Gujarat High Court
Harmanbhai Gordhanbhai Patel vs Nanuram Dhanraj Jate Bamaniya on 24 December, 2021
Bench: Sandeep N. Bhatt
C/FA/2168/2013 JUDGMENT DATED: 24/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2168 of 2013
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE MR. JUSTICE SANDEEP N. 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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HARMANBHAI GORDHANBHAI PATEL
Versus
NANURAM DHANRAJ JATE BAMANIYA & 2 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
MR VC THOMAS(5476) for the Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 24/12/2021
ORAL JUDGMENT
1. The present appeal is filed by the original-claimant under
Section 173 of the Motor Vehicles Act against the judgment
and award passed in Motor Accident Claim Petition No. 309 of
2008 by the Motor Accident Claims Tribunal, Vadodara, by
which, the claim petition of the claimant is partly allowed to
C/FA/2168/2013 JUDGMENT DATED: 24/12/2021
the tune of Rs.1,01,120/- with 7.5% interest by judgment and
award dated 22.03.2013. The claimant has filed the present
appeal for further enhancement of Rs.3 lakhs.
2. The brief facts of the present appeal are that, the
appellant-claimant viz., Mr. Harmanbhai Gordhanbhai Patel
was coming from Varnama to Vadodara by driving his scooter
bearing registration No. GJ-06-BM-9024 on National Highway
No.8 on 29.10.2005. He was driving his scooter in moderate
speed, by following the traffic rules, and that when he reached
near Varnama Navinagari, at that point of time, the respondent
No.1, who was driving Tanker bearing registration No. GJ-06-X-
8874 in rash and negligent manner, had come on wrong side
and dashed with the scooter of appellant-claimant and the
claimant has sustained serious fracture injuries on his right
hand and other parts of the body due to that accident and
therefore, claimant has filed this claim petition to get Rs. 5
lakhs towards compensation by filing Motor Accident Claim
Petition No. 309 of 2008 against the respondents before the
Tribunal.
3. The opponent Nos.1 & 2 have jointly filed the written
statement at Exh. 8, wherein the opponents have stated that
the claim is not correct. It is averred in the written statement
that the date of accident, time and registration number of the
Truck and the particulars of the accident are not acceptable to
the opponent Nos.1 & 2.
4. The opponent No.3 - Insurance Company has also filed its
written statement at Exh. 12 and has denied the averments
C/FA/2168/2013 JUDGMENT DATED: 24/12/2021
made in the claim petition in toto. It is further averred in the
written statement that the claimant was driving his scooter in
the middle of the road without caring for the other vehicles
passing on the road and therefore, due to sole negligence of
the appellant to the extent 80% to 100%, the scooter had
dashed with the Truck and therefore, prayed to dismiss the
claim petition. The Tribunal has framed the issues at Exh. 17
for consideration and determination and has also permitted the
parties to lead the evidence.
5. It is further noted that it is the say of the claimant in the
claim petition as well as by way of documentary evidence
produced by the claimant that initially, the claimant has taken
treatment from Dr. Rajesh Shah, as indoor patient and his
treatment was continuing during the pendency of the claim
petition. The claimant has sustained injuries on his right hand
serious wound on right hand and also fracture injuries on his
right hand. The claimant has averred in the claim petition that
skin grafting was also done and plaster bandage was also
applied on his right hand. It is the say of the claimant that the
doctor had advised him to take rest for two months and
thereafter, many times he had visited the hospital for the
treatment. He has also submitted in his pleadings that the
claimant has taken treatment from the hospital of Dr.
Machchar and as he has got disability due to accident. Further
treatment is taken from various doctors. It is the say of the
appellant that he is healthy young man and he is working as a
teacher at Poicha, Taluka: Savli and he is drawing Rs.18,016/-
towards monthly salary and he is also having agricultural land
at Savli village and is earning Rs.3 lakhs per annum from the
agricultural income. The claimant has further submitted that
C/FA/2168/2013 JUDGMENT DATED: 24/12/2021
he was required to keep a person for helping him during the
period of treatment and now he cannot lift any goods
comfortably and he cannot do any hard-work and he had
incurred huge expenses towards medical treatment and
attendant charges. The disability sustained by the appellant
affects his earning capacity and therefore, the appellant has
filed claim petition initially for Rs. 3 lakhs, which was
subsequently enhanced to Rs. 5 lakhs before the Tribunal.
5.1 The Tribunal has considered the pleadings, documentary
evidence and oral evidence adduced by the parties and has
awarded Rs. 1,01,120/- with 7.5% interest by holding
respondent Nos. 1, 2 & 3 jointly and severally liable to pay.
Being aggrieved and dissatisfied with the impugned judgment
and award, the present First Appeal under Section 173 of the
Motor Vehicles Act is filed by the original-claimant.
5.2 The appellant, through his advocate Mr. Hiren M. Modi,
has argued various points in the present appeal and has
submitted that the disability considered by the Tribunal is only
14%, looking to the injury and medical certificates issued by
Dr. Rajesh M. Shah and Dr. Himanshu D. Patel. The percentage
of injury should be on the higher side. He has also submitted
that 15% should be considered towards prospective income,
whereby the Tribunal has erroneously not considered the
prospective income. He has also submitted that the multiplier
of at least 5 should be granted in the facts and circumstances
of the present case, which was not granted by the Tribunal. He
has also submitted that though the appellant has suffered
various injuries and was hospitalized for the period from
29.10.2005 to 25.11.2005 and thereafter, also he had to take
C/FA/2168/2013 JUDGMENT DATED: 24/12/2021
rest for a month or so, the amount of pain, shock and suffering,
as awarded, is only Rs.10,000/- by the Tribunal, which should
be on a higher side. He has relied on the various provisions of
the Motor Vehicles Act as well as relied on the judgment in the
case of Sarla Verma & Ors vs Delhi Transport Corp.
reported in 2009 6 SCC 121 and National Insurance Co. Ltd
vs Pranay Sethi reported in 2017 (4) KLT 662 (SC) and
submitted that the amount which is awarded by the Tribunal is
not sufficient. He has further submitted regarding the aspect of
disability and relied on the judgment rendered by this
Honourable Court in First Appeal No. 2724 of 2008, more
particularly, Para 10.1 and 11, which reproduce as under:
"10.1. After going through the said observations, I find
that the Supreme Court stated that when compensation is
awarded by treating the loss of future earning capacity as
100 per cent (or even anything more than 50 per cent),
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.
