PRAKASH DILIPBHAI PAGI Vs. SHAILESH KANTIBHAI PAGI

JUDGEMENT

(1.) Advocate Mr. Adnan A.Khan for Advocate Mr. V.A. Mansuri for the appellant submitted that the challenge is given by the claimant-injured to the judgment and award dtd. 24/11/2022 by Motor Accident Claims Tribunal (Main), Panchmahals at Godhra in MACP No.133 of 2018, only on the ground that though the learned Tribunal has followed the judgment of Hon'ble Supreme Court of Mallikarjun Vs. Divisional Manager, National Insuranc Company Limited And Another, reported in (2014) 14 SCC 396, and had also considered the disability of 15% for body as a whole; however, has failed to adopt the same; though the Hon'ble Supreme Court has observed the yardstick laid down that in case of disability up to 10 to 30%, a lumpsum and rough estimate of Rs.3,00,000.00 is to be awarded.

(2.) Advocate Mr. Khan submitted that the exceptional circumstances, as has been laid down, to take a different yardstick would be the cases where the matters would stand on different footing like a permanent disability in the form of bedridden condition of the child, where he would be totally reliant on attendance and there would be necessity of future medical expenses or other needs, where the compensation is to be awarded beyond the maximum limit of six lakhs. While, the Hon'ble Supreme Court in Mallikarjun (supra) has laid down the yardstick relying upon the fact that the structure formula, as per Second Schedule to Motor Vehicle Act, would be unfair and improper to be followed in case of the child victims, claimants. For children there is no income, and, therefore observed that the main elements of damage in case of child victim are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs.

(3.) Advocate Mr. Khan submitted that the learned Tribunal relied on the disability certificate at Exhibit-38, which was actually for 35%, but since the parties had accepted to adopt 15% disability for body as a whole by way of pursis at Exhibit-31, the disability factor got slash down, and according to the disability certificate, the effect of the accidental injuries are difficulty in walking, difficulty in sitting, pain at the site of injury, dribbling of urine and burning maturation. Though that fact has been observed in the judgment, the learned Tribunal has considered that, those evidence of physical impairment are not permanent in nature and, therefore, came to an opinion to grant only the award of Rs.1,50,000.00 with medical expenses, as proved at Exh.37, of Rs.49,000.00.