HITESH NAGJIBHAI PATEL versus BABABHAI NAGJIBHAI RABARI & ANR.

Time taken for Time taken for Time taken for disposal of the disposal of the disposal of the claim petition by appeal by the High appeal in this Court MACT Court 8 years 3 months 2 years 6 months 5 months 6 days

p. 2430

Leave granted.

p. 2430

By way of the present appeal, the claimant-appellant challenges the Judgment and Order of the High Court of Gujarat at Ahmedabad passed on 20th August 2024, in R/First Appeal No.4863 of 2022, which, in turn, was preferred against the order dated 17th September 2021 in M.A.C.P. No.87 of 2017 passed by the Motor Accident Claims Tribunal (Auxi) & 3rd Additional District Judge – Banaskantha at Deesa.

p. 2430

On 14th October 2012, the minor appellant, namely, Hitesh Nagjibhai Patel aged 8 years, along with his father, was standing on a ‘kachcha’ road, when the offending vehicle bearing registration No. GJ-8V-3085, driven in a rash and negligent manner, hit the appellant who was standing on the roadside. As a result of the incident, the appellant sustained severe injuries and thereby, suffered permanent disability. The appellant, through his father, filed a claim petition against the respondents herein under Section 166 of the Motor Vehicle Act, 1988 , seeking compensation to the tune of Rs.10,00,000/- before the Tribunal.

pp. 2430–2431

The Tribunal, vide order dated 17th September 2021, while partly allowing the claim petition, held Respondent Nos.1 and 2 jointly and severally liable to compensate the appellant with an amount of Rs.3,90,000/- along with interest @ 9% per annum from the date of the claim petition. The Tribunal, by taking the view of the evidence on record, considered the permanent disability of the appellant at 30% and awarded an amount under the following heads : HEADS AMOUNT Pain and Suffering Rs.3,00,000/- Loss of Earning of Parents Rs.30,000/- Medical Expenses Rs.30,000/- Future Medical Expenses Rs.30,000/- Total Rs.3,90,000/-

p. 2431

Aggrieved by the quantum of compensation, the appellant approached the High Court by way of appeal under Section 173 of the Act, seeking an enhancement of the compensation amount. The High Court, vide the impugned judgment, allowed the appeal and enhanced the compensation amount by Rs.4,75,000/-, thus making the total compensation payable as Rs.8,65,000/- along with interest @ 9% per annum on the enhanced amount. The Court considered that the appellant suffered a permanent physical impairment/mental disability to the tune of 70% and, therefore, assessed the total permanent disability to the extent of 90%.

p. 2431

In view of the decision rendered by this Court in Mallikarjun v. Divisional Manager, National Insurance Company Limited and Anr. , the High Court modified the award rendered by the Tribunal and enhanced the compensation by Rs.4,75,000/-, in the following manner : S. No. PARTICULARS AMOUNT 1. Loss of amenities in life on Rs.5,00,000/account of disability 2. Pain and Suffering Rs.75,000/- 3. Loss of earnings to parents Rs.30,000/- 4. Future medical expenses Rs.30,000/- 5. Medical Bills Rs.30,000/- 6. Artificial Limb Rs.2,00,000/- Total Rs.8,65,000/-

pp. 2431–2432

Dissatisfied with the judgment and order passed by the Courts below, the appellant is now before us. The point of challenge taken is that the Courts below failed to award compensation under the head loss of earnings to the minor appellant. Further, the High Court erred in granting an adequate amount of compensation under pecuniary and non-pecuniary damages.

p. 2432

We have heard the learned counsel for the parties.

p. 2432

On the aspect of monthly income of the minor appellant, we are inclined to interfere with the judgment and order of the Courts below. In the present case, it is evident that the Courts below have failed to take into account the monthly income of the appellant while determining the quantum of compensation. It is now a well-entrenched and consistently reiterated principle of law that a minor child who suffers death or permanent disability in a motor vehicle accident, cannot be placed in the same category as a non-earning individual for the purposes of assessing the amount of compensation because the child was not engaged in gainful employment at the time of the accident. In such a case, the computation of compensation under the head of loss of income ought to be made by adopting, at the very least, the minimum wages payable to a skilled workman as notified for the relevant period in the respective State where the cause of action arises. The said observation was rendered by this Court, in Kajal v. Jagdish Chand and Ors. , and Baby Sakshi Greola v. Manzoor Ahmad Simon and Anr. .

p. 2432

Adverting to the facts at hand, the appellant was an 8-year-old child at the time of the accident. In view of the above exposition of law, we must advert to the prevailing minimum wages, which for the skilled ones, as in the year of accident, i.e., 2012, in Gujarat would be Rs.227.85p. per day, therefore, in the interest of justice, we deem it appropriate to determine the income of the appellant as Rs.6,835.5p. per month, rounding off to Rs.6,836/- per month.

p. 2433

Coming to the assessment of disability suffered by the appellant, he sustained grievous and life-altering injuries on the head and left leg, resulting in a brain haemorrhage and amputation of the left lower limb. Upon examination of the disability certificate and other medical documents, as also considering the nature, extent and impact of the injuries, the High Court in para 6.4 of the impugned judgment, quantified the permanent functional disability of the appellant at 90%. Taking into account the direct correlation between the injuries sustained and the consequent loss of permanent functional disability suffered by the appellant, we are in agreement with the finding of the High Court that the permanent functional disability stands rightly fixed at 90%.

