Bhavnaben @ Bhikhiben Rajendrabhai Patel & vs Chaudhari Sagarambhai Bababhai &Others

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 4579 of 2010 With R/FIRST APPEAL NO. 4580 of 2010 With R/FIRST APPEAL NO. 4581 of 2010 With R/FIRST APPEAL NO. 4582 of 2010 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE R.M.CHHAYA sd/­ and HONOURABLE MR.JUSTICE V. B. MAYANI sd/­ =========================================

============================================= BHAVNABEN @ BHIKHIBEN RAJENDRABHAI PATEL & 2 other(s) Versus CHAUDHARI SAGARAMBHAI BABABHAI & 1 other(s) ============================================= Appearance:

MR. YOGENDRA THAKORE(3975) for the Appellant(s) No. 1,2,3 for the Defendant(s) No. 2 MR SANDIP C SHAH(792) for the Defendant(s) No. 2 RULE SERVED(64) for the Defendant(s) No. 1 ============================================= CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA and HONOURABLE MR.JUSTICE V. B. MAYANI Date : 25/02/2019 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE R.M.CHHAYA) 1.0. Being aggrieved and dissatisfied with the impugned judgment and award rendered by the Motor Accident Claims Tribunal (Auxi­ II), Mehsana in MACP Nos. 556 of 2008 to 559 of 2008, which has been partly allowed by the Tribunal by impugned common judgment and award, the appellants­ claimants have preferred four different appeals under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act").

2.0 The set of evidence adduced by the appellants­ claimants as well as respondent Insurance Company before the Tribunal is common, all the claim petitions were heard together and have been disposed of by the common judgment and award. The four appeals were heard together and are disposed of by this common judgment.

3.0 The facts as narrated in the First Appeal No. 4579 of 2010 arising out of MACP No. 556 of 2008 are made basis of this judgment and order.

4.0 Mr. Yogendra Thakore, learned advocate for the appellants has declared before this Court that appellant no.3 Patel Naranbhai Hargovandas father of the deceased Rajendrabhai has expired during the pendency of the appeal and his estate is represented by the other appellants and therefore, seeks permission to delete appellant no.3 Patel Naranbhai Hargovandas. Patel Naranbhai Hargovandas­ is hereby permitted to be deleted as appellant no.3. Copy of death certificate of Naranbhai Hargovandas Patel produced by Mr. Thakore, learned advocate for the appellants is taken on record.

5.0 The facts indicate that the accident occurred on 30.05.2008 near Multaniya Patiya at about 9.15 a.m. The record indicates that deceased Rajendrabhai was going with his family i.e. appellant no.1 Bhavnaben and two children named deceased Pruthak and injured Mansi, on his Scooter bearing Registration No. GJ­2N­1173 from the Palasar his native village. The record indicates that when the Scooter reached Multaniya Patia at about 9.15 am, Jeep bearing registration No.GJ­24U­9076 being driven by the respondent no.1 in rash and negligent manner came from the opposite side and dashed with the Scooter being driven by the Rajendrabhai ­the husband of the appellant no.1 Bhavnaben. Because of the accident, all the four persons received serious injuries and ultimately husband of the appellant no.1 Rajendrabhai and her son Pruthak succumbed to such injuries at Mehsana Civil Hospital.

5.1. FIR came to be lodged and the panchnama of scene of accident was also drawn by the police authority. The appellants herein filed respective claim petitions under Section 166 of the Act and claim compensation of Rs.25 lakhs.

5.2. It was the case of the appellants before the Tribunal that deceased Rajendrabhai was working as a teacher in Anandpura Panchot Primary School and was getting monthly salary of Rs.9905/­. It was also the case of the appellants that in future the deceased Rajendrabhai would have earned Rs.25000/­ per month. The appellants ­claimants also claimed that they had to undergo medical expenses to the tune of Rs.10,000/­ and they had to expend Rs.25000/­ after death ceremony and also claimed further Rs.25000/­as special damages. The appellants relied upon the FIR at Exh.22, Panchnama of the scene of accident at Exh.23, inquest panchnama at Exh.25, PM Report at Exh.24, inquest panchnama of deceased Pruthak at Exh.34, the treatment papers of injured Mansi at Exh.39, City Scan paper at Exh.42, Injury certificate of minor ­Mansi at Exh.44, medical certificate issued by Hospital at Exh.45 to support the claim raised in the petitions. Over and above, the said documentary evidence, the claimants also relied upon the driving license of deceased Rajendrabhai Naranabhai at Exh.33 and driving license of respondent no.1 driver and owner of Jeep at Exh.30.

