JUHIBEN @ AVNEESH KAUR THRO' HIS NATURAL AND GUARDIAN v. KARANSINH MADHAVSINH PARMAR

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2. Briefly stated, it is the case of the appellant- original claimant that, on the day of accident, minor Juhiben @ Awanish Kaur was traveling on Scooty bearing No.GJ- 18-C-9456 as a pillion rider, proceeded at home after offering prayer in 'Gurudwara' Sector 30 on 'CH' road via Panch Dev Mandir, and the said vehicle was being driven by Rajendra Kaur with moderate speed on correct side of the road by following the traffic rules before the accident and, at about 7.15 a.m., when they reached at the place of accident, the respondent no.1 came by driving Tata Indigo Car bearing No.GJ-6-BA- 1772 in excessive speed in rash and negligent manner, without following the traffic rules, endangering human life, opponent car driver had lost control over the vehicle, dashed with Scooty, in which the appellant was a pillion rider, which was dragged along with offending Car up to certain distance, as a result, accident was occurred, causing multiple fracture and crushed injury to left leg below knee to minor appellant. The complaint is filed under I-Cr. No.352 of 2004 in Sector 21 Police Station. Hence, the appellant filed the original claim petition for compensation of Rs.10,00,000/- from the respondents jointly and severally.

3. Vide the said impugned judgment and award, the Tribunal has partly allowed the claim petition preferred by the present appellant - original claimant under Section 166 of the Act, 1988 holding the present appellant- original claimant entitled to an amount of

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undefined Rs.5,41,000/- with interest at the rate of 9% per annum from the date of filing of such claim petition till its actual realization with proportionate costs.

4. Learned advocate Mr. Rajesh Savjani, appearing for the appellant, while assailing the impugned judgment, raised contentions with regard to the finding given by the tribunal, more particularly, on the issue of quantum and on the assessment of disability and submitted that it is the case of the amputation of leg and the tribunal has failed to consider loss of earning capacity to the extent of 100% in view of the judgment rendered by the Apex Court in the case of Raj Kumar V/s. Ajay Kumar reported in 2011 (1) SCC 343 and Mohan Soni Vs Ram Avtar Tomar and Ors reported in 2012 2 SCC 267. It is further submitted that the appellant was having a bright academic career. However, due to injury sustained by her, she could not be able to focus on her academic career and accordingly, was unable to take admission in medicine/dental field and hence, it is argued that the income of the appellant ought to have been consider Rs.10,000/- per month on the basis of her academic career. The appellant has further relied on the judgment of the Hon'ble Supreme Court in the case of

Hitesh Nagjibhai Patel Vs. Bababhai Nagjibhai Rabari & Anr reported in 2025 INSC 1070 to support his arguments. It is submitted that the tribunal has overlooked the settled principles of law

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undefined laid down by the Hon'ble Supreme Court in relation to calculation of future loss, application of appropriate multiplier and grant of compensation under the various heads such as PSS, Special diet and attendant charges, future loss of amenities and medical expenses.

5. It is further submitted that the Tribunal has awarded a meager and unrealistic amount under various heads without considering the financial dependency of the family members and the socio-economic background of the appellant. The learned counsel has urged that the compensation awarded is not just, fair, and reasonable, and is liable to be enhanced in accordance with the settled legal principles. Learned counsel therefore prays for enhancement of the compensation amount by reassessing the same in accordance with law.

6. Learned advocate Mr. Vibhuti Nanavati, appearing for the respondent no.3/Insurance Company has placed reliance upon the findings and reasons assigned by the Tribunal and vehemently argued that the compensation must be awarded as just, proper and reasonable and not higher side. He has further vehemently submitted that the appellant/original claimant is a minor and vehemently argued and relied on the judgment of Hon'ble Supeme Court in the case of Mallikarjun Vs. Divisional Manager, National Insurance Co. Ltd. and anr reported in 2013 ACJ

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2445 and submitted that the learned Tribunal ought to have passed the award as per the aforesaid judgment. It is further submitted that the learned Tribunal has already awarded excess amount of award and not required to interfere with the impugned judgment and award and lastly prayed to dismiss the appeal.

7. Heard learned advocates for the respective parties on the disputes between the parties in narrow compass only on the controversy between the parties on the issue of quantum of compensation. Hence, perused impugned judgment and award, more particularly, the findings and reasons assigned by the Tribunal on the issue of quantum.

8. On the aspect of the monthly income of the appellant, at this stage, reliance is required to be placed on the recent judgment of Apex Court in the case of Hitesh Nagjibhai Patel Vs. Bababhai Nagjibhai Rabari & Anr (supra). It is held in paragraph 9 of the said judgment as under:

"9. 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-

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undefined 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.3 , and Baby Sakshi Greola v. Manzoor Ahmad Simon and Anr.4.

9. Considering the facts and circumstances of the subject matter and available materials in light of the findings recorded by the learned Tribunal in the impugned judgment on the issue of quantum and in light of the above-mentioned judgment in the case of Hitesh Nagjibhai Patel Vs. Bababhai Nagjibhai Rabari & Anr (supra), it appears that at the time of accident, the appellant was studying in Std. 10^thin M B Patel English Medium School. While making a claim with regard to the assessment of the income, marksheets of 10^th, 12^thand a copy of Rules for Admission in medical branch and Application for admission in Medical/para medical produced vide exh. 61, 62, 93 and 90 respectively. Vide exhibit 88, a copy of Provisional Merit List for the year 2007-2008 is produced. The applicant's witness i.e., the M.D. of B. J. Medical College, Ahmedabad was also examined vide exh. 87, in which, he has stated that though the appellant was qualified to take admission in Homeopathy and

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undefined Physiotherapy, she did not take the admission, and looking to the merit list, she did not qualify in medical and dental and that due to disability more than 70%, benefit for getting admission for physically handicapped category cannot be given. So, as per the deposition of the aforesaid witness, it is clear that she did not get admission of her choice due to the disability more than 70%. As per deposition of the appellant, due to the said injuries and disability, she had no option but to take admission in Nirma University for pursuing Diploma in Computer.

