Gujarat High Court
Pankajbhai Bhaskarbhai ... vs Gajanand Devray Ingale on 20 December, 2021
Bench: Vipul M. Pancholi
C/FA/3872/2021 JUDGMENT DATED: 20/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3872 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI : Sd/-
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ? NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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PANKAJBHAI BHASKARBHAI UMARETHKAR
Versus
GAJANAND DEVRAY INGALE
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Appearance:
MR PARESH M DARJI(3700) for the Appellant(s) No. 1
for the Defendant(s) No. 1,2
MR PALAK H THAKKAR(3455) for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
Date : 20/12/2021
ORAL JUDGMENT
1. Looking to the issue involved in the present First
Appeal, learned advocates appearing for the
parties have jointly requested for disposal of the
present First Appeal at an admission stage and,
hence, the present First Appeal is taken up for
final disposal.
2. This appeal is filed under Section 173 of the
Motor Vehicle Act (hereinafter referred to as "the
C/FA/3872/2021 JUDGMENT DATED: 20/12/2021
Act" for short) by the applicant - original
claimant, wherein the appellant has prayed for
enhancement of the compensation awarded by the
learned M.A.C. Tribunal (Auxi.) & Additional
District Judge, Surat by judgment and award dated
01.04.2019 passed in MAC Petition No.338/1999 be
quashed and set aside.
3. The factual matrix of the present case is as
under,
2.1 On 07.10.1998, when the appellant was
standing on the side of road, Nr. Karunasagar
School, Limbayat, one TATA Sumo Jeep bearing
Registration No.GJ-05-PP-9615 owned by the
respondent no.2 and driven by the respondent
no.1 in a very rash, negligence and in a
manner to endangering human life, dashed with
the appellant, as a result of which, the
appellant received serious injuries on his
left leg and received fracture on his left
lag and, hence, he was admitted in Civil
Hospital, Surat and undergone surgery. The
original claimant filed Claim Petition before
the Tribunal, wherein the claimants prayed
that the amount of Rs.5.00 lakhs by way of
compensation be awarded to him.
2.2 On filing of the claim petition, notice was
issued upon the respondents, however, the
respondent nos.1 and 2 have neither appeared
before the Tribunal nor filed any reply to
the claim petition. Whereas, the respondent
no.3 - Insurance Company appeared and file
its reply at Exh.47 and denied its liability.
C/FA/3872/2021 JUDGMENT DATED: 20/12/2021
Thereafter, the parties led evidence before
the Tribunal.
2.3 After considering the evidence produced
before the Tribunal, the Tribunal partly
allowed the claim petition and thereby held
all the opponents jointly and severely liable
to pay compensation to the claimants. The
Tribunal awarded Rs.2,33,392/- together with
interest at the rate of 9% p.a. from the date
of petition till realization of the amount
with proportionate cost of the petition.
4. Heard learned advocate, Mr. Paresh Darji for the
appellant and learned advocate, Mr. Palak Thakkar
appearing for the opponent no.3.
5. Learned advocate appearing for the appellant has
submitted that the Tribunal has committed grave
error while awarding compensation as the appellant
is entitled for more compensation than what is
awarded to him. He submitted that in fact, under
the head of pain, shock and suffering, the
Tribunal has not awarded just compensation and
under the head of discomfort, inconvenience and
loss of earnings to the parents during the period
of hospitalization, not a single amount has been
awarded by the Tribunal. In support of the
aforesaid submission, learned advocate has placed
reliance upon the decision of the Hon'ble Supreme
Court in case of Mallikarjun Vs. Divisional
Manager, National Insurance Company Ltd. & Anr.,
reported in (2014) 14 SCC 396 and submitted that
while awarding compensation, the Tribunal has not
considered the ratio laid down in the said
C/FA/3872/2021 JUDGMENT DATED: 20/12/2021
judgment. He submitted that as per the ratio laid
down in the said judgment, the Tribunal has
awarded less compensation under the head of future
loss of income, pain shock and suffering and
actual loss of income, which comes to
Rs.3,00,000/- and in the present case, Tribunal
has awarded only Rs.70,500/-, which is required to
be enhanced. He, therefore, urged that considering
the ratio laid down by the Hon'ble Supreme Court
in the aforesaid decision, the compensation
awarded by the Tribunal be enhanced.
6. On the other hand, while opposing the present
First Appeal filed by the appellant, learned
advocate for the respondent - Insurance Company is
not in a position to dispute about less
compensation awarded by the Tribunal under the
head of future loss of income, pain shock and
suffering and actual loss of income and is also
not in a position to dispute about the ratio laid
down by the Hon'ble Supreme Court in case of
Mallikarjun (supra).
