the body as a whole. Considering the same as well as the age, period undergone in hospital and other such aspects as well as considering the notional income of the appellant, the Tribunal has awarded a sum of Rs.34,750/- 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.34,750/- 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. Further, the compensation under the head of Special diet, Transportation and Attendant charges since appears to be on lower side, the same also requires to be enhanced suitably.

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.)

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/-

Actual Medical Expenses

2,000/-

Special Diet, Attendant and Transportation Charges

10,000/-

Total

1,12,000/-

Award of the Tribunal

34,750/-

Difference

77,250/-

6.1 The respondent/s concerned shall deposit the difference amount of Rs.77,250/- 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.