NEUTRAL CITATION
C/FA/3683/2010 JUDGMENT DATED: 25/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3683 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
JIGARKUMAR VELJIBHAI PATEL
Versus
MAHESHBHAI MANGALBHAI KHANT & 2 other(s)
==========================================================
Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR. ALKESH N SHAH(3749) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
==========================================================
CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 25/08/2023
ORAL JUDGMENT
1. The appellant-claimant has filed the present First Appeal under Section 173 (1) of the Motor Vehicles Act, 1988 ("the Act" for short) challenging the judgement and award dated 30.7.2010 passed in M.A.C.P. No. 1229 of 2006 by the learned Motor Accident Page 1 of 7 Downloaded on : Sun Sep 17 02:30:16 IST 2023 NEUTRAL CITATION C/FA/3683/2010 JUDGMENT DATED: 25/08/2023 undefined Claim Tribunal, Kheda at Nadiad, (for short "the Tribunal") whereby, the Tribunal partially allowed the claim petition by awarding compensation of Rs. 1,85,517/- with interest at the rate of 9% per annum. The appellant -original claimant has sought for enhancement of the awarded compensation and therefore, without going into the facts with regard to the occurrence of the accident as well as any other issue only the aspect of quantum of award is considered in this order.
2. The factual matrix of the case is that on 22.5.2006 at about 1:00 O'clock in the night, both the claimants were going on motorcycle bearing registration No. GJ-7-AK-5231 to watch a night cricket match at Kapadwanj College ground at Dakor-Kapadwanj Road on the western side near Krishna Telecom. The motorcycle was driven by Jigar I.Kansara (claimant of M.A.C.P. No. 140 of 2007) and the claimant Jigarkumar Veljibhai Patel (claimant of MACP No. 1229 of 2006) was a pillion rider. It was the case of the claimant that the motorcyle was driven in a moderate speed and on the correct side of the road. When, they were passing through the Page 2 of 7 Downloaded on : Sun Sep 17 02:30:16 IST 2023 NEUTRAL CITATION C/FA/3683/2010 JUDGMENT DATED: 25/08/2023 undefined place of accident, at the relevant time, a Tata Sumo, which was driven by Opponent No.1, owned by opponent No.2 and insured with opponent No.3 came in wrong side in rash and negligent manner endangering to human life and collided with the front part of the motorcycle and therefore, both the driver and pillion rider of the motorcycle (present claimant) sustained injuries. Therefore, the appellant claimant filed claim petition claiming Rs.3,00,000/ towards the compensation from the respondents.
3. Mr. Hiren Modi, learned advocate appellant-original claimant has submitted that the Tribunal has committed an error in considering only Rs.2,0000/- towards the monthly income instead of Rs.4,000/- claimed by the appellant. It was submitted that the minimum wages prevailing at the time of occurrence of the accident in the year 2006 was Rs. 2500/- per month.
3.1 Mr. Modi, learned advocate for the appellant has submitted that the Tribunal has also awarded inadequate amount of compensation towards the special diet and actual loss of income for Page 3 of 7 Downloaded on : Sun Sep 17 02:30:16 IST 2023 NEUTRAL CITATION C/FA/3683/2010 JUDGMENT DATED: 25/08/2023 undefined three months.
3.2 Learned advocate Mr.Modi further submitted that the Tribunal ought to have considered the multiplier of 18 as per the decision of the Hon'ble Apex Court rendered in the case of National Insurance Company Limited versus Pranay Shethi reported in (2017) 16 SCC 680.
4. On the other-hand Mr. Alkesh Shah, learned advocate for the respondent No.3-Insurance Company has submitted that the Tribunal has passed a just and proper award after considering the monthly income of Rs.2000/- in absence of any evidence on record to prove the income of Rs.4,000/- per month claimed by the appellant.
4.1 It was submitted by learned advocate Mr. Shah, that considering the 13% disability of the injured claimant for the body as whole, Tribunal has calculated the compensation of Rs.49,920/- after applying the multiplier of "16" as per schedule -II of the Act. Page 4 of 7 Downloaded on : Sun Sep 17 02:30:16 IST 2023
NEUTRAL CITATION C/FA/3683/2010 JUDGMENT DATED: 25/08/2023 undefined 4.2 It was submitted that the tribunal has awarded Rs.30,000/- towards pain, shock and suffering, Rs.6,000/- towards special diet, attendant and transportation, and further Rs.6,000/- towards actual loss of income for 3 months and also passed an award for reimbursement of the medical expenses of Rs.93,597/- and accordingly, total amount of compensation of Rs.1,85,517/- is awarded.
5. Having heard the learned advocates appearing for the respective parties and having considered the submissions made by both the sides, it is not in dispute that the monthly wages prevalent in the year 2006 was Rs.2500/- and therefore, the Tribunal ought to have considered the same for the compensation. Considering the 13% disability of the injured claimant for the body as a whole, the monthly loss of the appellant comes to Rs.325/- (Rs.2500/- x 13%) and accordingly yearly loss of the injured claimant would be Rs. 325 x 12 = Rs.3900. Considering the School Leaving Certificate of the claimant, the claimant appears to be 20 years old at the time of Page 5 of 7 Downloaded on : Sun Sep 17 02:30:16 IST 2023 NEUTRAL CITATION C/FA/3683/2010 JUDGMENT DATED: 25/08/2023 undefined accident. As per the decision of the Hon'ble Apex Court in case of Pranay Shethy (Supra), proper multiplier would be "18" and accordingly, the appellant-original claimant would be entitled to Rs.70,200/- (Rs.3900/- x 18) towards future economic loss.
6. With regard to the compensation under head special diet and actual loss of income for 3 months is concerned, it would be proper to award Rs.15,000/- towards special diet, attendant and transportation and Rs. 10,000/- for actual loss of income for 4 months. Hence, the just and proper compensation would be worked out as under:-
Heads of compensation Amount (Rs.)
1 Future Economic Loss 70,200/-
2. Pain, Shock and suffering 30,000/-
3. Special diet, attendant and 15,000/-
transportation
4. Actual loss of income for 4 months 10,000/-
5. Medicine and medical charges 93,597/-
Total compensation 2,18,797/-
Awarded Compensation 1,85,517/-
Page 6 of 7
Downloaded on : Sun Sep 17 02:30:16 IST 2023
NEUTRAL CITATION
C/FA/3683/2010 JUDGMENT DATED: 25/08/2023
undefined
7. Appeal is therefore, partly allowed. Impugned Judgment and Award of the Tribunal is modified to aforesaid extent. The Tribunal has already awarded Rs.1,85,517/- towards the compensation. Therefore, the appellant-claimant would be entitled to enhanced compensation of Rs.33,280/- (Rs.2,18,797/- - Rs. 1,85,517/-) by way of just and fair compensation. Respondent No.3 -The Insurance Company shall deposit before the Tribunal the aforesaid amount along with interest at the rate of 7.5% per annum from the date of the application till its realization and proportionate cost, within eight weeks from the receipt of a copy of judgment of this Court. Rest of the order of the impugned Judgement and Award remains unaltered.
8. Appeal is disposed of accordingly. No order as to costs.
R&P may be transmitted back to the concerned Claims Tribunal.
(BHARGAV D. KARIA, J) BEENA SHAH Page 7 of 7 Downloaded on : Sun Sep 17 02:30:16 IST 2023