Gujarat High Court
Naranbhai Karshanbhai Panpaniya vs Devi Transport Through Mukesh ... on 24 December, 2021
Bench: Sandeep N. Bhatt
C/FA/2898/2009 JUDGMENT DATED: 24/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2898 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT Sd/-
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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 ? NO
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 ?
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NARANBHAI KARSHANBHAI PANPANIYA
Versus
DEVI TRANSPORT THROUGH MUKESH MANSUKHBHAI MODI & 3 other(s)
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Appearance:
MR TUSHAR L SHETH(3920) for the Appellant(s) No. 1
MR MAULIK J SHELAT(2500) for the Defendant(s) No. 4
MR NAGESH C SOOD(1928) for the Defendant(s) No. 2
RULE SERVED(64) for the Defendant(s) No. 1,3
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 24/12/2021
ORAL JUDGMENT
1. The appellant herein - original claimant has preferred
the present First Appeal under Section 173 of the Motor Vehicles Act
against the judgment and award passed in Motor Accident Claim
Petition No.358 of 2007 by the Motor Accident Claims Tribunal
C/FA/2898/2009 JUDGMENT DATED: 24/12/2021
(Aux.), Gondal, Camp at Upleta, on 27.01.2009, by which, the
Tribunal has awarded Rs.75,350/- with 9% interest p.a. The present
appeal is preferred by the appellant for enhancement.
2. The brief facts of the present case are that, on
13.06.2007 at around 1:00 p.m., the present appellant and his wife
Daxaben Naranbhai were going in Maruti Car bearing registration
No.GJ-1-E-9012 which is owned by opponent No.3. When they
reached near Labla Hotel on Jetpur-Junagadh road, near Jetalsar
Junction, the tanker bearing registration No.GJ-11-U-9154 has tried
to overtake one vehicle, has come on wrong side of the road, has
dashed with the Maruti car. Due to such accident, wife of the
appellant - Daxaben had expired and appellant himself has received
various injuries like multiple fractures on right hand and also
received head injuries and the appellant had taken treatment as
indoor patient at Dhakan Hospital, Rajkot from 13.06.2007 to
18.06.2007. The appellant had received permanent disability due to
such accident. Therefore, he has filed the claim petition for getting
compensation of Rs.3 lakhs from the opponents. An offence has been
registered before the Jetpur Police Station being C.R. I No.96 of 2007
against the opponent No.1.
2.1 The notices were issued by the Tribunal and respondent
No.1 (owner of Tanker) and respondent No.3 (owner of Maruti) had
not appeared, though served.
2.2 Respondent No.2 - National Insurance Company
(insurance company of the tanker) has appeared and filed its
objections at Exh.12 by contending that the Insurance Company is
not liable as the provisions under Section 64 of the Insurance Act
was not complied with. It was further contended that the driver of
C/FA/2898/2009 JUDGMENT DATED: 24/12/2021
the vehicle No.GJ-11-U-9154 (Tanker) was not holding valid license,
therefore the Insurance Company has denied its liability to pay any
compensation, as claimed in the claim petition.
2.3 Respondent No.4 - United India Insurance Com.
(insurance company of Maruti car) has also appeared and filed its
written statement at Exh.18 by denying the averments made in the
claim petition and has contended that the driver of Maruti car was
not negligent and driver of the Tanker was solely negligent and
therefore, there is no liability of opponent No.4 to pay any amount of
compensation. It is submitted that opponent No.4 be exonerated
from the liability to pay the amount of compensation.
2.4 The claimant has also filed affidavit in support of the
claim petition at Exh.26 and has produced several documentary
evidence like license, R.C. book, pay slip, medical certificates, etc.
2.5 The Tribunal has framed the issues and has also recorded
evidence and after recording evidence and after hearing the
arguments of the respective parties, the Tribunal has awarded
Rs.73,550/- with 9% interest p.a. to the claimant and directed that
respondents No.1 and 2 are jointly and severally liable to pay
compensation to the claimant. The Tribunal has exonerated
respondent No.3 from the liability.
2.6 Being aggrieved by and dissatisfied with the said award,
the present appeal is filed by the appellant - claimant.
