NEUTRAL CITATION
C/FA/1656/2023 JUDGMENT DATED: 31/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1656 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BABUBHAI SHANKERBHAI PATEL
Versus
BIPINKUMAR SENDHABHAI PATEL
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Appearance:
MR AMIT N PATEL(2749) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 31/08/2023
ORAL JUDGMENT
[1] The claimant-injured is before this Court praying for enhancement of the compensation Page 1 of 15 Downloaded on : Sun Sep 17 03:05:41 IST 2023 NEUTRAL CITATION C/FA/1656/2023 JUDGMENT DATED: 31/08/2023 undefined amount in MACP no.795/98 which was pronounced on 19.9.2022 by MACP (Aux), Mehsana at Visnagar. The learned Tribunal had granted compensation of Rs.4,52,834/- with interest at the rate of 9% per annum.
[2] Advocate Mr. Amit Patel for the appellant submits that this is a second round of litigation. In the previous matter, the owner was not served and thereafter, earlier order passed by the Tribunal was set aside and the MACP was ordered to be restored back for deciding the matter afresh.
[3] Advocate Mr. Patel submits that the injured-
claimant is agriculturist and was also earning income by doing borewell work and the income was required to be considered accordingly.
However, the learned Tribunal has assessed the monthly income at Rs.2,500/- per month which according to Advocate Mr. Patel is not consistent to the work undertaken by the Page 2 of 15 Downloaded on : Sun Sep 17 03:05:41 IST 2023 NEUTRAL CITATION C/FA/1656/2023 JUDGMENT DATED: 31/08/2023 undefined injured. Advocate Mr. Patel states that the learned Tribunal had also failed to take into consideration that the claimant had suffered 75% permanent disability who has lost his left leg above knee due to accidental injuries and owing to the amputation of leg, the claimant is unable to do his work and having lost the source of employment, his functional disability ought to have been considered as 100%. Advocate Mr. Patel further submits that the learned Judge has also materially erred in granting only Rs.5,000/- under the head of pain, shock and suffering oblivious of the fact that the claimant had suffered amputation above knee at the age of 42 and that he would be undergoing pain, suffering and trauma throughout his life and would not be in a position to live a normal life and thus, according to Advocate Mr. Patel, the Tribunal has not adequately compensated the claimant even under other heads and has also failed to Page 3 of 15 Downloaded on : Sun Sep 17 03:05:41 IST 2023 NEUTRAL CITATION C/FA/1656/2023 JUDGMENT DATED: 31/08/2023 undefined appreciate that the claimant would not have normal life and would have to suffer other amenities of life and enjoyment for the remaining period of his life.
[4] Advocate Mr. Shelat for the insurance company submitted that the claimant-injured failed to prove his income during the course of trial by producing any cogent evidence to show that he was earning from any borewell work and thus, submitted that the monthly income assessed at Rs.2,500/- is just and appropriate. Advocate Mr. Shelat further submitted that the learned Tribunal has considered 75% permanent disability for the body as a whole and total amount of medical expenses have been granted. Mr. Shelat submitted that there is no documentary evidence in connection with the agriculture work, and in the present case, the oral evidence is to the effect that his father owns agricultural property. Advocate Mr. Shelat referring to the judgment in the case Page 4 of 15 Downloaded on : Sun Sep 17 03:05:41 IST 2023 NEUTRAL CITATION C/FA/1656/2023 JUDGMENT DATED: 31/08/2023 undefined of State of Haryana & Anr. v. Jasbir Kaur & Ors., (2003) 7 SCC 484 stated that Rs.3,000/- could be considered as just amount for the person engaged in agricultural work. Mr. Shelat submitted that in earlier round of litigation, the Tribunal has assessed income of Rs.3,000/- per month which could be in par to the minimum wages schedule. [5] Record and proceedings indicates that in previous round of litigation, the matter was proceeded ex-parte against opponent no.1 before the MACT (Aux), Mehsana which came to be decided on 27.11.2009, wherein the insurance company came to be exonerated and the claim was granted against opponent no.1. Aggrieved by the said judgment and order, opponent no.1 - Bipinkumar Sendhabhai Patel filed Special Civil Application no.3386/2018 and in that matter, record and proceedings were sent back to the Tribunal to decide the application on merits. Thus, opponent no.1 Page 5 of 15 Downloaded on : Sun Sep 17 03:05:41 IST 2023 NEUTRAL CITATION C/FA/1656/2023 JUDGMENT DATED: 31/08/2023 undefined filed Misc. Motor Accident Claims Application no.14 of 2022 before the Tribunal under the provisions of Order 9 Rule 13 of the Code of Civil Procedure, 1908 for setting aside the ex-parte judgment and decree. The Tribunal thus served all the necessary parties and heard the matter afresh and thereafter, the judgment and award was passed on 19.9.2022. The said judgment and award dated 19.9.2022 is impugned specifically on the ground that the compensation granted is on very lower side. The income has not been assessed in accordance to the evidence and the amount under various heads too, are on the lower side and the learned Tribunal has failed to consider the aspect of amputation of the leg of the claimant.