5.3. Upon appreciation of evidence on record, the Tribunal come to the conclusion that the deceased Rajendrabhai Patel as driver of the Scooter was negligent to the extent of 40% and driver of Jeep was negligent to the extent of 60%. Relying upon the School Certificate at Exh.27, the Tribunal was pleased to hold that age of the deceased Rajendrabhai was 35 years old on the date of accident and further relying upon the Pay Slip at Exh.26 determined gross pay of the deceased was Rs.9905/­ and ultimately determined income of the deceased Rajendrabhai at Rs.8000/­ per month and straightway applying multiplier 17, awarded Rs.16,32,000/­ as compensation under the head of future loss of income and Rs.20,000/­ as consortium and further Rs.10,000/­ towards funeral expenses and thus, awarded Rs.16,62,000/­ as compensation in Claim Petition No.556 of 2008, which relates to the death of Rajendrabhai Patel. After deducting 40% towards negligence of the deceased Rajendrabhai as driver of the Scooter, the Tribunal was pleased to award Rs.9,97,200/­ with 7.5% interest p.a. from the date of filing of the claim petition till its realization and the Tribunal was thus, pleased to partly allow the Claim Petition No. 556 of 2008. The Tribunal while dealing with case of the deceased Pruthak minor in Claim Petition No. 557 of 2008, considering the age of the deceased Pruthak at 11 years and taking notional income of the minor at Rs.15,000/­ after deducting 1/3rd, determined the yearly income of the deceased Pruthak at Rs.10,000/­ and applying multiplier 15, awarded Rs.1,50,000/­ under the head of future loss of income and also awarded additional amount of Rs.10,000/­ as consortium and Rs.15206/­ as medical expenses and also awarded Rs.5000/­ towards funeral expenses and thus, awarded Rs.1,80,200/­ as compensation and after deducting 40% towards negligence of the driver of the Scooter deceased Rajendrabhai, awarded total compensation of Rs.1,08,120/­ with 7.5% interest p.a. from the date of filing of the claim petition till its realization and thus, partly allowed the Claim Petition No. 557 of 2008.

5.4. The record indicates that in Claim Petition No. 558 of 2008 which was filed for injuries received by the Bhavnaben. The Tribunal determined the age of injured Bhavnaben to be 31 years and following the ratio laid down by this Court in the case of New India Assurance Co. Ltd vs. Babubhai Dipubhai Chauhan & Ors. reported in 2006(2) GLR 1514, determined the income of the injured Bhavnaben at Rs.2500/­ per month. The Tribunal also appreciated the evidence at Exh.43 being disability certificate issued by the Dr. Mahesh Khendelwal and determined the permanent disability of the body as a whole as 7% and thus, awarded Rs.35,700/­ after applying multiplier 17 as compensation under the head of future loss of income. Considering the evidence in form of treatment certificate at Exh.40, wherein, it is stated that injured Bhavnaben took 8 weeks to recover, the Tribunal also awarded a sum of Rs.5,000/­ as actual loss. Over and above, the Tribunal was pleased to award Rs.7500/­ under the head of pain, shock and suffering, Rs.8500/­ as medical expenses and further Rs.7500/­ under the head of transportation, attendance and special diet and thus, awarded compensation at Rs.64,200/­ to injured Bhavnaben. After deducting 40% as contributory negligence of the driver of the Scooter deceased Rajendrabhai, the Tribunal was please to award total compensation of Rs.38,520/­ with 7.5% interest p.a. from the date of filing of the claim petition till its realization while partly allowing the Claim Petition No. 558 of 2008.

5.4. While dealing with the Claim Petition No. 559 of 2008 which relates to the injured minor Mansi aged 5 years, the Tribunal considered the income at Rs.15,000/­ p.a. and after considering the disability certificate at Exh.47 determined the permanent disability of the body as a whole to the extent of 10% and awarded Rs.22,500/­ as compensation under the head of future loss of income. Considering the medical evidence in form of certificate issued at Exh.45 and recovery period of six weeks, the Tribunal was pleased to award Rs.2500/­ per month as actual loss to the claimant. Over and above, the Tribunal was pleased to also award Rs.7500/­ towards pain, shock and suffering and Rs.66,500/­ as medical expenses and Rs.7500/­ under the head of Transportation, Attendance and Special diet and thus, awarded total compensation at Rs.1,06,500/­ to the original claimant and after deducting 40% towards contributory negligence of the driver of the Scooter deceased Rajendrabhai, awarded Rs.63,900/­ with 7.5% p.a. interest from the date of filing of the claim petition till its realization while partly allowing the Claim Petition No. 559 of 2008.

