Mehulkumar Ghanshyambhai Patel vs Prajapati Mulagiri Goswami

     C/FA/2398/2009                                           JUDGMENT DATED: 09/02/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/FIRST APPEAL NO. 2398 of 2009


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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                   MEHULKUMAR GHANSHYAMBHAI PATEL
                                 Versus
                  PRAJAPATI MULAGIRI GOSWAMI & 4 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR HS MUNSHAW(495) for the Defendant(s) No. 5
MS LILU K BHAYA(1705) for the Defendant(s) No. 3
RULE NOT RECD BACK for the Defendant(s) No. 1,2
RULE SERVED for the Defendant(s) No. 4
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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 claimant, challenging the judgment and award, Dated: 15.05.2008, passed by the learned Motor Accident Claims Tribunal (Auxiliary), Fast Track Court No.2, Page 1 of 10 Downloaded on : Mon Feb 13 20:53:32 IST 2023 C/FA/2398/2009 JUDGMENT DATED: 09/02/2023 Vadodara ('the Tribunal', herein after), in Motor Accident Claim Petition No. 1230 of 2003, whereby, the Tribunal partly allowed the said claim petition and awarded total Rs.1,87,000/- towards compensation, along with interest at the rate of 7.5% per annum, from the date of filing of the claim petition, till realization so also proportionate costs.

2. Learned Advocate, Mr. Modi, appearing for the appellant-claimant mainly submitted that the Tribunal committed an error, while calculating the income of the appellant-claimant by overlooking the relevant documents, though, the same were produced before it.

2.1 It was submitted that, though, the appellant- claimant produced the salary certificate, Exhibit-33, issued by the TVS Motors and he also examined the concerned person, i.e. owner of Jay Ambe Automobiles, who was authorized service provider for the TVS Motors, as a witness vide Exhibit-22, the Tribunal did not consider the same, while calculating the income of the appellant-claimant, and thereby committed a grave error.

2.1.1 It was submitted that, while calculating the income, the Tribunal did not even referred to the aforesaid evidences and thereby, erred in passing the impugned judgment and award.

2.2 Learned Advocate, Mr. Modi, submitted that the Page 2 of 10 Downloaded on : Mon Feb 13 20:53:32 IST 2023 C/FA/2398/2009 JUDGMENT DATED: 09/02/2023 Tribunal also did not award any amount towards the loss of future or prospective income and committed a serious error.

2.3 It was submitted that, on account of the accident in question, the appellant-claimant sustained 20% disability of the body as a whole, and therefore, the amount awarded by the Tribunal under the head pain, shock and suffering is insufficient.

2.4 It was submitted that, considering the nature of injuries sustained by the appellant-claimant and the fact that he had to remain in the hospital, as an indoor patient, for about two months, the amounts awarded under the heads attendance charges, transportation charges and towards special diet are very less and the Tribunal ought to have awarded some more amount under these heads.

It was, therefore, prayed that the present appeal be allowed.

3. On the other hand, learned Advocate, Ms. Bhaya, appearing for Opponent No.3-insurer strongly opposed this appeal and submitted that, initially, the appellant-claimant had filed an application under order 44 (1) and Order 33 (1) as a 'Pauper', stating, therein, that he was neither having any movable or immovable property and that he is not having sufficient income. It was, therefore, submitted that, Page 3 of 10 Downloaded on : Mon Feb 13 20:53:32 IST 2023 C/FA/2398/2009 JUDGMENT DATED: 09/02/2023 at the time of accident, the appellant-claimant was not having any income, and hence, the amount awarded by the Tribunal is just and proper and does not call for any interference.

3.1 By relying on the above, it was submitted that the Tribunal rightly did not consider the rise in future or prospective income of the appellant- claimant.

3.2 So far as the amounts awarded by the Tribunal under the head of pain, shock and suffering, medical expenses, attendance charges etc. is concerned, it was submitted that, since, the appellant-claimant did not produce the sufficient evidence, the amounts awarded by the Tribunal under the aforesaid heads are just and proper. It was, thus, submitted that the present appeal be dismissed.

4. I have heard the learned Advocates for the parties and perused the record of this matter and considering the ratio laid down by the Hon'ble Apex Court in catena of decisions from time to time, the Tribunal ought to have awarded just and fair compensation. Hence, I am of the considered opinion that the present appeal deserves to be allowed for the reasons given, hereunder.

4.1 From the a perusal of the impugned judgment and order of the Tribunal, it transpires that, while Page 4 of 10 Downloaded on : Mon Feb 13 20:53:32 IST 2023 C/FA/2398/2009 JUDGMENT DATED: 09/02/2023 calculating the loss of future or prospective income to the appellant, the Tribunal has taken Rs.3,000/- as the yearly or annual loss of income to the appellant-claimant by observing that "...profession and vocation of the claimant has not been pleaded as well as had been stated on oath by the claimant". However, while so doing the Tribunal seems to have lost sight of the fact that the appellant-claimant, in fact, had produced the salary certificate vide Exhibit-33, and had also examined the owner of Jay Ambe Automobiles vide Exhibit-22, which was the authorized service provided for TVS Motors. Thus, the submission made by the learned Advocate, Mr. Modi, that, while calculating the amount towards future or prospective loss of income, the Tribunal neither considered nor appreciated the aforesaid evidences and thereby, committed a serious error, deserves to be accepted.