[6] The facts of the case as were urged before the Tribunal making a prayer for compensation for the accidental injuries sustained is about the vehicular accident dated 7.11.1997, where the Page 6 of 15 Downloaded on : Sun Sep 17 03:05:41 IST 2023 NEUTRAL CITATION C/FA/1656/2023 JUDGMENT DATED: 31/08/2023 undefined claimant was traveling in a Matador bearing registration no. GJ-2 T-9658 loaded with goods from Kamana to Ratanpur of Idar Taluka and suddenly on the road to rescue the monkeys, he lost control on the Matador which turned turtle on the road and the claimant sustained grievous injuries over his left leg which was amputed during the operation. [7] The learned Tribunal has referred to the copy of the complaint Exh.43 and the evidence of the claimant vide Exhs.29 and 71 and had observed that the claimant is not an income- tax payer and no evidence with regard to income and occupation has been produced on record. Hence, the Tribunal assessed the income at Rs.2,500/- per month. It is required to be noted that in the earlier judgment which was remanded back for hearing afresh, the Tribunal has considered the income of the claimant as Rs.3,000/- per month. It is the case of the claimant that he was working in Page 7 of 15 Downloaded on : Sun Sep 17 03:05:41 IST 2023 NEUTRAL CITATION C/FA/1656/2023 JUDGMENT DATED: 31/08/2023 undefined the agricultural field. The evidence had come on record that his father is owning agricultural land.
[8] In the case of State of Haryana (supra), the Hon'ble Apex Court has explored the concept of just and reasonable in connection with the compensation under the Motor Vehicles Act, 1988 and further has referred the case, where no material was pressed before the Tribunal to substantiate the actual income from agriculture source. The aspect has been dealt with in Paragraphs 7 and 8 which are reproduced hereunder to justify that the assessment of income of Rs.3,000/- per month of the claimant as was granted in earlier round of proceedings would be appropriate to be considered for the claimant.
"7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is Page 8 of 15 Downloaded on : Sun Sep 17 03:05:41 IST 2023 NEUTRAL CITATION C/FA/1656/2023 JUDGMENT DATED: 31/08/2023 undefined to be in the real sense "damages" which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has be to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate the compensation must be "just" and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be "just" compensation is a vexed question.
There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of "just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression "just" denotes equitability, fairness and reasonableness, and non- arbitrary.
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NEUTRAL CITATION C/FA/1656/2023 JUDGMENT DATED: 31/08/2023 undefined If it is not so it cannot be just. (See Helen C. Rebello v. Maharashtra State Road Transport Corporation (AIR 1998 SC 3191).
8. It is clear on a bare reading of the Tribunal's decision as affirmed by the High Court that no material was placed before the former to prove as to what was the income. As rightly contended by learned counsel for the appellants, there was not even any material adduced to show type of land which the deceased possessed. The matter can be approached from a different angle. The land possessed by the deceased still remains with the claimants as his legal heirs. There is however a possibility that the claimants may be required to engage persons to look after agriculture. Therefore, the normal rule about the deprivation of income is not strictly applicable to cases where agricultural income is the source. Attendant circumstances have to be considered. Furthermore, there was no material before the Tribunal to arrive at the figure of Rs.4500 per month. No reason has been indicated to arrive at this figure.
