NEUTRAL CITATION
C/FA/1628/2011 JUDGMENT DATED: 28/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1628 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT sd/-
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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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SURESHBHAI KANTIBHAI PATEL
Versus
DHIRJAKUMAR JIVABHAI VANKAR & 2 other(s)
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Appearance:
MR R.K.MANSURI(3205) for the Appellant(s) No. 1
MR DHARMESH R PATEL(5592) for the Defendant(s) No. 1,2
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
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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 judgement and award dated 11.08.2010, passed by the Page 1 of 8 Downloaded on : Sun Sep 17 02:46:56 IST 2023 NEUTRAL CITATION C/FA/1628/2011 JUDGMENT DATED: 28/08/2023 undefined Motor Accident Claims Tribunal, (Aux.), Sabarkantha at Modasa in Motor Accident Claims Petition No.1052 of 2002, wherein claim petition of the original claimant was allowed in part and compensation of Rs.44,100/- was awarded with interest at the rate of 6% per annum from the date of filing of the claim petition till its realization, with proportionate costs.
2. Short facts, arising from the record, are as under: 2.1 For the accident, which occurred on 13.04.2002 on Malpur Road, the appellant sustained injury. It was case of the appellant that when he was waiting on the bus stand, one rickshaw bearing No.GJ-9-Y-321 came in rash and negligent manner and pushed the appellant, for which, he sustained injuries. For the said accident, an FIR was lodged and Panchnama was drawn. The appellant herein - original claimant filed claim petition under section 166 of the Motor Vehicles Act, seeking compensation of Rs.1,00,000/-. It was case of the original claimant that accident occurred due to sole negligence of driver of the rickshaw.
Upon filing of the claim petition, Notices were issues to the respondents. Respondent - insurance company appeared and filed its Page 2 of 8 Downloaded on : Sun Sep 17 02:46:56 IST 2023 NEUTRAL CITATION C/FA/1628/2011 JUDGMENT DATED: 28/08/2023 undefined 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.44,100/- under different heads, as under:
Future loss of income Rs. 19,200/-
Pain, shock and suffering Rs. 7,500/-
Medical expenses Rs. 10,150/-
Transportation, Diet Food and Attendant charges Rs. 6,000/-
Actual loss of income Rs. 1,250/-
Total compensation Rs.44,100 /-
3. Aggrieved by the amount of compensation awarded, present appeal is filed by the original claimant as appellant, seeking enhancement.
4. Heard Mr.R.K.Mansuri, learned advocate for the appellant- original claimant and Mr.H.G.Mazmudar, learned advocate for respondent No.3- insurance company. Since the insurance company has not disputed the issuance of policy to the rickshaw and liability not being denied, presence of other respondents is not necessary for deciding this appeal. Record and proceedings of the case is secured. Page 3 of 8 Downloaded on : Sun Sep 17 02:46:56 IST 2023
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5. Mr.R.K.Mansuri, learned advocate for the appellant submitted that the Tribunal is in error in assessing the income of the appellant at Rs.1,250/- per month. Referring to the affidavit of appellant at Exh-47, he submitted that by repairing the machines operating the borewell, the appellant was earning Rs.3,000/- per month. Further, in cross- examination by the insurance company, nothing contrary came on record and therefore, Tribunal ought to have considered the income of original claimant as Rs.3,000/- per month. Moreover, original claimant would be entitled to get future loss of income to the extent of 40% as he was 20 years old at the time of accident. Considering the injury sustained and the treatment underwent at the young age of 20, compensation awarded by the Tribunal towards pain, shock and suffering needs enhancement.
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 towards other conventional heads accordingly. Thus, he submitted to allow this appeal. Page 4 of 8 Downloaded on : Sun Sep 17 02:46:56 IST 2023
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6. Per contra, learned advocate Mr.H.G.Mazmudar, for the respondent- insurance company submitted that the Tribunal has awarded just compensation based on evidence on record, which does not call for interference of this Court. In relation to income, there is no income proof produced. He therefore, submitted to dismiss the appeal filed by the original claimant.
7. Heard learned advocates for respective parties and perused the record and proceedings of the case. Upon re-appreciation of evidence, it is noticed that in the affidavit of original claimant at Exh-47, he had stated that he was earning Rs.3,000/- per month. It is true that no evidence was produced by the original claimant to prove his income. However, for the nature of work, the claimant was doing, it is difficult to produce income proof. Therefore, in my opinion, Tribunal is in error in considering the income of the claimant at Rs.1,250/- per month. I am not unaware of the fact that no documentary evidence was placed record to support his income. However, considering the nature of work and income applicable as per Minimum Wages Act, the income of original claimant is assessed at Rs.2,200/- per month. The disability assessed and agreed between the parties before the Tribunal was 8%.
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8. The original claimant was 18 years old at the time of accident and therefore, in view of decision of the Hon'ble Supreme Court in the case of Pappu Deo Yadav V/s. Naresh Kumar reported in AIR 2020 SC 4424 and Pranay Sethi (supra), the original claimant would be entitled to get 40% rise towards future loss of income. Thus, the original claimant would be entitled for future loss of income as under:
"Rs.2,200/- per month + Rs.880/- (40% prospective rise) = Rs.3,080/- per month x 8 % functional disability = Rs.246/-
per month x 12 months = Rs.2,952/- per annum x 18 multiplier (considering age of the claimant at 20 years) = Rs.53,136/-".
9. As the claimant sustained serious injury for which, he was required to take prolong treatment, in my opinion, Rs.10,000/- would be appropriate towards pain, shock and suffering. The compensation under other conventional heads in my opinion are properly considered by the Tribunal, which does not call for any interference. Thus, the original claimant would be entitled for total compensation as under: Page 6 of 8 Downloaded on : Sun Sep 17 02:46:56 IST 2023
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Pain, shock and suffering Rs. 10,000/- Medical expenses Rs. 10,150/- Transportation, Diet and Attendant charges Rs. 6,000/- Actual loss of income Rs. 4,400/- Total compensation Rs.83,686 /-
10. In view of the above, following order is passed: -
ORDER (1) First Appeal is partly allowed.
(2) The impugned judgement and award dated 11/08/2010, passed by the Motor Accident Claims Tribunal, (Aux.), Modasa in Motor Accident Claims Petition No.1052 of 2002, is hereby substituted and total compensation of Rs.83,686/- is awarded to the original claimant. As the Tribunal has awarded an amount of Rs.44,100/-, the original claimant is entitled to get additional amount of Rs.39,586/- [Rs.83,686/- - Rs.44,100/-] 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 Page 7 of 8 Downloaded on : Sun Sep 17 02:46:56 IST 2023 NEUTRAL CITATION C/FA/1628/2011 JUDGMENT DATED: 28/08/2023 undefined 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. (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.
sd/-
(MAUNA M. BHATT,J) DIPTI PATEL Page 8 of 8 Downloaded on : Sun Sep 17 02:46:56 IST 2023