5.5. Being aggrieved and dissatisfied with the impugned common judgment and award passed by the Tribunal, the appellants­ claimants have preferred present appeals.

6.0 Heard Mr. Thakore, learned advocate for the appellants in all these appeals and Mr. Sandip Shah, learned advocate for the Insurance Company and though served, nobody appeared on behalf of the driver as well as owner of the Jeep. The record indicates that the Insurance Company has not denied its liability. Neither they have filed any appeal challenging the impugned judgment and award nor they have filed any cross objection in the present set of facts.

7.0 Mr. Thakore, learned advocate for the appellants has contended as under:

(1). Mr. Thakore contended that the Tribunal has erred in coming to the conclusion that the deceased Rajendrabhai who was driving Scooter, was also negligent to the extent of 40%. Mr. Thakor relied upon the panchnama at Exh.24 contended that the Tribunal has erred in appreciating said piece of the evidence and according to Mr. Thakore the Driver of the Jeep – respondent no.2 herein was solely negligent for the accident.

(2). Mr. Thakore contended that the Tribunal has wrongly assessed the income of the deceased Rajendrabhai at Rs.8000/­ per month. Relying upon the pay slip at Exh.26, Mr. Thakore contended that deceased Rajendrabhai was working in a Government School and therefore, amount of salary as mentioned at Exh.26 is to be taken for reckoning and believe as exact income of the deceased whereas the Tribunal has determined the same at Rs.8000/­ per month.

(3). Mr. Thakore further contended that the Tribunal has erred in not granting the benefit of prospective income. Relying the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi reported in (2017) 16 SCC 680, Mr. Thakore contended that the deceased Rajendrabhai was working on permanent basis as a School Teacher in Government Primary School and therefore, as per the ratio laid down by the Hon'ble Supreme Court in the case of Pranay Sethi (supra) would be entitled to benefit of income by way of prospective income to the extent of 50%. Relying upon the same judgment, Mr. Thakore also further contended that the Tribunal has awarded a meager amount of Rs.30,000/­ under the conventional head, which should be at Rs.70,000/­. Mr. Thakore also further contended that considering the date of accident i.e. 30.05.2008, the Tribunal has committed obvious error in exercising discretion in granting interest only 7.5% p.a., which at least should be enhanced to 10% p.a. interest. On the aforesaid ground, Mr. Thakore contended that the First Appeal No.4579 of 2010 be allowed and the impugned judgment and award qua the said appellant be modified accordingly.

(4). Mr. Thakore also further contended that over and above the grounds which are raised in the First Appeal No. 4579 of 2010, which are common grounds in other three appeals, the Tribunal has erred in determining the income of deceased Pruthak at Rs.15,000/­ only. It was contended that the same should be taken into consideration as Rs.3 lakh per annum. Mr. Thakore also further contended that similarly in First Appeal No. 4582 of 2010 also which relates to injuries received by minor Mansi, the Tribunal has wrongly considered the income and has committed an error by awarding meager amount of Rs.63,900/­ as compensation. Mr. Thakore relying upon the judgment of the Hon'ble Supreme Court in the case of Master Mallikarjun vs. Divisional Manager, The National Insurance Company Limited reported in AIR 2014 SC 736 contended that as decided by the Hon'ble Supreme Court, the appellants would be entitled to enhance compensation by determining the income of the minor in both the cases at Rs. 3 Lakh and would also be further entitled to appropriate, just and adequate amount under the head of pain, shock and suffering.

(5). Mr. Thakore further contended that the Tribunal has erred in determining the income of the injured Bhavnaben original claimant of MACP No. 558 of 2008 i.e. First Appeal No.4581 of 2010. According to Mr. Thakore the Tribunal has wrongly assessed the income at Rs.2500/­ per month, which at least should be Rs.3000/­ per month considering even minimum wages standard that prevailed on the date of accident i.e. 30.05.2008. Mr. Thakore again reiterated that other grounds which are taken in First Appeal No. 4579 of 2010 as far as negligent is concerned, the same may also be considered in First Appeal Nos.4580 of 2010 and 4582 of 2010 also. On the aforesaid grounds, Mr. Thakore contended that all the three appeals be allowed and the impugned judgment and award qua the said appellants be modified accordingly.

