Gujarat High Court
Ramilaben Ambubhai Parmar vs Hemabhai @ Bhimabhai Polabhai ... on 17 December, 2021
Bench: Mauna M. Bhatt
C/FA/5707/2019 JUDGMENT DATED: 17/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 5707 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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RAMILABEN AMBUBHAI PARMAR & 2 other(s)
Versus
HEMABHAI @ BHIMABHAI POLABHAI GORAD & 4 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1,3
MR.HIREN M MODI(3732)-G/4264/1999 for the Appellant(s) No. 2
MR CHINTAN S POPAT(5004) for the Defendant(s) No. 2
MR CHIRAYU A MEHTA(3256) for the Defendant(s) No. 3
MS VYOMA K JHAVERI(6386) for the Defendant(s) No. 5
NOTICE SERVED(4) for the Defendant(s) No. 4
UNSERVED EXPIRED (N)(9) for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Page 1 of 9
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C/FA/5707/2019 JUDGMENT DATED: 17/12/2021
Date : 17/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied by the judgement and
award dated 1.8.2018 passed by the Motor Accident Claims
Tribunal (Aux.), Tapi at Vyara in MACP No. 290 of 2012, the
appellants - original claimants have preferred the present
appeal under Section 173 of the Motor Vehicles Act, 1988
("The Act" for short).
2. Heard Mr. Hiren Modi, learned advocate appearing for
the appellants - original claimants, Mr. Chintan Popat, learned
advocate appearing for the owner of the Truck - Respondent
No.2 and Mr. Chirayu Mehta, learned advocate appearing for
the Insurance Company - Respondent No.3 and Ms. Vyoma
Jhaveri, learned advocate appearing for the S.T. Corporation -
Respondent No.5. As the liability is not the question and the
appeal relates to the quantum, with the consent of the learned
advocates appearing for the parties, the matter is taken up for
final disposal.
3. We have perused the original record and proceedings.
4. The following facts emerge from the record of the appeal.
4.1. That the accident took place on 6.8.2008 at about 3:00
a.m. It is the case of the claimants that the deceased
Ambubhai was working as a conductor in S.T Corporation and
on the said date he was in service of the bus of the S.T.
Corporation bearing registration No.GJ-18-V-588. It is case of
C/FA/5707/2019 JUDGMENT DATED: 17/12/2021
the claimants that when the bus reached the Bedhara Fatak,
the driver of the Truck bearing registration No.GJ-11-X-9039
stopped the truck without any signal as the bus was being
driven in rash and negligent manner and in a full speed and
dashed with the truck because of which, eight seats were
crushed in the front side of the S.T. Bus as a result of which
both the legs of the deceased were crushed and both hands
had fractured his nose, and his intestine had cut and received
serious and grave injuries over this other part of body. The
deceased was admitted in Civil Hospital, Surat and thereafter
he was admitted to Aedventist Hospital from 6.8.2008 to
9.10.2009 as well as in Ashutosh Hospital. The record
indicates that his right leg had to be cut near knee and had to
be cut left side leg on thigh and he was treated all through
out and ultimately died on 18.2.2011. An FIR was lodged
with Uchchhal Police Station being C.R. No.I-19/2008 and the
present claim petition was filed under Section 166 of the Act
and the claimants claimed compensation of Rs.40,00,000/-.
5. Shri Dharmeshbhai was examined at Exh.27 and the
claimants also relied upon plethora of documentary evidence.
Sr.No. Documents Exh.
C/FA/5707/2019 JUDGMENT DATED: 17/12/2021
14 Discharge Card of yes Orthopedic Hospital 43
15 Discharge Card of yes Orthopedic Hospital 44
16 Discharge Card of yes Orthopedic Hospital 45
6. It was the case of the claimants that deceased was aged
55 years and was working as a conductor and his monthly
salary was Rs.9,346/- which was subsequently revised to
Rs.11,217/-. The Tribunal considered the income and gave
15% prospective income and applying multiplier of 9 after
deducting 1/3rd towards his personal expenses, awarded a sum
of Rs.9,28,800/- as compensation under the loss of
dependency, Rs. 1,00,000/- as pain, shock and sufferings,
Rs.15,000/- as loss of estate, Rs.40,000/- loss of consortium,
Rs.15,000/- funeral expenses, Rs.5,22,515/- as medical expenses
and thus awarded total compensation of Rs.16,21,315/- with
9% interest while partly allowing the claim petition.
7. As far as the negligence is concerned, the driver of the
S.T. Bus was held to be solely negligent. The present appeal
is filed by the original claimants.
8. Mr. Hiren Modi, learned advocate appearing for the
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appellants contended that the cause of the injury sustained due
the accident the deceased could not work for 2 1/2 years,
however the Tribunal has not granted any actual of income for
the said period. It is further contended that the pain and
agony which the deceased has to undergo for 2 ½ years is not
at all appreciated by the Tribunal and the Tribunal has
awarded only Rs.1,00,000/- towards pain, shock and sufferings
which deserves to be reasonably enhanced. For the same
reason, it was also contended by Mr. Hiren Modi, that no
attendant charges, special diet and transportation charges are
considered while considering the compensation.