10. In the case where the appellant is student, Although she was studying at the time of accident, the loss of future earning potential must be assessed in the light of their demonstrated academic capability, dedication and the likelihood of becoming a qualified professional in the future. Here in this case, as per the evidences discussed hereinabove, the appellant had a promising record and definable career trajectory, compensation cannot be restricted to minimum wages. Instead, a reasonable estimation must be made based on the probable income the minor would have earned in the future. Here in this case, the tribunal has awarded Rs.5,000/- income considering the evidences on record. Looking to the impact of the said injury on the career of the appellant, the tribunal was reasonable to assess the income of Rs.5,000/- per month, as against the value of minimum wages rates was only around Rs.2300/- to 2600/- per month. Hence, sofar as

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undefined income of the appellant is concerned, the tribunal has made no error and the contention with this regard deserves to be rejected. The income of Rs.5,000/- per month, as held by tribunal and in absence of any cross-objection filed by the respondents, is hereby confirmed.

11. The appellant has produced the disability certificate vide exhibit 80 issued by Dr. Nalin M Shah, M.B., M.S. (Ortho), Orthopedic Surgeon. In the said certificate, the doctor has opined 'The permanent functional impairment of above patient is 85% considering the Lt. Lower Limb; i.e. 42.5% considering the body as whole.' However, the appellant passed the pursis with regard to the assessment of disability, in which 37% permanent disability body as a whole was decided which was signed by the appellant and identified by her advocate Mr. D G Oberoi, with no objection from the otherside. Hence, 37% disability body as a whole is required to be considered in view of the said pursis. Moreover, from the injury certificate issued by General Hospital, Gandhinagar as well, it is evident that the leg of the appellant is amputed from left knee.

12. As regards future rise of income is concerned, the age of the appellant, the injury sustained by her and her academic career is required to be taken in to consideration. Considering the same and in view of the judgment of the Hon'ble Supreme Court in the case of

National Insurance Company Ltd Vs. Pranay Sethi,

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undefined reported in AIR 2017 SC 5157 noticing the age of the appellant as 15 years, as per the school leaving certificate, 40% amount can be considered towards the future prospects. Thus, the income would be (Rs.5000*40%=2000) Rs.7000/- after the calculation of the future rise.

13. Noticing the fact that the appellant was aged 15 years at the time of accident, in light of the decision of the Hon'ble Supreme Court in the case of Sarla Verma and ors. vs. Delhi Transport Corporation and Anr. reported in (2009) 6 SCC 121 and the scheduled prescribed, multiplier of 18 will be applied. Thus, the future loss benefit is determined as Rs.7000/- *12*18*37% which comes to Rs.5,59,440/-.

14. So far as the compensation under the other heads such as pain, shock and suffering and special diet, attendant charges and transportation and loss of amenities are concerned, considering the facts of the case, injury certificate issued by General Hospital, Gandhinagar, medical treatment and physical pain and the emotional trauma endured by the appellant, a substantial enhancement under some of the heads are deserves to be enhanced. Accordingly, considering the amputation of leg from left knee, the appellant would incur cost in maintaining the artificial limb in future as well, hence, Rs.1,00,000/- towards future medical expenses is required to be given and Rs.1,00,000/-

towards marriage prospect are required to be given

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undefined looking to the nature of injuries and effect of the same on the appellant. The medical expenses of Rs.18,000/-, Rs.50,000/- towards Pain, Shock and Sufferings, Rs.40,000/- for special diet, transportation and attendant charges and Rs.75,000/- towards loss of amenities awarded by the tribunal is just and proper and no enhancement is required under that head.

15. Therefore, original claimants - appellants herein are entitled to enhanced amount as computed hereunder:

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16. For the foregoing reasons, the impugned judgment and award dated 21.09.2012 passed by the Motor Accident Claims Tribunal (Auxi), Gandhinagar in MACP No.195 of 2005 hereby modified. The appellants- original claimant are held entitled to compensation of an amount of Rs.9,42,500/-. Since by impugned judgment and award the Tribunal has awarded an amount of Rs.5,41,000/-, the appellants shall be entitled to enhanced amount of compensation to the tune of Rs.4,01,500/- with interest at the rate of 7.5% on the enhanced amount from the date of filing of claim petition till its actual realization on the enhanced amount. The respondents - original opponents are held jointly and severally liable to pay such enhanced amount of compensation with proportionate costs and interest.

17. Let, the aforesaid amount be deposited with the concerned Tribunal within a period of 8 weeks from the date of receipt of the present order. On deposit of the aforesaid amount, the Tribunal shall be at liberty to release and disburse the entire award amount in

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undefined favour of the original claimant, after due verification as per the original judgment and award.

18. Let, such exercise be undertaken by the Tribunal strictly in accordance with the guidelines prescribed by the Hon'ble Supreme Court in this regard; preferably within a period of two weeks from deposit of such amount. The Tribunal is directed to realize the deficit Court fees before proceeding with the disbursement of the amount.

19. R&P be sent back to the concerned tribunal forthwith, if received.

(D. M. VYAS, J)

Anuj

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