3. Learned advocate Mr. Tushar Sheth for the appellant -
claimant has submitted that the Tribunal has erred in considering the
amount of loss of income, more particularly prospective loss of
C/FA/2898/2009 JUDGMENT DATED: 24/12/2021
income, which should be at least 40%, since the age of the claimant
was 32 years at the time of accident and the Tribunal has considered
the actual income only which is Rs.7,812/- per month, as the claimant
was serving as police constable in Jetpur City Police Station.
3.1 Learned advocate for the appellant has further submitted
that the multiplier awarded by the Tribunal is very lower side, which
should be 16 looking to the age of the appellant and in view of the
decision of the Hon'ble Apex Court in the case of National
Insurance Company Limited versus Pranay Shethi reported in
(2017) 16 SCC 680 and in the case of Sarla Verma versus Delhi
Transport Corporation reported in (2009) 6 SCC 121.
3.2 The disability is considered as 15% with the consent of
all the parties by the Tribunal.
3.3 Learned advocate Mr. Sheth has drawn the attention of
this Court towards panchnama at Exh.37 and pointed out that the
relevant discussion made by the Tribunal in Para 7 of the impugned
judgment and has submitted that though the Tribunal has found that
as per the complaint produced at Exh.36, the driver of the Tanker has
tried to overtake another vehicle, has come on wrong side and
dashed with the Maruti car coming from opposite side. Further, even
as per the Panchnama, the accident seems to be happened
somewhere in the middle of the road and more particularly though
there is no break marks of the Tanker is found from the spot of the
accident, the Tribunal has erred in considering the contributory
negligence of both the vehicles - 50% each. Learned advocate for the
appellant has submitted that the Tribunal has therefore erred on
mainly three counts; (i) the aspect of negligence, (ii) the aspect of
considering the multiplier and (iii) the aspect of awarding
C/FA/2898/2009 JUDGMENT DATED: 24/12/2021
prospective loss of income. Therefore, learned advocate for the
appellant has submitted that this appeal be allowed by enhancing the
amount of compensation to the tune of Rs.3,20,000/-, in addition to
the awarded amount, considering the various judgments cited at bar.
He has also submitted that to award the just compensation, it is well
settled principles of law that the Tribunal can grant more
compensation than the claim in the claim petition and therefore, he
has submitted that this appeal may be allowed.
3.4 In support of his submissions on the various points,
learned advocate for the appellant has relied on the decision of the
Hon'ble Apex Court in the case of Bhogireddi Varalakshmi versus
Mani Muthupandi reported in (2018) 11 SCC 73 and has
submitted that multiplier should be considered appropriately by
relying on the decision of Sarla Verma (supra); and that the Tribunal
has erred in considering the multiplier on lower side. He has
submitted that as per decision of Sarla Verma (supra), the multiplier
should be 16, since, at the time of accident, the claimant was aged
about 32 years. Paragraphs 3 & 4 of the above decision are more
relevant, which read as under :
"3. As per the impugned judgment dated 24.03.2015,
the appeal was disposed of. The learned Judge took
note of the decision of this Court in Sarla Verma v. DTC
in adopting the multiplier and observed that going by
the said decision, the multiplier to be applied is "11".
However, taking note of the fact that the deceased
would have retired at the age of 60 years, fixed the
multiplier as "8". In the matter of consortium, it was
observed that "...deceased died not in the prime of his
youth but at his middle age", and hence the widow was
C/FA/2898/2009 JUDGMENT DATED: 24/12/2021
granted consortium of Rs.25,000. No addition was
made towards future prospects.
4. It is shocking and disturbing that the learned Judge
declined to follow the principles laid down by this Court
in unmistakable terms in Sarla Verma as far as
multiplier is concerned. We do not want to say anything
more. Therefore, in this case, the multiplier is taken as
"11". "
3.5 On the aspect of further prospective income, learned advocate
for the appellant has relied on the decision in the case of New India
Assurance Co. Ltd., versus Gajendra Yadav and others reported
in 2018(11) SCC 630 and has submitted that functional disability to
the claimant arising from the accident affects the loss of earning
capacity and future prospects of the claimant. Paragraphs 5 to 8 are
relevant, which read as under :
"5. In the case before us, it is in evidence that there is
85% permanent disability as far as left leg is concerned.
