Gujarat High Court
Hansuben Vasabhai Rabari vs Edmund Mascarachas on 21 April, 2025
NEUTRAL CITATION
C/FA/548/2013 JUDGMENT DATED: 21/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 548 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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HANSUBEN VASABHAI RABARI & ANR.
Versus
EDMUND MASCARACHAS & ANR.
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Appearance:
MR MEHUL S SHAH(772) for the Appellant(s) No. 1,2
MR SUNIL B PARIKH(582) for the Defendant(s) No. 2
RULE NOT RECD BACK for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 21/04/2025
ORAL JUDGMENT
1. This Appeal is filed challenging the judgment and award dated 30.10.2012 passed by learned Motor Accident Claims Tribunal (Aux-2) Kachchh at Bhuj in M.A.C.P No.311 of 1997.
2. Heard learned advocate Mr. Samee A. Uraizee for learned advocate Mr. Mehul S. Shah for the appellants and learned advocate Mr. Sunil B. Parikh for respondent No.2. Page 1 of 10 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 05:18:51 IST 2025
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3. The brief facts of the case are as under:
3.1. On 13.10.1996 deceased-Vasabhai Bhurabhai Rabari was grazing buffaloes in Sector No.3 in Gandhidham Town at around 4 p.m. When deceased was sitting under a tree situated near Plot No.16 in Sector No.3, at that time, opponent No.1 came near plot No.16 in Sector No.3 in car bearing Registration No.GJ-01-9558 in full speed as well as in rash and negligent manner due to which, he lost control over car, car came in reversed direction and dashed with deceased.
Resultantly, deceased sustained serious head injuries with Hemiplegia. Deceased was taken to Dr. Hemang Patel's Hospital at Kutch, Bhuj. Thereafter, deceased was shifted to Rajkot for further treatment and during the course of treatment, deceased expired on 25.12.1996 at Gandhidham. FIR was lodged against driver of car. Heirs of deceased being widow and son filed claim petition claiming compensation of Rs.5 lakhs. Opponent No.1 and 2 being the owner and the Page 2 of 10 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 05:18:51 IST 2025 NEUTRAL CITATION C/FA/548/2013 JUDGMENT DATED: 21/04/2025 undefined Insurance Company of the offending vehicle were served with the summons of the claim petition. Opponent No.1 remained absent. Opponent No.2-Insurance Company appeared and filed Written Statement at Exhibit-15-B. Claimant examined herself at Exhibit-23 and produced documentary evidence such as FIR, charge-sheet, panchnama, statement of witness, certificate issued by Arjan Ramji Vaghadiya at Exhibit-39 and injury certificate in support of claim petition. After considering the evidence on record, learned Tribunal partly allowed the claim petition awarding compensation of Rs.2,46,200/- to the claimants to be recovered from opponents @7.5% interest from the date of filing the claim application till realization.
3.2. Being aggrieved and dissatisfied with the quantum of compensation, the appellants-original claimants have filed the present appeal for enhancement of compensation.
4. Learned advocate for the appellant has submitted that on Page 3 of 10 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 05:18:51 IST 2025 NEUTRAL CITATION C/FA/548/2013 JUDGMENT DATED: 21/04/2025 undefined the date of accident, deceased was selling milk and earning Rs.3,000/- per month. Deceased was aged about 55 years. It is further submitted that appellants have examined a witness Arjan Ramji Vaghadiya at Exhibit-39, who has stated that deceased was selling milk to him and was earning Rs.3,000/- per month. A certificate Exhibit-40 was also produced by the said witness. However, learned Tribunal did not consider oral deposition of the said witness and without appreciating Exhibit-40, learned Tribunal assessed the income of deceased at Rs.1,800/- per month. It is further contended that compensation under the head of pain, shock and suffering and loss of consortium is awarded on a lower side. It is further submitted that injury certificate issued by Dr. Hemang Patel at Exhibit-28 is sufficient evidence to grant more compensation under the head of pain, shock and suffering. Considering the nature of injuries and treatment taken by deceased and more particularly, deceased died after almost two months of taking Page 4 of 10 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 05:18:51 IST 2025 NEUTRAL CITATION C/FA/548/2013 JUDGMENT DATED: 21/04/2025 undefined treatment, compensation under the head of pain, shock and suffering is required to be enhanced. Except above submissions, no other submissions are canvassed by the learned advocate for the appellants.