p. 2433

Lastly, with a view of awarding just and fair compensation, in the attending facts and circumstances of the case, we are also inclined to enhance the compensation towards other pecuniary heads in accordance with the settled principle of law.

p. 2433

In view of the aforesaid, the compensation now payable to the claimant-appellant would be recalculated as under: CALCULATION OF COMPENSATION Compensation Amount In Accordance with: Heads Awarded Monthly Income Rs.6,836/- Baby Sakshi Greola v. Manzoor Ahmad Simon and Another, Yearly Income Rs.82,032/- (2022) 7 SCC 738 Para 10 Future Prospects 82,032 + 32,813 National Insurance Co. (40%) = Rs.1,14,845/- Ltd. v. Pranay Sethi Multiplier (18) Rs.1,14,845/- X (2017) 16 SCC 680 18 Para 42 and 59 = Rs.20,67,210/- Permanent 90% of Mohd. Sabeer v. U.P. Disability (90%) Rs.20,67,210/- SRTC, = Rs.18,60,489/- (2023) 20 SCC 774 Para 12-15 Loss of Income/ Future Earnings Rs.18,60,489/due to Disability Medical Rs.30,000/- Sidram v. Divisional Expenses Manager, United India Insurance Ltd. Future Medical Rs.50,000/- (2023) 3 SCC 439 Expenses Para 63-66, 89 Special diet and Rs.1,00,000/- Kajal v. Jagdish Chand, Transportation (2020) 4 SCC 413 Loss of Marriage Rs.3,00,000/- Para 19, 26, 28, 29 Prospects Sanjay Rajpoot v. Ram Loss of Income Rs.50,000/- Singh, during treatment 2025 SCC OnLine SC Pain and Rs.5,00,000/- 285, Para 12 Suffering Mallikarjun v. National Loss of Rs.2,00,000/- Insurance Co. Ltd., Amenities (2014) 14 SCC 396 Para 13 Para 12-15 Cost of Artificial Rs.5,00,000/- Ayush v. Reliance Limb General Insurance Co. Ltd., (2022) 7 SCC 738 Para 14-15 TOTAL Rs.35,90,489/- Thus, the difference in compensation is as under : MACT High Court This Court Rs.3,90,000/- Rs.8,65,000/- Rs.35,90,489/-

pp. 2433–2435

As can be seen, there is a great difference between the compensation as awarded by the Courts below and the compensation payable as per law. We are constraint to observe that appeals to the High Court as well as to this Court were entirely avoidable, since the law had been amply clarified well before the order of the Tribunal was made on 17.10.2021 by way of the judgment rendered by this Court in Kajal (supra) decided on 05.02.2020. Both the Courts were duty-bound to keep abreast with the law as clarified by this Court, ensuring that the judgments and orders passed by them are entirely in order therewith.

p. 2435

For the purpose of emphasis, it is again clarified here that when a Tribunal or the High Court in appeal, is concerned with the case involving a child having suffered injury or having passed away, the calculation of loss of income necessarily has to be made on the matric of minimum wages payable to a skilled worker in the respective State at the relevant point of time. It is our hope that this restatement helps avoiding such errors and thereby obviates the necessity of this Court’s interference, applying well-established principles of law.

p. 2435

We may also observe that, in general, i.e., accidents involving adults, we are often confronted with situations where the Minimum Wage Data is not readily available and every so often, the question that has been made up to this Court hinges only on the calculation of income. In that view of the matter and in the hope of reducing the claimants need to file appeals to this Court or even the High Court, we deem it appropriate to direct that in cases where the claimant has failed to furnish appropriate details of income or adequate proof thereof, it shall be the responsibility and obligation of the contesting party, more particularly the insurance company to furnish before the Tribunal the applicable minimum wage as duly issued by the concerned government.

p. 2435

The Civil Appeal is allowed in the aforesaid terms. The impugned Award dated 17th September 2021 in M.A.C.P. No.87 of 2017 passed by the Motor Accident Claims Tribunal (Auxi) & 3rd Additional District Judge – Banaskantha at Deesa, as modified by the High Court of Gujarat at Ahmedabad, vide the impugned order dated 20th August 2024, passed in R/First Appeal No.4863 of 2022 stands modified accordingly. Interest on the amount is to be paid, as awarded by the Tribunal, i.e., @ 9% per annum, from the date of filing of the claim petition.

pp. 2435–2436

In so far as the direction issued regarding the furnishing of the schedule of minimum wages by the insurance company in cases where the income of the claimant/deceased has not been properly established, let a copy of this order be sent by the Registrar Judicial of this Court to the learned Registrar Generals of the High Courts, who shall ensure that the a copy of this order is sent to all Motor Accident Claims Tribunals, to see that the direction is followed strictly.

p. 2436

The amount be directly remitted into the bank account of the appellant. The particulars of the bank account are to be immediately supplied by the learned counsel for the appellant to the learned counsel for the respondent. The amount be remitted positively before 30th September, 2025. Pending application(s), if any, shall stand disposed of. Result of the case: Appeal allowed. Headnotes prepared by: Nidhi Jain

p. 2436