C/FA/1433/2020 JUDGMENT DATED: 08/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1433 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
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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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DHARMIKBHAI PRAVINBHAI PATEL (VELANI)
Versus
PRATAPSINH RAJUSINH RAVAT
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Appearance:
MR R G DWIVEDI(6601) for the Appellant(s) No. 1
MS POOJA H HOTCHANDANI(7765) for the Appellant(s) No. 1
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2,4,5
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 08/02/2023
ORAL JUDGMENT
1. The present First Appeal impugns judgment and award dated 31.01.2020 passed by learned Motor Accident Claim Tribunal (Aux.) Kheda at Nadiad in Motor Accident Claim Petition No.2 of 2012 whereby the learned Tribunal has awarded a compensation of Page 1 of 5 Downloaded on : Thu Feb 09 20:48:19 IST 2023 C/FA/1433/2020 JUDGMENT DATED: 08/02/2023 Rs.1,02,110/- to the appellant along with interest @ 9% per annum from the date of the claim petition till payment.
2. The factual matrix in the present First Appeal is as follows :-
2.1 It is alleged that on 24.09.2011 at about 10.30 hours in the night, the claimant was traveling on the motorcycle bearing registration No. G. J. 9. A. L. 3881 as a pillion rider and was returning back to his home from Village Thasra. The friend of the claimant was driving the motorcycle. At the place of incident, one Eicher Tempo bearing registration No. G. J. 2. Z. 5315 which was being driven in excessive speed in rash and negligent manner, turned turtle, as a result of which, the claimant got crushed under the said tempo and sustained injuries including fracture on hands.
2.2 The claimant filed Motor Accident Claim Petition No.2 of 2012 under Section 166 of the Motor Vehicles Act, claiming a compensation of Rs.2,00,000/-. Notice came to be issued to the respondents. Both the parties led the evidence in support of their contentions. After perusing the evidence brought on record, the learned Tribunal was pleased to award a compensation of Rs.1,02,110/- along with interest @ 9% per annum from the date of the claim petition till payment.
2.3 Aggrieved, the appellant has preferred the present First Appeal.
3. Learned advocate Mr. R. G. Dwivedi appearing on behalf of the appellant claimant submitted that the appellant is a young boy aged 19 years who was earning his living by repairing the mobiles. He submitted that in addition, he was also doing the agriculture work and therefore, the claimant was earning an amount of Page 2 of 5 Downloaded on : Thu Feb 09 20:48:19 IST 2023 C/FA/1433/2020 JUDGMENT DATED: 08/02/2023 Rs.6000/- per month. He submitted that in the accident, the appellant was not at any fault and it was unfortunate that the tempo turned turtle and he came under the same. He further submitted that the learned Tribunal has not taken into account the disability of 19.18% which was incurred on the hands of the appellant. He submitted that the disability should have been taken in total as the appellant had sustained disability to one limb. He further submitted that in respect of monthly income assessed at Rs.3000/- per month by the Tribunal, no cogent reasoning has been given. He submitted that since the appellant was a skilled worker repairing the mobiles, the income should be assessed at least on the basis of minimum wages which was applicable to a skilled worker at the relevant time. He therefore submitted that the learned Tribunal has fell in error in assessing the income. He submitted that the present Appeal be allowed and the appellant be awarded the amount as prayed for in the claim petition.
4. Per contra, learned advocate Ms. Kirti Pathak appearing on behalf of respondent No.3 Insurance Company submitted that the appellant is a young boy aged 19 years. She submitted that looking to the nature of work and age of the appellant, the learned Tribunal has rightly assessed the income at Rs.3000/- in absence of any cogent evidence produced on record. She submitted that the appellant has not produced any documentary evidence in support of his income and therefore, in the facts and circumstances of the present case, the income as assessed is just and proper. She submitted that the appellant has incurred two fractures on his hands, however nothing is brought on record to show that the work is affected because of the same and that there is any loss due to the disability so incurred. She submitted that taking into consideration the evidence brought on record, the learned Tribunal has correctly computed the compensation in the present case and no Page 3 of 5 Downloaded on : Thu Feb 09 20:48:19 IST 2023 C/FA/1433/2020 JUDGMENT DATED: 08/02/2023 interference is called for. She submitted that the Appeal be dismissed.
5. Heard learned advocates for the respective parties and perused the record & proceedings of the case.
6. It is not disputed in the present case that the appellant was earning his living by repairing the mobiles and was also doing the agriculture work. The repairing of mobiles requires certain expertise and technical knowledge. In view thereof, it can be safely held that the claimant was a skilled person. The learned Tribunal has not given any cogent reason for assessing the income at 50% of the income claimed by the appellant herein. In absence of any evidence with respect to the income, the learned Tribunal ought to have assessed the income in view of minimum wages which are declared by the learned Assistant Labour Commissioner, State of Gujarat in respect of various categories of workers. Taking the basis for the same, in the present case, since the appellant was a skilled worker, the monthly income can be safely assessed at minimum of the wages being paid to a skilled worker. On the date of the incident, the minimum wages payable to a skilled worker was declared at Rs.4660/- per month. In view thereof, in the present case, the income of the appellant is assessed to be Rs.4660/- and the just and proper compensation will have to be calculated on the basis of the said income.
7. Learned advocate Mr R. G. Dwivedi submitted that the appellant had to undergo the surgery for the fractures and therefore, the actual loss of income as assessed at one month should be considered for a period of two months since the appellant had undergone the surgery and he was indoor patient. The said contention is reasonable and is accepted.
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8. In view of above, taking the income of the appellant as Rs.4660/- per month, he is entitled to the compensation as under :-
Future economic loss Rs.96529=00
Pain, shock and sufferings Rs.5000=00
Special diet, attendant &
transportation Rs.7500=00
Medical expenditure Rs.22,294=00
Actual loss of income Rs.9320=00
Total Rs.1,40,643=00
9. In view of aforesaid observations and in the facts and circumstances of the present case, the appellant is entitled to additional compensation of Rs.38,533/- along with 9% interest from the date of filing of the claim petition till realization. The additional amount of compensation shall be deposited by the respondent Insurance Company within a period of six weeks from the date of receipt of this order along with interest before the learned Tribunal. Upon deposit of additional amount of compensation, the learned Tribunal shall release the total amount of compensation as deposited along with interest to the appellant herein after following due procedure and due verification within a period of two weeks thereafter.
10. The present First Appeal is partly allowed and the same is disposed of accordingly. No order as to costs.
(ANIRUDDHA P. MAYEE, J.) cmk Page 5 of 5 Downloaded on : Thu Feb 09 20:48:19 IST 2023