8.0 Per contra, Mr. Sandip Shah, learned advocate for the Insurance Company has supported the impugned judgment and award passed by the learned Tribunal. Mr. Shah contended that the Tribunal has rightly come to conclusion that deceased Rajendrabhai as driver of the Scooter was negligent to the extent of 40%. Mr. Shah further contended that even though the Scooter is two seater, it is an admitted position that deceased Rajendrabhai took risk of permitting four persons i.e. two minor and wife on a Scooter that too on Highway, which amount to breach of prevailing rules and therefore, as such, appellants would not be entitled to any compensation. Mr. Thakore therefore, supported the impugned common judgment and award and submitted that no interference is called for and appeal being merit less.

8.1. No other and further submissions / contentions have been raised by the learned advocates for the respective parties.

9.0. Heard the learned advocates for the respective parties and perused the Record and Proceeding of the case.

9.1. As far as contention of negligence is concerned, upon perusal of the Panchnama at Exh.23, it clearly transpires that accident has taken place on a highway. It is an admitted position that deceased who was driving the scooter was aware about the fact that scooter is meant for two passengers, whereas, from the facts arising in this appeal, it is crystal clear that minor Pruthak who ultimately succumbed to the injury and Mansi along with Bhavnaben wife of the deceased Rajendrabhai were traveling on the scooter. The Tribunal after considering the manner in which the accident has taken place has come to the conclusion that the deceased Rajendrabhai driver of the Scooter was also contributory negligent and that too, to the extent of 40%. Upon re­appreciation of evidence in form of panchnama at Exh.23 and even considering the contents of the FIR at Exh.22, we are of the opinion that the Tribunal has not committee any error as it is obvious that deceased Rajendrabhai could have easily avoided the accident and could not have been driven with wife and two little children on a scooter that too on busy highway. The contention raised by Mr. Thakore as regards sole negligent of the driver of the Jeep, therefore, cannot be accepted and same is negatived.

9.2. As far as contention of income is concerned, upon considering the pay slip at Exh.26, deceased was working in Anandpura Primary School and pay slip is issued by the Principal of the said School, which is a Government School. The same shows that salary of deceased Rajendrabhai was Rs.9905/­ per month, which includes all admissible allowances and therefore, while determining the income of the deceased Rajendrabhai, the Tribunal has committed an obvious error as it cannot deduct any other item which is mentioned in the pay slip at Exh.26. We, therefore, determined that income of the deceased Rajendrabhai at Rs. 9900/­ per month. Mr. Thakore has correctly contended that the Tribunal has committed an error in not considering the increased in income by way of prospective income. Following the ratio laid down by the Hon'ble Supreme Court in the case of Pranay Sethi (supra), the appellants would be entitled to increase in income by way of prospective income to the extent of 50%. Having come to the aforesaid conclusion, therefore, the appellants would be entitled to compensation under the head of future loss of income as under:

“Rs. 9900/­ p.m. (income) + Rs.4950/­ (50% prospective income) = 14,850/­ per month ­ 4950/­ (1/3rd towards personal expenses = Rs.9900/­“ Hence, monthly income would come to Rs.9900/­ per month. Considering the School leaving certificate at Exh.27, date of birth of deceased Rajendrabhai was 08.05.1973 and therefore, Rajendrabhai was aged 35 years on the date of accident. Hence, appellants­ claimants would be entitled to multiplier of 16 and thus, the appellants would be entitled to compensation at Rs.19,00,800/­ under the head of loss of dependency. The following the ratio laid down by the Hon'ble Supreme Court in the case of Pranay Sethi (supra), the appellants would be entitled to additional amount of Rs.70,000/­ under the different conventional heads and thus, the appellants would be entitled to compensation at Rs.19,70,800/­. Considering the contributory negligent of the deceased Rajendrabhai to the extent of 40%, the appellants would be entitled to total compensation of Rs.12,10,480/­ (19,70,800/­ ­­ 7,60,320/­) and the Tribunal has awarded Rs.9,97,200/­ and thus, the appellants would be entitled to additional amount of Rs.2,13,280/­. The record also indicates that at the tender age of 31 years, the appellant – Bhavnaben lost her husband who was main source of support. Following ratio laid down by the Hon'ble Supreme Court in the case of Magma General Insurance Company Limited vs. Nanu Ram Alias Chuhru Ram and ors rendered in Civil Appeal No. 9581 of 2018, wherein the Hon'ble Supreme Court has considered the filial consortium. In facts and circumstances arising of this appeal wherein in accident appellant no.1 has lost her husband as well as son aged about 11 years, in order to come to just and adequate compensation in facts of this case, we deem it fit to award filial consortium to the appellant to the tune of Rs.15000/­. Thus, the appellants would be entitled to Rs. 2,28,280/­ as total additional compensation.

