C/FA/3980/2017 ORDER DATED: 16/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3980 of 2017
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AJAYBHAI BACHUBHAI DAMOR
Versus
GULABSINH MOHANSINH MANDOD & 4 other(s)
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Appearance:
ADVOCATE NOTICE SERVED for the Appellant(s) No. 1
MR VC THOMAS(5476) for the Defendant(s) No. 3,5
RULE SERVED for the Defendant(s) No. 1,2,4
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 16/02/2023
ORAL ORDER
1. Though notice is served to the appellant- claimant, no one has chosen to appear before this Court. However, learned advocate Mr. V. C. Thomas appears for respondent Nos. 3 and
5.
2. By way of this First Appeal, the appellant - claimant has assailed the judgment and award dated 15.07.2017 passed by the Motor Accident Claims Tribunal (Main), Dahod (for short "the Tribunal") passed in MACP No. 26 of 2010, whereby the Tribunal has awarded total amount of Rs. 2,09,881/- towards the compensation with interest at the rate of 9%. Being aggrieved, the appellant - claimant has assailed the same by filing this First Appeal.
3. It is the case of the appellant that the present appellant -
Page 1 of 5 Downloaded on : Tue Feb 21 20:37:12 IST 2023C/FA/3980/2017 ORDER DATED: 16/02/2023 Ajaybahi and Jigneshkumar Sambhubhai Bilwal were going to village Limdi from Dahod on Motorcycle No. GJ-20-H-9111. Jigneshkumar was driving the motorcycle in moderate speed with care on the road side according to the traffic rules and Ajaybhai sat on the pillion seat. At 18-00 hours, when they were passing through village Kharod on Dahod Limdi Road, at that time, the opponent No.1 was driving his Jeep No. GJ-18-A- 2046, in rash and negligent manner with excessive speed and lost control over the steering of the Jeep, whereby the Jeep came on wrong the side and dashed with the motorcycle. On account of the said accident, the appellant sustained severe injuries with fracture, due to which the appellant has sustained permanent disablement.
4. The appellant is claiming enhanced compensation on the ground of his income being determined at Rs.4,086/- by the Tribunal erroneously. It is his case that he would be entitled to enhance income of Rs.6,000/- as he was serving as a contractor in S. P. Patel Construction Company. Further, it is stated that the amount towards pain, shock and sufferings determined by the Tribunal is also required to be enhanced to Rs.15,000/- looking to his 20% disability and also to further enhance compensation with regard to the future medical treatment.
5. Learned advocate Mr.V.C.Thomas appearing on behalf of respondent Nos. 3 and 5 has submitted that the claimant was aged about 23 years at the time of the accident, which had occurred on 25.11.2019 and the Tribunal, after examining the Page 2 of 5 Downloaded on : Tue Feb 21 20:37:12 IST 2023 C/FA/3980/2017 ORDER DATED: 16/02/2023 oral as well as documentary evidence, has preciously awarded the compensation and the same does not require any interference.
6. This Court has perused the impugned order. It appears that no documentary evidence with regard to the income was produced before the Tribunal and the Tribunal, while considering the minimum wages, as fixed by the State Government of an unskilled labourer for the period from 1 st October, 2009 to 31.03.2010, after calculating such amount and has fixed the income of Rs.4086/-.
7. This Court is of the considered opinion that the income is preciously fixed by the Tribunal in absence of any documentary evidence. It appears that the concession was arrived with regard to the permanent disability of the claimant and as the Tribunal has fixed it as 20% permanent disability for the body as a whole in the case of the claimant and accordingly, the Tribunal looking to the age of the claimant, who was aged about 23 years, has applied by multiplier of 17 and has awarded Rs.1,66,709/- towards future income loss. However, it is noticed that the Tribunal has not awarded the prospective income, as per the decision of the Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others, reported in (2017) 16 SCC 680, hence, the income of the claimant is required to be enhanced from Rs.4,086 to Rs.5,720/-. It is also noticed that the multiplier of 17, which is adopted by the Tribunal also incorrect and it would be 18 as per the judgment of the Apex Court and hence, the Page 3 of 5 Downloaded on : Tue Feb 21 20:37:12 IST 2023 C/FA/3980/2017 ORDER DATED: 16/02/2023 amount is required to be enhanced. So far as the medical expenses are concerned, the same are appropriately awarded by the Tribunal in view of the bills, which are being produced on record. The Tribunal has awarded the amount of Rs. 15,000/- towards pain, shock and sufferings. The evidence reveals that the claimant had remained indoor patient for only six days in two different hospitals and hence, looking to the nature of the injuries as well as hospitalization of the appellant, the amount of Rs.15,000/- awarded by the Tribunal is just and proper. Accordingly, the total compensation would come Rs.1,11,223/-, which reads as under:-
Income Rs. 4,086/- Prospective income 40% Rs. 5,720/- 20% disability = 5720x20/100 Rs. 1,144/- Annul income 1144x12 Rs. 13,728 Multiplier by 18 =13728x18 Rs. 2,47,104/- Pain, shock & suffering Rs. 15,000/- Medical expenses Rs. 15,000/- Actual loss Rs. 8,172/- Transportation Rs. 5,000/- Total Rs. 3,22,104/- Awarded amount by the Tribunal Rs. 2,09,881/- Enhance Amount Rs. 1,11,223/-
8. Thus, the total enhanced amount is fixed to Rs.1,11,223/- however the Tribunal has awarded an amount of Rs.2,09,881/-, which is required to be enhanced. Thus, the appellant would be entitled to an additional amount of Rs.1,11,223/- with 6% Page 4 of 5 Downloaded on : Tue Feb 21 20:37:12 IST 2023 C/FA/3980/2017 ORDER DATED: 16/02/2023 interest from the date of filing of the claim petition till the realization of the amount. Accordingly, the impugned judgment and award passed by the Tribunal is modified to the aforesaid extent. The additional amount along with the interest shall be deposited before the Tribunal within a period of eight weeks from the date of receipt of this order, which shall be disbursed to the claimant after due verification.
9. In view of the above, the First Appeal is partly allowed. Record and proceedings, if any, shall be returned to the concerned Tribunal forthwith.
(A. S. SUPEHIA, J) SALIM/2 Page 5 of 5 Downloaded on : Tue Feb 21 20:37:12 IST 2023