Patel Rasikbhai Mulchanddas vs Patel Kantilal Narayandas

     C/FA/794/2008                                          JUDGMENT DATED: 09/02/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/FIRST APPEAL NO. 794 of 2008


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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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                        PATEL RASIKBHAI MULCHANDDAS
                                     Versus
                     PATEL KANTILAL NARAYANDAS & 2 other(s)
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Appearance:
MR PIYUSH TRIVEDI, MR PRATIK B BAROT(3711) for the Appellant(s) No.
1
MR RITURAJ M MEENA(3224) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:                    HONOURABLE MR. JUSTICE HEMANT M.
                                     PRACHCHHAK
                                Date : 09/02/2023
                               ORAL JUDGMENT

1. This is an appeal by the appellant-original claimants, challenging the judgment and award, Dated: 20.06.2007, passed by the learned Motor Accident Claims Tribunal (Main), Mahesana ('the Tribunal', herein after) in Motor Accident Claim Petition No. 264 of 1998, whereby, the Tribunal partly allowed the Page 1 of 9 Downloaded on : Mon Feb 13 20:53:39 IST 2023 C/FA/794/2008 JUDGMENT DATED: 09/02/2023 said claim petition and awarded total Rs.3,02,560/- towards compensation, after considering the negligence on the part of the appellant-claimant to the extent of 20%.

2. Learned Advocate, Mr. Trivedi, appearing for the learned Advocate, Mr. Barot, for the appellant- claimant mainly submitted that the appellant- claimant, as a result of the accident in question, received grave injuries, including fracture injury, on his body and he had to remain in the hospital as an indoor patient from 31.12.1997 to 24.01.1998. Further, the claimant also had to be operated twice for the injuries sustained by him, i.e. on 01.01.1998 and 15.01.1998.

2.1 Learned Advocate, Mr. Trivedi, submitted that the appellant-claimant, who was 40 years of age at the time of accident, was serving as Executive Engineer (Electrical) in ONGC at Assam and he was getting monthly salary of Rs.21,532/-.

2.2 Learned Advocate, Mr. Trivedi, submitted that, while awarding the amount of compensation, the Tribunal failed to take into consideration the future rise in the income of the appellant-claimant.

2.3 It was, further, submitted that the amount awarded under the head of pain, shock and suffering is also very less and is not in its true spirit.

C/FA/794/2008 JUDGMENT DATED: 09/02/2023 2.4 It was submitted that the Tribunal also committed an error by awarding only Rs.3000/- towards the attendance charges, special diet and transportation. It was, therefore, prayed that the present appeal be allowed.

3. On the other hand, learned Advocate, Mr. Meena, appearing for the Opponent No.3-Insurer strongly opposed this appeal and submitted that the amount awarded by the Tribunal is just and proper and the same calls for no interference at the hands of this Court.

3.1 It was submitted that the appellant-claimant did not produce the sufficient documentary evidence with regard to the medical expenses incurred by him, and therefore, the amount awarded by the Tribunal, under the head 'Medical Expenses', is just and proper.

3.2 Similarly, it was also submitted that the amount awarded by the Tribunal towards food, attendance charges and transportation is also just and therefore, the same also does not require to be enhanced.

3.3 It was submitted that the appellant-claimant was discharging duties as Executive Engineer (Electrical) in ONGC and he continued to serve as such, till he attained the age of superannuation and therefore, the Page 3 of 9 Downloaded on : Mon Feb 13 20:53:39 IST 2023 C/FA/794/2008 JUDGMENT DATED: 09/02/2023 Tribunal has rightly not awarded any amount towards the loss of prospective or future income. It was, therefore, submitted that the present appeal be dismissed.

4. I have heard the learned Advocates for the parties and also perused the records and proceedings of the Tribunal and I am of the opinion that the present appeal deserves to be allowed in part and the amount of compensation awarded by the Tribunal deserves to be enhanced for the reasons detailed, herein below.

4.1 It is not in dispute that, at the time of accident, the appellant-claimant was discharging duties as Executive Engineer (Electrical) in ONGC and therefore, after deducting the 1/3 amount towards personal expenses, the Tribunal rightly held that the net monthly income of the appellant-claimant would come to Rs.21,700/-. However, considering the fact that the appellant-claimant was 40 years of age, at the time of accident, the Tribunal ought to have granted or considered, at least, 40% rise in the future or prospective income of the appellant- claimant, which the Tribunal did not.

4.1.1 Thus, after considering 40% rise in the future or prospective income of the appellant- claimant, his net monthly income would come to Rs.21,700 + 8,680 (i.e. 40% rise in income)= Page 4 of 9 Downloaded on : Mon Feb 13 20:53:39 IST 2023 C/FA/794/2008 JUDGMENT DATED: 09/02/2023 Rs.30,380/-.

4.1.2 From a perusal of the material on record, it is revealed that, pursuant to the accident in question, the appellant-claimant had to take leave of about 286 days. Thus, considering the aforesaid aspect, the Tribunal has rightly held that the appellant-claimant incurred actual loss of income for seven months. Resultantly, considering 40% rise in the future or prospective income, the actual loss of income to the appellant-claimant would come to Rs.30,380 X 07 = Rs.2,12,660/-.

4.1.3 Considering the fact that the appellant- claimant sustained 15% permanent partial disability, the net loss of future or the prospective income to the appellant-claimant would come to Rs30,380 X 15% (i.e. amount towards 15% permanent partial disability)= Rs.4,557/- per month. In other words, the annual loss of prospective or future income to the appellant would come to Rs.54,684/- per annum.

