Mehboobmiya Gulammohmad Malek vs Mohammadhanif Kalumiya Shaikh
2021 Latest Caselaw 1056 Guj

          C/FA/2154/2011                                          JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/FIRST APPEAL NO. 2154 of 2011


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE R.M.CHHAYA

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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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                MEHBOOBMIYA GULAMMOHMAD MALEK
                             Versus
             MOHAMMADHANIF KALUMIYA SHAIKH & 2 other(s)
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Appearance:
MR.HIREN M MODI(3732) for the Appellant(s) No. 1
DR RUSHANG MEHTA for MR DAKSHESH MEHTA(2430) for the
Defendant(s) No. 3
RULE SERVED(64) for the Defendant(s) No. 1,2
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    CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA

                                   Date : 22/01/2021

                                  ORAL JUDGMENT

1. Feeling aggrieved and dissatisfied with the judgment and order dated 8.4.2011 passed by the Motor Accident Claims Tribunal, Kheda at

C/FA/2154/2011 JUDGMENT

Nadiad in MACP no.1579 of 2003, the appellant­ original claimant has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act").

2. Following noteworthy facts emerge from the record of the appeal:­

That, on 15.4.2003, the appellant was travelling in a rickshaw bearing registration no. GJ­7 Z­880 which was being driven in full speed without following the traffic rules. It is the case of the appellant that when the rickshaw reached Dakor­Mahudha Road, the driver lost control of the rickshaw and the rickshaw turned turtle. Because of the said accident, the appellant received serious injuries and both the legs were fractured. An FIR came to be lodged with the jurisdictional Police Station and the claim petition was filed by the appellant under Section 166 of the Act and claimed compensation of Rs.4,00,000/­. It was the case of the appellant that he was working as driver with Nayadaur Transport Company and was earning Rs.3,000/­ per month. The Tribunal also considered the medical evidence on record and oral deposition of one Mohammadhanif Gulammohammad Malek at Exh.37 and Talibhussain gulammohammad Malek at Exh.38. The Tribunal,

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considering the fact that the appellant had to undergo extensive treatment and had to stay as an indoor patient for almost 75 days in the hospital, awarded a sum of Rs.67,000/­ as medical expenses. Considering the other piece of evidence and more particularly, the injury certificates at Exhs.52 and 53, the Tribunal came to the conclusion that the disability of the body as a whole is to the tune of 60%. The Tribunal also awarded a sum of Rs.30,000/­ under the head of pain, shock and suffering, Rs.15,000/­ for special diet and transportation and thus, awarded total compensation of Rs.3,52,000/­ with 9% interest per annum from the date of claim petition till its realization and being aggrieved by the same, the appellant ­ original claimant has preferred this appeal.

3. Heard Mr. Hiren Modi, learned advocate for the appellant and Dr. Rushang Mehta, learned advocate for respondent no.3. Though served, no one appears for the other respondents.

4. Mr. Hiren Modi, learned advocate for the appellant has contended that the Tribunal has wrongly considered the notional income of the appellant at Rs.2,000/­. Mr. Modi submitted that the certificate was placed on record which shows that the appellant was working as

C/FA/2154/2011 JUDGMENT

a driver of the transport Company and had a salary of Rs.3,000/­ per month. According to Mr. Modi, income of the appellant should be determined at Rs.3,000/­ per month. It is further contended that age of the appellant was 38 years on the date of the accident and considering the fact that because of the injuries sustained, the appellant is not in a position to carry on his job as a driver and the Tribunal ought to have awarded the prospective income. It was further contended that the Tribunal has awarded a meager amount of Rs.30,000/­ under the head of pain, shock and suffering, which should be suitably enhanced as the appellant had to undergo extensive treatment for 75 days and had thereafter to take medicines regularly for a very long period. According to Mr. Modi, even the amount awarded under the head of speciel diet and transportation is too meager is required to be enhanced. On the aforesaid grounds, it was therefore submitted that the appeal may be allowed and the impugned judgment and award may be modified.

5. Per contra, Dr. Rushang Mehta, learned advocate for respondent no.3 has supported the impugned judgment and award. It is submitted that the Tribunal has rightly appreciated the evidence on record and has awarded just

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compensation which does not require any alteration or modification by this Court in exercise of its appellate jurisdiction. According to Mr. Modi, the appeal is meritless and the same deserves to be dismissed.

6. No other or further submissions, grounds and/or contentions are made by the learned advocates appearing for the respective parties.

7. I have considered the submissions made and have also perused the original record and proceedings. Considering the contentions, it is no doubt true that no reliable evidence is produced by the appellant as far as his correct income is concerned. Though an attempt was made by the appellant to contend that he is working as a driver with the transport Company except non­exhibited certificate, there is nothing on record. The appellant has also not examined the Manager/authorised person/proprietor of such transport Company to buttress the contention that he was working as a driver. In such fact situation, the Tribunal has not erred in determining the income by resorting particularly to guesswork. In absence of any evidence, it would be important to rely upon the same from the date of the accident. The learned advocates appearing for

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the respective parties have jointly submitted that on inquiry, the learned advocates have informed the Court that the minimum wages standard as prevailing on the date of the accident was Rs.2,300/­ and accordingly, the income of the deceased can safely be assessed at Rs.2,300/­. Considering the facts of this case and the age of the appellant on the date of the accident being 38, the appellant would be entitled to prospective income to the extent of 40%. Having come to the aforesaid conclusion, the appellant would be entitled to compensation under the head of loss of future dependency as under:­

Rs.2,300/­ Income per month + Rs.920/­ + 40% prospective income = Rs.3,220/­ Income per month X 12 Yearly = Rs.38,640/­ Yearly income X 15 Multiplier = Rs.5,79,600/­ Compensation amount ­ Rs.2,31,840/­ 60% disability = Rs.3,47,760/­ Compensation towards loss of future dependency

8. As far as the other heads are concerned, in opinion of this Court, upon reappreciation of the evidence on record and considering the fact that the appellant had to undergo extensive treatment for a period of 75 days in

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hospital with fractures on both the legs, appropriate amount of compensation under the head of pain, shock and suffering would be Rs.40,000/­ Rest of the award does not require any alteration.

9. Accordingly, the appellant would be entitled to compensation as under:­

Rs.3,47,760/­ Compensation towards loss of future dependency + Rs.27,600/­ Actual loss of income + Rs.67,000/­ Medical expenses + Rs.15,000/­ Special diet and transportation + Rs.40,000/­ Pain, shock and suffering = Rs.4,97,360/­ Total compensation

10. Thus, the appellants ­ original claimant would be entitled to total compensation of Rs.4,97,360/­ with interest at the rate of 9% per annum from the date of claim petition till its realization. The Tribunal has awarded Rs.3,52,000/­ and hence, the appellant­ original claimant would be entitled to additional compensation of Rs.1,45,360/­ with 9% interest per annum from the date of the filing of the claim petition till its realization. The impugned award stands modified only to the aforesaid extent. The insurance Company shall deposit the

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additional/enhanced amount along with the interest as provided in this judgment within a period of three months from the date of receipt of this judgment.

11. Thus, the appeal is partly allowed. As the original claim petition was Rs.4,00,000/­, the appellant shall be liable to pay additional Court fees. Registry is directed to send back the original record and proceedings back to the Tribunal forthwith. However, there shall be no order as to costs.

(R.M.CHHAYA, J) MRP