Ayubkhan Abdulkhan Pathan (Since ... vs Mehmoodkhan Jamiyakhan Pathan
2021 Latest Caselaw 18568 Guj

     C/FA/3118/2009                               JUDGMENT DATED: 20/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 3118 of 2009


FOR APPROVAL AND SIGNATURE: Sd/-


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 ?                            Yes

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 ?

================================================================
AYUBKHAN ABDULKHAN PATHAN (SINCE DECEASED THROUGH LEGAL
                        HEIRS)
                        Versus
       MEHMOODKHAN JAMIYAKHAN PATHAN & 2 other(s)
================================================================
Appearance:
for the Appellant(s) No. 1.1,1.2
MR. YOGENDRA THAKORE(3975) for the Appellant(s) No. 1
MR NAGESH C SOOD(1928) for the Defendant(s) No. 3
MR SP MAJMUDAR(3456) for the Defendant(s) No. 2
RULE SERVED(64) for the Defendant(s) No. 1
================================================================

    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                              Date : 20/12/2021

                             ORAL JUDGMENT

1. This appeal is filed by the appellants - original claimants

seeking enhancement of the compensation amount awarded by

C/FA/3118/2009 JUDGMENT DATED: 20/12/2021

the Motor Accident Claims Tribunal (Aux.), Mahesana (hereinafter

referred to as "the Tribunal") vide impugned judgment and

award dated 12.11.2008 passed in M.A.C.P. No.1206 of 2005.

2. Brief facts of the present case are that on 28.03.2005

appellant - original claimant was driving a Maruti van bearing

registration No.GJ-2-K-8781 and was going from Mehsana to

Village: Unava (Miradatar) and at about 6.30 a.m., when he

reached beetween Village: Nani Dau and Soneripura at that time

on wrong side, the truck bearing registration no.GJ-2-Y-5295

came in rash and negligent manner and in excessive speed,

dashed with the Maruti van, as a result of which, the appellant

sustained serious injuries. Hence, the appellant had preferred

M.A.C.P. No.1206 of 2005, which came to be partly allowed by

the Tribunal vide order dated 12.11.2008 and awarded

compensation of Rs.2,04,100/- as against his claim of claiming

Rs.3,68,000/-.

3. Heard Mr.Y. M. Thakore, learned counsel appearing for the

appellants, Mr.S. P. Majmudar, learned counsel appearing for

respondent no.2 and Mr.Nagesh Sood, learned counsel appearing

for respondent no. 3 - Insurance Company. Though served,

C/FA/3118/2009 JUDGMENT DATED: 20/12/2021

nobody appears on behalf of respondent no.1.

4. Mr.Y. M. Thakore, learned counsel appearing for the

appellant has submitted that while awarding the compensation,

the Tribunal has committed serious error by not considering the

fact that at the time of accident, the minimum wages is also

higher than the amount which is considered by the Tribunal. He

has submitted that the Tribunal has committed an error by

awarding the amount under the head of pain, shock and

suffering. It is further submitted that though there is medical

certificate and evidence of the expert on record, however, the

Tribunal has not considered the disablement of the appellant to

55% body as a whole, however, without there being cogent

reasons, the Tribunal has considered only 28% disability. He has

submitted that the amount awarded under the head of special

diet, attendant charges etc. is also on lower side. He has prayed

to modify the award passed by the learned Tribunal.

5. Mr.S. P. Majmudar, learned counsel appearing for

respondent no.2 and Mr.Nagesh Sood, learned counsel appearing

for respondent no. 3 - Insurance Company have submitted that

the Tribunal has not committed any error in passing the

C/FA/3118/2009 JUDGMENT DATED: 20/12/2021

impugned judgment and award. They have prayed for dismissal

of the appeal and confirmation of the impugned judgment and

award.

6. I have considered the averments made in the appeal and

contentions raised by learned counsel appearing on behalf of the

parties and also perused the record and proceedings of the case.

From the impugned award of the Tribunal, it appears that the

Tribunal has committed error by not considering the fact that at

the time of accident, the minimum wages is higher than the

amount considered by the Tribunal. It also appears that though

there is medical certificate and evidence of the expert on record,

the Tribunal has not considered the disablement of the appellant

to 55% body as a whole, however, without there being cogent

reasons, the Tribunal has considered only 28% disability. It also

appears that the amount awarded by the Tribunal under the

head of pain, shock and suffering, special diet, attendant charges

etc. is also on lower side. Considering the ratio laid down by the

Hon'ble Apex Court in the case of Sarla Verma and others Vs.

Delhi Transport Corporation and another, (2009) 6 SCC

1211, Kajal Vs. Jagdish Chand and others, (2020) 4 SCC

413 and G. Ravindranath alias R. Chowdary Vs. E. Srinivas

C/FA/3118/2009 JUDGMENT DATED: 20/12/2021

and another, (2013) 12 SCC 455, I am of the considered view

that the appellants are entitled to get additional amount of

compensation considering the income of the original claimant at

Rs.2300/- plus 25% rise and the appeal requires to be allowed

and the impugned judgment and award requires to be

substituted by enhancing the amount of compensation and,

therefore, the compensation is required to be redetermined as

under:-

Future loss of income                               Rs. 1,44,900/-
Rs.2300 x 25% = Rs.575

Rs.2300 + 575 = Rs.2875 x 28% disability = Rs.805 x 12 = Rs.9660 x 15

Pain, shock and suffering Rs. 50,000/-

Attendant and transportation charges Rs. 10,000/-

Special diet                                             Rs.    10,000/-
Medical expenses                                         Rs. 1,15,000/-
Total amount                                             Rs. 3,29,900/-
Less: compensation awarded by the Tribunal               Rs. 2,04,100/-
Additional amount                                        Rs. 1,25,800/-
Less: 30% negligency on the part of the appellant        Rs.    37,740/-
Total amount                                             Rs.    88,060/-


      Accordingly,     a    sum     of     Rs.1,25,800/-       as     additional

compensation requires to be awarded toward future loss of

income, which is just and reasonable compensation and the

same is awarded in substitution to Rs.2,04,100/- awarded by the

C/FA/3118/2009 JUDGMENT DATED: 20/12/2021

Tribunal. However, out of the enhanced amount of compensation

of Rs.1,25,800/-, 30% negligency on the part of the appellant is

to be considered, which comes to Rs.37,740/-. So, the appellant

is entitled to Rs.88,060/- (Rs.1,25,800/- - Rs.37,740/-) as

enhanced amount along with interest at the rate of 7.5% from

the date of application till realization of the amount.

7. For reasons aforestated, I proceed to pass following order.

(i)         Appeal is partly allowed.


(ii)        Judgment and award dated 12.11.2008 passed by the

Motor Accident Claims Tribunal (Aux.), Mehsana in

M.A.C.P. No.1206 of 2005 is hereby modified and in

substitution to what has been awarded by the Tribunal a

sum of Rs.88,060/- with interest at the rate of 7.5% per

annum is awarded which shall be from the date of petition

till date of payment of deposit whichever is earlier.

(iii) The insurance company is directed to deposit enhanced

amount with running interest at the rate of 7.5% as early

as possible within an outer limit of eight weeks from the

date of receipt of certified copy of this order.

C/FA/3118/2009 JUDGMENT DATED: 20/12/2021

(iv) The apportionment and order for disbursement as made

by the Tribunal in paragraph no.10 of the operative

portion of the order shall hold good for the substituted

award.

Record and proceedings be sent back to the concerned

Court, forthwith.

Sd/-

(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL