Gujarat High Court
Jaydipsinh Devisinh Dabhi vs Bherulal Prabhudayal Totla on 1 December, 2021
Bench: Vipul M. Pancholi
C/FA/651/2020 ORDER DATED: 01/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 651 of 2020
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JAYDIPSINH DEVISINH DABHI
Versus
BHERULAL PRABHUDAYAL TOTLA
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Appearance:
MR ANKIT SHAH(6371) for the Appellant(s) No. 1
MR. HARSHAD D BAROT(7287) for the Appellant(s) No. 1
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 2
NOTICE SERVED(4) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 01/12/2021
ORAL ORDER
1. This appeal is filed under Section 173 of the
Motor Vehicles Act, 1988 (hereinafter referred to as
the 'Act of 1988') by the appellant - original
claimant challenging the judgment and award dated
15.05.2018 passed by the Motor Accident Claims
Tribunal (Main.), Arvalli @ Modasa (hereinafter
referred to as the 'Tribunal') in Motor Accident
Claim Petition No.526 of 2015 (old No.947 of 2008)
and prayed for enhancement of compensation.
2. Heard learned advocate Mr.Ankit Shah for the
appellant and learned advocate Mr.Palak Thakkar for
respondent No.2.
3. Since limited contention is raised to make the
compass of the controversy narrow, the appeal is
taken up for final hearing with the consent of both
the learned advocates appearing for the parties.
C/FA/651/2020 ORDER DATED: 01/12/2021
4. The brief facts leading to filing of the present
appeal are as under:
4.1. That on 14.08.2008, the claimant along with one
Yogendrasinh Chhagansinh Dabhi, was going towards
village Tintoi from village Kushki on a motorcycle
bearing registration No.GJ-11-P-1931. It is further
the case of the claimant that claimant was pillion
rider on the said motorcycle and the motorcycle was
driven in moderate speed and in correct side of the
road. When they were passing through the place of
accident i.e. outskirt of village Kushki on Kushki-
Tintoi road, at that time, one truck bearing
Registration No.GJ-09-T-8008, which was driven by the
opponent No.1 with an excessive speed and in rash and
negligent manner and disobeying the traffic rules,
dashed with the motorcycle, as a result of which, the
appellant - original claimant sustained serious
injuries including fracture. It is the case of the
appellant - original claimant that he was aged about
30 years at the time of accident and he was earning
Rs.7,500/- by serving in Keval Offset Printing Press.
5. The opponent No.2 - insurance company filed
written statement vide Exh.12 and thereafter oral and
documentary evidence was led before the Tribunal. The
Tribunal, vide judgment and award dated 15.05.2018,
partly allowed the claim petition and thereby held
the opponents jointly and severally liable to pay
compensation of Rs.1,26,622/- to the appellant -
C/FA/651/2020 ORDER DATED: 01/12/2021
original claimant together with interest @ 9% per
annum from the date of claim petition till
realization of the amount.
6. While passing the aforesaid judgment and award,
the Tribunal considered the aspect of negligence as
well as quantum. On the basis of the FIR Exh.27,
Panchnama Exh.28 as well as other documentary
evidence, it was held by the Tribunal that the
opponent No.1 was solely negligent in causing the
accident.
7. On the aspect of quantum, the Tribunal assessed
the monthly income of the claimant at Rs.2,600/- in
absence of any cogent evidence and considering the
fact that accident took place in the year 2008.
Moreover, relying upon the medical certificate of the
claimant and the decision rendered by the Hon'ble
Supreme Court in the case of Sarla Verma v. Delhi
Transport Corporation, reported in (2006) 9 SCC 121,
the multiplier of 17 was adopted considering the age
of the claimant. The Tribunal has also taken into
consideration the disability certificate at Exh.32
and assessed permanent partial impairment of the
claimant as 18% of whole body and thus arrived at the
figure of Rs.95,472/- towards the future loss of
income. The Tribunal also awarded Rs.5,000/- towards
pain, shock and sufferings, Rs.18,550/- towards
medical expenses, Rs.5000/- towards special diet,
attendant and transportation and Rs.2,600/- towards
actual loss of income for two months. Thus, the
C/FA/651/2020 ORDER DATED: 01/12/2021
Tribunal awarded total compensation of Rs.1,26,622/-
along with 9% interest.
