NEUTRAL CITATION
C/FA/1629/2011 JUDGMENT DATED: 28/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1629 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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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 ?
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BHURAJI GEMAJI BAMNIYA
Versus
NANABHAI LADUBHAI KOTVALA & 2 other(s)
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Appearance:
MR R.K.MANSURI(3205) for the Appellant(s) No. 1
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 28/08/2023
ORAL JUDGMENT
1. This appeal under Section 173 of the Motor Vehicles Act, 1988 ("the Act" for short) is filed by the original claimant as appellant, challenging the judgment and award dated 14.07.2010, passed by the Motor Accident Claims Tribunal, (Auxi), First Fast Track Court, at Modasa ("the Tribunal", for short), in Motor Accident Claims Petition No. 1240 of 2005, wherein the Tribunal awarded compensation of Page 1 of 6 Downloaded on : Sun Sep 17 02:46:58 IST 2023 NEUTRAL CITATION C/FA/1629/2011 JUDGMENT DATED: 28/08/2023 undefined Rs.48,300/- with interest at the rate of 6% from the date of application till realization.
2. The facts in brief are as under:
2.1 The accident occurred on 22.03.2005, at village - Sompur on Dhasura road. The appellant was hit by one rickshaw bearing registration No. GJ-9-Y-887, driven by respondent No.1. The rickshaw was owned by respondent No.2 and insured with respondent No.3- National Insurance Company. For the said accident the appellant was taken to hospital. It was case of the appellant that he had to undergo surgery and to remain as indoor patient for three days. For the said accident, he preferred claim petition under section 166 of the Act, before Fast Track Court Sabarkantha at Modasa, seeking compensation of Rs. 2,00,000/-.
Upon filing of the claim petition, Notices were issued to the respondents. Respondent - Insurance Company appeared and filed its written statement. Tribunal after hearing the parties and upon appreciation of oral and documentary evidence on record, decided the issue of negligence in favour of the original claimant by holding driver of the rickshaw, as sole negligent for the accident. The Tribunal awarded total compensation of Rs.48,300/- with interest at the rate of 6% from the date of application till realization under different heads, as under: -
Future loss of income Rs.28,800/- Actual loss of income Rs.4,000/- Pain, shock and suffering Rs.7,500/- Medical expenses, Attendant charges, Special diet Rs.8,000/- and Transportation Total compensation Rs.48,300/- Page 2 of 6 Downloaded on : Sun Sep 17 02:46:58 IST 2023 NEUTRAL CITATION C/FA/1629/2011 JUDGMENT DATED: 28/08/2023 undefined
3. Aggrieved by the amount of compensation awarded, present appeal is filed by the original claimant seeking enhancement.
4. Heard learned advocate Mr. R.K. Mansuri for the appellant and learned advocate Mr. Sunil Parikh for respondent No.3 - National Insurance Company. Since the insurance company has not disputed the issuance of policy and liability not being denied, presence of other respondents is not necessary for deciding this appeal. Record and proceedings of the case is secured.
5. Learned advocate Mr. Mansuri submitted that the tribunal had erred in not considering the income of the appellant appropriately. The appellant was earning Rs.4000/- per month, by doing agricultural and miscellaneous - animal husbandry work. For the income earned the appellant had filed affidavit, despite that amount of Rs.2,000/- was considered which needs enhancement. Actual loss of income requires enhancement accordingly. He also submitted that the appellant is entitled for 30% increase in prospective income.
5.1 Relying upon the decision of Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others reported in (2017) 16 SCC 680 and Sarla Verma and others Vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 1211, he submitted to enhance the compensation under the head pain, shock and suffering. Thus, he submitted to allow this appeal.
6. On the other hand, learned advocate Mr. Sunil Parikh for respondent No.3 - Insurance Company submitted that the award of the Tribunal is just and proper, as no evidence in relation to income Page 3 of 6 Downloaded on : Sun Sep 17 02:46:58 IST 2023 NEUTRAL CITATION C/FA/1629/2011 JUDGMENT DATED: 28/08/2023 undefined was led by the appellant. For enhancement under the head pain, shock and suffering, he submitted that the same is appropriately awarded as no evidence was placed by the appellant. The award being just and proper, no interference is called for.
7. Considered the submissions and also evidence on record. Upon re-appreciation of evidence, it is noticed that for income earned, the appellant filed an affidavit. It is true that no evidence was placed on record in support of income earned. However, as per the minimum wages Act, the minimum income in the year 2005 was Rs.2,400/-. Therefore, this Court deems it appropriate to assess the income of appellant at Rs.2,400/- per month. In view of the decision of Hon'ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others (Supra), and Sarla Verma & Ors vs Delhi Transport Corp.& Anr (Supra), multiplier 14 would be applicable instead of 15, for assessing the future loss of income. The disability agreed between the parties was 8%. Thus, the future loss of income is calculated as under:
Rs.2,400/- (income per month) + Rs.720/- (30% prospective income) = Rs.3,120/- per month X 8% functional disability = Rs.249.6 per month X 12 months = Rs.2,995.2 per annum X 14 (multiplier) = Rs. 41,932/- (future loss of income).
7.1 Considering the surgery underwent and period of hospitalization, Rs. 10,000/- would be appropriate instead of Rs. 7500/-. Since the income is assessed at Rs. 2400/- per month, the actual loss of income would be Rs. 4800/- instead of Rs. 4800/-
7.2 Thus, the original claimant would be entitled for total compensation as under:
Page 4 of 6 Downloaded on : Sun Sep 17 02:46:58 IST 2023NEUTRAL CITATION C/FA/1629/2011 JUDGMENT DATED: 28/08/2023 undefined Future loss of income Rs.41,932/-
Pain, shock and suffering Rs.10,000/-
Actual loss of Income Rs. 4,800/-
Medical Expenses Rs. 8,000/-
Total compensation
Rs.64,732/-
8. In view of the above, following order is passed:-
ORDER (1) First Appeal is partly allowed.
(2) The impugned judgment and award dated 14.07.2010, passed by the Motor Accident Claims Tribunal, (Auxi), First Fast Track Court, at Modasa, in Motor Accident Claims Petition No. 1240 of 2005, is hereby substituted and total compensation of Rs.64,732/- is awarded to the original claimant. Since, the Tribunal was awarded an amount of Rs.48,300/-, the original claimant is entitled to get additional amount of Rs.16,432/- (Rs.64,732/- - Rs.48,300/-) with interest at the rate of 6% per annum from the date of filing of claim petition till its realisation. The balance amount of compensation shall be deposited by the respondent -insurance company with the Tribunal within a period of eight weeks from the date of receipt of this order.
(3) The amount shall be disbursed to the original claimant through RTGS, after due verification. The rest of the judgment and award passed by the learned Tribunal shall remained unaltered.
Page 5 of 6 Downloaded on : Sun Sep 17 02:46:58 IST 2023NEUTRAL CITATION C/FA/1629/2011 JUDGMENT DATED: 28/08/2023 undefined (4) Registry is directed to transmit back the Record and Proceedings of the case to the concerned Tribunal forthwith. However, there shall be no order as to costs.
(MAUNA M. BHATT,J) prk Page 6 of 6 Downloaded on : Sun Sep 17 02:46:58 IST 2023