7. Having heard learned advocates appearing for the
parties and having gone through the material
placed on record, it is revealed that on the day
of accident i.e. on 07.10.1998, the appellant was
standing on the side of road, Nr. Karunasagar
School, Limbayat, at that time, one TATA Sumo Jeep
bearing Registration No.GJ-05-PP-9615 owned by the
respondent no.2 and driven by the respondent no.1
in a very rash, negligence and in a manner to
endangering human life, dashed with the appellant,
as a result of which, the appellant received
C/FA/3872/2021 JUDGMENT DATED: 20/12/2021
serious injuries on his left leg and undergone
surgery due to fracture received by him in the
said accident, for which, claim petition was
filed, wherein the Tribunal awarded total
compensation of Rs.2,33,392/- under different
head.
8. At this stage, this Court would like to refer to
the decision of the Hon'ble Supreme Court in case
of Mallikarjun (supra), wherein the Hon'ble
Supreme Court has observed in Paragraph No.13 as
under,
"13. In the instant case, the disability is to
the tune of 18%. Appellant had a longer
period of hospitalization for about two
months causing also inconvenience and loss
of earning to the parents. The appellant,
hence, would be entitled to get the
compensation as follows: -
Head Compensation amount
Pain and suffering already Rs. 3,00,000
undergone and to be suffered
infuture, mental and physical
shock,hardship, inconvenience,
and discomforts, etc., and loss
of amenities in life on account
of permanentdisability.
Discomfort, inconvenience and Rs. 25,000
loss of earnings to the parents
during the period of
hospitalization.
Medical and incidental expenses Rs. 25,000
during the period of
hospitalization for 58 days.
Future medical expenses for Rs 25,000
correction of the mal union of
fracture and incidental expenses
for such treatment.
Total Rs. 3,75,000
C/FA/3872/2021 JUDGMENT DATED: 20/12/2021
9. Thus from the above decision, it is clear that the
Tribunal has awarded less compensation to the
appellant - original claimant under the head of
future loss of income, pain shock and suffering
and actual loss of income and has not awarded any
compensation under the head of discomfort,
inconvenience and loss of earning to the parents
during the period of hospitalization. While
awarding compensation, the Tribunal has awarded
Rs.70,500/- under the head of future loss of
income, pain shock and suffering and actual loss
of income instead of Rs.3,00,000/-, which ought to
have been awarded along with compensation under
the head of discomfort, inconvenience and loss of
earning to the parents during the period of
hospitalization.
10. Thus keeping in view the aforesaid decision
rendered by the Hon'ble Supreme Court, if the
facts of the present case are carefully seen, it
is clear that under some head, the Tribunal has
not awarded just compensation to the appellant -
original claimant, which he is entitled for.
Therefore, the appellant - original claimant is
entitled for following compensation,
Head Compensation Amount
Future loss of income, pain shock Rs. 3,00,000
and suffering, actual loss of
income.
Discomfort, inconvenience and loss Rs. 25,000
of earnings to the parents during
the period of hospitalization.
Transpiration and Special Diet and Rs. 15,000
attendant charges.
Medical Expenses Rs. 1,47,892
TOTAL Rs. 4,87,892
C/FA/3872/2021 JUDGMENT DATED: 20/12/2021
11. Thus keeping in view the ratio laid down by the
Hon'ble Supreme Court in case of Mallikarjun
(supra), the appellant - original claim is
entitled for the compensation at Rs.4,87,892/-,
out of which, the Tribunal has awarded
Rs.2,33,392/- and, hence, the appellant - original
claimant is entitled for additional amount of
Rs.2,54,500/- at the rate of 6% p.m., for which,
learned advocate for the appellant has no
objection.
12. In view of the aforesaid observations and
discussion, the present First Appeal stands
allowed party. The impugned judgment and award
dated 01.04.2019 passed by the learned M.A.C.
Tribunal (Auxi.) & Additional District Judge,
Surat in MAC Petition No.338/1999 is hereby
modified to the extent that the appellants -
original claimants are entitled for compensation
at Rs.4,87,892/-, out of which, the Tribunal has
awarded Rs.2,33,392/- and, hence, the additional
compensation of Rs.2,54,500/- is ordered to be
paid to the appellant - original claimant at the
rate of 6% p.m. from the date of filing of the
claim petition till realization. Decree to be
drawn accordingly. No order as to costs.
Sd/-
(VIPUL M. PANCHOLI, J.)
Gautam
