Gujarat High Court
Laghubhai Arjanbhai vs Bhikhabhai Ukkabhai Rabari on 9 September, 2024
NEUTRAL CITATION
C/FA/4554/2009 JUDGMENT DATED: 09/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4554 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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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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LAGHUBHAI ARJANBHAI
Versus
BHIKHABHAI UKKABHAI RABARI & ORS.
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Appearance:
MS AMRITA AJMERA(5204) for the Appellant(s) No. 1
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 6
MR SUNIL B PARIKH(582) for the Defendant(s) No. 3
RULE SERVED for the Defendant(s) No. 1,2,4,5
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 09/09/2024
ORAL JUDGMENT
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - claimant, being aggrieved and dissatisfied with the Page 1 of 13 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 23:05:23 IST 2024 NEUTRAL CITATION C/FA/4554/2009 JUDGMENT DATED: 09/09/2024 undefined judgment and award dated 24.02.2009 passed by the Motor Accident Claims Tribunal (Main), Surendranagar in Motor Accident Claim Petition No.607 of 2001, by which the Tribunal has awarded compensation of Rs.1,72,800/- with 9% per annum interest to the claimant/s, holding opponents liable, jointly and severally.
2. Brief facts of the case as per the case of the appellant are as under:
2.1 The accident is occurred on 16.01.2001 at about 16.30 hours on Muli-Surendranagar Highway near Nova Factory near Nova Factory between truck No.GTJ 5878 and deliver van No.GJ-13 T-8450. On the date of accident, Navghanbhai Bhupatbhai, applicant of petition No.148/02, was travelling in delivery van No. GJ-13 T-
8450 for the purpose of delivery of gas cylinder whereas applicant, Laghubhai Arjanbhai, was also travelling in delivery van No.GJ-13-T-8450 as mechanic cum deliveryman. It is alleged that the said delivery van driven by opponent No.4, was owned by opponent No.5, Bhojubha Malubha Zala. It is alleged that when they reached near the place of accident Muli-Surendranagar Page 2 of 13 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 23:05:24 IST 2024 NEUTRAL CITATION C/FA/4554/2009 JUDGMENT DATED: 09/09/2024 undefined highway, a truck No. on GTJ 5878 driven by opponent No.1 and owned by opponent No.2 came with full speed, in a rash and negligent manner and in breach of traffic rules and dashed with the delivery van and caused serious accident. It is alleged that in the said accident, both the applicant herein sustained serious injuries and suffered fracture injury. Hence, claim petition has been preferred.
2.2 After considering the documentary as well as oral evidence and submissions made at the bar, the Tribunal has partly allowed the claim petition by awarding compensation as noted above.
2.3 Being aggrieved and dissatisfied with the impugned judgment and award passed by the Tribunal, the present appeal is preferred by the claimant for enhancement.
3. Learned advocate for the appellant - claimant has submitted that the Tribunal has committed an error in not properly calculating the amount of compensation. It is submitted that amount awarded is on lower side as the Tribunal has not properly considered the various Page 3 of 13 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 23:05:24 IST 2024 NEUTRAL CITATION C/FA/4554/2009 JUDGMENT DATED: 09/09/2024 undefined aspects; like income of the injured, injuries, prospective income, multiplier, special diet, transportation and attendant charges, pain, shock and suffering, actual loss, medical expenses, artificial limb, loss of amenities of life etc. It is submitted that the Tribunal has committed error in considering the monthly income of the injured Rs.2,400/-, which should be Rs.3,000/- considering the fact that he was doing work of machine cum delivery man of gas cylinder, and taking into account the minimum wages prevailed in the year of accident. Accordingly, actual loss of income may be increased considering the income of the injured for ten months. It is submitted that considering decision of the Hon'ble Apex Court in the case of National Insurance Company Limited versus Pranay Shethi reported in (2017) 16 SCC 680, as well as taking into account the age of the injured, addition to the extent of 40% may be granted in monthly income of the injured. Furthermore, it is submitted that the Tribunal has rightly considered the disability, which is not in dispute in the present case. Furthermore, the multiplier should be 17 considering the various decisions of the Hon'ble Apex Court and taking into account the age of the claimant. It is submitted that the Tribunal Page 4 of 13 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 23:05:24 IST 2024 NEUTRAL CITATION C/FA/4554/2009 JUDGMENT DATED: 09/09/2024 undefined has committed an error by not properly considering the compensation under the head of pain, shock and suffering, which should be Rs.1,50,000/-, instead of Rs.50,000/- awarded by the Tribunal, looking to the injuries sustained by the claimant and considering the decisions of the Hon'ble Apex Court in the case of : (i) Pranay Shethi (supra) and (ii) Magma General Insurance Company Limited versus Nanu Ram and others reported in (2018) 18 SCC 130. It is submitted that the Tribunal has committed error in not properly considering the amount towards special diet, transportation and attendant charges, which should be Rs.40,000/- instated of Rs.20,000/- considering the time of treatment taken by the injured. It is also submitted that the Tribunal has committed error in not awarding any amount towards loss of amenities of life, which should be Rs.1,50,000/- considering the treatment taken by the injured and considering the injuries. Furthermore, it is submitted that considering the documentary evidence, and medical papers, Rs.30,000/- is required to be awarded towards medical expenses, instead of Rs.20,000/- awarded by the Tribunal. Furthermore, considering the various decisions of the Hon'ble Apex Court, and taking into account the Page 5 of 13 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 23:05:24 IST 2024 NEUTRAL CITATION C/FA/4554/2009 JUDGMENT DATED: 09/09/2024 undefined injuries received by the claimant; amputation of right leg and fracture on humorous and plate has been fixed in humorous, Rs.1,50,000/- is required to be awarded towards artificial limb. It is submitted that the Tribunal has rightly awarded the compensation under different heads, except the above raised. It is submitted that the appropriate enhancement be granted by modifying the award impugned. It is submitted that the appeal may be allowed.
4. Per contra, learned advocates for respondents have submitted that the impugned judgment and award passed by the Tribunal is just and proper. It is submitted that the Tribunal has rightly considered the income of the injured. Furthermore, it is submitted that the Tribunal has rightly considered the compensation towards pain, shock and suffering, and medical expenses. It is submitted that the Tribunal has rightly awarded amount towards special diet, attendant charges, and attendant charges. It is also submitted that considering the facts and circumstances of the present, the Tribunal has rightly not awarded any amount towards loss of amenities of life. It is also submitted that no interference Page 6 of 13 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 23:05:24 IST 2024 NEUTRAL CITATION C/FA/4554/2009 JUDGMENT DATED: 09/09/2024 undefined is required in the impugned award. However, from the submissions made by learned advocate for the appellant that the Tribunal has committed certain errors, on this aspect, learned advocate for the respondent/s has submitted that if this Court feels that there is some error in calculation of the amount in view of settled position of law, in awarding compensation by the Tribunal, then the Court may pass appropriate order by considering the submissions made by him/her, in the interest of justice.
5. It is noteworthy to mention that the provisions of the Motor Vehicles Act, 1988 which gives paramount importance to the concept of 'just and fair' compensation. It is a beneficial legislation which has been framed with the object of providing relief to the victims or their families. Section 168 of the Motor Vehicles Act deals with the concept of 'just compensation' which ought to be determined on the foundation of fairness, reasonableness and equitability. Although such determination can never be arithmetically exact or perfect, an endeavor should be made by the Court to award just and fair compensation irrespective of the amount claimed by the claimant/s. Page 7 of 13 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 23:05:24 IST 2024
NEUTRAL CITATION C/FA/4554/2009 JUDGMENT DATED: 09/09/2024 undefined 6.1 I have heard the learned advocates for the respective parties and considered the submissions made by the rival parties. I have perused the record and proceedings of the Tribunal. I have gone through the impugned judgment and award passed by the Tribunal. It is noted that the claimant has by and large claimed enhancement towards income of the injured, injuries, prospective income, multiplier, special diet, transportation and attendant charges, pain, shock and suffering, actual loss, medical expenses, artificial limb, loss of amenities of life etc. At the outset, I have considering the decision cited at the bar by learned advocate for the appellant. The judgments cited at the bar by learned advocate for the appellant is helpful to the facts of the present case. 6.2 It transpires that the Tribunal has considered the monthly income of the injured Rs.2,400/-, which should be Rs.3,000/- considering the fact that he was doing work of machine cum delivery man of gas cylinder, and taking into account the minimum wages prevailed in the year of accident. Furthermore, considering various above- mentioned judgments of the Hon'ble Apex and taking Page 8 of 13 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 23:05:24 IST 2024 NEUTRAL CITATION C/FA/4554/2009 JUDGMENT DATED: 09/09/2024 undefined into account the age of the claimant at the time of accident, i.e., 27 years, addition to the extent of 40% is required to be granted in the monthly income. Therefore, it would come to Rs.4,200/- towards prospective income. Furthermore, Considering the various decisions of the Hon'ble Apex Court, and taking into account the age of the injured at the time of accident i.e. 27 years at the time of accident, multiplier of 18 is required to be granted. It is required to take note of the fact that learned advocate for the appellant has not disputed disability considered by the Tribunal. Otherwise also, the Tribunal has rightly considered those aspects. Therefore, Rs.4,200/- x 40% x 12 (annual) x 17 (multiplier) would come to Rs.3,42,720/- which would be the future loss of income of the claimant.
