Gujarat High Court
Dilipbhai Ashabhai Vaghela vs Dhulaji Transport Co. M R Paribad on 1 December, 2021
Bench: Hemant M. Prachchhak
C/FA/3848/2009 JUDGMENT DATED: 01/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3848 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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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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DILIPBHAI ASHABHAI VAGHELA
Versus
DHULAJI TRANSPORT CO. M R PARIBAD & 3 other(s)
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Appearance:
MR RAKESH R PATEL(3239) for the Appellant(s) No. 1
MR GC MAZMUDAR(1193) for the Defendant(s) No. 4
MR HG MAZMUDAR(1194) for the Defendant(s) No. 4
MR SANDIP C SHAH(792) for the Defendant(s) No. 1
RULE SERVED(64) for the Defendant(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 01/12/2021
ORAL JUDGMENT
1. This is an appeal filed under Section 173 of the Motor
vehicles Act, 1988 (hereinafter referred to as "the Act) by the
appellant - original claimant calling in question the correctness
C/FA/3848/2009 JUDGMENT DATED: 01/12/2021
and legality of the judgment and award dated 24.10.2008 passed
by the Motor Accident Claims Tribunal, Kheda at Nadiad
(hereinafter referred to as "the Tribunal") in M.A.C.P. No.1739 of
2001, whereunder, the Tribunal has partly allowed the claim
petition and total compensation of Rs.1,68,000/- with interest at
the rate of 9% per annum has been awarded.
2. Facts in nutshell which has led to filing of this appeal are as
under.
2.1 On 08.05.2001, the claimant was driving Toyoto Car
bearing registration No.GJ-7-R-640 at Abu Hill and was returning
at Anand and while passing National Highway No.14 Near Maval
Dargah with said Toyoto Car slowly on correct side of the road at
that time the driver of truck bearing registration No.GJ-1V-7491
at Abu Road, District: Sorohi, Rajasthan came from opposite
direction driving the same in excess speed, rash and negligent
manner dashed with the said Toyoto car forcefully, as a result of
which the claimant sustained serious injury and fracture. Hence,
the aforementioned claim petition being M.A.C.P. No.1739 of
2001 came to be filed by the claimant seeking compensation for
disability caused due to the accident. The same is partly allowed
C/FA/3848/2009 JUDGMENT DATED: 01/12/2021
by the Tribunal vide judgment and award dated 24.10.2008 and
awarded compensation of Rs.1,68,000/- with interest at the rate
of 9% per annum as against the claim of Rs.5,00,000/-. The
Tribunal after evaluating the pleadings and oral aw well as
documentary evidence tendered by the parties as noticed
hereinabove awarded total compensation of Rs.1,68,000/- under
the different heads i.e. Rs.1,34,400/- towards future loss of
income, Rs.7,000/- towards actual loss of income, Rs.16,600/-
towards medical expenses, doctor's fees, special diet, attendant
charges and transportation charges and Rs.10,000/- towards
pain, shock and suffering with running interest at the rate of 9%
per annum.
3. I have heard Mr.Rakesh Patel, learned counsel appearing
for the appellant, Mr.Sandip Shah, learned counsel appearing for
respondent No.1 and Mr.G. C. Majmumdar, learned counsel
appearing for respondent No.4. Though served, nobody appears
on behalf of respondents No.2 and 3.
4. It is the contention of the learned counsel appearing for the
appellant that the Tribunal has committed a serious error in
awarding abysmally very less compensation without considering
C/FA/3848/2009 JUDGMENT DATED: 01/12/2021
the material evidence available on record and in particular he
would draw the attention of this Court to the injury certificate at
Exhibit 48 and 49 wherein the doctor has assessed 40% disability
of body as a whole. He has submitted that the Tribunal has
committed serious error while considering the fact that the
claimant was working as a truck driver and he was earning
Rs.1,750/- per month. He has also submitted that the Tribunal
has erred in not considering the future income in its true and
perspective spirit. He has prayed to enhance the amount of
compensation under all heads.
5. Per contra, learned counsel for respondent - Insurance
Company has supported the judgment and award passed by the
Tribunal and in support of his submissions, he has submitted that
the Tribunal has rightly appreciated the income of the claimant,
permanent disablement sustained by the claimant and
compensation awarded under the different heads and, therefore,
there is no reason to interfere with the impugned judgment and
award. He has prays for dismissal of the appeal and prays for its
confirmation. He would also submit that the Tribunal has
assigned just and proper reasons which would not call for
interference.
C/FA/3848/2009 JUDGMENT DATED: 01/12/2021
6. Having heard learned counsel appearing for the parties and
on perusal of the case-papers, I am of the considered view that
the present appeal requires consideration and the impugned
judgment and award under challenge deserves to be modified to
the aforesaid extent.
7. The aspects relating to the accident, involvement of the
offending vehicle, there is no dispute raised by the otherside and
are not delved upon by me in the present appeal as it could be
repetition of facts.
8. The records on hand would clearly indicate that the
accident had occurred on 08.05.2001, the claimant was driving
Toyoto Car bearing registration No.GJ-7-R-640 at Abu Hill and
was returning at Anand and while passing National Highway
No.14 Near Maval Dargah with said Toyoto Car slowly on correct
side of the road at that time the driver of truck bearing
registration No.GJ-1V-7491 at Abu Road, District: Sorohi,
Rajasthan came from opposite direction driving the same in
excess speed, rash and negligent manner dashed with the said
Toyoto car forcefully, as a result of which the claimant sustained
serious injury and fracture. The charge-sheet came to be filed
C/FA/3848/2009 JUDGMENT DATED: 01/12/2021
against the offending driver of the vehicle. This aspect though
noticed by the Tribunal has not properly appreciated the facts.
Insofar as the future loss of income is concerned, the multiplier
and under other heads, the amount is required to be
redetermined as under:-
Future Loss of Income (Rs.1750 x 40% x 12 x 16) Rs. 1,34,400/-
Medical expenses Rs. 11,000/-
Special diet Rs. 3,000/-
Attendant charges Rs. 1,500/-
Transportation charges Rs. 1,100/-
Pain, shock and suffering Rs. 10,000/-
Actual loss of income Rs. 7,000/-
Rs. 1,68,000/-
Loss of enjoyment and loss of amenity Rs. 40,000/-
Rs. 2,08,000/-
Accordingly, a sum of Rs.40,000/- requires to be enhanced
which is just and reasonable compensation and same is awarded
in substitution to sum of Rs.1,68,000/- awarded by the Tribunal.
The compensation awarded under other heads being just and
reasonable, the same is not interfered with.
9. For the reasons aforestated, I proceed to pass following
ORDER
(i) The appeal is allowed in part.
C/FA/3848/2009 JUDGMENT DATED: 01/12/2021
(ii) The judgment and award dated 24.10.2008 passed by the
Motor Accident Claims Tribunal, Kheda at Nadiad in
M.A.C.P. No.1739 of 2001 is modified and in substitution
to what has been awarded by the Tribunal a sum of
Rs.40,000/- with interest at the rate of 7.5% per annum is
awarded which shall be from the date of petition till date
of payment or deposit whichever is earlier.
(iii) The apportionment and order for deposit as made by the
Tribunal in paragraph No. 27 of the operative portion of
the order shall hold good for the substituted award. The
insurer is directed to deposit the compensation amount
expeditiously at any rate within an outer limit of four
weeks from the date of receipt of certified copy of this
order.
Registry is directed to send back the record and
proceedings to the concerned Court, forthwith.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
