Sajidbhai Babubhai Khalifa vs Sabirmiya Ahmedmiya Malek
2021 Latest Caselaw 970 Guj

            C/FA/94/2011                                        JUDGMENT



              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                           R/FIRST APPEAL NO. 94 of 2011

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA                        sd/­
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1      Whether Reporters of Local Papers may be allowed to see             NO
       the judgment ?

2      To be referred to the Reporter or not ?                             NO

3      Whether their Lordships wish to see the fair copy of the            NO
       judgment ?

4      Whether this case involves a substantial question of law as         NO
       to the interpretation of the Constitution of India or any
       order made thereunder ?

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                        SAJIDBHAI BABUBHAI KHALIFA
                                   Versus
                   SABIRMIYA AHMEDMIYA MALEK & 2 other(s)
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Appearance:
MR PARESH M DARJI(3700) for the Appellant(s) No. 1
MR SUNIL B PARIKH(582) 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 : 21/01/2021
                        ORAL JUDGMENT

1.0. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 31.07.2010 passed in MACP No.1056 of 1996 passed by the Motor Accident Claims Tribunal (Auxi), Nadiad, the appellant - original claimant has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988.

2.0. The following facts emerge from the record of the appeal. That the accident took place on 13.5.1996 at about 8.30 am. It is the case of the appellant that while he was standing near the Pan

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Shop situated near the ST stand, Tempo bearing registration no. GJ­7­T­7485 came from Mahudha Market side being driven in rash and negligent manner and dashed with the appellant who was standing on the side of the road. It is the case of the appellant that he sustained serious injuries. An FIR was lodged with the jurisdictional Police Station and present Claim Petition was filed claiming Rs.2,50,000/­ as total compensation. It was the case of the appellant that he was 18 years old on the date of accident and was doing business of Barber and was earning Rs.2000/­ per month. The appellant deposed before the Tribunal at Exh.54 and also relied upon the oral testimony of Dr.V.R. Sheth at Exh.70 and certificate at Exh.71 of Dr. V.R. Sheth and also relied upon the documentary evidence such as complaint at Exh.57, Panchnama at Exh.58, Chargsheet at Exh.61 and birth certificate at Exh.74. The Tribunal after appreciation of evidence on record, determined the income of the deceased at Rs.1750/­ and relying upon the medical evidence both oral and documentary evidence, the Tribunal come to the conclusion that the appellant has incurred total disability of the body as a whole to the extent of 45%. Considering the age of the appellant, the Tribunal applied multiplier of 18 and awarded a sum of Rs.1,70,208/­ as compensation under head of future loss of income. That the Tribunal also further awarded sum of Rs.25,000/­ as compensation towards pain, shock and suffering and further awarded a sum of Rs.31,000/­ under the head of medicines and medical treatment and Rs.6000/­ under the head of transportation, special diet and attendant charges and Rs.7000/­ towards actual loss of income and thus, awarded total compensation of Rs. 2,39,210/­ (rounded off) with 9% interest from the date of filing of

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the Claim Petition till its realization. Being aggrieved and dissatisfied with the impugned judgment and award, the appellant has preferred present appeal.

3.0. Heard Mr. Paresh Darji, learned advocate for the appellant and Mr. Sunil Parikh, learned advocate for the respondent - Insurance Company. Though served, nobody appears on behalf of the other respondents.

4.0. Mr. Darji, learned advocate for the appellant has contended that the Tribunal has erred in considering the income of the deceased. According to Mr. Darji, learned advocate for the appellant considering the disability of the appellant and fact that the appellant was Barber and because of the permanent disability, he has incurred incapacity of work, prospective income ought to have been granted by the Tribunal, however no prospective income is granted. According to Mr. Darji, as per the judgment of the Hon'ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, the appellant would be entitled to prospective income to the extent of 40%.

4.1. Mr. Darji further contended that the Tribunal has not appreciated the medical evidence on record and has wrongly considered that the appellant would be entitled to compensation of Rs.25000/­ only under the head of pain, shock and suffering. Mr. Darji contended that the appellant had to undergo extensive treatment and had to also consult neuro surgeon and in such event

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appropriate amount for pain, shock and suffering deserves to be granted to the appellant.

5.0. Per contra, Mr. Sunil Parikh, learned advocate for the respondent Insurance Company has supported the impugned judgment and award passed by the Tribunal and has submitted that the Tribunal has rightly appreciated the evidence on record and no modification or alteration is required in the impugned judgment and award and appeal being merit less and deserves to be dismissed.

6.0. No other and further contention, submissions and grounds have been raised by the learned advocates for the respective parties.

7.0. I have perused the original record and proceedings of the case. Upon considering the submissions made by the learned advocates for the parties and considering the evidence on record, it is matter of fact that the appellant had sustained serious injuries and has incurred 45% permanent disability body as a whole. Medical papers of the appellant indicates that the appellant had to undergo extensive treatment before three different doctors and had to pass through pain and agony of the same.

7.1. In facts of this case and following the ratio laid down by the Hon'ble Supreme Court in the case of Pranay Shethi (supra), the appellant would be entitled to prospective income to the tune of 40%. As far as income is concerned, even in the claim petition, it

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was claimed that he was earning Rs.2000/­ per month, as the Tribunal has determined Rs.1750/­ per month, the same does not require any modification or alteration but in opinion of this Court, appellant would be entitled to prospective income looking to the gravity of injury sustained permanently. At the same time, considering the medical evidence on record and upon re­ appreciation of the same, the Tribunal has awarded a lesser amount under the head of pain, shock and suffering, which deserves to be appropriately enhanced. In opinion of this Court, in order to provide for just compensation, the appellant is required to be granted additional income as prospective income to the tune of 40% and the amount of pain, shock and suffering deserves to be enhanced to Rs.40,000/­ instead of Rs.25,000/­. Rest of the amount as already awarded by the Tribunal deserves to be maintained.

7.2. Having come to the aforesaid conclusion, the appellant would be entitled to compensation as under:

"Rs.1750/­ per month income + Rs.700/­ (40% prospective income) =Rs.2450/­ 45% (disability body as a whole)= Rs.1102 x 12 x 18 = Rs. 2,38,032/­ towards future loss of income, Rs.40,000/­ toward pain, shock and suffering, Rs.31,000/­ under the head of medicines and medical treatment and Rs.6000/­ under the head of transportation, special diet and attendant charges and Rs.7000/­ towards actual loss of income."

The appellant would be entitled to total compensation of Rs..3,22,032/­. As the Tribunal has awarded Rs.2,39,210/­ the

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appellant would be entitled to an additional amount of Rs.82,822/­. Insurance Company shall deposit the additional amount with 6% interest on the enhanced amount from the date of Claim Petition till its realization. Rest of the award including interest on the amount awarded by the Tribunal remained unaltered. Accordingly, the appeal is allowed to the aforesaid extent. The impugned judgment and order is modified to the aforesaid extent. The insurance Company shall deposit the additional amount as awarded within a period of three months from the date of receipt of this judgment and order. However, there shall be no order as to costs. Registry is directed to send the original record and proceedings back to the Tribunal forthwith.

sd/­ (R.M.CHHAYA, J) KAUSHIK J. RATHOD