It is also in evidence that he had been working as a
Security Officer in a reputed company and from the
evidence of Deputy Chief Manager before the Tribunal,
it has come out that "prior to accident Gajender was
doing duty in our office established at Bahadur Shah
Zafar Marg and he was in active job and after his
accident when he joined the duty he had been shifted to
our office established at Dariya Ganj where he has to do
lesser work i.e. sedentary duty in which no physical
work is required. The future of employee Gajender has
been sealed and he will not be able to get any
promotion in future."
C/FA/2898/2009 JUDGMENT DATED: 24/12/2021
6. Having heard the learned counsel on both sides and
having regard to the fact that the claimant has, in fact,
suffered a serious injury leading to amputation of the
left leg below the knee and which has certainly caused
a functional disability since he had been in employment
as a Security Officer and since according to the
Management, his future promotions have been sealed,
we are of the view that in the facts of this case, the
computation of compensation for the disability is also to
be worked out by applying a multiplier. The monthly
salary which the claimant was drawing in 2004 was
around Rs. 5 14,000/-. If the future prospects in terms
of Sarla Verma (Smt.) & Ors. Vs. Delhi Transport
Corporation & Anr. (2009) 6 SCC 121 is added, it will
be Rs.21,000/- per month. Having regard to the
disability suffered by the claimant, we are of the view
that without any further deduction, if the total disability
factor is taken as 40%, the claimant would be entitled
to an amount of Rs. 8,400/- per month towards the loss
of future earnings. The age being 37 years, the
multiplier 15 has to be applied. Thus, the compensation
towards future earnings comes to Rs.15,12,000/-
(Rupees Fifteen Lakhs and Twelve Thousand).
7. The High Court, in the pecuniary part, has awarded
Rs.8 Lakhs on account of physical disability and for
future loss of earnings Rs. 13 Lakhs. This is certainly a
duplication. What is to be compensated is only the loss
on account of disability. The said total amount of Rs. 21
Lakhs will stand substituted by Rs.15,12,000/- (Rupees
Fifteen Lakhs and Twelve Thousand) and the rest of the
High Court order is maintained.
C/FA/2898/2009 JUDGMENT DATED: 24/12/2021
8. Towards the claim for change of artificial limb at
least once in two years, we are of the view that 6 it will
be just and proper that a further amount of
Rs.2,00,000/- (Rupees Two Lakhs) is awarded. These
appeals are thus disposed of by holding that the
claimant shall be entitled to a total compensation of Rs.
23,26,835/- (Rupees Twenty Three Lakhs Twenty Six
Thousand Eight Hundred and Thirty Five). The claimant
shall also be entitled to interest at the rate of 8% from
the date of the claim petition."
3.6 He has submitted that future prospective income should
be considered by adding 40% amount in his actual salary at the time
of accident, which the Tribunal has not added that amount. He has
relied on the decision of Pranay Shethi (supra) and Sarla Verma
(supra) in support of his submissions regarding future prospective
income and multiplier.
3.7 Learned advocate for the appellant has also relied on the
decision in the case of Syed Sadiq versus United India Insurance
Co. Ltd. reported in 2014(2) SCC 735 for the aspect of negligence
and has submitted that though the driver of the offending vehicle i.e.
Tanker is negligent and FIR is also registered against him under
Section 279 & other sections of the IPC. The Tribunal, without
assigning cogent and convincing reasons, has attributed 50%
negligent to the driver and owner of the Maruti car, both, which is
totally erroneous. In the present case, the driver of the Maruti car
can be attributed 10% negligent and therefore, he has submitted that
in view of above mentioned judgment, negligence part, which is
recorded by the Tribunal 50% of each vehicle, should be 90% or
C/FA/2898/2009 JUDGMENT DATED: 24/12/2021
100% of the tanker in the facts and circumstances of the present
case.
