C/FA/2612/2021 ORDER DATED: 14/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2612 of 2021
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KAMLESHKUMAR PRANLAL PANDYA
Versus
PARBATBHAI LAKHABHAI GARCHAT
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Appearance:
MR NISHIT A BHALODI(9597) for the Appellant(s) No. 1
MR VIBHUTI NANAVATI(513) for the Defendant(s) No. 4
MR YOGI K GADHIA(5913) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
RULE UNSERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 14/12/2022
ORAL ORDER
1. By way of this appeal, the appellant has challenged the judgment and award dated 28.2.2019 passed by the M.A.C.T. (Auxi.), Gondal in Motor Accident Claims Petition No.492 of 2005 as against the claim of the appellant for grant of compensation of Rs.5,00,000/-, the Tribunal awarded only a compensation of Rs.1,49,000/- to the appellant.
2. Heard Mr.Nishit Bhalodi, learned advocate for the appellant, Mr.Darshil Parikh for Mr.Vibhuti Page 1 of 7 Downloaded on : Sat Dec 24 03:18:03 IST 2022 C/FA/2612/2021 ORDER DATED: 14/12/2022 Nanavati, learned advocate for respondent No.4 and Mr.Yogi Gadhia, learned advocate for respondent No.2.
3. Mr.Bhalodi, learned advocate for the appellant submitted that the Tribunal has not appreciated the evidence on record in its true perspective and the amount awarded by the Tribunal is not based on the evidence on record and the Tribunal has committed an error in calculating the amount of actual loss of income, pain shock and suffering and transportation, special diet and attendance. As far as the rest of the heads are concerned, learned advocate for the appellant has not pressed this appeal in respect of quantum awarded to the appellant and rest of the heads he confines for compensation awarded to the appellant.
4. Mr.Bhalodi, learned advocate for the appellant submitted that so far as actual loss of income is concerned, the same is calculated on the basis of monthly income of Rs.1,800/-, which is based on minimum wages. However, according to him, the Page 2 of 7 Downloaded on : Sat Dec 24 03:18:03 IST 2022 C/FA/2612/2021 ORDER DATED: 14/12/2022 aforesaid period has been erroneously considered as 2 months by the Tribunal instead of 6 months as the appellant could not work for 6 months which can be seen from the record. Therefore, the aforesaid amount is required to be suitably enhanced by taking into consideration the period of actual loss of income of 6 months instead of 2 months and, therefore, the amount awarded is required to be enhanced from Rs.3,600/- to Rs.10,800/-.
5. As far as compensation awarded under the head of pain, shock and suffering is concerned, learned advocate for the appellant submitted that from catena of decisions of this Court as well as Hon'ble Apex Court, pain, shock and suffering has been calculated on the basis of disability and hardship of the appellant. Considering the fact that the appellant has suffered 30% disability, pain, shock and suffering is required to be enhanced to Rs.50,000/- instead of Rs.10,000/- and compensation towards transportation, special diet and attendance is also required to be increased to Rs.25,000/- instead of Page 3 of 7 Downloaded on : Sat Dec 24 03:18:03 IST 2022 C/FA/2612/2021 ORDER DATED: 14/12/2022 Rs.10,000/- considering the disability, period of treatment and inflation.
6. In view of the aforesaid submissions, learned advocate for the appellant prayed to suitably enhance the award by modifying the impugned award.
7. Learned advocates Mr.Gadhia and Mr.Parikh for the respondent companies have vehemently opposed the appeal and submitted that the appellant is not entitled for enhancement and prayed to dismiss the appeal.
8. Heard learned advocates for the parties and perused the record of the case. As far as actual loss of income is concerned, the record indicates that as per the award, the present case is considered only for loss of income for 2 months considering the fact that 30% disability sustained by the petitioner cannot be said to be negligible, and therefore, 6 months period if considered for the purpose of calculating the loss of income, the compensation Page 4 of 7 Downloaded on : Sat Dec 24 03:18:03 IST 2022 C/FA/2612/2021 ORDER DATED: 14/12/2022 awarded to the appellant under the head of actual loss of income is required to be calculated at Rs.10,800/- instead of Rs.3,600/- considering the income of the present appellant at Rs.1,800/- per month.
9. So far as the compensation under the head of pain, shock and suffering is concerned, the same is required to be considered on the basis of disability sustained by the appellant and on the basis of hardship faced by him. Considering the cost of living and inflation, it would be just and proper if the amount under the head of pain, shock and suffering is increased to Rs.50,000/- from Rs.10,000/-. As far as the compensation awarded under the head of transportation, special diet and attendance is concerned, the same is also required to be increased keeping in mind the fact that the amount awarded is too meager and the appellant has disability to the tune of 30% on account of the accident, and therefore, the aforesaid amount is increased from Rs.10,000/- to Rs.25,000/-. Page 5 of 7 Downloaded on : Sat Dec 24 03:18:03 IST 2022
C/FA/2612/2021 ORDER DATED: 14/12/2022
10. In view of the above, the appellant is entitled for the compensation under these three heads by enhancing the same as under:
Income per month Rs.1,800/-
30% Disability - Rs.540/-
Yearly X 12
Yearly income = Rs.6,480/-
Multipliar X 18
Future loss of income = Rs.1,16,640/-
Actual loss of income + Rs.10,800/-
Pain, shock and suffering + Rs.50,000/-
Transportation, special diet + Rs.25,000/-
and attendance charges
Medical expenses + Rs.8,500/-
Total compensation = Rs.2,10,940/-
11. Thus, the appellant - original claimant would be entitled to total compensation of Rs.2,10,940/-. As the Tribunal has awarded compensation of Rs.1,49,000/-, the appellant - original claimant would be entitled to additional amount of Rs.61,940/- with interest at the rate of 6% per annum from the date of petition till its realization from both the insurance companies as proportioned by the Tribunal Page 6 of 7 Downloaded on : Sat Dec 24 03:18:03 IST 2022 C/FA/2612/2021 ORDER DATED: 14/12/2022 in the original award. The insurance companies shall deposit the additional amount with interest as provided in this order within a period of 12 weeks from the date of receipt of this order.
12. With the aforesaid this appeal is partly allowed. Record and proceedings received, if any, be remitted back to the concerned Tribunal forthwith.
(NIRZAR S. DESAI,J) P. SUBRAHMANYAM Page 7 of 7 Downloaded on : Sat Dec 24 03:18:03 IST 2022