Gujarat High Court
National Insurance Company vs Ibrahim Ilias Chavda (Khalifa) on 10 January, 2025
NEUTRAL CITATION
C/FA/129/2012 ORDER DATED: 10/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 129 of 2012
With
R/FIRST APPEAL NO. 687 of 2012
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NATIONAL INSURANCE COMPANY
Versus
IBRAHIM ILIAS CHAVDA (KHALIFA) & ORS.
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Appearance:
MR RUSHANG MEHTA for MR DAKSHESH MEHTA(2430) for the
Appellant(s) No. 1
MR HENIL M SHAH(10677) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 10/01/2025
ORAL ORDER
1. The present First Appeals, under Section 173 of Motor Vehicles Act, 1988, are preferred by the insurance company and claimant being aggrieved and dissatisfied with the judgment and award dated 18.10.2011 passed by the Motor Accident Claims Tribunal, Kachchh - Bhuj in Motor Accident Claim Petition Nos.472 of 2005.
2. That on 8th December, 2004, at around 13:00 hours, the claimant was standing near the place of accident alongwith Shri Mahmadhanif Mahmadhusen Khalifa, Ramiz Razak Lodia and one another boy. The claimant and other persons were standing in the side of the road and waiting for vehicle to go to Village Sukhpar, to attend the marriage function. At that time, the Tata Tempo bearing registration No. GJ-5-T-2312 came from Bhuj Page 1 of 8 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:36:12 IST 2025 NEUTRAL CITATION C/FA/129/2012 ORDER DATED: 10/01/2025 undefined city side. The opponent No.1 was driving the said tempo and he was driving the vehicle rashly, recklessly, negligently and at an excessive speed, without observing the rules of the road and without caring for the safety of the other users. The opponent No.1 lost control over the vehicle and came on wrong side of the road and dashed and collided with the claimant, Ramiz Razak Lodia and the boy. After the accident, the vehicle was turned turtle and the claimant and other two persons have sustained injuries. As per the say of the claimant, the claimant has become permanently and totally disabled because of the injuries sustained by him in the alleged accident, which took place because of the rash and negligent driving of the opponent No.1.
2.1 For reduction of the compensation, the insurance company has filed First Appeal No.129 of 2012 and for enhancement of compensation, the claimant has filed First Appeal No.687 of 2012.
3. Learned advocate Mr. Rushang Mehta appearing for the insurance company would submit that the learned Tribunal has taken up the income of the claimant on higher side.
4. The appeal of the claimant is only on the ground that the Tribunal has committed an error in not properly calculating the amount of compensation. He has submitted that amount of award is on lower side as the Tribunal has not properly considered the various aspects; like pain, shock and suffering, transportation, special diet, medical expenses etc. Even, the loss of future prospect has not been awarded to the claimant. Therefore, the compensation is required to be enhanced.
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5. Apt to note that the Motor Vehicle Act, 1988 is a beneficial piece of Legislation. The concept of just and fair compensation is integral and seminal to the MV Act. The compensation to be awarded under the principle of just and fair compensation to the injured of the road accident or the legal representative/s of the deceased person is based on the principle of fairness, reasonableness and equability. Anguish of the heart or for mental turbulence being consequential result of the road accident cannot be actually compensated, but the quint essentiality lies in adopting holistic and pragmatic view to the computation of the compensation for the loss sustained, which is to be in the realm of realistic approximation. Although exact or perfect arithmetical calculation of compensation for reparation of the loss arrived from the road accident is almost impossible. The Tribunal is bestowed with duty to make an endevour to award just compensation regardless of the amount claimed by the claimant. The determination of the quantum of compensation therefore, must be liberal and not niggardly since the law values life and limb in a free country in generous scale. Needless to state that money may be awarded, so that something tangible may be procured to reach something else of the like nature, which has been destroyed or lost, but money cannot renew physical frame that has been battered and shattered being a result of the road accident. Yet Tribunal to endavour to bring back victim to stage of pre-road accident as far as possible Thus, the award must be reasonable and cannot be assessed with moderation though it cannot at the same time be pity and what could be granted must be just, fair and equitable Page 3 of 8 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:36:12 IST 2025 NEUTRAL CITATION C/FA/129/2012 ORDER DATED: 10/01/2025 undefined compensation.
6.1 I have 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 learned Tribunal. From the record, it transpires that to prove the income of the claimant, he has produced income certificate at Exh.100, which indicates that he was skilled barber at the relevant point of time and was serving in Diamond Hair Cutting Saloon at Mumbai with monthly income of Rs.9000/-. Mr. Ibrahim Khalifa to substantiate this certificate at Exh.100, entered into witness box at Exh.55 and also deposed that if the claimant is not injured out of road accident becoming him complete deadwood on he being quadriplegic, out to have earned Rs.15000/- per month. The evidence on record has been thoroughly discussed by the learned Tribunal to accept income of the claimant to Rs.7000/- per month. The claimant was in his 50s at the time of road accident. The road accident took place on 8.12.2004 and the rate of minimum wage at the relevant time was Rs.2300/- per month. Learned advocate Mr. Mehta has argued to take up that figure as a base to calculate the loss of earning. However, the submission cannot be accepted as specific evidence has been led by the claimant to prove his income on the date of the accident. The discussion made by the learned Tribunal and the findings given in the impugned judgment and award is thoroughly convincing and does not require any interference. The claimant has specifically proved that he was earning more than the rate of minimum wage at the time of the road accident.
