C/FA/1972/2012 JUDGMENT DATED: 22/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1972 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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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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PRAFULBHAI MANIBHAI PATEL
Versus
ARJUNBHAI MAGANLAL SOLANKI & 2 other(s)
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Appearance:
MR MTM HAKIM(1190) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 3
MR HARDIK C RAWAL(719) for the Defendant(s) No. 2
MR HG MAZMUDAR(1194) for the Defendant(s) No. 3
RULE UNSERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 22/02/2023
ORAL JUDGMENT
1. Present appeal is filed by the original claimant for Page 1 of 9 Downloaded on : Fri Feb 24 20:45:10 IST 2023 C/FA/1972/2012 JUDGMENT DATED: 22/02/2023 enhancement of the compensation amount.
2. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 27.2.2012 passed by the learned Motor Accident Claims Tribunal (Auxi.) Vadodara, in Motor Accident Claim Petition No.494 of 1994, whereby the learned Tribunal has partly allowed the claim petition and awarded Rs.68,000/- towards compensation to the original claimant.
3. The short facts giving rise to present appeal reads as under:-
3.1 On 13.1.1994 at about 7.15 p.m. the claimant was going by driving his scooter bearing registration No. GJ-6- C-2494. At that time, from opposite side, one Jeep bearing registration No. GJ-01-9622 came in full speed and in rash and negligent manner and dashed with the scooter while overtaking another vehicle. The said accident resulted into serious injuries on various parts of the original claimant. The driver of the Jeep did not stop the Jeep and ran away from the spot after the accident. Page 2 of 9 Downloaded on : Fri Feb 24 20:45:10 IST 2023 C/FA/1972/2012 JUDGMENT DATED: 22/02/2023 3.2 Due to the said accident, the claimant sustained multiple fractured injuries on his right leg, on the right wrist and also on the various parts of the body. He took treatment, first in the Hospital of Dr. Arvind Patel. Therefore, the claim petition being Motor Accident Claim Petition No.494 of 1994 came to be filed before the learned Motor Accident Claim Tribunal (Auxi) Vadodara for compensation of the amount.
3.3 The learned Tribunal has considered the oral and the documentary evidence and after considering the arguments of all the concerned parties, partly allowed the claim petition and awarded Rs.68,000/- towards compensation to the original claimant. Therefore, the original claimant has filed present appeal for enhancement of the compensation.
4. Heard learned Counsel Mr. MTM Hakim appearing for the appellant - original claimant, learned Counsel Mr. Hardik Raval appearing for the respondent No.2 and Mr. Page 3 of 9 Downloaded on : Fri Feb 24 20:45:10 IST 2023 C/FA/1972/2012 JUDGMENT DATED: 22/02/2023 Mazmudar, learned Counsel for the respondent No.3.
5. Learned Counsel Mr. MTM. Hakim, for the appellant has submitted that the learned Tribunal has committed an error in calculating the income of the injured claimant and determining the loss of income to the claimant, while passing impugned judgment and award of compensation. Learned Tribunal has also committed an error by considering 50% negligency on the part of the claimant himself, though, there was no evidence on record or there was no examination of the driver by the insurance company. Therefore, learned Tribunal has committed an error while considering negligency of 50% on the part of the claimant. He has also submitted that the learned Tribunal has considered 25% income of the deceased, however, at the same time learned Tribunal has applied multiplier of only 5, which is contrary to the settled principle of law. He, therefore, submitted that present appeal may be allowed and the amount of compensation awarded by the learned Tribunal may be enhanced appropriately.
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C/FA/1972/2012 JUDGMENT DATED: 22/02/2023
6. On the contrary, Mr. Mazmudar, learned Counsel for the respondent No.2 and Mr. Raval, learned Counsel for the respondent No.3 have vehemently opposed and objected the appeal. They have submitted that considering the injury and considering the fact that even after receiving such injury, the original claimant appellant herein continued his service upto the age of his retirement. Therefore, he has not sustained any economic loss and therefore, learned Tribunal has rightly passed the impugned judgment and award and learned Tribunal has not committed any error in passing the impugned judgment and order. He submitted that present appeal may not be interfered with.
7. I have perused the material available on record as well as the impugned judgment and award passed by the learned Tribunal. It appears that the insurance company has not examined the driver of the offending vehicle i.e. truck and therefore, considering settled principle of law, the issue of negligency cannot be gone into, unless and Page 5 of 9 Downloaded on : Fri Feb 24 20:45:10 IST 2023 C/FA/1972/2012 JUDGMENT DATED: 22/02/2023 until there is cogent and material evidence on record. Further, this Court is of the view that learned Tribunal has not properly appreciated the and considered this part while considering the issue of negligency. I am of the opinion that learned Tribunal ought to have considered 75% negligency on the part of the insurance company and 25% negligency on the part of the claimant.
8. Considering the settled legal position and after hearing the learned Counsels appearing for the respective parties, present appeal is required to be allowed in part and the impugned judgment and award is required to be modified to the extent.
9. Considering the recent decision of the Hon'ble Apex Court in case of Sarla Verma and others Vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 and National Insurance Company Limited Vs. Pranay Sethi and others, (2017) 16 SCC 680 it is appropriate to grant the just and adequate compensation to the present appellant. In that view of the matter, the Page 6 of 9 Downloaded on : Fri Feb 24 20:45:10 IST 2023 C/FA/1972/2012 JUDGMENT DATED: 22/02/2023 present appellant is entitled to the enhanced compensation.
10. Hence, in my view, the appellant is entitled for enhanced compensation in following terms:-
Rs. 4,754 Income p.m.
Rs. 1,188 1/4 income p.m.
x 12 Months
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Rs. 14,256 Income p.a.
x 16 (Multiplier considering as 34
years)
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Rs. 2,28,096 Future loss of income/ loss of
amenities of life
+ Rs. 34,738 Medical Expenditure
+ Rs. 20,000 Pain, shock and suffering
+ Rs. 10,000 Special diet, attendant charges
and transportation
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= Rs. 2,92,843 Total Compensation
- Rs. 73,211 (25% negligence deduction)
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Rs. 2,19,632
- Rs. 68,000 Awarded by learned Tribunal
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Rs. 1,51,632 Additional amount of
compensation.
11. Therefore, the appellant is entitled to get
Rs.1,51,632/- as enhanced compensation with 6% simple interest from the date of application till realization. Page 7 of 9 Downloaded on : Fri Feb 24 20:45:10 IST 2023 C/FA/1972/2012 JUDGMENT DATED: 22/02/2023
12. The impugned judgment and award dated 27.2.2012 passed by the learned Motor Accident Claims Tribunal (Auxi.) Vadodara, in Motor Accident Claim Petition No.494 of 1994, is hereby modified to the aforesaid extent.
13. The insurance company is hereby directed to deposit the enhanced amount of compensation of Rs.1,51,632/- within period 8 weeks from the date of receipt of the present order with 6% interest before the concerned Tribunal.
14. Learned Tribunal shall disburse the amount of enhanced compensation in favour of the original claimant after verifying bank details of the original claimant through R.T.G.S./N.E.F.T. If any court fee is required to be paid, the same be deducted from the enhanced compensation amount.
15. The present appeal stands disposed of accordingly. No order as to costs.
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16. Record and proceedings, if lying here, be sent back to the concerned Tribunal forthwith.
Sd/-
(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI Page 9 of 9 Downloaded on : Fri Feb 24 20:45:10 IST 2023