3.8 He has also relied on the Panchnama and FIR. He has
also requested to consider the aspect of negligence of Maruti car. He
has submitted that the decision reported in First Appeal No.1534 of
2009 for the purpose of considering the multiplier. It is submitted
that this Hon'ble Court may enhance the amount which is awarded
by the Tribunal at least Rs.3 lakhs more, than the awarded amount.
4. Learned advocate Mr. Maulik Shelat for the Insurance
Company has submitted that his Insurance Company has been
exonerated by the Tribunal and otherwise also, the judgment and
award impugned is passed after considering the documentary
evidence produced on record and also considering the provisions of
law by the Tribunal, therefore, he supports the impugned judgment
and award passed by the Tribunal.
5. Per Contra, learned advocate Mr. Nagesh Sood for the
respondent No.2 i.e. the Insurance Company of the Tanker has
vehemently opposed the submissions made by learned advocate for
the appellant claimant and has submitted that the appeal may be
dismissed on various counts. He has submitted that the accident has
occurred on middle of the road as found from the Panchnama and
nothing can be found that the accident has occurred due to sole
negligence of the Tanker driver. He has submitted that when the
appellant has failed to examine any Doctor or any other independent
witness to establish his functional disability and also to communicate
such disability with loss of future income, the Tribunal has rightly
rejected the claim for future loss of income. He has relied on the
celebrated decision in the case of Raj Kumar versus Ajay Kumar
C/FA/2898/2009 JUDGMENT DATED: 24/12/2021
reported in (2011) 1 SCC 343, more particularly paragraphs 8 & 10
of the said judgment, which reads as under :
"8. Where the claimant suffers a permanent disability
as a result of injuries, the assessment of compensation
under the head of loss of future earnings, would depend
upon the effect and impact of such permanent disability
on his earning capacity. The Tribunal should not
mechanically apply the percentage of permanent
disability as the percentage of economic loss or loss of
earning capacity. In most of the cases, the percentage
of economic loss, that is, percentage of loss of earning
capacity, arising from a permanent disability will be
different from the percentage of permanent 7 disability.
Some Tribunals wrongly assume that in all cases, a
particular extent (percentage) of permanent disability
would result in a corresponding loss of earning
capacity, and consequently, if the evidence produced
show 45% as the permanent disability, will hold that
there is 45% loss of future earning capacity. In most of
the cases, equating the extent (percentage) of loss of
earning capacity to the extent (percentage) of
permanent disability will result in award of either too
low or too high a compensation. What requires to be
assessed by the Tribunal is the effect of the
permanently disability on the earning capacity of the
injured; and after assessing the loss of earning capacity
in terms of a percentage of the income, it has to be
quantified in terns of money, to arrive at the future loss
of earnings (by applying the standard multiplier method
used to determine loss of dependency). We may
however note that in some cases, on appreciation of
evidence and assessment, the Tribunal may find that
C/FA/2898/2009 JUDGMENT DATED: 24/12/2021
percentage of loss of earning capacity as a result of the
permanent disability, is approximately the same as the
percentage of permanent disability in which case, of
course, the Tribunal will adopt the said percentage for
determination of compensation (see for example, the
decisions of this court in Arvind Kumar Mishra v. New
India Assurance Co.Ltd. - 2010(10) SCALE 298 and
Yadava Kumar v. D.M., National Insurance Co. Ltd. -
2010 (8) SCALE 567).
