Gujarat High Court
Dr.Gaurang Vrundavandas Shah vs Akhtarhussein Nasirulla Sheikh on 2 December, 2021
Bench: Niral R. Mehta
C/FA/405/2006 ORDER DATED: 02/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 405 of 2006
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DR.GAURANG VRUNDAVANDAS SHAH
Versus
AKHTARHUSSEIN NASIRULLA SHEIKH & 2 other(s)
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Appearance:
MR HARSHADRAY A DAVE(3461) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 3
RULE UNSERVED(68) for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 02/12/2021
ORAL ORDER
1. This is an appeal filed by the claimant against the judgment and award
passed by the Motor Accident Claims Tribunal (Aux), Vadodara in
Motor Accident Claim Petition No. 2892 of 1990 under Section 173 of
the Motor Vehicles Act, 1988 ("the Act") for the enhancement of the
compensation. The original claim of the claimant was of
Rs.15,00,000/-. Against that, the Tribunal has awarded Rs.2,88,200/-
with interest of at the rate of 9% p.a. from the date of application till
realization.
2. The case of the claimant is that on 24.06.1990, while he was traveling
in his Maruti Fronty car from Vadodara to Ahmedabad and on the
National Highway No. 8 near Anand, the accident had taken place. The
accident occurred because of rash and negligent driving of the driver of
the Truck bearing registration No. GTJ-5880. Because of the accident, a
serious injuries sustained by the original claimant and the injuries
assessed at 32% as body as a whole.
2.1 It is further the case of the claimant that he was practicing as a
radiologist and because of the injuries sustained, he had to leave
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the profession and had to opt for becoming academician i.e.
professor in radiology. Thus, the original claimant has filed an
application under Section 166 of the Act before the Tribunal,
seeking, inter alia, the compensation of Rs.15,00,000/- on various
heads.
3. Upon the service of notice, the Insurance Company has appeared and
has filed its written statement, opposing the claim petition. The
Tribunal, after having considered the evidence on record, has granted
the compensation of Rs.2,88,200/- with interest at the rate of 9% p.a.
from the date of application till realization.
4. Being aggrieved and dissatisfied with the above, the original claimant
has approached before this Court under Section 173 of the Act by way
of filing the present appeal, for enhancement of compensation.
5. I have heard Mr. G.M.Joshi, the learned Senior counsel assisted by Mr.
Harshadray Dave, the learned advocate for the appellant and Mr.
Maulik Shelat, the learned advocate appearing for the Insurance
Company.
5.1Mr. Joshi, the learned Senior counsel has submitted that the
Tribunal has materially erred in calculating and assessing the
income part so as to arrive at just and fair compensation.
5.2Mr. Joshi has further submitted that the Tribunal has
completely misread the evidence so as to commute the income of
the claimant, and thus, came to incorrect conclusion based on
which the award came to be passed.
5.3Mr. Joshi has further submitted that the Tribunal has miserably
failed in considering the Income Tax returns produced on record.
C/FA/405/2006 ORDER DATED: 02/12/2021
He has further submitted that, looking to the injury sustained, the
Tribunal has also committed an error in awarding an amount
under the head of pain, shock and sufferings.
5.4Mr. Joshi has further submitted that the Tribunal has also erred
in awarding the compensation under the head of actual loss by
ignoring the admitted income. Mr. Joshi has, therefore, finally
requested this Court to enhance the amount suitably.
6. Per contra, Mr. Maulik Shelat, the learned counsel appearing for the
Insurance Company has vehemently opposed the present appeal filed
by the claimant and has further submitted that whatever amount has
been awarded by the Tribunal is just and proper.
6.1Mr. Shelat has also submitted that the compensation granted
under the various heads is adequate and in accordance with law.
6.2Mr. Shelat has, therefore, submitted that in view of the fact that
the claimant has not received any long term loss because of the
accident in question, therefore, whatever amount awarded by the
Tribunal is just and proper, and therefore, the present appeal
deserves to be dismissed.
7. I have heard the learned advocates appearing for the respective parties.
8. At the outset, it is required to be noted that the claimant, who was
practicing as a Radiologist, has already settled in USA since many
years and as per his own statement that in the year 1994, his yearly
income was at $1,50,000/- US. This would suggest that the claimant
has not suffered any serious loss due to injuries received on account of
the accident in question. Thus, it is true that the claimant received
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serious injuries such as shortening of his leg by 1 inch, but, fortunately,
that has not reflected in any condition by which he has to suffer income
loss for all time to come even otherwise claimant is not deprived of his
income at a gross level.
9. It is required to be noted that indisputably the claimant had received
multiple serious injuries at the relevant point of time, for which, he had
to undergo for long term hospitalization. It appears that, while
calculating the overall compensation of Rs.2,88,200/- under various
heads, the Tribunal has not counted the compensation of Rs.35,000/-
under the head of pain, shock and sufferings. Though stated in the body
of the award, which even otherwise, in my view, appears to be on a
lower side. Thus, in my view, Rs.70,000/- would be just and
appropriate under the head of pain, shock and sufferings. Further, it
appears that because of long term hospitalization and the injuries
received, the claimant could not worked for a period of 12 months,
which has not been disputed by the Insurance Company. Thus, in my
view, Rs.60,000/- (Rs.5,000X12) would be just and proper
compensation under the head of actual loss of income. It further appears
that the Tribunal has also not awarded any compensation under the
head of enjoyment of life, which, according to me, requires to be
considered while awarding just compensation. I, therefore, consider
Rs.30,000/- as a fair amount under the head of enjoyment of life. It has
also come on record that the claimant had to take continuous treatment
for a period of 12 months and during the said period he had to use
crutches for the purpose of walking, therefore, I, reasonably, can infer
that the claimant must have spent Rs.6,000/- over a period of 12 months
for attendant charges.
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10. In view of the aforesaid, the claimant is entitled for additional
compensation under the various heads as follows;
Sr. No. Particulars Amount
1. Under the head of future loss of income Rs.2,50,000/-
2. Actual loss of income Rs.60,000/-
3. Under the head of pain,shock and Rs.70,000/-
sufferings
4. Under the head of enjoyment of life. Rs.30,000/-
5. Under the head of attendant charges Rs.6,000/-
6. Under the head of medical expenditure Rs.15,000/-
7. Under the head of special diet Rs.3,000/-
Total Rs.4,34,000/-
8. Tribunal awarded Rs.2,88,200/-
The claimant is liable to entitle for the Rs.1,45,800/-
additional compensation
The claimant is also entitled for the interest at the rate of 7 % on
enhanced amount from the date of application till the realization.
11. In view of the aforesaid, the present appeal is partly allowed by
modifying the judgment and award passed by the Tribunal as aforesaid.
The claimant is entitled for an additional compensation of Rs.1,45,800/-
with interest at the rate of 7% from the date of application till
realization.
12. The Insurance Company is directed to deposit an additional amount of
Rs.1,45,800/- with interest at the rate of 7% with the Tribunal
concerned. The Tribunal is hereby directed to issue account payee
cheque in favour of the claimant, after due and proper verification. The
deficit Court fees stamp, if any, be deposited by the appellant. Records
and Proceedings be sent back to the concerned Tribunal forthwith.
Sd/-
(NIRAL R. MEHTA,J)
VISHAL MISHRA