5. Per contra, learned advocate for the respondent No.2- Insurance Company has supported the impugned judgment and award and has submitted that in absence of any convincing evidence with regard to income of deceased, learned Tribunal has considered income of deceased more than the rates of minimum wages prevailing at the relevant point time and therefore, the income aspect may not be disturbed. It is further contended that learned Tribunal has failed to appreciate the fact that deceased was aged about 55 years and added 30% as prospective income. At the most as per the settled position of law, addition of 10% may be considered looking to the age of deceased. So far as the compensation under the head of pain, shock and suffering is Page 5 of 10 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 05:18:51 IST 2025 NEUTRAL CITATION C/FA/548/2013 JUDGMENT DATED: 21/04/2025 undefined concerned, learned advocate for the Insurance Company has submitted that except a certificate Exhibit-28, there is no other medical papers which can establish a fact that deceased had taken treatment till his date of death. In absence of any medical papers, it cannot be presumed that deceased was taking treatment till the date of death and thereby, suffered pain, shock and suffering. The amount of Rs.10,000/- under the head of pain, shock and suffering which has been granted by learned Tribunal is just and reasonable.
6. I have considered the submissions canvassed by learned advocates for the parties and has perused record and proceedings. Deceased on the date of accident was aged about 55 years and was selling milk. In the claim petition, it is a specific case of claimants that deceased was earning Rs.3,000/- per month. In support of the contention of income, claimants have examined a witness at Exhibit-39. The said witness has deposed that he was purchasing milk from Page 6 of 10 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 05:18:51 IST 2025 NEUTRAL CITATION C/FA/548/2013 JUDGMENT DATED: 21/04/2025 undefined deceased to the extent of Rs.12,000/- and after deducting expenses, deceased was earning Rs.3,000/- per month. The said witness has also produced a certificate at Exhibit-40, which also supports the claim of claimants with regard to income. If the cross-examination of the said witness is perused except a simple bare denial on income, respondent could not extract any contradictory fact. However, in the cross- examination, the said witness has stated that he was earning Rs.10,000/- per month in the year 1996. Considering the statements of the witness which can be found out from the record, it transpires that the said witness was not maintaining any account materials he was earning Rs.10,000/- per month. The theory of paying Rs.3,000/- per month to deceased in the year 1996 does not sync with the fact of earning of Rs.10,000/- per month. Considering the evidence on record, I am of the view that deceased could be said to be earning Rs.2,500/- per month instead of Rs.1,800/- per month. Though Page 7 of 10 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 05:18:51 IST 2025 NEUTRAL CITATION C/FA/548/2013 JUDGMENT DATED: 21/04/2025 undefined a strict proof of evidence is not required for considering the income of deceased, Court cannot shut its eyes from appreciating the prima facie evidentirary value of the deposition and the documentary evidence produced by claimants. Resultantly, the awarded amount is required to be modified. No medical material is found whereby it can be seen that deceased has taken further treatment. Hence, award under pain, shock and suffering is reasonable.
7. In view of the above facts, claimants are entitled to the following amount of enhanced compensation;
Sr. Name of the Head Amount in Rs.
1 Future Loss of Income
Income per month Rs.2,500/-
Prospective Income (10%)
Rs.2,500/- + Rs.250/- Rs.2,750/-
1/3rd Deduction towards
personal expenses Rs.917/-
Rs.2,750/- less Rs.917/- Rs.1,833/-
Rs.1,833/- x 12 x 11 2,41,956/-
2 Pain, shock and suffering 10,000/-
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NEUTRAL CITATION
C/FA/548/2013 JUDGMENT DATED: 21/04/2025
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3 Loss of estate 18,150/-
4 Funeral expenses 18,150/-
5 Loss of consortium
Rs.48,400/- x 2 96,800/-
Total 3,85,056/-
Amount awarded by tribunal 2,46,200/-
Enhanced amount of compensation 1,38,856/-
8. The Insurance Company is directed to deposit the enhanced amount of compensation of Rs.1,38,856/- with 7.5% per annum interest within a period of six weeks from the date of receipt of the copy of this order.
9. The present First Appeal is partly allowed accordingly. The judgment and award dated 30.10.2012 passed by learned Motor Accident Claims Tribunal (Aux-2) Kachchh at Bhuj in M.A.C.P No.311 of 1997, is modified to the aforesaid extent.
10. Once the enhanced amount is deposited by the Insurance Company, the learned Tribunal shall disburse the same in favour of the claimants through RTGS by following the prevailing procedure and due identification.
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11. While making the payment, the Tribunal shall deduct the Courts Fees, if not paid, in accordance with rules / law.
12. Record and proceedings, if any, be sent back to the concerned Court/Tribunal.
(D. M. DESAI,J) RINKU MALI Page 10 of 10 Uploaded by RINKU MALI(HC01574) on Fri May 09 2025 Downloaded on : Sat May 10 05:18:51 IST 2025