In the light of what has been discussed above about "just compensation" the income cannot be estimated without any material to justify the estimation. In the normal course, we would have remitted the matter back to the Tribunal for fresh consideration. But considering the fact that one young person lost his life, and the matter was pending Page 10 of 15 Downloaded on : Sun Sep 17 03:05:41 IST 2023 NEUTRAL CITATION C/FA/1656/2023 JUDGMENT DATED: 31/08/2023 undefined before the Tribunal and the High Court for some years, we feel it appropriate to take all relevant factors into consideration, and decide the matter. Gauzing the relevant aspects, noted above, the monthly income is fixed at Rs.3000/- per month... ..."
[9] The age of the claimant has been considered as
42. In accordance to the principles laid down in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors., (2017) 16 SCC 680, the prospective rise in income could be considered as 25%. Hence, the income of the claimant could be assessed as Rs.3,000/- per month and 25% rise, would come to Rs.750/- and thus, the income of the claimant is considered as Rs.3,750/-.
[10] The learned Tribunal has relied upon the disability certificate at Exh.49 wherein the Doctor has assessed the permanent disability of 75% which has been admitted by the opponents. The loss which has been suffered by the claimant is the amputation of left leg and Page 11 of 15 Downloaded on : Sun Sep 17 03:05:41 IST 2023 NEUTRAL CITATION C/FA/1656/2023 JUDGMENT DATED: 31/08/2023 undefined 75% permanent disability of the body as a whole. Assessment for the functional disability does not require any interference from this Court since the claimant would be in a position to do other work and can also have the assistance of the person to look after the agricultural work. Thus, the annual income comes to Rs.45,000/-. 75% loss in income would be Rs.33,750/-. Considering the age of 42, multiplier of 14 would be applicable. Hence, the future loss of income would come to Rs.4,72,500/-.
[11] The learned Tribunal has granted only Rs.5,000/- under the head of pain, shock and suffering which is on the very lower side. Since the claimant had to undergo operation and had lost his left leg above knee at the age of 42, it would be just and reasonable to grant Rs.1,50,000/- under the head of pain, shock and suffering and also taking into consideration the fact that the claimant would Page 12 of 15 Downloaded on : Sun Sep 17 03:05:41 IST 2023 NEUTRAL CITATION C/FA/1656/2023 JUDGMENT DATED: 31/08/2023 undefined not be in a position to enjoy the amenities of life, it would be appropriate to grant Rs.75,000/- under the head of loss of enjoyment and amenities of life. [12] As per the evidence, the claimant had to suffer operation and taking into consideration the disability of 75%, the fact that he would not have recuperated, this Court considers that he may have suffered loss of income for about 5 months. Hence, under the head of actual loss of income, Rs.15,000/- (Rs.3,000/- X 5) is granted. The learned Tribunal has granted Rs.5,000/- under the head of special diet, attendant and transportation, which this Court has not found any reason to change the said amount as the claimant had been adequately compensated under other heads. Rs.36,710/- are the medical bills which have been granted by the Tribunal as necessary bills were produced on record. In view of the said fact and the reasons given hereinabove, Page 13 of 15 Downloaded on : Sun Sep 17 03:05:41 IST 2023 NEUTRAL CITATION C/FA/1656/2023 JUDGMENT DATED: 31/08/2023 undefined total computation of the compensation would be as under:-
Rs.4,72,500/- Future loss of income + Rs.1,50,000/- Pain, shock and suffering + Rs. 75,000/- Loss of enjoyment and amenities of life + Rs. 15,000/- Actual loss of income + Rs. 5,000/- Special diet, attendant and transportation + Rs. 36,710/- Medical bills = Rs.7,54,210/- Total compensation [13] As the Tribunal has granted compensation of Rs.4,52,834/- with interest at the rate of 9% per annum, the claimant would be entitled to the enhanced amount of compensation of Rs.3,01,376/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization. The insurance Company is directed to deposit the said amount within eight weeks from the date of receipt of writ of this Court.
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NEUTRAL CITATION C/FA/1656/2023 JUDGMENT DATED: 31/08/2023 undefined [14] The impugned judgment and award be modified accordingly. The appeal is partly allowed. Registry is directed to send the record and proceedings back to the Tribunal, if received.
(GITA GOPI,J) Maulik Page 15 of 15 Downloaded on : Sun Sep 17 03:05:41 IST 2023