10. Ascertainment of the effect of the permanent
disability on the actual earning capacity involves three
steps. The Tribunal has to first ascertain what activities
the claimant could carry on in spite of the permanent 9
disability and what he could not do as a result of the
permanent ability (this is also relevant for awarding
compensation under the head of loss of amenities of
life). The second step is to ascertain his avocation,
profession and nature of work before the accident, as
also his age. The third step is to find out whether (i) the
claimant is totally disabled from earning any kind of
livelihood, or (ii) whether in spite of the permanent
disability, the claimant could still effectively carry on
the activities and functions, which he was earlier
carrying on, or (iii) whether he was prevented or
restricted from discharging his previous activities and
functions, but could carry on some other or lesser scale
of activities and functions so that he continues to earn
or can continue to earn his livelihood. For example, if
the left hand of a claimant is amputated, the permanent
physical or functional disablement may be assessed
around 60%. If the claimant was a driver or a carpenter,
the actual loss of earning capacity may virtually be
C/FA/2898/2009 JUDGMENT DATED: 24/12/2021
hundred percent, if he is neither able to drive or do
carpentry. On the other hand, if the claimant was a
clerk in government service, the loss of his left hand
may not result in loss of employment and he may still
be continued as a clerk as he could perform his clerical
functions; and in that event the loss of earning capacity
will not be 100% as in the case of a driver or carpenter,
nor 60% which is the actual physical disability, but far
less. In fact, there may not be any need to award 10 any
compensation under the head of 'loss of future
earnings', if the claimant continues in government
service, though he may be awarded compensation
under the head of loss of amenities as a consequence of
losing his hand. Sometimes the injured claimant may be
continued in service, but may not found suitable for
discharging the duties attached to the post or job which
he was earlier holding, on account of his disability, and
may therefore be shifted to some other suitable but
lesser post with lesser emoluments, in which case there
should be a limited award under the head of loss of
future earning capacity, taking note of the reduced
earning capacity. It may be noted that when
compensation is awarded by treating the loss of future
earning capacity as 100% (or even anything more than
50%), the need to award compensation separately
under the head of loss of amenities or loss of
expectation of life may disappear and as a result, only a
token or nominal amount may have to be awarded
under the head of loss of amenities or loss of
expectation of life, as otherwise there may be a
duplication in the award of compensation. Be that as it
may."
C/FA/2898/2009 JUDGMENT DATED: 24/12/2021
5.1 He has submitted that the appellant has filed to establish
any loss due to such disability.
5.2 He has also cited another judgment in the case of Bijoy
Kumar Dugar versus Bidyadhar Dutta reported in 2006(3) SCC
242, where the Hon'ble Apex Court has held in para 8 as under :
"8. To appreciate the respective contentions of the
learned counsel for the parties, we have gone through
the relevant material on record. It is by now well-
settled that the compensation should be the pecuniary
loss to the dependants by the death of a person
concerned. While calculating the compensation, annual
dependency of the dependants should be determined in
terms of the annual loss, according to them, due to the
abrupt termination of life. To determine the quantum of
compensation, the earnings of the deceased at the time
of the accident and the amount, which the deceased
was spending for the dependants, are the basic
determinative factors. The resultant figure should then
be multiplied by a 'multiplier'. The multiplier is applied
not for the entire span of life of a person, but it is
applied taking into consideration the imponderables in
life, immediate availability of the amount to the
dependants, the expectancy of the period of
dependency of the claimants and so many other factors.
Contribution towards the expenses of the family,
naturally is in proportion to one's earning capacity. In
the present case, the earning of the deceased and
consequently the amount which he was spending over
the members of his family, i.e. dependency is to
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C/FA/2898/2009 JUDGMENT DATED: 24/12/2021
3 of 6 be worked out on the basis of the earnings of the
deceased at the time of the accident. The mere
assertion of the claimants that the deceased would have
earned more than Rs. 8,000/- to Rs.10,000/- per month
in the span of his lifetime cannot be accepted as
legitimate income unless all the relevant facts are
proved by leading cogent and reliable evidence before
the MACT. The claimants have to prove that the
deceased was in a trade where he would have earned
more from time to time or that he had special merits or
qualifications or opportunities which would have led to
an improvement in his income. There is no evidence
produced on record by the claimants regarding future
prospects of increase of income in the course of
employment or business or profession, as the case may
be. It is stated that the deceased was about 24 years at
the time of the accident. The MACT has accepted Rs.