Page 4 of 8 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:36:12 IST 2025 NEUTRAL CITATION C/FA/129/2012 ORDER DATED: 10/01/2025 undefined 6.2 In absence of continuous source of income and considering
the aspect that the claimant has suffered quadriplegic out of the road accident, the learned Tribunal was required to assess loss of future prospect compared to the age of the claimant and 25% loss of future prospect is required to be granted as per decision of the Hon'ble Apex Court in case of National Insurance Company Limited Vs. Pranay Sethi reported in 2017 (16) SCC 680. 6.3 The learned Tribunal has taken consistent disability of the claimant to 100%. The medical certificate at Mark 24/4 indicates that the claimant has suffered post traumatic C5-C6 listhesis with quadriplegic. Thus, the claimant became di- functional. The certificate issued by the Municipal Corporation of Grater Bombay, which reads as under:-
"Referring to you, this patient Ibrahim Chawda 52 years old male, c/o post traumatic C5-C6 listhesis with quadriplegic [All 4 limbs are not working] is admitted in Wd 8RR. Dr. SV Shah in Nair Hospital wide Reg No.35810. The patient has been advised surgery of anterior interbody fusion and instrumentation on cervical spine."
6.4 According to this Court, the learned Tribunal has not committed any error in taking up 100% disability of the claimant and I hereby maintain the same. Multiplier of 13 has been rightly granted by the learned Tribunal. Considering the fact that the claimant remained difunctional throughout his life, the learned Tribunal assessed compensation of Rs.50,000/- under the head of pain, shock and suffering taking aid of judgment in Page 5 of 8 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:36:12 IST 2025 NEUTRAL CITATION C/FA/129/2012 ORDER DATED: 10/01/2025 undefined case of Sidram Versus Divisional Manager, United India Insurance Co.Ltd., 2023 (3) SCC 439, I hereby enhanced the same to Rs.2 lakh. Medical expenses granted by the learned Tribunal to the tune of Rs.50,000/- as per the bills is hereby maintained. Special diet and transportation charge granted by the learned Tribunal to the tune of Rs.18,000/- are also required to be enhanced. Accordingly to this Court, special diet and attendant charges is enhanced to Rs.50,000/-. The claimant has not produced any documentary evidence that how much amount he was paying to the attendant, but considering minimum wage at the time of road accident i.e. Rs.2300/-, I adopt the same as attendant charge, which yearly comes to Rs.27,600 multiplied by multiplier 13 and thus, it comes to Rs.3,58,800/- towards attendant charges. The future medical expense of Rs.2,34,000/- granted by the learned Tribunal is maintained. So far as actual loss of income is concerned, it would meet the ends of justice if 12 months income is to be granted to the claimant, which comes to Rs.84,000/-.
6.5 Therefore, total compensation would be as under, which the claimant/s is/are entitled to get.
Particulars Amount (Rs.)
Future loss of income 13,65,000/-
(Rs.7000 + 25%
= Rs.8750 x 12
x 13
Attendant charges 3,58,800/-
Pain, shock and suffering 2,00,000/-
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NEUTRAL CITATION
C/FA/129/2012 ORDER DATED: 10/01/2025
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Medical expenses 50,000/-
Special diet & transportation 50,000/-
Future medical expenses 2,34,000/-
Actual loss of income (12 months) 84,000/-
Total... 23,41,800/-
Less : Amount which is already awarded 14,54,000/-
Additional amount which is awarded 8,87,800/-
7. Therefore, I hold that the claimant is entitled to get the enhanced compensation of Rs.8,87,800/- with 7.5% p.a. interest from the date of filing the claim petition till its realisation, which would meet the ends of justice. Rest of the direction(s) of the Tribunal remain same.
8. For the reasons recorded above, the following order is passed.
8.1 The First Appeal No.129 of 2012 filed by the insurance company is hereby dismissed.
8.2 The First Appeal No.687 of 2012 filed by the claimant is partly allowed.
83 The Insurance Company is directed to deposit the enhanced amount Rs.8,87,800/- with 7.5% p.a. interest from the date of claim petition till its realization before the concerned Tribunal, within a period of six weeks from the date of receipt of this order.
8.4 The Tribunal shall disburse the entire awarded
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NEUTRAL CITATION
C/FA/129/2012 ORDER DATED: 10/01/2025
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amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimants, 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.
9. The claim petition is filed by the claimant for getting compensation of Rs.18 lakh. However, above computed claim amount would come to Rs.23,41,800/- higher than the relief claimed by the claimant. Since the Tribunal is bestowed with statutory duty to assess just and fair compensation, it can grant compensation higher than what has been claimed or asked for in the claim petition. Reference can be made to the judgment of the Hon'ble Apex Court in case of Kavita Balothiya Versus Santosh Kumar, 2024 (0) ACJ 1639.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 8 of 8 Uploaded by SHEKHAR P. BARVE(HC00200) on Mon Jan 13 2025 Downloaded on : Mon Jan 13 21:36:12 IST 2025