4.1.1 In view of the above, the Tribunal ought to have held that the appellant-claimant must have been earning, at least, Rs.3,500/- per month. Now, considering the fact that the appellant-claimant must have been earning Rs.3,500/- per month, the annual loss of income would come to Rs.42,000/-.

4.1.2 Here, it may be noted that, at the time of accident, the appellant-claimant was aged about 22 years. Thus, considering the young age of the appellant-claimant, the Tribunal ought to have Page 5 of 10 Downloaded on : Mon Feb 13 20:53:32 IST 2023 C/FA/2398/2009 JUDGMENT DATED: 09/02/2023 considered the rise in the income of the appellant- claimant, which the Tribunal failed to do. Thus, after considering 40% rise in the future or prospective income of the appellant-claimant, his net monthly income would come to Rs.3500 + 1400 (i.e. 40% rise in income)= Rs.4,900/- or his annual loss of future or prospective income would come to Rs.4,900/- X 12 = Rs.58,800/-.

4.1.3 From a perusal of the material on record, it is revealed that, on account of the accident in question, the appellant-claimant had to remain in the hospital, as an indoor patient, for about two months. Thus, considering the aforesaid aspect, the Tribunal ought to have held that the appellant-claimant incurred actual loss of income for about three months. However, the Tribunal has not awarded any amount towards actual loss of income. Resultantly, the actual loss of income to the appellant-claimant would come to Rs.3500 X 03 = Rs.10,500/-.

4.1.4 Here, it is pertinent to note that, before the Tribunal, both the sides had agreed that the disability sustained by the appellant-claimant is to be treated as 20% of the body as a whole. Thus, considering 20% disability of the body as a whole, the loss of future or prospective income annually or per year to the appellant-claimant would come to Rs.58,800/- X 20% disability = Rs.11,760/-.

C/FA/2398/2009 JUDGMENT DATED: 09/02/2023 4.1.5 Now, from the record it transpires that, while calculating the loss of prospective or future income, the Tribunal applied the multiplier of 15, which appears to be on the lower side and therefore, considering the fact that the appellant-claimant was 22 years of age, at the relevant point of time, if, the multiplier of 18 is applied, the same would meet the ends of justice. Thus, by applying the multiplier of 18, the loss in future or prospective income to the appellant would come to Rs.11,760 X 18 = Rs.2,11,680/-.

4.2 So far as the amount awarded by the Tribunal under the head of medical expenses is concerned, considering the documentary evidences produced by the appellant-Claimant, the amount of Rs.90,000/- awarded by the Tribunal under this head appears to be just and needs no interference.

4.2.1 Insofar as the amount awarded by the Tribunal under the head of pain, shock and suffering is concerned, it is pertinent to note that, due to accident in question, the appellant-claimant sustained fracture injuries and plaster had to be applied for 12 weeks and he had to remain in the hospital, as an indoor patient, for nearly about two months. Considering all these aspects, the amount of compensation of Rs.35,000/- awarded by the Tribunal under this head appears to be insufficient. Hence, the ends of the justice would be met, if, an Page 7 of 10 Downloaded on : Mon Feb 13 20:53:32 IST 2023 C/FA/2398/2009 JUDGMENT DATED: 09/02/2023 additional amount of Rs.15,000/- is awarded under this head and the same is enhanced to (Rs.35,000 (Awarded by Tribunal) + Rs.15,000 (Enhanced Amount)= Rs.50,000/-.

4.2.2 Considering the nature of injuries sustained by the appellant-claimant and the time period for which he had to remained in the hospital, as an indoor patient, which culminated into permanent partial disability to the extent of 20%, the amount awarded by the Tribunal of Rs.7000/- for special diet, Rs.5,000/- for transportation and Rs.5,000/- towards attendant charges do not appear to be sufficient and the same require to be enhanced. Accordingly, if, the amount towards food, transportation and attendance, which comes to total Rs.17,000/-, is cumulatively enhanced to Rs.25,000/-, 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.10,500/-
 2.     Loss          of   Future       or     Prospective              Rs.2,11,680/-
        Income
 3.     Pain, Shock and Suffering                                           Rs.50,000/-


                                         Page 8 of 10

                                                                      Downloaded on : Mon Feb 13 20:53:32 IST 2023
      C/FA/2398/2009                                      JUDGMENT DATED: 09/02/2023




 4.     Medical and Operation Expenses                                Rs.90,000/-


 5.     Attendance                              Charges,              Rs.25,000/-
        Transportation               Charges             and
        Special Diet
                      Total    Compensation                      Rs.3,87,180/-

5.1 Under the circumstances, the appellant-claimant shall be entitled to get Rs.3,87,180/- towards compensation.

5.1.1 In view of the fact that the Tribunal has already awarded an amount of Rs.1,87,000/- towards compensation, after deducting the same, the appellant-claimant shall be entitled to get net additional or enhanced amount of compensation of (Rs.3,87,180/- - Rs.1,87,000) = Rs.2,00,180/- and rounding the same off would come to Rs.2,00,200/-.

6. Resultantly, this appeal is PARTLY ALLOWED. The appellant-original claimant shall be entitled to get Rs.2,00,200/- towards additional / enhanced compensation, over and above the amount of Rs.1,87,000/- 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.

C/FA/2398/2009 JUDGMENT DATED: 09/02/2023 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.

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: 15.05.2008, passed by the learned Motor Accident Claims Tribunal (Auxiliary), FTC No.2, Vadodara, in Motor Accident Claim Petition No. 1230 of 2003 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/-