the respective parties at length. At the outset, it is required to
be noted that in a vehicular accident between the Motorcycle
No.GJ 2 AA 5546, which at the relevant time was being driven
by the original injured claimant-minor and one Jeep No.GJ 2 R
3829, driver of the Motorcycle-original injured claimant
sustained permanent partial disability to the extent of 7%. It
is also required to be noted that as such on appreciation of
evidence, the learned tribunal has held the driver of the Jeep
involved in the accident sole negligent in the accident. Under
the circumstances and normally once the driver of the
offending vehicle is held to be sole negligent for the accident
the original claimant is entitled to the compensation from the
driver-owner and the Insurer of the vehicle whose driver is held
to be sole negligent. As per settled proposition of law only that
much amount is required to be deducted and / or original
claimant is not entitled to the extent he is held contributory
negligent for the accident. However, in the present case, the
learned tribunal has deducted 70% i.e. 10% towards
negligence of the minor injured claimant and 60% towards
negligence of the father-owner of the Motorcycle permitting his
minor son to drive the Motorcycle though he was not holding
valid license to drive the Motorcycle. On the aforesaid ground
no amount of compensation could have been deducted and / or
denied to the original claimant, more particularly, when so far
as the accident is concerned the original injured claimant is
not held negligent / contributory negligent at all.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2029 of 2008
MINOR SHAKTISINH ZALA.
V
ZALA RANVIRSINH RANUBHA & 4.
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
Date : 25/02/2016
Citation:2016(6) ALLMR(JOURNAL)7
[1.0] Feeling aggrieved and dissatisfied with the
impugned and award passed by the learned Motor Accident
Claims Tribunal (Auxiliary), Mehsana (hereinafter referred to as
“the tribunal”) in MACP No.795/2005 by which after deducting
10% towards the negligence of the original claimant and
deducting 60% towards the negligence of the original owner of
the Motorcycle involved in the accident the learned tribunal
has awarded a total sum of Rs.10,200/- towards compensation
for the injuries and the permanent partial disability sustained
by the original claimant with 7.5% interest thereon from the
date of the Claim Petition till realization, the original claimant
has preferred the present First Appeal.
[2.0] In a vehicular accident which occurred on
22/08/2005 between Motorcycle No.GJ 2 AA 5546, which at the
relevant time was being driven by the original claimant-minor
and one Jeep No.GJ 2 R 3829, the original injured claimantdriver
of the Motorcycle sustained injuries and permanent
partial disability to the extent of 7% on the body as a whole,
and therefore, the original injured claimant, through his father,
filed the aforesaid Claim Petition before the learned tribunal
claiming a total sum of Rs.1 lakh towards compensation.
[2.1] On appreciation of evidence, the learned tribunal
has as such held the driver of the Jeep involved in the accident
sole negligent for the accident. On appreciation of evidence,
the learned tribunal has determined Rs.34,000/- towards
compensation under different heads. However, as the original
injured claimant-driver of the Motorcycle was not holding the
valid license to drive the Motorcycle and the original owner of
the Motorcycle-father of the original claimant permitted his
minor son to drive the Motorcycle though he was not having a
valid driving license, the learned tribunal has deducted 10%
and 60% respectively towards their negligence and by the
impugned judgment and award has actually awarded
Rs.10,200/- being the remaining 30% with 7.5% interest
thereon from the date of Claim Petition till realization.
Feeling aggrieved and dissatisfied with the
impugned judgment and award passed by the learned tribunal
on quantum as well as deducting 70% towards negligence, the
original claimant has preferred the present First Appeal.
[3.0] Shri Y.M. Thakore, learned advocate appearing on
behalf of the appellant-original claimant has vehemently
submitted that the learned tribunal has materially erred in
deducting 70%, out of the total compensation awarded, on the
ground that the original injured claimant was not having valid
driving license to drive the Motorcycle and on the ground that
even the original owner was negligent to the extent permitting
his son to drive the Motorcycle, though he was not having valid
driving license to the drive the Motorcycle. It is submitted that
on the aforesaid ground the learned tribunal ought not to have
and / or could not have deducted 70% towards negligence. It
is submitted that as such the learned tribunal has held the
driver of the Jeep involved in the accident sole negligent for
the accident. It is submitted that therefore once the driver of
the offending vehicle / Jeep is held to be sole negligent for the
accident, the original claimant is entitled to full compensation
from the driver – owner and insurer of the Jeep involved in the
accident.