8. The limited contention raised by learned
advocate for the appellant - original claimant in
this appeal is with regard to the error in assessing
the monthly income of the appellant by the Tribunal.
So far as the aspect of disability and the amount of
compensation awarded under other heads is concerned,
learned advocate has not argued the said point on
merit. Learned advocate for the appellant submitted
that the monthly income of claimant as assessed by
the Tribunal at Rs.2,600/- is on lower side. It is
contended that the accident took place in the year
2008 and therefore even if the Tribunal was of the
opinion that evidence was not available to accept the
claim of the income of the original claimant at
Rs.7,500/- per month in absence of any evidence
corroborating the income of the original claimant,
the income of the original claimant ought to have
been assessed on the basis of the minimum wages
prevalent in the year of accident i.e. in the year
2008. It is, therefore, urged that this Court may
modify the impugned judgment and award passed by the
Tribunal by assessing the monthly income of the
appellant - original claimant as Rs.3,000/-.
9. On the other hand, learned advocate appearing
for the opponent is not in position to dispute the
fact that the minimum wage prevalent at the relevant
point of time was Rs.3,000/-.
C/FA/651/2020 ORDER DATED: 01/12/2021
10. Thus, considering the submissions canvassed by
learned advocate for the appellant, this Court is of
the view that Rs.3,000/- per month which was
prevalent at the relevant point of time in the year
2008 as minimum wage, should be considered as income
of the appellant - claimant in absence of any other
proof of income.
11. Applying the monthly income of the deceased as
above, the compensation would have to be arrived at.
Now, as per the decision of the Hon'ble Supreme Court
rendered in the case of Sarla Verma (supra), if
multiplier of 17 is adopted along with 18%
disability, then the final figure comes to
Rs.1,10,160/- (Rs.3,000/- x 12 x 17 multiplier x 18%
disability = Rs.1,10,160/-). Thus the claimant -
appellant herein is entitled to get an amount of
Rs.1,10,160/- under the head of future loss of income
instead of Rs.95,472/- as awarded by the Tribunal.
12. Thus, the appellant - original claimant is
entitled to get the following final amount as
compensation:
1. Rs. 1,10,160/- towards future loss of income
2. Rs. 5,000/- towards pain, shock and
sufferings
3. Rs. 18,550/- towards medical expenses
4. Rs. 5,000/- towards special diet,
attendant and transportation
C/FA/651/2020 ORDER DATED: 01/12/2021
4. Rs. 3,000/- towards actual loss of income
______________
Rs. 1,41,710/- Total
13. Thus, the Tribunal has committed an error in
awarding total compensation of Rs.1,26,622/- under
various heads. The appellants - original claimants
are, therefore, entitled to the additional amount of
compensation of Rs.15,088/- over and above the amount
of Rs.1,26,622/- as awarded by the Tribunal. The
opponents are jointly and severally liable to pay the
aforesaid additional amount of Rs.15,088/- to the
appellant - original claimants together with interest
@ 9% per annum from the date of the claim petition
till realization.
14. The appeal stands partly allowed. The judgment
and award dated 15.05.2018 passed by the Tribunal in
Motor Accident Claim Petition No.526 of 2015 (old
No.947 of 2008) shall stand modified to the aforesaid
extent by enhancing the amount of compensation as
above.
15. The disbursement of the aforesaid additional
amount of compensation shall be after proper
identification of the claimant and following
procedure, by issuing the account payee cheque for
the proportionate amount.
(VIPUL M. PANCHOLI, J)
LAVKUMAR J JANI
