Gujarat High Court
Khristodas Ravikant Baria vs Sabehusan Shoukin Singh on 16 December, 2021
Bench: R.M.Chhaya
C/FA/2123/2019 JUDGMENT DATED: 16/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2123 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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KHRISTODAS RAVIKANT BARIA
Versus
SABEHUSAN SHOUKIN SINGH
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Appearance:
MR. SABIR B SAIYYAD(6322) for the Appellant(s) No. 1
MR MOHSIN M HAKIM(5396) for the Defendant(s) No. 4
MR YOGI K GADHIA(5913) for the Defendant(s) No. 3
NOTICE UNSERVED(8) for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 16/12/2021
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C/FA/2123/2019 JUDGMENT DATED: 16/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MRS. JUSTICE MAUNA M. BHATT)
1. Feeling aggrieved and dissatisfied by the impugned
judgement and award dated 13.7.2018 passed by the Motor
Accident Claims Tribunal (Aux.) Vadodara in MACP No.1188 of
2013, the appellant - original claimant have preferred this
appeal under Section 173 of the Motor Vehicles Act, 1988
("the Act" for short).
2. Following facts emerge from the record of this appeal:
2.1. On 6.6.2013 between 3:15-4:00 p.m. in the afternoon the
claimant was coming towards Vadodara from Limdi via
Chakaliya on a motorcycle bearing registration No. GH-06-EM-
2674 where he was a pillion rider. The said motorcycle was
driven by late Shri Sanjaybhai. It is the case of the claimant
that the said motorcycle was driven by late Shri Sanjaybhai
with a moderate speed and on left side of the road. When
they reached near the place of accident, the luxury bus bearing
registration No.MP-33-PA-616 came from the opposite side in a
rash and negligent manner with a full speed and dashed with
the motorcycle from the front side and thus, the accident took
place. On account of the said accident, the appellant -
original claimant sustained head injury with fracture and
fracture of right leg. The claimant was immediately taken to
SSG Hospital, Vadodara and treated as indoor patient from
7.6.2013 to 6.7.2013. Pursuant to the said accident, the
appellant preferred claim petition under Section 166 of the Act
seeking compensation of Rs. 5,00,000/- under different heads.
C/FA/2123/2019 JUDGMENT DATED: 16/12/2021
2.2. It was the case of the claimant that the accident took
place on account of rash and negligent driving of the driver of
the luxury bus and, therefore, also he is entitled for the loss of
income as also compensation under different heads. The
Tribunal upon appreciation of oral and documentary evidence
by order dated 13.7.2018, granted compensation of
Rs.2,61,424/- as under:
Pain, shock and suffering Rs.15,000
Loss of Actual Income Rs.12,000
Future loss of income Rs.2,18,400
Medical Expenses Rs.6,024
Special Diet, transportation etc. Rs.10,000
Total amount payment to claimant Rs.2,61,424
3. We have heard Mr. Mohsim Hakim, learned advocate for
appellant - original claimant and Mr. Yogi Gadhia, learned
advocate for Respondent No.3 - Insurance Company. As
liability has not been denied, presence of Respondent No.1 and
2 is not required. Considering the issue involved, with the
consent of learned advocates appearing for the parties, the
appeal is taken up for final disposal.
4. Mr. Mohsim Hakim, learned advocate for the appellant -
claimant contended that the judgement and award passed by
the Tribunal is erroneous on the following grounds:
(i) The Tribunal is in error in assessing the income of the
claimant at Rs.4,000/- p.m. He submitted that the claimant
was working as a helper with deceased Sanjaykumar
Chandubhai Mali and was getting salary of Rs.5,000/- p.m.
C/FA/2123/2019 JUDGMENT DATED: 16/12/2021
Relying upon the documentary evidence, he submitted that the
claimant was not cross-examined by the Insurance Company to
deny the income of Rs.5,000/- p.m. He therefore submitted to
assess the income of the claimant at Rs.5,000/- p.m.
(ii) Referring to the injury sustained, the period of
hosptalization and the surgery done, he submitted that the
Tribunal has committed an error in not appropriately granting
compensation under the head pain, shock and sufferings. He
submitted that the amount granted by the Tribunal under the
head pain, shock and suffering is very less and requested to
enhance the same to Rs.50,000/-.
5. Mr. Mohsim Hakim, learned advocate for the appellant
without pressing the other grounds requested to allow the
appeal.
6. Per contra, Mr. Yogi Gadhia, learned advocate appearing
for respondent No.3 - Insurance Company submitted that there
is no error in the impugned judgement and award. He
submitted that the judgement and award dated 13.7.2018 is
based on the evidence available on record and, therefore,
requested to dismiss the appeal.
7. No other and further submissions/contentions are made
by learned advocates appearing for the parties in this appeal.
8. We have heard learned advocates appearing for the
parties and re-appreciated the evidence on record.
C/FA/2123/2019 JUDGMENT DATED: 16/12/2021
9. Upon re-appreciation of evidence, it is an admitted fact
that the claimant was working as a helper with deceased
Sanjaykumar Chandubhai Mali. Further, there is no denial by
the Insurance Company that he was not earning Rs.5,000/-p.m.
as a salary. As no strict proof of evidence is required under
the provisions of Motor Vehicles Act, we deem it appropriate
to take income of the claimant at Rs.5,000/- p.m. With regard
to disability, it has been assessed by the doctor at 32.5%. The
claimant was 43 years of age so multiplier of 14 would be
applicable. The following would be future loss of income.
"Rs.5,000/- x 12 (pa) = Rs.60,000/- x 32.5% (Disability) =
Rs.19500 x 14 (multiplier) = Rs.2,73,000."
10. Upon re-appreciation of evidence, we are of the opinion
that the claimant was treated as an indoor patient from
7.6.2013 to 6.7.2013. The medical reports produced at Exh.35
and 36 shows the nature of injury and the permanent
disablement caused to the claimant. Considering the same and
relying upon the decision of the Hon'ble Supreme Court in the
case of National Insurance Company Ltd. v. Pranay Sethi and
Ors. (2017) SCC 680, in our opinion, it would be appropriate
to grant compensation under the head pain, shock and
suffering to Rs. 25,000/-.
11. As the claimant could not resume his work for a period
of three months, there is actual loss of income of Rs.15,000/-.
Therefore, the claimant is entitled for total compensation as
under:
C/FA/2123/2019 JUDGMENT DATED: 16/12/2021
Future loss of income Rs.2,73,000/-
Actual Loss of income Rs.15,000/-
Pain, shock and suffering Rs.25,000/-
Medical Expenses Rs.6,024/-
Special diet, transportation Rs.10,000/-
charges
Total Rs.3,29,024/-
12. Thus, the appellants - claimants would be entitled to
total compensation of Rs.3,29,024/-. As the Tribunal has
awarded an amount of Rs.2,61,424/-, the respondent Insurance
Company shall deposit the balance additional amount of
compensation of Rs.67,600/- (Rs.3,29,024 - Rs.2,61,424) with
9% interest p.a. from the date of filing of the claim petition
till its realization with the Tribunal within a period of 8 weeks
from the receipt of the order. Appeal is thus partly allowed.
The rest of the judgment and award passed by the learned
Tribunal has remained unaltered. Registry is directed to
transmit back the Record and Proceedings of the case to the
concerned Tribunal forthwith. However, there shall be no order
as to costs.
(R.M.CHHAYA,J)
(MAUNA M. BHATT,J)
NAIR SMITA V.