[3.1] It is vehemently submitted by Shri Thakore, learned
advocate appearing on behalf of the original claimant that
while awarding compensation either in case of death and / or
injury only that much amount i.e. percentage of amount is
required to be deducted for which the deceased and / or the
injured is held to be negligent / contributory negligent. It is
submitted that once the driver of the offending vehicle i.e. Jeep
is held sole negligent in the accident, the learned tribunal is
not justified in deducting any amount or percentage of amount
on the ground that the driver of the Motorcycle i.e. in the
present case the original injured claimant (who is as such not
held to be negligent at all) was not holding any valid driving
license and / or deducting 60% towards the negligence of the
owner of the Motorcycle in permitting his minor son to drive
the Motorcycle though he was not holding any valid license to
drive the Motorcycle.
[3.2] Now so far as the quantum of amount of
compensation is concerned, Shri Thakore, learned advocate
appearing on behalf of the original claimant has heavily relied
upon the recent decision of the Hon’ble Supreme Court in the
case of Master Mallikarjun Vs. Divisional Manager, The
National Insurance Company Ltd. reported in 2014 (14)
SCC 396. It is submitted that in the aforesaid decision the
Hon’ble Supreme Court was considering the issue with respect
to compensation with respect to child victim and in the said
decision the Hon’ble Supreme Court in paragraph 12 has
observed and held that 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
and for permanent disability upto 10% it should be Rs.1 lakh,
unless there are exceptional circumstances to take different
yardstick. It is submitted that in the present case the
permanent partial disability is less than 10%, and therefore, as
per the decision of the Hon’ble Supreme Court the original
claimant shall be entitled to Rs.1 lakh in all towards
compensation.
Making the above submissions, it is requested to
allow the present Appeal.
[4.0] The present Appeal is vehemently opposed by Shri
Nagesh Sood, learned advocate appearing on behalf of the
Insurer. Shri Sood, learned advocate appearing on behalf of
the Insurer has initially tried to oppose the present Appeal by
submitting that in the facts and circumstances of the case,
more particularly, when it is found that the original injured
claimant was driving the Motorcycle though he was not having
a valid license to drive the Motorcycle and when it is found that
the owner of the Motorcycle who also happens to be the father
of the injured claimant permitted his minor son to drive the
Motorcycle though he was not having the valid license to drive
the Motorcycle and to that extent both of them can be said to
be negligent, and therefore, the learned tribunal has rightly
deducted 70% towards their respective negligence. However,
ultimately, he has failed to satisfy the Court how the learned
tribunal is justified in deducting 70% from the entitlement
when in the present case the driver of the offending vehicleJeep
is as such held to be sole negligent for the accident.
[4.1] Now so far as quantum of amount of compensation
is concerned, Shri Sood, learned advocate appearing on behalf
of the Insurer has requested to pass appropriate order and
award just compensation.