4,000/- per month, as the earning of the deceased and
after deducting Rs. 400/- per month for his pocket
expenses, the remaining sum of Rs. 3600/- has been
divided into three equal shares, out of which two
shares, i.e. Rs. 2400/- per month or Rs. 28,800/-
(wrongly mentioned as Rs. 28,000/- in the award), were
assessed as loss to both the claimants, who were the
parents of the deceased. The ages of the claimants are
stated to be between 45 and 50 years and accordingly
multiplier of 12 was applied. Thus, a sum of Rs. 28,800/-
X 12 = Rs. 3,45,600/- was awarded as compensation. In
addition thereto, a sum of Rs. 2,000/- has been given for
funeral expenses and a further amount of Rs. 6,000/-
under the head "Loss of Estate". The total sum
awardable is Rs. 3,53,600/- but since the deceased was
held liable for contributory negligence, the liability of
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the insurer with whom the bus in question was insured
is fixed at 50%, i.e. to the extent of Rs. 1,76,800/- with
interest at the rate of 10% per annum from the date of
the filing of the claim application till the date of
payment. The deceased, a young boy of 24 years old,
was unmarried and the claimants were his father and
mother, the dependency has to be calculated on the
basis that within two or three years the deceased would
have married and raised family and the monthly
allowance he was giving to his parents would have been
cut down. Thus, in our view, the MACT has awarded
just and reasonable compensation to the claimants."
5.3 Learned advocate Mr. Sood has submitted that the
Tribunal has rightly assessed the aspect of negligence, future
prospective income and multiplier, in the facts and circumstances of
the case. He has submitted that this appeal may be dismissed, with
appropriate cost.
6. Heard learned advocates for the respective parties. I
have perused the record and proceedings of the Tribunal. I have
considered the submissions made by learned advocates for the
appellant as well as learned advocate for the contesting respondent
No.2 on the aspect of future loss of income, multiplier and also on
the aspect of negligence. I have also considered the judgments cited
at bar and I have perused the FIR produced at Exh.36, Panchnama
drawn of the spot of accident at Exh.37 and I have found that it is
definite version of the complainant in the FIR that the Tanker was
tried to overtake the other vehicle on its side and coming on wrong
side, where Maruti car was going on the left side. The Insurance
Company is not able to controvert it in cross-examination, nor any
C/FA/2898/2009 JUDGMENT DATED: 24/12/2021
other independent eye-witness who has seen the accident, is
examined by the Insurance Company and therefore, that version
should be considered as uncontroverted.
6.1 I have perused the Panchnama which speaks about the
occurrence of the accident due to rash and negligent driving of the
Tanker driver, whereby no marks of break is found on the spot or
from anywhere on the road and this speaks about the negligence of
the Tanker driver and in view of the principle of res ipsa loquitor, it
can certainly establish that the accident must be occurred due to
negligence of the Tanker driver, more particularly when the Tanker is
a heavy and bigger vehicle than the Maruti car. The Tanker driver
has to remain more vigilant and width of the road is also narrow and
therefore, while overtaking, the accident has occurred with the
Maruti car. In my opinion, it can be safely presumed that the driver
of the Tanker is more responsible than the driver of the Maruti car.
Therefore, I am of the opinion that the driver of the Tanker should be
attributed with the liability of 90% and driver of the Maruti car have
not applied the break and he might take proper care and caution to
avoid the accident, 10% negligence should be attributed to the
Maruti car also. Therefore, instead of the finding on the aspect of
negligence given by the Tribunal 50% - 50%, I find that the
negligence of the driver of Tanker should be considered as 90% and
that of Maruti car as 10% and that finding of the Tribunal should be
modified to this extent.