9.3. As far as rate of interest is concerned, in opinion of this Court, even while exercising the discretion one is required to take into consideration the date of accident as well as prevailing bank rate and also a fact that the Act is a beneficial legislation. We, therefore, deem it fit to grant interest at the rate of 9% p.a. instead of 7.5% p.a. from the date of claim petition till its realization.

9.4. Thus, the First Appeal No.4579 of 2010 is partly allowed and the impugned judgment and award passed by the learned Tribunal stands modified to the aforesaid extent.

10. As far as First Appeal No.4580 of 2010 is concerned, the deceased Pruthak was aged 11 years old on the date of accident. The contention raised by Mr. Thakore that appellants would be entitled to Rs.3 lakh as loss of dependency, cannot be accepted.

Though, it is equally true that the deceased Pruthak died because of the fatal injuries received in the accident, the Tribunal in absence of any evidence has fixed notional income at Rs.15000/­. The deceased Pruthak admittedly minor and non earning person. At that stage, it would be appropriate to refer to judgment of the Hon'ble Supreme Court in the case of Reshma Kumari and Ors. vs. Madan Mohan and Anr. reported in (2013)9 SCC 65 wherein, the Hon'ble Supreme Court has observed thus:

“40. In what we have discussed above, we sum up our conclusion as follows:

(I). xxx

(II). In case where the age of the deceased is up to 15 years irrespective of Section 166 or Section 163 A under which the claim for compensation has been made multiplier of 15 and the assessment as indicated in the second schedule subject to correction as pointed out in column (6) of the Table in Sarla Verma (supra) should be followed.”

10.1. Similarly, the Hon'ble Supreme Court in the case of Smt. Sarla Verma and ors vs. Delhi Road Transport Corporation and Anr reported in (2009) 6 SCC 121 has observed that in case of minor, the multiplier of 20 should be applied. Applying the ratio laid down of the aforesaid judgment in the case on hand and even considering the Rs.15000/­ per annum as income, the appellants would be entitled to compensation under the head of future loss of income, as under:

“Rs. 15,000/­ p.a (income) ­ 5000/­ (1/3rd towards personal income = Rs.10,000/­ X 20 (Multiplier as the age of the deceased was 11 years) = 2,00,000/­.”

10.2. However, considering the evidence on record and upon re­ appreciation of the same, the appellants would be entitled to an additional amount of Rs.30,000/­ under the conventional heads. The Tribunal has already awarded Rs. 15206/­ as medical expenses. As this is a case of composite liability, the Tribunal has committed an error in deducting 40% towards negligence of the deceased ­Rajendrabhai driver of the Scooter. Thus, appellants would be entitled to total compensation of Rs.2,45,200/­. As the Tribunal has awarded Rs.1,08,120/­, the appellants would be entitled to additional compensation of Rs.1,37,080/­. Over and above this, the appellants would be entitled to interest at the rate of 9% interest from the date of filing of claim petition till its realization as observed herein above.

10.3. Thus, the First Appeal No.4580 of 2010 is partly allowed and the impugned judgment and award passed by the learned Tribunal stands modified to the aforesaid extent.

11. As far as First Appeal No.4581 of 2010 which arises out of MACP No.558 of 2008 is concerned, upon re­ appreciation of evidence on record, we find that the Tribunal has correctly assessed the disability of the injured Bhavnaben to the extent of 7% as per disability certificate at Exh.43, which does not require any modification. However, the record indicates that injured Bhavnaben was a house wife and the Tribunal ha assessed the income at Rs.2500/­ per month, which in opinion of this Court is little less. Even if it is construed that the house wife had no source of income, even by guess work, it can safely be assessed in this case, the appellant­ original claimant would be earning Rs.3000/­ per month. Even considering the ratio laid down by the Division Bench in the case of New India Assurance Co. Ltd vs. Babubhai Dipubhai Chauhan & Ors reported in 2006(2) GLR 1514, wherein Division Bench of this Court relying upon the judgment of the Hon'ble Supreme Court in the case of Smt. Sarla Dixit & Anr vs. Balwant Yadav & ors reported in AIR 1996 SC 1274 and in the case of Lata Wadhva & Ors vs. State of Bihar & Ors. AIR 2001 SC 3218 and the Division Bench has fixed the income of housewife in a similar case where no evidence was proved at minimum Rs.3000/­ per month. Thus, we determine the income of the injured Bhavnaben at Rs.3000/­ per month. Considering the 7% disability, the appellant would be entitled to compensation under head of future loss of income as under:

“Rs. 3000/­ p.m (income) X 7% (disability) X 12 = 2520 X 16 (Multiplier) = 40,320/­.”

11.1 As we have determined monthly income at Rs.3000/­ per month, the appellant would be entitled to Rs.6000/­ under the head of actual loss of income. Keeping the other awarded amount as it is i.e. Rs.8500/­ towards Medical expenses, Rs.7500/­ towards Transportation, Attendance and Special Diet and Rs.10,000/­ under the head of pain, shock and suffering. The appellant would be entitled to Rs.72,320/­ as compensation. As the Tribunal has awarded Rs.38520/­, the appellant would be entitled to additional amount of Rs.48,520/­. Over and above this, the appellants would be entitled to interest at the rate of 9% interest from the date of filing of claim petition till its realization as observed herein above.

11.2. Thus, the First Appeal No.4581 of 2010 is partly allowed and the impugned judgment and award passed by the learned Tribunal stands modified to the aforesaid extent.

12.0. As far as First Appeal No. 4582 of 2018 which arises out of MACP No.559 of 2008 is concerned, upon re­appreciation of evidence on record, the Tribunal has while determining the permanent disability of the body as a whole of the injured Mansi has relied upon the disability certificate at Exh.47. Upon re­ appreciation of the said piece of evidence, it appears that Dr. Nayan B Pancholi who examined injured has opined that the disability of the body as a whole to the extent of 24%. Though, the claimants have not been able to examine any witness as regards disability, upon re­appreciation of evidence on record, more particularly, disability certificate at Exh.47, we are of the opinion that even following principle enunciated by Dr. Casler, disability in the instant case can safely be determined at 12%.

12.1. It would be appropriate to refer to the judgment of the Hon'ble Supreme Court in the case of Master Mallikarjun (supra) wherein the Hon'ble Supreme Court has provided thus:

“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 10% to the whole body, Rs.3 Lakh; 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 Re.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. The appellant, hence, would be entitled to get the compensation as follows:

12.2. As we have come to the conclusion that the disability is to the extent of 12% and appellant­ Mansi who is admittedly a minor aged 5 years and following the ratio laid down by the Hon'ble Supreme Court in the case of Master Mallikarjun (supra), the appellants would be entitled to Rs.3,00,000/­ under head of pain, shock and suffering already undergone and to be suffered in future mental and physical at Rs.3,00,000/­. Over and above, the appellants would be entitled to medical expenses as awarded by the Tribunal to the tune of Rs.66,500/­ as well as 7500/­ towards Transportation, Attendance and Special Diet. Thus, the appellants would be entitled to total compensation at Rs. 3,99,000/­. As the Tribunal awarded Rs.63,900/­, the appellant would be entitled to additional amount of Rs. 3,35,100/­. Over and above this, the appellants would be entitled to interest at the rate of 9% interest from the date of filing of claim petition till its realization as observed herein above.

12.3. Thus, the First Appeal No.4582 of 2010 is partly allowed and the impugned judgment and award passed by the learned Tribunal stands modified to the aforesaid extent.

13.0 The MACP No. 557 of 2008 to 559 of 2008 are the case of composite liability and not contributory liability, hence 40% of the total compensation is not required to be deducted in those MACPs.

14.0 All the four First Appeals are thus partly allowed and the impugned judgment and award passed by the learned Tribunal in MACP Nos. 556 of 2008 to 559 of 2008 stands modified to the aforesaid extent as provided in this judgment. The Insurance Company shall deposit the additional amount awarded in all four appeals within a period of three months from the date of receipt of the order. Registry is directed to send back the Record and Proceedings to the Tribunal forthwith.

sd/­ (R.M.CHHAYA, J) KAUSHIK J. RATHOD sd/­ (V. B. MAYANI, J)