[5.0] Heard the learned advocates appearing on behalf of
the respective parties at length. At the outset, it is required to
be noted that in a vehicular accident between the Motorcycle
No.GJ 2 AA 5546, which at the relevant time was being driven
by the original injured claimant-minor and one Jeep No.GJ 2 R
3829, driver of the Motorcycle-original injured claimant
sustained permanent partial disability to the extent of 7%. It
is also required to be noted that as such on appreciation of
evidence, the learned tribunal has held the driver of the Jeep
involved in the accident sole negligent in the accident. Under
the circumstances and normally once the driver of the
offending vehicle is held to be sole negligent for the accident
the original claimant is entitled to the compensation from the
driver-owner and the Insurer of the vehicle whose driver is held
to be sole negligent. As per settled proposition of law only that
much amount is required to be deducted and / or original
claimant is not entitled to the extent he is held contributory
negligent for the accident. However, in the present case, the
learned tribunal has deducted 70% i.e. 10% towards
negligence of the minor injured claimant and 60% towards
negligence of the father-owner of the Motorcycle permitting his
minor son to drive the Motorcycle though he was not holding
valid license to drive the Motorcycle. On the aforesaid ground
no amount of compensation could have been deducted and / or
denied to the original claimant, more particularly, when so far
as the accident is concerned the original injured claimant is
not held negligent / contributory negligent at all. At the cost of
repetition it is to be noted that in the present case on
appreciation of evidence, the learned tribunal has held the
driver of the Jeep sole negligent for the accident. It is true that
the minor could not have and ought not to have driven the
Motorcycle in absence of any driving license. It is true that
the minor could not have and ought not to have driven the
Motorcycle in absence of any driving license. It is true that
even the original owner of the Motorcycle ought not to have
permitted the minor son to drive the Motorcycle without any
valid license. However, even while deducting any amount
towards negligence of any owner permitting the minor to drive
the Motorcycle without holding any valid license either side is
required to prove that the minor took the Motorcycle with the
knowledge of which the owner of the vehicle had a knowledge
and despite the same he permitted the minor to drive the
Motorcycle without holding any valid license. In any case and
as observed hereinabove, once the driver of the offending
vehicle is held to be sole negligent for the accident and the
driver of the Motorcycle, may be minor, may not be having a
valid license is not held to be negligent and / or contributory
negligent at all for the accident, there shall not be any
deduction on the aforesaid ground. For the aforesaid, the
original injured claimant and / or even the owner of the
Motorcycle can be said to have committed the offence of some
other statute and / or committed breach of some of the
provisions of the Motor Vehicles Act.
[5.1] However, so far as quantum of amount of
compensation is concerned, if the driver of the offending
vehicle is held to be sole negligent the original claimant is
entitled to the entire amount of compensation without any
deduction from the driver-owner and the insurer of the
offending vehicle. In other words while awarding the
compensation there can be the deduction, however, such
deduction should and shall be to the extent the original
claimant (in case of injury) and / or deceased is held to be
negligent and / or contributory negligent.
[6.0] Under the circumstances and in view of the above
and for the reasons stated hereinabove, the learned tribunal is
not justified in deducting 70% towards the negligence of the
original injured claimant and the owner of the Motorcycle on
the ground that though not having valid license to drive the
Motorcycle the injured claimant was driving the Motorcycle and
that the owner of the Motorcycle permitted his minor son to
drive the Motorcycle though he was not holding any valid
license to drive the Motorcycle.
[6.1] Now so far as quantum of amount of compensation
is concerned, identical question came to be considered by the
Hon’ble Supreme Court in the case of Master Mallikarjun
(Supra). In the aforesaid decision the Hon’ble Supreme Court
considered the question with respect to compensation and
with respect to child victim. After considering some earlier
decisions of the Hon’ble Supreme Court in paragraph 12 the
Hon’ble Supreme Court has observed and held as under;
“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 Rs.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.”
[6.2] In the present case the original injured claimant is
the minor. He had sustained permanent partial disability to
the extent of 7% on the body as a whole i.e. lesser than 10%.
Under the circumstances and in view of the decision of the
Hon’ble Supreme Court in the case of Master Mallikarjun
(Supra) the original claimant shall be entitled to Rs.1 lakh
towards compensation with 9% interest thereon from the date
of Claim Petition till realization.
[7.0] In view of the above and for the reasons stated
hereinabove, the present Appeal succeeds. The impugned
judgment and award passed by the learned tribunal in MACP
No.795/2005 is hereby modified to the extent and it is held
that the original claimant shall be entitled to compensation to
the extent of Rs.1 lakh with 9% interest thereon from the date
of Claim Petition till realization. The balance enhanced amount
to be deposited by the respondents with the learned tribunal
within eight weeks from the date of the present order and the
same be paid to the original claimant by way of account payee
cheque on proper verification and identification by the learned
tribunal itself.
[8.0] With this, the present Appeal is partly allowed. In
the facts and circumstances of the case, there shall be no
order as to costs.
(M.R. SHAH, J.)
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