NEUTRAL CITATION
C/FA/740/2010 JUDGMENT DATED: 04/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 740 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/-
and
HONOURABLE MRS. JUSTICE M. K. THAKKER Sd/-
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1 Whether Reporters of Local Papers may be No
allowed to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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AHMEDABAD MUNICIPAL TRANSPORT SERVICE
Versus
REKHANK BALDEVBHAI KHAMBHU
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Appearance:
MR DEVANG BHATT for MR HS MUNSHAW(495) for the
Appellant(s) No. 1
MR VILAV K BHATIA(5338) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MRS. JUSTICE M. K. THAKKER
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NEUTRAL CITATION
C/FA/740/2010 JUDGMENT DATED: 04/09/2023
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Date : 04/09/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI)
1. This appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act"), challenging the judgment and award passed by Motor Accident Claims Tribunal (Auxillary), City Civil Court No. 9, Ahmedabad in M.A.C. Petition No. 913 of 2000, whereby respondent - claimant was awarded a compensation of Rs. 11 Lacs, with cost and interest at the rate of 8% per annum from the date of filing of the petition till realization.
2. The Ahmedabad Municipal Transport Service, who is the owner of the vehicle which caused the accident by rash and negligent driving of the driver of its bus, has challenged the judgment and award as aforesaid.
3. Heard Mr. Devang Bhatt, learned advocate for Mr. H.S. Munshaw, learned advocate for the appellant. According to his submission, the earning believed by the Tribunal in absence of any documentary proof in support thereof, at the rate of Rs. 3,000/-, is on a higher side.
3.1 He has further submitted that for the amputation of one lower limb, the disability to the extent of 100% believed by the Page 2 of 6 Downloaded on : Sat Sep 16 15:59:48 IST 2023 NEUTRAL CITATION C/FA/740/2010 JUDGMENT DATED: 04/09/2023 undefined Tribunal cannot be considered, as two different disability certificates are produced by the claimant, one showing disability to the extent of 100% and another showing the disability to the extent of 85%.
3.2 Drawing attention of the Court to the endorsement below Exhibit-27, whereby claimant produced vide Exhibit-31 the disability certificate issued by Dr. Manjul Joshipura, Consultant Ortheopedic Surgeon, where loss of disability in right lower limb is assessed to be 100%, whereas the certificate issued by the Medical Board to the claimant issuing certificate for physically handicapped where partial permanent disability is assessed at 85%, which is produced by the claimant vide Exhibit-32, and therefore, it should have been relied on by the learned Judge in preference to the certificate Exhibit-31 issued by a private Doctor. Therefore, he has submitted that the award passed by the Tribunal is required to be interfered with by allowing the appeal.
4. As against that, Mr. Vilav K. Bhatia, learned advocate for the respondent - claimant, submitted that though claimant stated in his deposition about his earning to be Rs.5,000/-, the Tribunal has only considered his monthly earning to be Page 3 of 6 Downloaded on : Sat Sep 16 15:59:48 IST 2023 NEUTRAL CITATION C/FA/740/2010 JUDGMENT DATED: 04/09/2023 undefined Rs.3,000/- and based thereon, the amount of compensation is determined, which is on a much lower side. 4.1 He has further submitted that despite Tribunal itself concluding that maximum multiplier of 18 is to be applied, without assigning any reasons, it granted multiplier of only 17, which has caused a great loss to the claimant, who has suffered a lot for his lifetime diminishing his prospects of getting good bride as also the attractive safe Government job because of loss of lower limb.
4.2 He has further submitted that as such this award passed by the Tribunal is not required to be interfered with for the simple reason that while considering his monthly earning, it has not taken into consideration the proper earning that he might have earned if accident had not occurred. Therefore, despite there is difference, in disability certificate given by the private Doctor as also certificate issued assessing physical handicap, to the extent of 15% only, non-consideration of compensation based on monthly earning claimed and proved, amount of compensation would even cross Rs. 11 Lacs and in that set of circumstances, he requests this Court not to interfere with the judgment and award passed by the Tribunal. Page 4 of 6 Downloaded on : Sat Sep 16 15:59:48 IST 2023
NEUTRAL CITATION C/FA/740/2010 JUDGMENT DATED: 04/09/2023 undefined
5. Having heard the learned advocates for the appearing parties and going through the impugned judgment and award as also the deposition and the documents produced and proved, it emerges that the respondent - claimant was aged 22 years at the time of accident, just entering his youth and started earning his livelihood, he met with an accident which had diminished his lifetime dream.
Though Tribunal considered disability to the extent of 100%, as certified by Dr. Manjul Joshipura, vide Exhibit-31, it requires no interference for the reason that if Tribunal would have considered the proved proper earning, while determining the compensation and the correct multiplier was to be applied, the compensation would come to, if not more but equal to Rs. 11 Lacs, and therefore, even if disability certificate Exhibit-32 is to be accepted in preference over the disability certificate at Exhibit-31, ultimate calculation of compensation would not be that different to compel this Court to entertain this appeal.
6. Considering his age as also long hospitalization for a period of nearly more than 2 months, and diminishing his marriage prospects of his choice, we do not wish to interfere with the impugned judgment and award as no compensation is Page 5 of 6 Downloaded on : Sat Sep 16 15:59:48 IST 2023 NEUTRAL CITATION C/FA/740/2010 JUDGMENT DATED: 04/09/2023 undefined awarded under that head by the learned Judge while determining the compensation if at all change in percentage of disability, as argued by the learned advocate for the appellant, is considered, there would only be a meager reduction in the award which we would not like to do while exercising the appellate jurisdiction for the reasons as aforesaid.
Hence, this appeal is dismissed with no orders as to cost.
Sd/-
(UMESH A. TRIVEDI, J.) Sd/-
(M. K. THAKKER, J.) Raj Page 6 of 6 Downloaded on : Sat Sep 16 15:59:48 IST 2023