6.2 If we consider the aspect of quantum, the Tribunal has
erred in not considering the future prospective income, which should
be 40% in view of the decision in the case of Pranay Shethi (supra) as
well as Sarla Verma (supra) and the judgment cited by learned
advocate for the appellant reported in 2018(11) SCC 630 and FA
C/FA/2898/2009 JUDGMENT DATED: 24/12/2021
No.1534 of 2009. 40% addition towards future prospective income,
the amount of getting actual salary by the claimant should be
awarded and as the appellant is aged about 32 years at the time of
accident, even from his documentary evidence like license, is also
indicating that the appellant is 32 years of age at the time of
accident, which has occurred on 13.06.2007, therefore, in view of the
decision of Pranay Shethi (supra) and Sarla Verma (supra) and the
judgment cited by the learned advocate for the appellant, in my
opinion, the multiplier should be 16, instead of 5. Therefore, if we
calculate the amount of compensation, the prospective income of the
actual salary of Rs.7,812/- per month should be added, therefore
amount after adding 40% in the actual salary comes to Rs.10,936/-. If
we consider the undisputed disability of the appellant to 15%, it
comes to 1640 x 12 months, it comes to Rs.19,680/- and after
applying multiplier of 16, the annual loss of income comes to
Rs.3,14,880/-. We can add pain, shock and suffering as granted by
the Tribunal, which is though on conservative side, is found proper
and therefore Rs.11,000/- towards pain, shock and suffering would be
proper. Medical expenses as granted by the Tribunal Rs.39,900/- and
actual loss of income which is considered by the Tribunal for three
months is Rs.23,436/- and Rs.7,000/- is awarded by the Tribunal
towards attendant charges and special died, etc. In all, the Tribunal
has calculated amount to the tune of Rs.1,50,696/-, which should be,
after awarding the amount of 16 multiplier and adding the
prospective income of 40%, total amount, as calculated above, comes
to Rs.3,96,216/- which is as under :
Rs.3,14,880/- for prospective future loss of income
Rs. 11,000/- for pain, shock and suffering
Rs. 39,900/- for medical expenses
Rs. 23,436/- for actual loss for three months
C/FA/2898/2009 JUDGMENT DATED: 24/12/2021
Rs. 7,000/- for special diet, attendant charges, etc.
--------------------
Rs.3,96,216/- Total
6.3 Therefore, in view of above, the amount is worked out as
Rs.3,96,216/- and after deducting 10% liability of the appellant, it
comes to Rs.39,600/- (in round figure). Therefore, Rs.3,56,616/-
means Rs.3,57,000/- (round figure) is the amount which should be
awarded by the Tribunal to the claimant. The amount of Rs.75,350/-
is already awarded by the Tribunal vide impugned judgment and
award with 9% interest, which should be enhanced to the tune of
Rs.3,56,616/- with 9% interest p.a. from the date of application.
Therefore, accordingly, the amount of difference i.e. Rs.2,81,266/-, as
per above calculation, should be now payable to the claimant -
appellant by opponents No.1 and 2, who are Tanker owner and
Insurer of the Tanker, jointly and severally, which would meet the
ends of justice.
7. It is noteworthy to mention that the provisions of the Motor
Vehicles Act, 1988 which gives paramount importance to the concept
of 'just and fair' compensation. It is a beneficial legislation which has
been framed with the object of providing relief to the victims or their
families. Section 168 of the Motor Vehicles Act deals with the
concept of 'just compensation' which ought to be determined on the
foundation of fairness, reasonableness and equitability. Although
such determination can never be arithmetically exact or perfect, an
endeavor should be made by the Court to award just and fair
compensation irrespective of the amount claimed by the claimants.
8. In view of above, the following order is passed.
8.1 The First Appeal is partly allowed to the aforesaid extent, with
C/FA/2898/2009 JUDGMENT DATED: 24/12/2021
no order as to costs.
8.2 The impugned judgment and award passed in Motor Accident
Claim Petition No.358 of 2007 by the Motor Accident Claims Tribunal
(Aux.), Gondal, Camp at Upleta, on 27.01.2009 is hereby modified to
the above extent by awarding Rs.2,81,266/- more, in addition to the
awarded amount of Rs.75,350/-, with 9% interest p.a. and such
amount is recovered from the respondents No.1 and 2 as they are
jointly and severally liable.
8.3 Consequently, the opponents No.1 and 2 are directed to deposit
the amount of Rs.2,81,266/- with 9% interest p.a. towards enhanced
amount in addition to the amount which has already been awarded
by the Tribunal by way of impugned judgment and award. Such
amount shall be deposited within a period of six weeks from the date
of receipt of this order.
8.4 On depositing such amount, the Tribunal shall disburse the
same to the appellant, by account payee cheque, after due
verification and after following due procedure, forthwith.
8.5 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
Sd/-
(SANDEEP N. BHATT,J)
M.H. DAVE