8.1. Mr. Hiren Modi, learned advocate also further contended
that deceased was working as conductor in the S.T. Bus and
was aged 55 years and the Tribunal ought to have considered
loss of amenities of life for 2 ½ years which has not been
considered. Mr. Modi, however submitted that as far as the
compensation under other heads are concerned is not disputed
by the claimants in this appeal.
9. Per contra, Ms. Vyoma Jhaveri, learned advocate
appearing for the S.T. Corporation while opposing the present
appeal contended that the Tribunal has granted just and
adequate compensation and no interference is called for. Ms.
Jhaveri, contended that the amount of Rs.85,388/- has already
been paid to the original claimants as salary for the month of
August to November, 2008 and one month salary thereafter.
Ms. Vyoma Jhaveri, learned advocate contended that because
of inability to work, the services of the deceased was
terminated and he was paid one month salary in view of same.
Ms. Jhaveri, contended that as the deceased was relieved from
C/FA/5707/2019 JUDGMENT DATED: 17/12/2021
service, thereafter there was no actual loss of income and,
therefore the contention raised by learned advocate appearing
for the claimants deserves to be negatived. Ms. Jhaveri,
further submitted that the Tribunal has granted adequate
compensation under pain, shock and sufferings which also
includes attendant charges and loss of amenities and no
modification is required. According to Ms. Jhaveri, the total
compensation as granted by the Tribunal while partly allowing
the claim petition being just and proper and no interference is
called for. Ms. Jhaveri, therefore contended that the appeal
being meritless deserves to be dismissed.
10. Mr. Chintan Popat, learned advocate appearing for the
owner of the Truck has not made any submissions. Mr.
Chirayu Mehta, learned advocate appearing for the Insurance
Company submitted that the Insurance Company has been
exonerated and, therefore, no further submission are necessary
to be made.
11. No other and further submissions/contentions have been
made by the learned advocates appearing for the respective
parties.
12. Upon perusal of the original record and proceedings, it
clearly transpires that because of the accident, the deceased
was working as conductor and sustained serious injuries and
acquired 100% disablement which can be culled out from the
nature of injuries sustained by the deceased. The records
indicate that the injuries were such which ultimately after
passing through pain and agony for 2 ½ year led to death of
the deceased. The extent of damage to the bus itself shows
C/FA/5707/2019 JUDGMENT DATED: 17/12/2021
the manner in which the accident has taken place.
13. The contention raised by Mr. Hiren Modi, learned
advocate for the appellants that the Tribunal ought to have
given actual loss of income deserves consideration.
14. The deceased was working as a permanent employee as a
conductor with S.T. Corporation and only because his services
were discontinued because of the disablility acquired it cannot
be said that the claimants would not be entitled to actual loss
of income. The salary of the deceased was Rs.11,200/- (round
figure) which is not disputed.
15. Even if we consider the contention raised by Ms. Javeri,
learned advocate appearing for the S.T. Corporation that an
amount of Rs.85,388/- was paid during the period of 2 ½
years the fact remains that actual loss of income would come
to Rs.11,200/- x 30 = Rs.3,36,000 - Rs.85,388 = Rs.2,50,612/-
and such actual loss is entitled to the appellants - claimants.
Upon re-appreciation of the evidence on record, the Tribunal
has assessed the aspect of pain, shock and sufferings and
quantified the compensation at Rs.1,00,000/-. The record
indicate that for 2 ½ long years, the deceased had to suffer
and undergo treatment at more than three hospitals. The
injuries were so serious that his left leg had to be amputated
beneath the knee. Upon re-appreciation of the evidence on
record, we deem it fit to quantify the compensation under the
pain, shock and sufferings at Rs.1,50,000/- inspite of
Rs.1,00,000/-. We also find that the Tribunal having
appreciated the fact that the deceased had to undergo
extensive treatment for 2 ½ years long period, no
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compensation is granted for special diet, attendant charges,
etc. and no compensation is granted for loss of amenities for 2
½ years. Upon re-appreciation of the evidence on record, we
deem it fit to quantify compensation under the head of special
diet, attendant charges and transportation charges at
Rs.50,000/-. For loss of amenities of life also at Rs.50,000/-
and in view of the aforesaid, the appellants would be entitled
to compensation as under:
Loss of dependency Rs.9,28,800/-
Actual loss of income Rs.2,50,612/-
Pain, shock and sufferings Rs.1,50,000/-
Loss of Estate Rs.15,000/-
Loss of Consortium Rs.40,000/-
Special Diet, Attendant charges Rs.50,000/-
and Transportation charges
Funeral Expenses Rs.15,000/-
Loss of amenities of life Rs.50,000/-
Medical Bill Rs.5,22,515/-
Total Rs.20,21,927/-
16. Thus, the appellants - claimants would be entitled to
total compensation of Rs.20,21,927/-. As the Tribunal has
awarded an amount of Rs.16,21,315/-, the respondent No.5 -
S.T. Corporation shall deposit the balance additional amount of
compensation (Rs. 20,21,927 - Rs.16,21,315) = Rs.4,00,612/-.
However, considering the fact that the accident is of 2008, the
appellants would be entitled to 6% interest on the enhanced
amount and proportionate costs 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. The impugned
C/FA/5707/2019 JUDGMENT DATED: 17/12/2021
judgement and award passed by the Tribunal is modified to
the aforesaid extent. 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.