4.1.4 Since, the appellant-claimant was 40 years of age, at the time of accident, the multiplier of 5 applied by the Tribunal, appears to be unjust and improper. Thus, taking into account the fact that the appellant-claimant was 40 years of age, at the relevant point of time, if, the multiplier of 15 is applied, it would meet the ends of justice. Now, by applying the multiplier of 15, the loss of future or Page 5 of 9 Downloaded on : Mon Feb 13 20:53:39 IST 2023 C/FA/794/2008 JUDGMENT DATED: 09/02/2023 prospective income to the appellant would come to Rs.54,684 X 15 = Rs.8,20,260/-.

4.2 So far as the amount awarded by the Tribunal under the head pain, shock and suffering is concerned, it is pertinent to note that, due to accident in question, the appellant-claimant sustained fracture injuries of tibia-fibula, right thigh, right hand and right hand finger and he had to remain in the hospital, as an indoor patient, for nearly about one month. Moreover, the appellant- claimant also had to undergo surgery twice, i.e. on 01.01.1998 and on 15.01.1998. Considering all these aspects, the amount of compensation of Rs.10,000/- awarded by the Tribunal under this head appears to be on the lower side. Hence, the ends of the justice would be met, if, the same is enhanced to Rs.25,000/-.

4.2.1 Considering the nature of injuries sustained by the appellant-claimant and the time period for which he had to remained in hospital as an indoor patient, which culminated into permanent partial disability to the extent of 15%, the amount awarded by the Tribunal of Rs.3,000/- towards medical expenses, Rs.3000/- for food, transportation and attendant and the amount of Rs.10,000/-, awarded by the Tribunal under the head of future medical expenses and Rs.5,000/- towards damage to the scooter do not appear to be sufficient and the same require Page 6 of 9 Downloaded on : Mon Feb 13 20:53:39 IST 2023 C/FA/794/2008 JUDGMENT DATED: 09/02/2023 to be enhanced.

4.2.2 Accordingly, if, the amount towards medical expenses is enhanced from Rs.3000/- to Rs.15,000/-, the amount towards food, transportation and attendance is enhanced from Rs.3000/- to Rs.5,000/-, the amount towards future medical expenses is enhanced from Rs.10,000/- to Rs.20,000/- and the amount towards the damage to the scooter is enhanced from Rs.5,000/- to Rs.10,000/-, the same would be just and reasonable.

5. In view of the above, the appellant-claimant shall be entitled to get the following amount towards compensation, as stated herein below;

Sr.              HEAD OF THE COMPENSATION                            AMOUNT OF
No.                                                                COMPENSATION
                                                                    (IN RUPEES)
 1.      Actual loss of income                                     Rs.2,12,660/-
 2.      Pain, Shock and Suffering                                     Rs.25,000/-


 3.      Medical Expenses                                              Rs.15,000/-
 4.      Food,              Transportation                 and           Rs.5,000/-
         Attendance Charges
 5.      Future Medical Expenses                                       Rs.20,000/-
 6.      Damage caused to the scooter                                  Rs.10,000/-
 7.      Loss         of    Future    or    Prospective            Rs.8,20,260/-
         Income
                      Total     Compensation                     Rs.11,07,920/-



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       C/FA/794/2008                                      JUDGMENT DATED: 09/02/2023

5.1 Here, it is pertinent to note that the Tribunal held the appellant-claimant negligent for causing the accident in question to the extent of 20%. Thus, after deducting 20% amount towards negligence, the claimant would be entitled to get, i.e. Rs.11,07,920

- Rs.2,21,584/- ( deduction towards 20% negligence)= Rs.8,86,336/- towards enhanced amount of compensation and rounding off the same would come to Rs.8,86,400/-.

5.2 Since, the Tribunal has already awarded an amount of Rs.3,78,200/-, after deducting the same, the appellant-claimant would be entitled to get net additional or enhanced amount of compensation of (Rs.8,86,400 - Rs.3,78,200) = Rs.5,08,200/-.

6. Resultantly, this appeal is PARTLY ALLOWED. The appellant-original claimant shall be entitled to get Rs.5,08,200/- towards additional / enhanced compensation, over and above the amount of Rs.3,78,200/- already awarded by the Tribunal, along with simple interest, at the rate of 6% (Six Percent) per annum, from the date of the filing of the claim petition before the Tribunal, till actual realization.

6.1 The aforesaid amount of compensation shall be deposited before the concerned Tribunal by all the opponents jointly or severally within the period of EIGHT WEEKS, from today.

C/FA/794/2008 JUDGMENT DATED: 09/02/2023 6.1.1 Once the amount, as stated herein above, is deposited, after adjusting or deducting the amount towards the deficit court fees, if any, the Tribunal shall disburse, release the ENTIRE awarded amount in favour of the appellant-claimant/s, after due verification, by transferring the same to the account/s of claimant/s by RTGS or NEFT.

6.2 The judgment and award, Dated: 20.06.2007, passed by the learned Motor Accident Claims Tribunal (Main), Mahesana, in Motor Accident Claim Petition No. 264 of 1998 stands MODIFIED to the aforesaid extent.

6.3 Registry is directed to send back R&P to the concerned Tribunal, FORTHWITH. No order as to costs.

(HEMANT M. PRACHCHHAK,J) UMESH/-