11. In the case before me, the learned Tribunal below
has not awarded any amount towards loss of future
earning and in such circumstances, in my opinion, the
learned Tribunal should be justified in awarding Rs.
3,12,816 for loss of amenities as consequence of the
physical disablement. It, however, appears that the
learned Tribunal described the said amount under the
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head of "loss of income due to disability". As an appellate
Court, I propose to award the said amount not towards
"loss of income due to disability" but towards
"compensation for loss of amenities as consequence of
the disablement" inasmuch as for the accident, a 100% fit
person had become 75% disabled in the opinion of the
expert even though the Tribunal has considered it only at
38%, and the appellant cannot evade it's responsibility for
paying compensation for such disablement of the claimant
for the rest of his life."
5.3 Mr. Modi, learned advocate for the appellant has
submitted that prospective income should be awarded in the
case of even salaried person with permanent job, in view of the
judgment in the case of Pranay Sethi (Supra) and therefore,
he has prayed that at least 15% should be added towards
prospective loss of income.
5.4 For the purpose of considering the prospective income
as well as considering multiplier, Mr. Modi, learned advocate
for the appellant has relied on the judgment rendered in First
Appeal No. 2341 of 2018 by this Honourable Court, more
particularly, the observations made in Paras 8, 9 and 10, it is
submitted that in the present case, the claimant is admittedly
working as a teacher.
6. Per contra, learned advocate Mr. V.C. Thomas, for the
insurance company has submitted that in view of the decision
in the case of Raj Kumar Vs. Ajay Kumar, 2010(0) GLHEL -
C/FA/2168/2013 JUDGMENT DATED: 24/12/2021
SC 49315, the Tribunal has rightly not considered the aspect
of prospective income and also not considered multiplier for
calculating the compensation. He has also submitted that the
amount of pain, shock and suffering is appropriately awarded
by the learned Tribunal looking to the period of hospitalization
and injuries and therefore, he has submitted that no
interference is required in the present appeal as the amount of
compensation is just and proper and therefore, he prays to
dismiss the present first appeal.
7. I have heard learned advocates for the respective parties
and I have also perused the record and proceedings of the
matter. The appellant was working as a teacher with Poicha
Vidhyalay, Savli and was drawing salary Rs. 18,016/- per
month and as per the permanent partial disability which he has
received, Dr. Himanshu Patel has opined that the claimant has
sustained 27% disability. In view of above and in view of the
judgment cited at Bar by Mr. Hiren Modi, learned advocate for
the appellant. I think it would be proper to award 5 multiplier. I
also find that the amount of pain, shock and suffering should
be at least Rs.20,000/- and therefore, if Rs. 18,016/- is
considered as monthly salary, by adding 15% towards future
prospective income, it comes to round figure of Rs.27,000/-.
Out of Rs.20,718/- per month, 14% disability which comes to
Rs.2,900/- per month, multiplied by 12, which comes to
Rs.34,800/-. If we consider 5 multiplier, then Rs.1,74,000/- is
the amount towards the future loss of income to the claimant
and if we consider pain, shock and suffering Rs.20,000/-,
instead of Rs.10,000/- awarded by the Tribunal. Therefore, we
recalculate the amount of compensation as under:
C/FA/2168/2013 JUDGMENT DATED: 24/12/2021
Future Loss of Income Rs.1,74,000/-
Actual Loss of Income Rs.36,120/-
Pain, Shock and Suffering Rs.20,000/-
Medical Expenditure Rs.50,000/-
Special Diet, Attendant Rs.5,000/-
Charges
Total Rs.2,85,120/-
7.1 Therefore, total Rs.2,85,120/- is the amount payable with
7.5% interest per annum from the date of application to the
claimant. The Tribunal has awarded Rs.1,01,120/-, so
remaining amount of Rs.1,84,000/- with 7.5% of interest per
annum from the date of application is now payable to the
claimant. Accordingly, the judgment and award passed by the
Tribunal is modified by directing to consider the total amount
of compensation Rs.2,85,120/- with interest @ 7.5% per annum
from the date of application and the amount enhanced by this
Court in the present appeal is calculated of Rs.1,84,000/- with
interest @ 7.5% per annum shall be deposited by respondent
Nos. 1, 2 & 3 who are liable jointly and severally before the
concerned Tribunal, within six-weeks from the receipt of the
order and on depositing such amount, the Tribunal shall pay
such amount to the claimant after due verification and after
following due procedure.
8. In view of the above, the present First Appeal is allowed
to the aforesaid extent. The judgment and award passed by
Motor Accident Claims Tribunal, Vadodara in Motor Accident
C/FA/2168/2013 JUDGMENT DATED: 24/12/2021
Claim Petition No.309 of 2008 is modified to the above extent.
No order as to costs.
9. Record and proceedings be sent back to the concerned
Tribunal, forthwith.
Sd/-
(SANDEEP N. BHATT,J)
SLOCK BAROT
