Minor Accident Victim Who Underwent Amputation Can't Be Awarded 'Token' Damages: Gujarat High Court Enhances Compensation To ₹21.19 Lakh

The Gujarat High Court has enhanced compensation awarded to a minor accident victim from ₹8.77 lakh to ₹21.19 lakh, holding that the Motor Accident Claims Tribunal erred in applying a notional income, under-assessing functional disability, and awarding inadequate non-pecuniary damages.

A Single Judge Bench of Justice Hasmukh D. Suthar was hearing a first appeal filed by Umiya Nitingar Goswami under Section 173 of the Motor Vehicles Act, 1988 against the award dated 26 April 2018 passed by the Motor Accident Claims Tribunal, Bhuj–Kutch.

The case arose out of a road accident in which the minor was hit from behind by a Hyundai car driven rashly, dragged for some distance and sustained serious injuries, resulting in amputation of her right leg and permanent disability. The Tribunal had held the driver solely negligent.The appeal before the High Court was confined to the quantum of compensation.

"Considering the nature of injury and age of the victim and has sustained the partial permanent disability and other consequential losses of said injury, claimant is entitled for getting the compensation in view of the decision of the Hon'ble Supreme Court in the case of Kajal vs. Jagdish Chand and Others reported in (2020) 4 SCC 413 wherein it has been held that the Tribunal shall award the compensation very conservatively keeping in mind the degree of deprivation and the loss caused by such deprivation which can be termed as “just compensation” as insured / injured claimant has to face the consequences throughout her life and that should not be any token damages"

Appearing for the victim, Advocate Vishal C. Mehta submitted that the Tribunal had wrongly adopted a notional income of ₹24,000 per annum, ignored minimum wages applicable in the State and awarded only a nominal amount towards pain, shock and suffering. Further, no compensation had been granted towards loss of marriage prospects and other conventional heads, despite amputation of the right leg.

Appearing for the insurer, Advocate Rathin P. Raval submitted that the Tribunal had already awarded just and reasonable compensation based on the evidence on record and that no interference was warranted.

Dealing first with the issue of income, the Court observed that even in cases involving minors, courts are required to assess loss of income on the basis of minimum wages prevailing at the relevant time. Relying on the recent Supreme Court case of Hitesh Nagjibhai Patel v. Bababhai Nagjibhai Rabari & Anr., the Court held that the claimant's income ought to have been assessed on the basis of minimum wages of a skilled worker in Gujarat, which were ₹5,750 per month at the time of the accident.

The Court further held that future prospects at the rate of 40 per cent were required to be added, taking the monthly income to ₹8,050. Applying a multiplier of 18, the Court assessed the total loss of income at ₹17,38,800.

On the issue of disability, Justice Suthar noted that although the medical evidence initially assessed disability at 90 per cent, the doctor stated in cross-examination that the disability of the body as a whole would be 36 per cent. The Tribunal had mechanically accepted this figure.

The Court, however, emphasised the settled distinction between physical disability and functional disability, particularly in cases involving amputation. Having regard to the nature of injury, the short stump length below the knee and the inability of the claimant to walk without support or perform heavy work, the Court held that the Tribunal had erred in assessing functional disability at only 36 per cent.

Referring to Schedule I of the Workmen's Compensation Act and medical evidence, the Court held that 50 per cent permanent functional disability ought to be adopted. Resultantly, the future loss of income was recalculated at ₹8,69,400.

The Court observed that in cases involving young victims who are required to live with permanent disability for life, courts must adopt a sensitive approach while awarding compensation and must avoid token damages.

“The Tribunal is expected to act with empathy so as to prevent further trauma, since victims of road accidents and their families often suffer severe physical and emotional distress, and a humane approach by the adjudicating authority instils a sense of support and understanding,” the Court observed.

The Court significantly enhanced non-pecuniary damages as well under the heads of pain and suffering, loss of marriage prospects, loss of amenities and enjoyment of life, future medical expenses, special diet, attendant charges and transportation. The medical expenses of ₹1,22,000 awarded by the Tribunal were found to be just and were not disturbed.

Accordingly, the appeal was partly allowed, with the total compensation payable to the victim enhanced to ₹21,19,400.

Appearance:  MR VISHAL C MEHTA(6152) for the Appellant(s) No. 1

MR RATHIN P RAVAL(5013) for the Defendant(s) No. 2

Case title:  UMIYA NITINGAR GOSWAMI v PRATAPBHAI VALABHDAS CHTHANI & ANR.

Case no.: R/FIRST APPEAL NO. 2797 of 2022

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