6.3 Furthermore, actual loss of income should be Rs.30,000/-, instead of Rs.9,600/- considering the monthly income Rs.3,000/- of the claimant for 10 months, instead of 4 months after taking into account the injuries and treatment. Furthermore, the Tribunal has erred in awarding Rs.50,000/- towards pain, shock and suffering, which should be Rs.1,50,000/- considering the injuries and Page 9 of 13 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 23:05:24 IST 2024 NEUTRAL CITATION C/FA/4554/2009 JUDGMENT DATED: 09/09/2024 undefined treatment as well as taking into account various decisions of the Hon'ble Apex Court. Furthermore, the Tribunal has erred in awarding Rs.20,000/- only towards special diet, attendant and transportation charges, which should be Rs.40,000/- considering the injuries and period of hospitalization of the claimant, as well as treatment taken by the injured. Furthermore, in view of the recent law laid down by the Hon'ble Apex Court, Rs.1,50,000/- is required to be awarded towards loss of amenities of life. Furthermore, considering the documentary evidence, and medical papers, Rs.30,000/- is required to be awarded towards medical expenses, instead of Rs.20,000/- awarded by the Tribunal. Furthermore, considering the various decisions of the Hon'ble Apex Court, and taking into account the injuries received by the claimant; ampu of right leg and fracture on humorous and plate has been fixed in humorous, Rs.1,50,000/- is required to be awarded towards artificial limb. Furthermore, under the other heads, the amount awarded by the Tribunal are not disputed by the claimant in the present case. Otherwise also, the Tribunal has rightly considered the amount of compensation under other heads. Page 10 of 13 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 23:05:24 IST 2024
NEUTRAL CITATION C/FA/4554/2009 JUDGMENT DATED: 09/09/2024 undefined 6.4 Thus, the appellant - claimant is entitled to get the following final amount as compensation :
Particulars Amount (Rs.)
Future loss of income 3,42,720/-
Actual loss of income 30,000/-
Pain, shock and suffering 1,50,000/-
Medical expenses 30,000/-
Special diet, transportation, 40,000/-
attendant charges
Artificial limb 1,50,000/-
Loss of amenities of life 1,50,000/-
Total... 8,92,720/-
Less : Amount which is already 1,72,800/-
awarded
Additional amount which is awarded 6,20,320/-
7. Therefore, I hold that the claimant/s are entitled to get the total amount of compensation of Rs.8,92,720/- with 9% p.a. interest from the date of filing the claim petition till its realisation, which would meet the ends of Page 11 of 13 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 23:05:24 IST 2024 NEUTRAL CITATION C/FA/4554/2009 JUDGMENT DATED: 09/09/2024 undefined justice. Rest of the direction(s) of the Tribunal shall remain same. The Tribunal has already awarded Rs.1,72,800/- and, therefore, remaining amount of Rs.6,20,320/- would be the enhanced amount of compensation payable to the claimant/s.
8. For the reasons recorded above, the following order is passed.
8.1 The present appeal is allowed to the aforesaid extent.
8.2 The impugned judgment and award dated 24.02.2009 passed by the Motor Accident Claims Tribunal (Main), Surendranagar in Motor Accident Claim Petition No.607 of 2001 is modified to the aforesaid extent. 8.3 The respondents - Insurance Companies are directed to deposit the enhanced amount Rs.6,20,320/- with 9% p.a. interest from the date of claim petition till its realisation before the concerned Tribunal, within a period of six weeks from the date of receipt of this order. Page 12 of 13 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 23:05:24 IST 2024
NEUTRAL CITATION C/FA/4554/2009 JUDGMENT DATED: 09/09/2024 undefined 8.4 The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimant/s, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure. 8.5 While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law.
8.6 Record and proceedings be sent back to the concerned Tribunal, forthwith.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 13 of 13 Uploaded by MR. DIWAKAR SHUKLA(HC01778) on Fri Sep 13 2024 Downloaded on : Fri Sep 13 23:05:24 IST 2024